Monday, November 29, 2021

"The population prevalence of solitary confinement"

Th title of this post is the title of this notable new research article in the new issue of the journal Science Advances and authored by Hannah Pullen-Blasnik, Jessica T. Simes and Bruce Western.  Here is its abstract:

Solitary confinement is a severe form of incarceration closely associated with long-lasting psychological harm and poor post-release outcomes.  Estimating the population prevalence, we find that 11% of all black men in Pennsylvania, born 1986 to 1989, were incarcerated in solitary confinement by age 32.  Reflecting large racial disparities, the population prevalence is only 3.4% for Latinos and 1.4% for white men.  About 9% of black men in the state cohort were held in solitary for more than 15 consecutive days, violating the United Nations standards for minimum treatment of incarcerated people.  Nearly 1 in 100 black men experienced solitary for a year or longer by age 32.  Racial disparities are similar for women, but rates are lower.  A decomposition shows that black men’s high risk of solitary confinement stems primarily from their high imprisonment rate.  Findings suggest that harsh conditions of U.S. incarceration have population-level effects on black men’s well-being.

November 29, 2021 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, November 24, 2021

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

November 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Tuesday, November 23, 2021

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2021"

I was excited to receive new of this new Bureau of Justice Statistics' publication with lots of rich new data about the federal prisoner population.  This website provides this overview and a few key findings from "Federal Prisoner Statistics Collected under the First Step Act, 2021":

Description

This is the third report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons (BOP) for calendar year 2020. Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

  • The federal prison population decreased 13%, from 174,391 at yearend 2019 to 151,283 at yearend 2020.
  • In 2020, a total of 91 pregnant females were held in BOP-operated prison facilities, which was half the number held in 2019 (180).
  • In 2020, a total of 14,791 persons held in federal prison participated in a nonresidential drug abuse program, 10,868 in a residential drug abuse program, and 1,268 in a treatment challenge program for a substance use disorder.
  • In 2020, a total of 418 federal prisoners received medication-assisted treatment (approved by the U.S. Food and Drug Administration) to treat a substance use disorder.

The full document has a lot more interesting highlights, including these notable data points about the work of the federal risk assessment tool used by BOP known as PATTERN:

November 23, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, November 16, 2021

Another quartet of must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Since my last posting a few months ago, the series has added four awesome new essays, and here are links to the latest quartet:

Prior related posts:

November 16, 2021 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, November 12, 2021

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

November 12, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Highlighting compassion's limits as to prison releases during pandemic

Wanda Bertram has this notable New Republic commentary fully headlined, "State Prisons Released More People Before Covid-19 Than During It: Prison officials touted a compassionate response to Covid, but the statistics tell another story."  I recommend the full piece, and here is how it starts (with links from the original):

As Covid-19 first spread through the United States, it became clear that jails and prisons would see the worst of it. Already suffering from overcrowded, unsanitary facilities and medical neglect, incarcerated people lived in prime conditions for deadly outbreaks.  Responding to pressure from advocates, prison officials insisted they would look for opportunities to release people who could go home safely or who were at high risk of dying from the disease.

But state prison statistics show another story: Relatively few people have been released from prisons over the course of the pandemic.  According to data collected by the Prison Policy Initiative (where I work as a spokesperson) tracking releases in 11 states, 10 of those states reported releasing even fewer prisoners in 2020 and the beginning of 2021 than they had in 2019.  This drop in releases occurred as the coronavirus infected one in every three people in prison nationwide, leading to 2,800 deaths as of this October.

Many prisons did make policy changes designed to expedite early releases.  In most places, though, these changes didn’t result in more people going home.  An apparent drop in the overall prison population during the last two years, most agree, is due to fewer people being sent to prison in the first place, not people being freed. So why did releases go down?  Prison officials say that they make decisions on petitions for early release by weighing several factors, including an individual’s behavior, the nature of their original offense, their potential risk to public safety, and circumstances that might prompt a “compassionate” release (such as a prisoner suffering from severe dementia).  To be sure, the pandemic posed logistical challenges — making it hard to hold in-person parole hearings, offer classes that are sometimes prerequisites for parole, or place people in halfway houses.  But the pandemic also introduced what should have been a compelling new factor in release decisions: the risk of serious illness or death.  One would think this would have tipped the scales in a significant number of cases, adding up to more releases.  The fact that it did not raises disturbing questions about the conduct of prison officials.

While the data collected by my colleagues at the Prison Policy Initiative is incomplete, because only some states publish monthly release data, anecdotes and statewide reports help fill in the gaps. We know, for instance, that compassionate releases have stagnated in many states.  A recent investigation by The Salt Lake Tribune showed Utah’s parole board didn’t increase compassionate releases during the pandemic; instead it denied people like Jesus Gomez, an 84-year-old man confined to a wheelchair who can’t remember his crimes.  Over in Nevada, officials granted zero compassionate releases in 2020; medical staff in its prisons failed even to identify candidates to review. Alabama, whose infamously crowded prisons hold about 28,000 people, identified just 15 candidates for compassionate release last year and granted it to five.  Alabama also granted parole to a smaller percentage of the people who applied in the spring and summer of 2020 than it had from 2018 to 2019.  Meanwhile, the Southern Poverty Law Center obtained a list of the oldest incarcerated people in Alabama, discovering that hundreds were parole-eligible but either had been denied or hadn’t had a hearing.

November 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 10, 2021

BJS releases "Census of State and Federal Adult Correctional Facilities, 2019 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics has released this new report providing a US correctional census with "data collected from state, federal, and private adult correctional facilities on the characteristics of facilities by type, operator, size, physical security level, capacity, court orders, and programs." This report provides a pre-COVID era snapshot o f US carceral realities, as decribed at the start of the 24-page report:

At midyear 2019, there were a total of 1,677 adult correctional facilities in the United States.1 Of these, 111 were operated by the Federal Bureau of Prisons (BOP), 1,155 were operated by state correctional authorities, and 411 were privately operated (table 1).  Confinement facilities made up 69% of all adult facilities, and community-based facilities made up the remaining 31% (figure 1).

Confinement facilities held about 95% of all prisoners reported at midyear 2019.  About 8 in 10 (83%) confinement facilities were operated by state authorities, and those facilities held a comparable percentage of prisoners in confinement facilities (82%) (figure 2).  About 2 in 3 (64%) community-based facilities were privately operated, and those private facilities housed about half (51%) of prisoners reported in community-based facilities at midyear 2019.

Statistics in this report are based on the 2019 Census of State and Federal Correctional Facilities (CCF).  The CCF covers adult correctional facilities operated by state departments of corrections, BOP, and private contractors in all 50 states, including the combined jail and prison systems in Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont.

November 10, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 04, 2021

Federal prison population has now grown more than 4,300 persons (almost 3%) in just last six month

Prez Joe Biden campaigned on a promise to "take bold action to reduce our prison population."  But I cannot think of a single action he has taken over his first 10 months in office, let alone any "bold action," to reduce the federal prison population.  And the latest numbers from the federal Bureau of Prisons tell a notably story of federal prison population growth, not reduction, so far in the the Biden era.

The day after Joe Biden was inaugurated, I authored this post posing a 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 numerical realties about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term in office, this population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

At the 100 day mark of the Biden Administration, I noted in this post that the prison population in the first few months of the Biden era had held pretty steady.  Specifically, as of May 6, 2021, the federal prison population clocked in at 152,085, an increase of just over 500 persons in inauguration day.  But now the BOP update of the federal prison population as of Nov. 4, 2021 reports 156,428 "Total Federal Inmates."  Thus, over the last six months, the total federal prison population has grown nearly 3% with more than 4,300 additional inmates.

This prison growth, I suspect, is mostly a function of the federal criminal justice system returning to more case-processing normalcy as COVID concerns recede.  (The reduction in COVID concerns also likely is resulting in fewer grants of compassionate release and perhaps a greater willingness of some judges to order the start of prison terms.)  Increased concerns about violent crime might also be playing a role, directly or indirectly, in the flow of prisoners in and out of federal facilities.

Though a range of uncertain factors may be driving the significant uptick in federal prisoners over the last six months, I am certainly inclined to now predict that we will see continued increases in the federal prison population unless and until Prez Biden makes an effort to carry out his pledge to "take bold action to reduce our prison population."  I am not holding my breath.

November 4, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Saturday, October 23, 2021

Still more great Inquest pieces, including a timely commentary on reproductive justice

I continue to hope readers are not tired of all my blogging about Inquest, "a decarceral brainstorm," because the site continues to publish must-read essays and other great materials that remain so  blogworthy.  Here are some new great new reads from the site since the last time I blogged about it, concluding with an excerpt focused on the intersection of incarceration and reproductive rights:

From James M. Binnall, "Carceral Wisdom: Like the value they bring to the classroom, people who have experienced the harms of the penal system have much knowledge to bring to our nation’s jury trials."

From Felix Sitthivong, "Divide and Conquer: For those of us on the inside who believe in prison abolition by any means necessary, prison closures really mean prison closures. The state and some of my fellow prisoners don’t like that."

From Inez Bordeaux, "Radicalized at the Workhouse: The criminal legal system almost took my life from me. The anger that came after now fuels my life’s work."

From Angel Parker, "The True Jailers of Rikers: As demands grow louder for decarcerating and shutting down New York City’s deadly jail complex, judges and prosecutors have escaped accountability. But they’re the ones driving the crisis."

"Saying Their Names: How public defenders in New York City organized to speak up for those who have died on Rikers — and to keep others from going there."

From Crystal Hayes, Carolyn Sufrin & Jamila Perritt, "Where Choice Ends: Unless and until mass incarceration is ended, Roe v. Wade, and reproductive freedom writ large, will never be safe." An excerpt:

Mass incarceration is a system that wields enormous control and power over people’s lives and violates every single tenet of reproductive justice.  Reproductive justice, a theory first coined in 1994 by 12 Black women, maintains that all people, especially communities that have been historically excluded and marginalized — Indigenous women, Black women, trans people, and other women of color — should have access to the material resources necessary to fully realize the range of reproductive, sexual health care, and technologies available to them, unencumbered by any barriers.

Reproductive justice includes four main tenets holding that everyone has a human right to decide if and when they will have a child and the conditions under which they will give birth; to decide if they will not have a child and their options for preventing or ending a pregnancy; to parent the children they already have with the necessary social supports in safe environments and healthy communities, and without fear of violence from individuals or the government; and to possess bodily autonomy free from all forms of reproductive oppression.  Black women who pioneered reproductive justice were seeking a broader way to understand and frame the need to access reproductive health care.  Their efforts included a racial analysis, and critique, of the idea that all women have access to the same resources to make healthy decisions about their own bodies and fertility — while assailing the flawed assumption that all women who choose to have children get to do so and even parent their own children.

For people in prison and jail, all these tenets are beyond reach.  Once incarcerated, people are stripped of bodily autonomy and the freedom and capacity to make healthy decisions over their own bodies in nearly all respects, including reproductive health.  In these environments, it is well documented that abortion access is heavily curtailed and in some cases non-existent, despite legal precedent that incarcerated people retain their right to abortion.  Protecting abortion care and access, contraception, and other sexual health care as part of a holistic approach to reproductive health care, for people in Texas and beyond, demands that we go beyond pushing the courts and political actors to protect Roe v Wade.  Protecting Roe is woefully insufficient in a society where any person is denied basic reproductive healthcare, including those who are incarcerated.  We must protect Roe while also ensuring it is a reality for incarcerated people. To do so, fighting to end mass incarceration altogether is critical.

October 23, 2021 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, October 21, 2021

"Data update: As the Delta variant ravages the country, correctional systems are dropping the ball (again)"

The title of this post is the title of this new briefing from the Prison Policy Initiative authored by Emily Widra.  Here is how it starts and ends:

The COVID-19 pandemic is far from over, particularly inside prisons and jails.  The death rate from COVID-19 in prisons is more than double that of the general U.S. population. In state and federal prisons across the country, over 2,800 people have died of COVID-19 and almost 438,000 people in prison have been infected, and thousands of additional cases are linked to individual county jails.  As the more contagious Delta variant ravages parts of the nation, public health officials continue to recommend prison population decreases as a primary method of risk reduction.  Our data show that with just a few exceptions, state and local leaders are continuing to fail to reduce their prison and jail populations.

The federal Bureau of Prisons, state governments and departments of corrections, and local officials have a responsibility to protect the health and lives of those who are incarcerated.  After 18 months of outbreak after outbreak in prisons and jails, it is clear correctional authorities must be held accountable for their failure to reduce their populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities....

Even before COVID-19, prisons and jails were a threat to public health and considered notoriously dangerous places during any sort of viral outbreak.  And yet, correctional facilities continue to be the source of a large number of infections in the U.S.  The COVID-19 death rate in prisons is almost three times higher than among the general U.S. population, even when adjusted for age and sex (as the prison population is disproportionately young and male).  Since the early days of the pandemic, public health professionals, corrections officials, and criminal justice reform advocates have agreed that decarceration is necessary to protect incarcerated people and the community at large from COVID-19. Decarceration efforts must include releasing more people from prisons and jails.  Despite this knowledge, state, federal, and local authorities have failed to release people from prisons and jails on a scale sufficient to protect incarcerated people’s lives — and by extension, the lives of everyone in the communities where incarcerated people eventually return, and where correctional staff live and work.

October 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, October 18, 2021

Notable new essays in Brennan Center's "Punitive Excess" series focused on responding to violent crime and mandatory minimums

highlighted here back in April the terrific essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  The latest pair of piece ought to be of particular interest to sentencing fans:

Both of these pieces are must reads, and the piece on mandatory minimums has links to research and other materials that might be useful for those litigating against such sentences or seeking reductions therefrom.  Here is a segment (with links) from that piece:

[P]rosecutors’ power over mandatory minimums in turn creates racial disparities, obliterating any pretense of an unbiased system.  A recent study finds that prosecutors’ mandatory minimum charges resulted in Black individuals spending more time in prison than whites for the exact same crimes.  In fact, prosecutors bring mandatory minimums 65 percent more often against Black defendants, all else remaining equal. Another study similarly finds that some federal prosecutors charge Black and Latino individuals more often than white individuals with possession or sale of a quantity of drugs just sufficient to trigger a mandatory minimum; the disparity is highest “in states with higher levels of racial animus.”

Finally, mandatory minimums do not promote community safety.  Rather, any prison time at all increases the risk of future crime because “incarceration is inherently criminogenic”; mandatory minimums only exacerbate this situation.  Florida experienced a 50 percent spike in crime after enacting mandatory minimums.  Long sentences also make it more difficult for people to reintegrate into society.  And our overreliance on prisons makes us less safe by diverting resources from other critical public safety needs.  In contrast, studies show that shorter sentences in drug cases neither diminish public safety nor increase drug abuse.

The dominant paradigm is vulnerable, and instituting a new paradigm is both possible and crucial. President Biden and his attorney general have denounced mandatory minimums, as did former Attorney General Eric Holder.  Even though federal prosecutors — all of whom are subject to supervision by the Department of Justice — have long been the primary proponents of mandatory minimums, Attorney General Merrick Garland affirmed this position during his confirmation hearings: “We should . . . , as President Biden has suggested, seek the elimination of mandatory minimum[s].”

However, despite Garland’s testimony, his Department of Justice has given no sign that it will stop pursuing mandatory minimums. In fact, earlier this year, Garland reinstated a 2010 Holder policy that incorporated a long-standing directive to federal prosecutors: “Where two crimes have the same statutory maximum and the same guideline range, but only one contains a mandatory minimum penalty, the one with the mandatory minimum” should be charged.  To make matters worse, Garland chose not to reinstate a 2013 Holder policy that both directed prosecutors to decline to charge a mandatory minimum in “low-level, non-violent drug offenses” and explicitly acknowledged that such sentences “do not promote public safety, deterrence, and rehabilitation.”  After twenty years defending people charged with federal crimes, I’ve learned that prosecutors are rarely agents of change.  This is unfortunate because Garland has real power to reduce racialized mass incarceration. He can and should instruct federal prosecutors to refrain from charging and seeking mandatory sentences, especially in drug cases, where popular opposition to mandatory minimums is strongest.

Prior related posts:

October 18, 2021 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, October 17, 2021

New special issue of Science explores "Criminal Injustice: Mass Incarceration in the United States"

Download (20)This new issue of Science includes a special section of articles exploring the deep roots and deep consequences of mass incarceration in the United States.  This introduction, titled "An outlier of injustice," sets up what follows this way:

For much of the 20th century, the incarceration rate in the US was relatively stable.  But beginning in the early 1970s, several decades of “tough on crime” policies contributed to a dramatic rise in incarceration.  Today, despite recent declines, the US incarceration rate remains a global outlier.  This system of mass incarceration is particularly hostile to Black Americans, who have been imprisoned in stunningly disproportionate numbers. 
Amid burgeoning interest in scholarship on criminal justice, this special issue examines social science research on the state of mass incarceration in the US: its origin and expansion, its far-reaching effects on families and communities, and why the public tolerates and encourages it.  Tracing the system’s roots back to slavery, researchers examine the interplay between incarceration, labor demand, and racial domination in the labor market.  As criminal justice infrastructure has grown more costly and vast, the system has extracted wealth from poor communities that it preys upon to fiscally survive. 
This ever-expanding web of incarceration entangles extraordinary numbers of people of all racial groups, with close to half of all Americans having a spouse or coparent, parent, sibling, or child that is or has been incarcerated.  To support such a system, many Americans psychologically deny that structural racism is at the heart of criminal justice.  Government responses to social justice protests often ignore root social causes and possible remedies and instead rely on policing.  Also, law enforcement increasingly draws upon commercial technologies that challenge public oversight and democratic policing.  Research on these topics is critical to reveal how we got here, as well as to inform and inspire change.

Here are links to the articles that follow, all of which are worth checking out:

"Policing social unrest and collective violence" by Elizabeth Hinton

"The corporate shadow in democratic policing" by Elizabeth E. Joh

"Assessing mass incarceration’s effects on families" by Hedwig Lee and Christopher Wildeman

"Exclusion and exploitation: The incarceration of Black Americans from slavery to the present" by Christopher Muller

"Toward an understanding of structural racism: Implications for criminal justice" by Julian M. Rucker and Jennifer A. Richeson

"The predatory dimension of criminal justice" by Joshua Page and Joe Soss

October 17, 2021 in Prisons and prisoners, Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Thursday, October 14, 2021

"New York State’s New Death Penalty: The Death Toll of Mass Incarceration in a Post-Execution Era"

The title of this post is the title of this interesting new report from the the Center for Justice at Columbia University which reinforces my sense that we ought to give a lot more attention to functional death sentences (which are relatively frequent) than to formal death sentences (which are relatively rare). Here is the report's introduction (with emphasis in the original and notes removed):

New York State was once an international outlier in its use of capital punishment.  Prior to 1972, when the US Supreme Court outlawed the death penalty, New York ranked second in most executions of any state in the country, executing 1130 people over a 364 year period.  Yet, abolishing the death penalty did not slow death behind bars.  Since 1976 — when the state began compiling data on deaths in custody — 7,504 people died while in the custody of the New York State Department of Corrections and Community Supervision (DOCCS).  This is seven times the number of deaths of those who were executed by the state.  Those who have died in custody over the last 45 years have largely been Black people, and particularly in the last decade, older people and people serving sentences of 15 years or more.  Increasingly, advocates and lawmakers have come to call this devastating reality “death by incarceration,” or “death by incarceration sentences” that ensure that thousands will die in prison and/or face a Parole Board that denies release to the majority of people who appear before it, and disproportionately denies release to Black New Yorkers.

This report compiles and analyzes data on in-custody deaths in New York State between 1976 and 2020 and offers policy recommendations for curtailing the number of deaths behind bars.  Without policy intervention, thousands of currently incarcerated New Yorkers are at risk of dying behind bars in the years and decades to come. 

All lives lost in the New York State correctional system raise questions about the morality and humanity of the state and its governance.  The large proportion of deaths of incarcerated Black New Yorkers highlight the racism of criminal justice policy in the state, and how the need for racial justice is a matter of life and death.  The disproportionate deaths of older adults serving long sentences highlight important questions about the state’s investments in public and community safety.  Incarcerated adults aged 55 and older are the least likely to commit a new crime across all age groups, and yet are kept in prison due to a lack of meaningful opportunities for release and repeated parole denials. Importantly, death by incarceration sentences and repeated parole denials ignore both the reality and possibility of redemption and transformation for people in prison. Older adults in prison are often leaders, mentors and stewards of the community. Of those who are released from prison, many continue their service and leadership in their communities, mentoring young people, providing reentry services for others released from custody, and intervening to prevent and reduce violence.

This report concludes that New York State must end its new de facto death penalty and offers recommendations towards this goal, including policies with large community and legislative support.

Key Findings 

  • More people have died in NY State custody in the last decade than the total of number of people executed in the 364 years New York State had the death penalty. 1,278 people died in NY State custody in the last decade compared to 1,130 who were executed in NY State between 1608 and 1972.
  • Today, more than 1 in 2 people who die in NY State custody are older adults, compared to roughly 1 in 10 at the beginning of the era of mass incarceration. 
  • Every three days someone dies inside a NYS prison, compared to every 12 days in 1976. 
  • In 2018, Black people accounted for 45% of all deaths in DOCCS custody, despite only making up 14% of all deaths of New York State residents. 
  • People who have already served 15 years in custody account for 9 times more of the total deaths behind bars today than they did in the 1980s, the first full decade of available data. 
  • 40% of all deaths behind bars since 1976 of people 55 and older happened in the last ten years. 
  • In the most recent decade, roughly 1 in 3 people who died behind bars had served at least 15 years, compared to 1 in 29 in the 1980s.

October 14, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, October 13, 2021

"The Color of Justice: Racial and Ethnic Disparity in State Prisons"

The title of this post is the title of this new publication by The Sentencing Project authored by Ashley Nellis.  Here are parts of the report's overview:

This report details our observations of staggering disparities among Black and Latinx people imprisoned in the United States given their overall representation in the general population.  The latest available data regarding people sentenced to state prison reveal that Black Americans are imprisoned at a rate that is roughly five times the rate of white Americans.  During the present era of criminal justice reform, not enough emphasis has been focused on ending racial and ethnic disparities systemwide.

Going to prison is a major life-altering event that creates obstacles to building stable lives in the community, such as gaining employment and finding stable and safe housing after release. Imprisonment also reduces lifetime earnings and negatively affects life outcomes among children of incarcerated parents.

These are individual-level consequences of imprisonment but there are societal level consequences as well: high levels of imprisonment in communities cause high crime rates and neighborhood deterioration, thus fueling greater disparities.  This cycle both individually and societally is felt disproportionately by people who are Black. It is clear that the outcome of mass incarceration today has not occurred by happenstance but has been designed through policies created by a dominant white culture that insists on suppression of others....

Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of its racist underpinnings. Immediate and focused attention on the causes and consequences of racial disparities is required in order to eliminate them.  True progress towards a racially just system requires an understanding of the variation in racial and ethnic inequities in imprisonment across states and the policies and day-to-day practices that drive these inequities.

KEY FINDINGS

  • Black Americans are incarcerated in state prisons at nearly 5 times the rate of white Americans.
  • Nationally, one in 81 Black adults per 100,000 in the U.S. is serving time in state prison.  Wisconsin leads the nation in Black imprisonment rates; one of every 36 Black Wisconsinites is in prison.
  • In 12 states, more than half the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia.
  • Seven states maintain a Black/white disparity larger than 9 to 1: California, Connecticut, Iowa, Maine, Minnesota, New Jersey, and Wisconsin.
  • Latinx individuals are incarcerated in state prisons at a rate that is 1.3 times the incarceration rate of whites.  Ethnic disparities are highest in Massachusetts, which reports an ethnic differential of 4.1:1.

RECOMMENDATIONS

1. Eliminate mandatory sentences for all crimes.  Mandatory minimum sentences, habitual offender laws, and mandatory transfer of juveniles to the adult criminal system give prosecutors too much authority while limiting the discretion of impartial judges.  These policies contributed to a substantial increase in sentence length and time served in prison, disproportionately imposing unduly harsh sentences on Black and Latinx individuals.

2. Require prospective and retroactive racial impact statements for all criminal statutes.  The Sentencing Project urges states to adopt forecasting estimates that will calculate the impact of proposed crime legislation on different populations in order to minimize or eliminate the racially disparate impacts of certain laws and policies.  Several states have passed “racial impact statement” laws.  To undo the racial and ethnic disparity resulting from decades of tough-on-crime policies, however, states should also repeal existing racially biased laws and policies.  The impact of racial impact laws will be modest at best if they remain only forward looking.

3. Decriminalize low-level drug offenses.  Discontinue arrest and prosecutions for low-level drug offenses which often lead to the accumulation of prior convictions which accumulate disproportionately in communities of color.  These convictions generally drive further and deeper involvement in the criminal legal system.

October 13, 2021 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, October 11, 2021

"Fatalism and Indifference — The Influence of the Frontier on American Criminal Justice"

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

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries.  The explanations usually offered — rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies — are fundamentally incomplete.  The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices.

The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion.  The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three.  Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

October 11, 2021 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 10, 2021

Prison Policy Initiative briefing highlights disproportionate role of Native peoples in US criminal justice systems

Incarceration_byrace_2019The Prison Policy Initiative has this notable new briefing authored by Leah Wang titled "The U.S. criminal justice system disproportionately hurts Native people: the data, visualized."  Here is part of its text:

This Monday is Indigenous Peoples’ Day, a holiday dedicated to Native American people, their rich histories, and their cultures. Our way of observing the holiday: sending a reminder that Native people are harmed in unique ways by the U.S. criminal justice system.  We offer a roundup of what we know about Native people (those identified by the Census Bureau as American Indian/Alaska Native) who are impacted by prisons, jails, and police, and about the persistent gaps in data collection and disaggregation that hide this layer of racial and ethnic disparity.

The U.S. incarcerates a growing number of Native people, and what little data exist show overrepresentation In 2019, the latest year for which we have data, there were over 10,000 Native people locked up in local jails.  Although this population has fluctuated over the past 10 years, the Native jail population is up a shocking 85% since 2000.  And these figures don’t even include those held in “Indian country jails,” which are located on tribal lands: The number of people in Indian country jails increased by 61% between 2000 and 2018.  Meanwhile, the total population of Native people living on tribal lands has actually decreased slightly over the same time period, leaving us to conclude that we are criminalizing Native people at ever-increasing rates.

Government data publications breaking down incarcerated populations by race or ethnicity often omit Native people, or obscure them unhelpfully in a meaningless “Other” category, perhaps because they make up a relatively small share of the total population.  The latest incarceration data, however, shows that American Indian and Alaska Native people have high rates of incarceration in both jails and prisons as compared with other racial and ethnic groups.  In jails, Native people had more than double the incarceration rate of white people, and in prisons this disparity was even greater.

Native people made up 2.1% of all federally incarcerated people in 2019, larger than their share of the total U.S. population, which was less than one percent.  Similarly, Native people made up about 2.3% of people on federal community supervision in mid-2018.  The reach of the federal justice system into tribal territory is complex: State law often does not apply, and many serious crimes can only be prosecuted at the federal level, where sentences can be harsher than they would be at the state level.  This confusing network of jurisdiction sweeps Native people up into federal correctional control in ways that don’t apply to other racial and ethnic groups.

Native women are particularly overrepresented in the incarcerated population: They made up 2.5% of women in prisons and jails in 2010, the most recent year for which we have this data (until the 2020 Census data is published); that year, Native women were just 0.7% of the total U.S. female population.  Their overincarceration is another maddening aspect of our nation’s contributions to human rights crises facing Native women, in addition to Missing and Murdered Indigenous Women (MMIW) and high rates of sexual and other violent victimization.

October 10, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Saturday, October 09, 2021

"Creating Cautionary Tales: Institutional, Judicial, and Societal Indifference to the Lives of Incarcerated Individuals"

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

As the COVID-19 pandemic wreaked havoc on American society in the spring of 2020, advocates for incarcerated people began sounding alarm bells alerting society to the impending devastation for incarcerated people once the coronavirus scaled the prison walls.  For too many incarcerated people, the alarms fell on deaf ears and the COVID-19 pandemic has had life-shattering consequences for thousands of individuals locked inside American prisons.  But to anyone with an understanding of the historical realities of and legal parameters around the American carceral state, the devastation came as no surprise.

Since the 1980s, America has led the world in imprisoning its own citizens, and, to many, American justice means locking human beings in overcrowded cages and throwing away the key.  This Article explores how American criminal “justice” has created a system wherein three interconnected strands of indifference render incarcerated people particularly vulnerable to devastating harms like those associated with the COVID-19 pandemic.  First, the sheer enormity of the American carceral state has led to the creation of prison bureaucracies that operate with institutional indifference to the lives of the incarcerated.  Sympathetic to the complex task of administering enormous prison systems, the federal judiciary has created a doctrine of judicial indifference to harms experienced to incarcerated people.  Finally, the Article explores how a general societal indifference to the lives of incarcerated individuals in particular and marginalized groups in general has allowed the institutional and judicial indifference to develop and proliferate.  The Article posits that the damaging consequences of the COVID-19 pandemic on the incarcerated population are directly tied to these interwoven indifferences and calls on widespread reform and decarceration to avoid future cautionary tales.

October 9, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, September 29, 2021

"Toward an Optimal Decarceration Strategy"

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

With mounting support for dramatic criminal justice reform, the question is no longer whether we should decarcerate American prisons but how.  This question is far more complicated than it might seem.  We could cut the prison population in half, for example, by drastically shortening sentences.  Or we could reduce prison admissions.  Or we could do both.  And we could do either or both for countless combinations of criminal offenses.  Moreover, even when they reach the same numeric target, these strategies are not equivalent.  They would have vastly different consequences for both prisoners and the public and widely varying timeframes to take effect.  To pick among them, we need richer metrics and more precise empirical estimates to evaluate their consequences.

This Article begins by proposing metrics to evaluate the relative merits of competing decarceration strategies.  The public debate has focused almost exclusively on how we might decarcerate while minimizing any increases in crime and has, therefore, underappreciated the costs of prison itself.  We should consider at least three more metrics: the social harm of incarceration, racial disparity, and timing.  Next, the Article develops an empirical methodology to identify the range of strategies that would reduce the national prison population by 25, 50, and 75%.  Finally, it identifies the best performing strategies against each metric.

The results have several broader takeaways.  First, the optimal approach to decarceration depends heavily on which metrics we value most.  The results thus quantify a stark set of policy choices behind a seemingly simple objective. Second, the results confirm that, to dramatically shrink prisons, it is critical to decarcerate a substantial number of people convicted of violent offenses — a fact that may surprise the majority of Americans who believe people convicted of drug offenses occupy half of prison beds.  Finally, the results show that race-neutral decarceration strategies are likely to exacerbate rather than mitigate racial disparities.  Armed with the conceptual tools and methodologies developed in this Article, we can make more informed decisions about how to best scale down prisons, given our priorities and constraints.

September 29, 2021 in National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 22, 2021

"In The Extreme: Women Serving Life Without Parole and Death Sentences in the United States"

The title of this post is the title of this notable new report authored by Ashley Nellis of The Sentencing Project.  Here is how the report gets started:

Extreme punishments, including the death penalty and life imprisonment, are a hallmark of the United States’ harsh criminal legal system.  Nationwide one of every 15 women in prison — over 6,600 women — are serving a sentence of life with parole, life without parole, or a virtual life sentence of 50 years or more.  The nearly 2,000 women serving life-without-parole (LWOP) sentences can expect to die in prison.  Death sentences are permitted by 27 states and the federal government, and currently 52 women sit on death row.

This report presents new data on the prevalence of both of these extreme sentences imposed on women.  Across the U.S. there are nearly 2,000 women serving life-without-parole (LWOP) sentences and another 52 women who have been sentenced to death.  The majority have been convicted of homicide.  Regarding capital punishment, women are sitting on death row in 15 states.  As shown in Figure 1, women are serving LWOP sentences in all but six states.  Three quarters of life sentences are concentrated in 12 states and the federal system.  It is notable that in all states with a high count of women serving LWOP, there is at least one woman on death row as well.  Two exceptions to the overlap are Colorado and Michigan which do not have anyone serving a death sentence because it is not statutorily allowed.

September 22, 2021 in Death Penalty Reforms, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Monday, September 20, 2021

Notable accounting of a decade of decarceration via Decennial Census

The Marshall Project has this notable new piece fully headlined "There Are Fewer People Behind Bars Now Than 10 Years Ago. Will It Last?: Census data show incarceration rates are down. It may have more to do with the pandemic than broad reforms."  The piece highlights census data that ought to be encouraging to those troubled by modern mass incarceration, but also notes why April 2020 incarceration data may not reflect persistent realities.  I recommend the piece in full, in part because it enables drilling down into a lot of great data, and here are excerpts:

Nearly two million adults were incarcerated across the country, according to the 2020 Decennial Census.  The latest figures show a 13% drop in the total number of incarcerated people, or nearly 300,000 fewer people, compared with the 2010 Census.  Roughly one-third of the drop in total numbers occurred in just two populous states — California and New York.  In total, 41 states, the District of Columbia and Puerto Rico saw reductions in the total number of incarcerated people.

In five states, the number of incarcerated people actually increased compared with a decade ago, but the incarceration rate still shrank because their total population grew more quickly than the prison population. Just four states — West Virginia, Alaska, Nebraska and Arkansas — saw their incarceration rate increase.

The Decennial Census offers a comprehensive and geographically granular look at the U.S. population by attempting to collect information about where everyone lives as of April 1.  By definition though, it is a snapshot of a brief moment in time, which is a limitation in trying to capture fluctuating numbers.

If the Census was held later in the year, for example, it might have shown a more substantial drop.  The Marshall Project’s COVID-19 tracker showed state and federal prisons had 100,000 fewer prisoners in June 2020 than in April, when the census was taken.  Another study estimated that from mid-year 2019 to mid-year 2020, county jails nationwide had 185,000 fewer people.

Experts say that a combination of factors contributed to this decrease: The court system and parole offices slowed down as they moved operations online, which has reduced the number of people who were sentenced or caught up in parole violations.  In many jurisdictions, police departments also cut back on proactive tactics, such as traffic stops, and the number of drug crimes dropped significantly.  Some prison and jail officials also rushed to empty out facilities to prevent COVID-19 outbreaks.

Broadly, these numbers have already started to tick back up as criminal courts begin to reopen and the criminal justice system is returning to normal, according to a recent report from the Vera Institute of Criminal Justice.  Given how unstable incarceration rates have been since the start of the pandemic — which overlapped with the entire period of census data collection — it may be impossible to draw any long-term conclusions from the apparent drop seen in Census data....

In most states, the raw numbers of incarcerated people didn’t change much, despite widespread efforts to decarcerate prisons and jails during the COVID-19 pandemic.  Instead, a few populous states lost a larger share.  For example, California’s incarcerated population shrunk by 50,000, and New York’s by 30,000.  Together, they account for approximately one-third of the national decrease in incarcerated population, while representing less than one-fifth of the country’s population.  Nine states saw an increase in the incarcerated population.

The incarceration rate provides another perspective.  Many southern states with slightly higher incarcerated populations also saw the fastest population increase in the past ten years. Because the number of people in these states grew faster than the number of incarcerated people, their incarceration rates still went down.

September 20, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 08, 2021

"States of Incarceration: The Global Context 2021"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Emily Widra and Tiana Herring.  Here is part of the start of the report:

Louisiana once again has the highest incarceration rate in the U.S., unseating Oklahoma to return to its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth.  Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation ... every state appears extreme.  24 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 17th in the world with an incarceration rate higher than Iran, Colombia, and all the founding NATO nations.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkey, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts. Others struggle with “violent crime” on a scale far beyond that in the U.S.: South Africa, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “the land of the free,” tops them all....

The incarceration rates in every U.S. state are out of line with the entire world, and we found that this disparity is not explainable by differences in crime or “violent crime.”  In fact, there is little correlation between high rates of “violent crime” and the rate at which the U.S. states lock people up in prisons and jails.

When we compare U.S. states and other nations in terms of both “violent crime” and incarceration, we find ourselves more closely aligned with nations with authoritarian governments or recently large-scale internal armed conflicts.  Rather than any of the founding NATO member countries traditionally compared to the United States, the only countries that approach the incarceration rate and “violent crime” rates of the 50 states are El Salvador, Panama, Peru, and Turkey.  Every U.S. state, and the United States as a nation, is an outlier in the global context.  No other country incarcerates as many people, including countries with similar rates of “violent crime.”

September 8, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Tuesday, September 07, 2021

"Life lessons: Examining sources of racial and ethnic disparity in federal life without parole sentences"

The title of this post is the title of this notable new article published in Criminology and authored by Brian Johnson, Cassia Spohn and Anat Kimchi.  Here is its abstract:

Alongside capital punishment, sentences to life without the possibility of parole are one of the most distinctive aspects of the American system of criminal punishment.  Unlike the death penalty, though, almost no empirical work has examined the decision to impose life imprisonment.  The current study analyzes several years of recent federal sentencing data (FY2010–FY2017) to investigate underlying sources of racial disparity in life without parole sentences.  The analysis reveals disparities in who receives life imprisonment, but it finds these differences are attributable mostly to indirect mechanisms built into the federal sentencing system, such as the mode of conviction, mandatory minimums, and guidelines departures.  Both Black and Hispanic offenders are more likely to be eligible for life sentences under the federal guidelines, but conditional on being eligible, they are not more likely to receive life sentences.  Findings are discussed in relation to ongoing debates over racial inequality and the growing role that life imprisonment plays in American exceptionalism in punishment.

September 7, 2021 in Data on sentencing, Federal Sentencing Guidelines, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 01, 2021

"More Community, Less Confinement: A State-by-State Analysis on How Supervision Violations Impacted Prison Populations During the Pandemic"

The title of this post is the title of a great new analysis by the Council of State Governments Justice Center looking at prison populations as impacted by the pandemic and reactions thereto.  This press release provides this overview (and helpful links at the end):

State prison populations shrank by an unprecedented 14 percent in 2020 due to changes spurred by the COVID-19 pandemic, according to new data released today by The Council of State Governments (CSG) Justice Center.  The study, More Community, Less Confinement, was conducted in partnership with the Correctional Leaders Association (CLA) and with support from Arnold Ventures.
 
Despite the decline in total prison population, supervision violations still drive a substantial share of new admissions — accounting for 42 percent of prison admissions in 2020. This included roughly 98,000 people admitted to prison for technical violations, such as missed curfews or failed drug tests.  The share of the population in prison for supervision violations was 20 percent in 2020, down slightly from 23 percent in 2018.
 
“As these data underscore, during the COVID-19 pandemic, probation and parole agencies made significant changes to the way they do business. These changes protected the health and safety of people in the justice system, including corrections staff,” said Megan Quattlebaum, director of the CSG Justice Center.  “Now, we have a unique and important opportunity to explore which of these policy changes should be retained to maximize success for people serving on community supervision.  Each of the 98,000 people admitted to prison—not for new crimes, but for violating the conditions of their probation or parole — represents 98,000 opportunities to improve public safety while saving states money. When people on probation and parole succeed, it is a win-win-win for them, their communities, and all taxpayers.”
 
In response to the threat of COVID-19, many parts of the criminal justice system halted operations to reduce in-person contact and prevent the spread of the virus.  The CSG Justice Center surveyed corrections leaders in all 50 states to understand the impact of community supervision on state prison populations. The resulting data span 3 years — from 2018 to 2020 — and uncover how the number of people sent to prison for supervision violations changed during and prior to the pandemic. 
 
While some states released people from prisons early to help reduce spread of the virus, the population decline in state prisons was largely driven by a drop in the number of people being admitted to prisons.  Roughly 200,000 fewer people were admitted to prison in 2020 due to changes in offending behaviors, local law enforcement, community supervision, and court operations....
  
Overall, there were roughly 167,000 fewer people in state prisons in 2020. One-third of the total drop (57,000 people) was due to fewer people sitting in prison for supervision violations. In addition, about 73,000 fewer people entered prison for supervision violations in 2020 — a 30 percent drop in a single year.  The cumulative result over this 3-year data collection effort showed that there were 31 percent fewer people in prison for technical supervision violations and 18 percent fewer people in prison for new offense violations, while all other populations (primarily new court commitments) dropped just 12 percent....
 
Learn more:

September 1, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

"States of emergency: The failure of prison system responses to COVID-19"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Tiana Herring and Maanas Sharma giving state-by-state grades to pandemic responses in incarceration nation. As the title suggestion, a whole lot of states received failing grades. Here is how the report gets started:

From the beginning of the pandemic, it was clear that densely packed prisons and jails — the result of decades of mass incarceration in the U.S. — presented dangerous conditions for the transmission of COVID-19. More than a year later, the virus has claimed more than 2,700 lives behind bars and infected 1 out of every 3 people in prison.

A year after we first graded state responses to COVID-19 in prisons, most state departments of corrections and the federal Bureau of Prisons are still failing on even the simplest measures of mitigation.

In this report, we evaluated departments of corrections on their responses to the pandemic from the beginning of the pandemic to July 2021.  We looked at a range of efforts to:

  • Limit the number of people in prisons: States received points for reducing prison populations as well as for instituting policies that reduced admissions and facilitated earlier releases.
  • Reduce infection and death rates behind bars: We penalized prison systems where infection and mortality rates exceeded the statewide COVID-19 infection and mortality rates, because some key decisions were based on correctional agencies’ faulty logic that prisons were controlled environments and therefore better positioned to stop the spread of infection than communities outside prison walls.
  • Vaccinate the incarcerated population: States were rated higher for including incarcerated people in their vaccine rollout plans, as well as for higher vaccination rates among their prison populations.
  • Address basic health (and mental health) needs through easy policy changes: We credited states for waiving or substantially reducing charges for video and phone calls, or providing masks and hygiene products to incarcerated people.  States also received points for suspending medical co-pays (which can discourage people from seeking treatment), requiring staff to wear masks, and implementing regular staff COVID-19 testing.

While some states performed well on one or two of these criteria, no state’s response to COVID-19 in prison has been sufficient.  The highest letter grade awarded was a “C”, and most states completely failed to protect incarcerated people.

September 1, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, August 30, 2021

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

7ee4529a-2a57-c490-a090-f44255823417I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 
View your state’s dashboard
 
The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

August 30, 2021 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, August 25, 2021

"When the Conditions Are the Confinement: Eighth Amendment Habeas Claims During COVID-19"

The title of this post is the title of this new paper authored by Michael Zuckerman with an abstract now available via SSRN.  Here is that abstract:

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States.  It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane.  This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then dives into surveying eight prominent federal cases involving habeas claims related to COVID-19 outbreaks at carceral facilities.  The Article then distills six key tensions from these cases and discusses their implications for future litigation and doctrine. 

Specifically, the Article addresses: (a) the relationship between habeas and classic “conditions of confinement” cases; (b) the nature of Eighth Amendment “deliberate indifference” in this context; (c) the efficacy and availability of class-wide procedures for adjudicating these kinds of claims; (d) issues involving federalism and comity, and how courts may source such concerns through exhaustion requirements; (e) whether temporary release is better conceived of under these circumstances as preliminary or final relief; and (f) the fraught interplay between rights and remedies.  The Article concludes by suggesting potential solutions for courts and legislatures.

August 25, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, August 16, 2021

An effective (but already quite dated) reminder that US mass incarceration has been getting a bit less mass (but still globally exceptional)

FT_21.08.12_Incarceration_2John Gramlich over at Pew Research Center has this effective new posting under the headline "America’s incarceration rate falls to lowest level since 1995." The piece looks at some data on US incarceration rates and puts them in a bit of historical and global context.  Unfortunately, the analysis is drawn from data as of the end of 2019, and a heck of a lot has obviously changed over the last 20 months.  In particular, as documented through March 2021 by the Vera Institute, there is a reasonable basis to think incarceration rates may have dropped an addition 10 to 15 percent (or more) since the end of 2019.  Still, the Pew discussion sets a useful marker for where we were heading into the pandemic, and here is some of the discussion (with links from the original):

The U.S. incarceration rate fell in 2019 to its lowest level since 1995, according to recently published data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite this decline, the United States incarcerates a larger share of its population than any other country for which data is available.

At the end of 2019, there were just under 2.1 million people behind bars in the U.S., including 1.43 million under the jurisdiction of federal and state prisons and roughly 735,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 810 prison or jail inmates for every 100,000 adult residents ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined steadily since then and, at the end of 2019, was at the same level as in 1995 (810 inmates per 100,000 adults).

The number of prison and jail inmates in the U.S. has also decreased in recent years, though not as sharply as the incarceration rate, which takes population change into account. The estimated 2,086,600 inmates who were in prison or jail at the end of 2019 were the fewest since 2003, when there were 2,086,500. The prison and jail population peaked at 2,310,300 in 2008....

A variety of factors help explain why U.S. incarceration trends have been on a downward trajectory. Violent and property crime rates have declined sharply in recent decades despite a more recent increase in certain violent crimes, especially murder. As crime has declined, so have arrests: The nationwide arrest rate has fallen steadily over the long term.

Changes in criminal laws, as well as prosecution and judicial sentencing patterns, also likely play a role in the declining incarceration rate and number of people behind bars. In late 2018, for example, then-President Donald Trump signed a law aimed at reducing the federal prison population. In its first year, the law led to shorter sentences for thousands of federal offenders and earlier release dates for many others, according to a 2020 report from the U.S. Sentencing Commission.

Despite these downward trends, the U.S. still has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Crime & Justice Policy Research at Birkbeck, University of London.  The database compares incarceration rates across more than 200 countries and territories using publicly available data for each jurisdiction....

In addition to its high rate of incarceration, the U.S. also has the largest overall number of people behind bars. With more than 2 million jail and prison inmates, the U.S.’s total incarcerated population is significantly greater than that of China (approximately 1.7 million) and Brazil (about 760,000).  But data limitations in China and other countries make direct comparisons with the U.S. difficult. The World Prison Brief notes, for instance, that China’s total excludes people held in pre-trial detention or “administrative detention” — a group that may number more than 650,000. China’s total also excludes the estimated 1 million Uyghur Muslims who are reportedly being detained in camps in the Xinjiang autonomous region.  If these two groups were added to the total, China would far surpass the U.S. in terms of its total incarcerated population.

August 16, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1)

Friday, July 30, 2021

Lots and lots more great new content at great new Inquest website

I blogged here earlier this week about the launch of the great new website Inquest, which describes itself as "a forum for advancing bold ideas to end mass incarceration in the United States."  This week the site already has so much great and important new content, I am already falling behind in trying to keep up with this new forum.  Valuably, I have this blog space to note (and then later return to) all the significant new content filling this new site:

"Incarceration by Another Name: Jurisdictions are selling electronic monitoring as an alternative to imprisonment. It’s anything but." By James Kilgore, Emmett Sanders & Kate Weisburd

"The Keeper and the Kept: The carceral system dehumanizes not just the people we condemn, but also its massive workforce." By Kaia Stern

"Carceral Democrats: There is empirical evidence that Democratic governors will outspend and out-incarcerate Republicans if their reelection depends on it. That’s entirely avoidable."  By Anna Gunderson

"Immigration Imprisonment Is a Choice: Quickly, legally, and unilaterally, the Biden administration could easily free tens of thousands trapped in ICE detention. Whether it wants to is another story."  By César Cuauhtémoc García Hernández

July 30, 2021 in Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 26, 2021

Excited for the launch of Inquest, "a forum for advancing bold decarceral ideas"

E676CJ9WQAEKg4PI was pleased to receive via email this morning the first official announcement of Inquest, which as explained here "is published by the Institute to End Mass Incarceration [but] not the voice of the Institute."   Here are excerpts from the Inquest mission page:

Inquest is a forum for advancing bold ideas to end mass incarceration in the United States. Here, you will find original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that mass incarceration is an epic injustice that can and must urgently end.

Our authors include leading and new voices across fields, from activism and community organizing, to law and policy, to academia, journalism, and public health. Drawing on their lived experience and their accumulated wisdom, they come here to share ideas, narratives, and analyses that boldly explore the causes and consequences of mass incarceration and that provoke rigorous discussion — all aimed at driving thoughtful action....

Rather, our mission is to create a space where the voices of those doing the thinking and the work — the people closest to the problem, including those directly impacted by mass incarceration — can come together to share ideas and be heard as they pursue bold solutions.

And here is some of the text from the introductory email that I received along with links to the first set of materials and essays on the site:

We are so excited to share this new publication and its core mission with you.  Our opening slate of original, thought-provoking essays is below.  We hope you will take a look today and come back often. Inquest is a forum for advancing bold ideas to end mass incarceration.  The publication features original, insightful work by thinkers and doers across a broad range of experience and expertise, united in the belief that our system of mass incarceration can and must urgently end....

Read a welcome note from our founding editors and visit Inquest to check out our opening slate of essays, all linked below:

Joel Castón, the first incarcerated person ever elected to public office in Washington, D.C., shares his story and vision with Inquest.

Tomas Keen, incarcerated in Washington State, highlights the problems with a prison closure plan.

"To get to real justice, we have to stop depending on the department bearing that name." — Rachel Barkow & Mark Osler

Maneka Sinha on forensics: "[M]any of the reforms proposed to date . . . serve to shore up the legitimacy of the field in the same ways that conventional reform proposals do in the policing context."

All these essays look great, and I am very excited to keep up with both Inquest and the new Institute to End Mass Incarceration.

July 26, 2021 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, July 22, 2021

BJS releases new reports on "Correctional Populations in the United States, 2019" and "Probation and Parole in the United States, 2019"

Justice Department's Bureau of Justice Statistics always produces terrific reports on national criminal justice realities, though there is necessarily a time lag in the data reported.  But given they ways the COVID pandemic has changed (and not changed) our criminal justice systems, I think it is especially timely that BJS has just released to big new reports on the state of US correctional populations at the end of 2019, just before the pandemic hit.  Via email, I got news and short descriptions of these new BJS reports:

The Department of Justice’s Bureau of Justice Statistics today released two reports that present statistics on adults in the U.S. correctional system. Correctional Populations in the United States, 2019 – Statistical Tables provides data on both incarcerated persons and those on probation or parole, while Probation and Parole in the United States, 2019 focuses on persons under community supervision on probation or parole.

Correctional Populations in the United States, 2019 – Statistical Tables presents statistics on persons supervised by U.S. adult correctional systems at year-end 2019, including those supervised in the community on probation or parole and persons incarcerated in state or federal prison or local jail.  It describes the size and change in the total correctional population from 2009 to 2019.  Findings are based on various BJS data collections, including the Annual Probation Survey, Annual Parole Survey, Annual Survey of Jails, Census of Jails, National Prisoner Statistics program and Survey of Jails in Indian Country.

Probation and Parole in the United States, 2019 presents national data on adult offenders under community supervision on probation or parole in 2019.  It includes characteristics of the population such as sex, race or Hispanic origin, and most serious offense.  The report details how offenders move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2019 Annual Probation Survey and Annual Parole Survey.

July 22, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 19, 2021

New UNODC report details interesting global realities and trends in incarceration

A section of the United Nations Office on Drugs and Crime has released this interesting new data report highlighting on its cover page "Nearly twelve million people imprisoned globally; nearly one-third unsentenced; with prisons overcrowded in half of all countries."  This release about the report provides some context and highlights: 

One in every three prisoners worldwide are held without a trial, which means that they have not been found guilty by any court of justice, according to the first global research data on prisons published by the United Nations Office on Drugs and Crime.

The research brief, released ahead of Nelson Mandela International Day on 18 July, examines the long-term trends of imprisonment, stating that over the past two decades, between 2000 and 2019, the number of prisoners worldwide has increased by more than 25 per cent, with a global population growth of 21 per cent in the same period, with 11.7 million people incarcerated at the end of 2019.  This is a population comparable in size to entire nations such as Bolivia, Burundi, Belgium, or Tunisia.

At the end of 2019 — the latest year data is available — there were around 152 prisoners for every 100,000 population. While Northern America, Sub-Saharan Africa and Eastern Europe have experienced a long-term decrease in imprisonment rates of up to 27 per cent, other regions and countries, such as Latin America and Australia and New Zealand, have seen growth over the last two decades of up to 68 per cent.

At 93 per cent, most of the persons detained in prison globally are men.  Over the past two decades, however, the number of women in prisons has increased at a faster pace, with an increase of 33 per cent versus 25 per cent for men.

For those concerned about mass incarceration in the US and elsewhere, this report provides a terrific global snapshot of recent trends and some of the latest data. For example:

As of 2019, there were an estimated 152 prisoners for every 100,000 population globally.  This global rate has not changed much over the last two decades — it stood at 151 prisoners in 2000.  There is, however, considerable sub-regional variation: as of 2019, a much larger share of the population was imprisoned in Northern America (577 per 100,000 population), Latin America and the Caribbean (267) and Eastern Europe (262), than in Sub-Saharan Africa (84), Melanesia (78), or Southern Asia (48).  Furthermore, gender-specific rates also vary substantially across sub-regions. The high male imprisonment rate in the Northern American sub-region (1,048 male prisoners per 100,000 male population) is particularly noteworthy.

July 19, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Thursday, July 15, 2021

Federal prison population starting to grow again as we approach six months into Biden Administration

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 realities about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play lots of expected and unexpected roles in shaping federal prosecutions and sentencings, and broader phenomena like the COVID pandemic can impact the federal prison population more than specific justice policies.  Consequently, I was disinclined to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before we saw any major DOJ policy changes and many more months before any policy changes started impacting the federal prison population count.  

Sure enough, when we hit the "100 days" milestone for the Biden Administration, I noted in this May 6, 2021 post that the federal prison population clocked in at 152,085 according to the federal Bureau of Prisons accounting.  In other words, no significant prison population growth early on in the Biden era.  But two months later, as we approach the six month mark for the Biden Administration, the federal prison population is starting to really grow again according to the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  Specifically, as of the ides of July 2021, the federal prison population clocks in at 154,596.

A BOP-measured growth of over 2500 federal inmates in just over two months strikes me as pretty significant, although I would guess that an easing of the COVID pandemic is the primary explanation.  The number of federal sentencings and the number of persons required to report to begin serving federal sentences have likely increased significantly in the last few months; I doubt any new Biden Administration (or AG Garland) policies or practices account for the (now 2%) growth in the federal prison population during the first six months of Joe Biden's presidency.

That said, I hope I am not the only one watching this number closely.  Especially given that the COVID pandemic is not really over and that a lot more surely could be safely "cut" from a bloated federal prison population, it will be quite disappointing if the Biden first term replicates the Obama first term marked by quite significant federal prison population growth.

July 15, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

New fact sheets from Sentencing Project on disparities in youth incarceration

Via email this morning, I received details and links about notable new data assembled by The Sentencing Project. Here is the heart of the email:

Profound racial and ethnic disparities in youth incarceration define the American juvenile justice system. New publications released today by The Sentencing Project detail the scope of the problem and should raise alarms among policymakers and advocates committed to racial justice.

Our new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better. 

  • Black Disparities in Youth Incarceration
    • Black youth are more than four times as likely as their white peers to be held in juvenile facilities, a modest improvement since 2015’s all-time high.
    • In New Jersey, Black youth are more than 17 times as likely to be incarcerated than their white peers. 
  • Latinx Disparities in Youth Incarceration
    • Latinx youth are 28 percent more likely to be incarcerated than their white peers, a sharp improvement over the course of the decade.
    • In Massachusetts, Latinx youth are five times more likely to be incarcerated than their white peers.
  • Tribal Disparities in Youth Incarceration
    • Tribal youth’s disparities have grown worse over the course of the decade, and they are now more than three times as likely to be incarcerated than their white peers.
    • In Minnesota, Tribal youth are 12 times more likely to be incarcerated than their white peers.

The Sentencing Project has long recommended the use of racial impact statements to divulge the source of disparities such as these. To overcome them, states and localities must invest heavily in community programs that address inequality at all stages of life, with particular focus on accommodating the needs of children of color.

July 15, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, July 06, 2021

Reviewing realities of life imprisonment around the globe

The Economist has this effective lengthy article about life imprisonment around the world under the headline "As the death penalty becomes less common, life imprisonment becomes more so." I recommend the full piece, and here are excerpts:

Lifelong imprisonment seems to be spreading as a punishment for the worst crimes.  In 2019 Serbia passed “Tijana’s law” in response to the rape and murder of a 15-year-old girl.  It allows judges to sentence some murderers and rapists of children to life in prison without parole.  In June last year, after the gang rape of a 13-year-old girl by soldiers, Colombia overturned its constitutional ban on life sentences.  Britain’s government recently proposed legislation to reduce the age at which judges can impose “whole-life” sentences from 21 to 18.

The most heinous crimes are rare, but the world’s population of lifers is large and probably growing.  According to the World Prison List the population of inmates rose by 20%, to 10.4m, from 2000 to 2015. Meanwhile between 2000 and 2014 the number of people serving life sentences worldwide rose by 84%, to 479,000, according to “Life Imprisonment”, a recent book.  America held 40% of them, and more than 80% of those have no prospect of parole.  The Sentencing Project, a think-tank in Washington, DC, reckons that the number of Americans serving life sentences without parole rose by two-thirds, to 56,000, between 2003 and 2020. Turkey, India and Britain also lock up a lot of people for life.  South African jails hold nearly 17,000 lifers, up from 500 in 1995.  In 2014 some sort of formal life sentence was on the books of 183 countries and territories....

Opponents of life without parole hope to repeat the success of campaigners against capital punishment. Since 1976 more than 70 countries have abolished the death penalty.  The number of executions worldwide in 2020 fell for the fifth year running to its lowest in a decade, says Amnesty International, a human-rights group. In America just 17 people were executed last year.  If campaigners have their way, life sentences will be the next sort to be branded cruel and rendered unusual.

Making this case is not simple.  For one thing, life-sentencing regimes vary enormously.  Some are relatively lenient, as in Finland, where few “lifers” spend more than 15 years in prison.  Others are staggeringly harsh.  Some American states still lock up juvenile offenders for life. China imposes the sentence on corrupt officials.  Australia and Britain do so for drug offences.  Life with a chance of parole may not be much better than without it if parole is granted rarely.  Life sentences can be disguised as indeterminate or very long fixed-term sentences.  El Salvador, which does not impose life sentences, can lock people up for 60 years....

Some campaigners use the courts to curb life sentences.  A clutch of treaties prohibit governments from inflicting degrading treatment on anyone, including prisoners. In 2013 the European Court of Human Rights (ECHR) ruled that offenders have at the outset of their sentences a right to hope for eventual release. The International Criminal Court says after 25 years sentences must be reviewed.  “Twenty-five years is increasingly established in international law as the maximum minimum,” says Dirk van Zyl Smit, Ms Appleton’s co-author....

Malawi may become a model for countries seeking to avoid simply replacing capital punishment with life sentences. After its High Court struck down the death penalty as mandatory for murder in 2007, the top appeal court ordered that more than 150 condemned prisoners be resentenced. (In practice, all were serving life, since Malawi has executed no one since 1992.) It directed judges to consider the circumstances of each to determine whether the death penalty should be upheld, converted to life or to a shorter sentence....

Of the prisoners who have been resentenced, one was handed a life sentence but more than 140 have been released after completing shorter prison terms.  To prepare the way, workers on the project fanned out to villages to explain what the ex-cons had endured and to find out whether they would be welcomed back.

July 6, 2021 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Wednesday, June 30, 2021

The Sentencing Project releases "A New Lease on Life" looking at release mechanisms and recidivism realities

Images (3)The Sentencing Project today released this timely new report titled "A New Lease on Life" which starts with these "Findings and Recommendations":

A dramatic consequence of America’s investment in mass incarceration is life imprisonment.  Today there are more people serving life sentences alone than the entire prison population in 1970, the dawn of the mass incarceration era.  Though life sentences have always been allowable in the U.S., it is only in recent decades that these sentences have become normalized to such an extent that entire prisons are now filled or nearly filled with people serving life terms.

Despite a cultural tendency for Americans to view the U.S. crime and criminal legal system as “exceptional,” other countries have experienced ebbs and flows in crime rates but have not resorted to the levels of imprisonment, nor the lengths of prison sentences, that are commonplace in the U.S.  To the contrary, restoration of human dignity and the development of resilience are at the core of an evolved criminal legal system; systems elsewhere that emphasize the responsibility of government support to returning citizens serves as a model for the U.S.

In this report we set out to accomplish two tasks.  First, we examine reoffending rates among people released from prison after a violent crime conviction and review research on the topic, covering both domestic and international findings.  Second, we provide personal testimony from people who have left prison after a violent crime conviction.  Inviting impacted persons to share their transition experiences serves policymakers and practitioners in strengthening necessary support for successful and satisfying reentry from prison. This report focuses on the outcomes of a narrow segment of the prison population: people convicted of violent crimes, including those sentenced to life and virtual life sentences, who have been released to the community through parole or executive clemency.  People with violent crime convictions comprise half the overall state prison population in the U.S. They are depicted as the most dangerous if released, but ample evidence refutes this.

Findings

• We can safely release people from prison who have been convicted of violent crime much sooner than we typically do. Most people who commit homicide are unlikely to do so again and overall rates of violent offending of any type among people released from a life sentence are rare.

• Definitional limitations of the term “recidivism” obstruct a thorough understanding of the true incidence of violent offending among those released from prison, contributing to inaccurate estimates of reoffending.

• People exiting prison from long term confinement need stronger support around them. Many people exhibit a low crime risk but have high psychological, financial, and vocational demands that have been greatly exacerbated by their lengthy incarceration.

• People exiting prison after serving extreme sentences are eager to earn their release and demonstrate their capacity to contribute in positive ways to society. Prison staff and peers view lifers as a stabilizing force in the prison environment, often mentoring younger prisoners and serving as positive role models.

We make five recommendations that, if adopted, will advance our criminal legal system toward one that is fair, efficient, and humane.

1. Standardize definitions of recidivism. Authors of government reports and academic studies should take great care to standardize the definition of criminal recidivism so that practitioners, policymakers, the media, and other consumers of recidivism research do not carelessly interpret findings on reoffending statistics without digging into either the meaning or the accuracy of the statements.

2. Insist on responsible and accurate media coverage. Media consumers and producers alike must insist on accurate portrayals of crime despite the temptation to skew media coverage so that rare violent crime events appear as commonplace. Heavily skewed media coverage of rare violent crime events creates a misleading view of the frequency of violent crime. Add to this the overly simplistic assumption, allowed by inarticulate reporting, that people released from prison have caused upticks in violence.

3. Allow some level of risk. Reset the acceptable recidivism rate to allow for reasonable public safety risk. The public’s risk expectation is currently set at zero, meaning that no amount of recidivism is politically acceptable in a system that “works” even though such expectations are not attainable in any sphere of human endeavor or experience. But this expectation is largely based on highly tragic and sensationalized events that are falsely equated as the result of releasing people from prison. We have to balance our aspirations for a crime-free society with reasonable approaches to public safety and human rights considerations for both those who have caused harm and those who have been victimized by it.

4. Reform and accelerate prison release mechanisms. Decisionmakers considering whether to grant prison release rely too heavily on the crime of conviction as the predominant factor under consideration. This approach is neither fair nor accurate. It is unfair because it repunishes the individual for a crime for which they have already been sanctioned. Risk of criminal conduct, even violent criminal conduct, closely tracks aging such that as people age into adulthood there is a sharp decline in proclivity to engage in additional acts of violence.

5. Substantially improve housing support. Inability to secure housing after release from prison was mentioned frequently by people we interviewed for this report. Failure of the correctional system to ensure stable housing upon exit from decades-long prison sentences imposes unnecessary challenges. Though some released persons will be able to rely on nonprofit charity organizations, shelters, or family, the most vulnerable people will fall through the cracks. We have both a public safety and a humanitarian obligation to avoid this result.

June 30, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, June 23, 2021

"The Impact of COVID-19 on Crime, Arrests, and Jail Populations - An Expansion on the Preliminary Assessment"

The title of this post is the title of this new expanded report on COVID impacts on some critical criminal justice metrics.  Here is the 20+ page report's executive summary:

Beginning in March 2020, local and state criminal agencies took several actions to mitigate the rising number of people being infected with the COVID-19 virus.  To address these concerns, a variety of policies were enacted to reduce the number of persons held in jails.  These polices were designed to 1) mitigate the number of people being arrested and booked into local jails and 2) reduce the length of stay (LOS) for those admitted to jail.  Concurrently, public safety concerns were raised that by lowering the jail populations, crime in the community would increase.

To address these concerns, the JFA Institute (JFA), through resources provided by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC) program, began tracking and analyzing six cities and counties participating in SJC (jurisdictions) and their jail and crime data in real time to monitor the impact of these mitigation activities.  In October 2020, JFA expanded the study to eleven jurisdictions and collected the data through December 2020 to examine longer term trends and a potential rebound.

Analysis of the eleven jurisdictions:

  • Analysis of the eleven jurisdictions studied revealed jail populations declined, yet crime and arrests declined as well, giving indication that declining jail populations did not compromise public safety.

  • Overall, total reported crime was 22% lower in December 2020 when compared to December 2019 and 14% lower for the total number of reported crimes for CY 2020 versus CY 2019.

  • When combining all jurisdictions, there was an average 39% decrease in jail bookings, which equates to over 130,000 fewer jail bookings in a one-year time frame.  Jail booking decreases were fueled by the decrease in property crime and arrests, primarily for misdemeanor and lower-level felony charges.

  • As a result of the change in jail bookings, the composition of the jail populations changed postCOVID-19, with a higher proportion being male and charged with violent felony and non-drug felony crimes.

  • The LOS for people in jail has increased due to the changing make-up of the jail populations and a slowdown in court case processing.

  • After the historic initial decrease, jail populations rebounded somewhat but stabilized in October 2020. During this time, there was no substantial increase in overall crime.

There are challenges ahead in keeping jail populations low, namely maintaining lower arrests, jail bookings, and reducing the length of stay by expediting the disposition of criminal cases.  The response to COVID-19 has shown that such reforms are possible and can safely reduce the number of persons held in jail but sustaining lower jail populations will require maintaining these reforms in some manner.

June 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, June 21, 2021

"Can Criminal Justice Reform Survive a Wave of Violent Crime?"

The question in the title of this post is the headline of this notable new commentary by John Pfaff in The New Republic.  The subheadline of the piece highlights its data-crunching themes: "An uptick in homicides across the country is getting blamed on reforms. That argument gets the data all wrong."  I recommend everything Pfaff writes in full, and here are excerpts from this very lengthy piece:

Even as the pandemic lockdown helped push down many crimes, last year saw an unprecedented spike in homicides nationwide, likely more than twice the largest previous one-year rise.  And given the retaliatory nature of lethal violence and the ongoing disruption from the pandemic, we should expect homicides to remain high in 2021 as well.  One study in Chicago, for example, found evidence that cycles of retaliation and counterretaliation meant that a single shooting was often the root cause of three, or sometimes 60, or once almost 500 subsequent shootings over the next few years.

How to stop this wave of violence is thus one of the most important policy questions for 2021, but asking it has rarely felt more fraught.  The surge in homicide comes at a moment when conventional responses to crime face more intense criticism than any time since the civil rights movements of the 1960s.  Reformers and activists across the country have spent the past decade campaigning to reduce our reliance on prisons, jail, probation, and even the police.  The changes we’ve seen may be less dramatic than what many advocates have hoped for, and certainly less dramatic than how many of their detractors describe them, but they both reflect and have nurtured a growing shift in popular views on crime control....

Perhaps the most important feature of last year’s rise in homicides is just how uniform it appears to be.  In 2020, homicides rose in 60 of the 69 major police departments noted above, and in almost all cases at a rate more or less proportional to homicides in 2019.  Any one city’s share of homicides was roughly the same as its share in 2019, just appreciably higher.  Unlike many previous periods, the spike was not the product of a few cities experiencing an especially bad year (in 2016, around 20 percent of the national increase in homicides was just due to Chicago), but of almost every city suffering in something close to unison.

One important upshot of this uniformity is that there is no evidence that cities with more progressive prosecutors experienced relatively worse outcomes than those with more conventional district attorneys.  In fact, two of the eight departments that reported declines in homicides — Baltimore City, Maryland, and St. Louis County, Missouri — are home to two of the country’s most high-profile “progressive prosecutors,” Marilyn Mosby and Wesley Bell.  Opponents of progressive prosecution are already invoking the homicide spike to push back against the movement, but the data simply do not back them up....

It is also important to note the inaccuracy of trying to pin rising homicides on efforts to “defund” the police.  In a December 2020 press conference, for example, Gregg Sofer, at the time the U.S. attorney for the Western District of Texas, tried to blame Austin’s rise in homicides on the city’s recent decision to cut police funding.  The problem?  Homicides had started to rise well before the cuts, in no small part because the budget in question did not go into effect until October 2020, so almost none of the proposed cuts would have occurred until 2021 at the earliest — and most of the 2021 cuts involve simply shifting which agencies are responsible for certain tasks....

If not progressive prosecution or defunding, what caused the surge in homicides?  It will be years before we have a clear answer, but the two leading explanations are the chaos wrought by the Covid pandemic and some product of the protests that have taken place against police violence.  (Other factors surely mattered, too, such as an unprecedented uptick in gun purchases.) Both theories are valid, but in complicated ways....

It is nearly impossible to understate the chaos of the past year and a half: not just an epochal pandemic that has caused mass death and brought once-in-a-generation economic devastation in its wake, but the fearmongering rhetoric of Donald Trump, the unsettling and still-unresolved insurrection of January 6, and widespread protests of the sort that risk scaring and unnerving white voters.  These are conditions that would push much of the public in a more punitive direction even absent any change in crime rates; add in the unprecedented spike in homicides, and demands for severity will grow even stronger, politically speaking.

The signs of that growing severity are widespread.  Even though prisons and jails have been leading hot spots for spreading the coronavirus — not just to the poor communities of color overrepresented in the prisons’ populations, but also to the more rural and white working-class communities where correctional officers tend to live — state prison populations barely budged, and early declines in county jail populations have been mostly undone.  Democrats and Republicans, governors and legislators and mayors: Almost no one was willing to reduce prison or jail populations.  The pandemic provided compelling political cover for releasing large numbers of people from prison; that so few took advantage is telling evidence of a deeper reticence toward real change....

Reform efforts will inarguably face tougher opposition in the years ahead.  The social and economic upheavals of Covid, like the emotional shock of 9/11, would likely have been enough on their own to shift many people’s attitudes on crime policy in a more punitive direction; the homicide spike of 2020, and its continuing fallout through 2021, all but guarantee such a move — especially for issues like police funding.  Conservative state legislatures show increasing interest in limiting the cuts that can be made by bluer cities, where support for reform may remain high.  But all these transformations do not mean that the defenders of the status quo are guaranteed a victory.  They are using the current atmosphere of fear to push hard against reforms, but they are also facing more effective and motivated opposition than at any other time recently, and support for reform still seems high in the communities that are most directly affected.  Meanwhile, there is little to no evidence linking the rise in homicides to the reforms that have actually been implemented, many of the reforms being fought for are designed to reduce violence immediately, and many may do so both more effectively and at a lower social and human cost than the status quo.  The politics may be turning toward the status quo, but the data are not.

These excerpts only capture a small slice of Pfaff's interesting discussion in this new piece.  But I find problematic and discouraging that he fails to note the latest encouraging data from the Vera Institute concerning declines in US prison populations.  Pfaff states here that "state prison populations barely budged" during the COVID pandemic, but this Vera report finds that the US prison population dropped by over 240,000 persons (17%) from 2019 to spring 2021.  This is much more than "barely budging," though I know many advocates were hoping to see even broader decarceration efforts during the pandemic.  Still, Figure 5 of the Vera report shows that nearly every state experienced at least 10% decline in its prison population during the pandemic and many states saw declines of 25% or more. 

As I noted when the Vera data was released earlier this month, the national prison populations according to this data is now the lowest it has been in over 25 years and the lowest per capital  rate in more than three decades.  Pfaff is right to wonder and worry about how increases in violent crime might impact recent reductions in mass incarceration, but I fear he tends to too often see the criminal justice reform story through the lens of violent crimes when it has so many other notable dimensions.  I believe many states (and the federal system) did a reasonable job reducing the number of less serious offenders subject to incarceration.  If we can continue to do that and only use incarceration for the most serious, violent offenders (and also allow persons subject to long terms to get sentencing second looks) we might have reason to be optimistic that the US will soon no longer be the world's leader in locking its people in cages.

June 21, 2021 in National and State Crime Data, Scope of Imprisonment, Who Sentences | Permalink | Comments (4)

Thursday, June 17, 2021

"Life Without Parole Isn’t Making Us Any Safer"

The title of this post is the title of this video guest essay now on the New York Times opinion page.  Here is the text which accompanies the video:

Robert Richardson robbed a bank of about $5,000 in 1997 and was sentenced to 60 years in prison without the possibility of probation or parole.  He was 30 years old when he was locked away in the Louisiana State Penitentiary, making his penalty a virtual life sentence.

Mr. Richardson doesn’t deny that he did wrong.  He concurs with the adage “Don’t do the crime if you can’t do the time.”

But in the video guest essay above, he contends that life sentences without parole are counterproductive — for the prisoner and society alike — and should be prohibited.  He is joined in the video by his wife, Sibil Fox Richardson, whose decades-long effort to secure his release was documented in the film “Time,” and by one of their sons, Freedom.

Mr. Richardson focuses his lobby on Louisiana, one of the states with the most prisoners serving life sentences without parole.  Gov. John Bel Edwards of Louisiana has sought to shed the state’s reputation as the nation’s incarceration capital, signing into law a package of criminal justice reform bills intended, in part, to reduce the size of the prison population.

But Mr. Richardson says there’s an urgent need for further reform, and he implores the governor and the state legislature to ban life sentences without parole.

June 17, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, June 15, 2021

National Registry of Exonerations reports on "25,000 Years Lost to Wrongful Convictions"

I saw this notable new report from the folks at the National Registry of Exonerations titled "25,000 Years Lost to Wrongful Convictions."  here is part of the start of the report:

In 2018, the National Registry of Exonerations reported a grim milestone: Exonerated defendants had collectively served 20,000 years in prison for crimes they did not commit. Just three years later, in June 2021, we reached another: Time lost to false convictions exceeded 25,000 years.  The total now stands at 25,004 years, on average more than 8 years and 11 months in prison for each of the 2,795 exonerees in the Registry.  Innocent Black defendants served a majority of that time — a total of 14,525 years lost to unjust imprisonment.

The National Registry of Exonerations reports every known exoneration in the United States since 1989, a total of 2,795 as of June 1, 2021.  Dozens of defendants exonerated since our 2018 report served more than 25 years in prison for crimes they did not commit....  Not all of the exonerees who served many years for crimes they did not commit were convicted of violent crimes like murder or rape. Lawrence Martin spent nearly 19 years in California prisons for possession of a knife with a locking blade....

It is hard to fathom spending decades in prison, knowing all the while that you are innocent.  But even those who served relatively short sentences suffered tremendously.  People often refer to the time we have spent in 2020 and 2021 under COVID-19 restrictions as a “lost year.”  We’ve missed the ability to travel freely, socialize with friends, and see loved ones. For people wrongfully incarcerated, every year is a lost year.  To exonerees who served sentences of a year or two for crimes they did not commit, it must have felt like an eternity.  For those who served decades, the suffering is incomprehensible.

Unfortunately, the 2,795 exonerations we know about only begin to tell the story of wrongful convictions and the toll they take.  Many exonerations remain unknown to us, though we keep looking. The vast majority of false convictions go uncorrected and therefore are never counted.  Our calculation also does not include time lost to the thousands of people cleared in large-scale group exonerations, which arise when groups of defendants are cleared upon the discovery of a common pattern of systemic misconduct by a government official in the investigation and prosecution of their cases.  Finally, our calculations include only time spent in prison after the wrongful conviction and consequently do not capture the significant time lost in custody awaiting trial.  Put simply, while 25,000 years is a staggering number, it is a significant undercount of the true losses these falsely convicted men and women suffered.

June 15, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 09, 2021

A different assessment of "America’s Dangerous Obsession" with innocence on death row

Thirteen years ago, in an article titled Reorienting Progressive Perspectives for Twenty-First Century Punishment Realities, 3 Harv. L.& Pol'y Rev. Online (2008), I explained the basis for my concern that "progressive criminal justice reform efforts concerning innocence issues, abolition of the death penalty, and sentencing disparities may contribute to, and even exacerbate, the forces that have helped propel modern mass incarceration."  That old article feels fresh again upon seeing this new lengthy Atlantic piece by Elizabeth Bruenig titled "America’s Dangerous Obsession With Innocence."  Here are a few excerpts from the piece:

It goes without saying that the state should not kill innocent people, and that it is a good thing to save the innocent from a fate no one thinks they deserve.  I believe it is a good thing, too, to save the guilty from a fate some would argue they have earned.  That the one stance may occlude the other reflects the death penalty’s bizarre moral universe....

According to the national Registry of Exonerations, more than 1,000 people have been exonerated for murder in the United States since 1989.  Many of these cases were initially decided when forensic techniques and technologies were less advanced and less accurate than they are now.  People with plausible innocence claims have, in some instances, been able to bring new technology to bear on preserved evidence to great effect.  That phenomenon spurred the innocence movement in capital-punishment advocacy as we know it.

“Around the year 2000, there’s this ferment all over the place to create innocence programs,” David R. Dow, the founder and director of one such program, the Texas Innocence Network, told me. “They’re kind of sexy. Funders want to fund them. People are beginning to pay attention to the fact that there are innocent people in prison.”

Marissa Bluestine, the assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Carey Law School, told me that more than 50 innocence organizations now operate in the United States.  They differ in size, scope, region, and budget, but they “all have the same goals: They work to identify people who did not commit the underlying crime they were convicted of and they try to exonerate them.”

That’s well and good, except that the number of innocence claims that can be confidently settled in labs is not infinite, and may in fact be dwindling. Dow, who teaches law at the University of Houston, has represented more than 100 clients on death row in his 30 years of practice; out of that number, he counts only eight as credibly innocent. He doesn’t suspect that his future will hold many more....

More generally, a 2014 published by the National Academy of Sciences found that if all of American death-row inmates were to remain condemned indefinitely, approximately 4.1 percent would eventually be exonerated — a proxy for the share of innocent inmates. That’s an admittedly conservative estimate. But even if the number of innocent inmates were doubled, the number of guilty ones would still make up more than 90 percent of death row....

To put it succinctly: Innocence cases indicate that some capital sentences are unfair, but decades of studies on death-qualified juries; race, gender, and immigration-status bias among jurors; law enforcement and prosecutorial misconduct; weak forensic science and poor representation at trial all suggest that a fair capital sentence is virtually impossible.  Ultimately the fight should be waged not against particular injustices, but against the unjust system itself.

Especially for those inclined toward capital abolition, I fully understand the logic of speculating that there many not be that many innocent persons left on death row and so even more fight needs to be directed toward the guilty on death row.  However, the fight against against all of death row has been pretty robust and pretty effective over the last 20 years (surely aided by the innocence movement).  Nationwide, since 2000, death row has shrunk about 30%, the number of executions has shrunk about 75%, and the number of death sentences imposed has shrunk 85%.

But, shifting our focus from formal death sentences to what are sometimes called "death in prison" sentences, the modern story changes dramatically.  As detailed in a recent Sentencing Project report (discussed here), the "number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since ... 2003."   Moreover, while there are currently around 2500 people on death row who have all been convicted of capital murder, there are now roughly 4000 people "serving life sentences [who] have been convicted for a drug-related offense."  And well over 200,000 persons are now "serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more)."  

If we keep the focus on innocence, and use the 4% number discussed in this Atlantic article and extrapolate, these data mean we could have 100 innocent persons on death row, but also 160 innocent persons serving life for a drug-related offense and over 8000 innocent persons serving LWOP or LWP or virtual life.  If there are lots of innocent groups and not a lot of "good" capital client, there would seem to be no shortage of innocent lifers needing help.  (And, on the data, I am always inclined to speculate that there are now an even larger number of innocent persons serving life than death because capital cases historically get more scrutiny.)

That all said, I obviously share this article's sentiment that guilty persons ought not endure unfair sentences and its advocacy for assailing "the unjust system itself."  However, the capital punishment system, for all its persistent flaws, still strikes me as somewhat less unjust than so many other parts of our sentencing system.  There are no mandatory death sentences, jurors play a central role in every death sentence, and state and federal appellate judges often actively review every death sentence.  There are nearly 100 people serving some type of life sentence for every person serving a death sentence in large part because life sentences are imposed so much more easily as subject to so much less scrutiny. 

Put simply, and I have said before, I worry it is a continued obsession with the death penalty, and not with innocence, that may be problematic in various ways.  But since that very obsession is largely what accounts for capital punishment's modern decline, I am disinclined to be too critical of capital obsessives.

June 9, 2021 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Monday, June 07, 2021

FAMM urges AG Garland to prevent those on home confinement during pandemic from being returning to federal prison

In various prior posts (some linked below), I have covered the Office of Legal Counsel memo released at the very end of the Trump Administration which interprets federal law to require that certain persons transferred from federal prison to home confinement pursuant to the CARES Act be returned to federal prison when the pandemic ends.  The folks at FAMM have done a great job spotlighting the problems this OLC memo creates, and Kevin Ring at FAMM today sent this new extended letter to Attorney General Garland urging him to address these matters "as quickly as possible."  Here are excerpts from the letter:

Dozens of members of Congress who voted for the CARES Act have written to you, clarifying that they did not intend people on home confinement to return to prison.  The BOP did not tell people who were transferred to home confinement that they might have to return. Corrections officers were unaware of the possibility....

There is no public safety reason to require anyone abiding by the terms of their transfer to be reincarcerated.  The BOP screened each one of the approximately 4,000 people currently on home confinement using strict criteria established by Attorney General William Barr.  Those deemed to pose no danger to the community now wear ankle monitors and are subject to rigorous surveillance.  Some have been home for a full year. Only a vanishingly small percentage have violated the terms of their confinement, according to the BOP....

Attorney General Garland, we urge you to end now the needless suffering and extreme stress these families are experiencing.  You can do so in a number of ways.

First, you have the authority to rescind or overrule the OLC memo.  We, along with a bipartisan group of members of Congress and advocacy organizations, have urged and continue to urge you to do so.

If you feel constrained to follow the OLC’s opinion, you can and should recommend to the president that he act now to grant clemency to anyone who is serving CARES Act home confinement and has complied with the rules of their supervision.  The Department then should do everything it can to support clemency petitions, including ensuring the speedy review and transfer of cases to the president.  The president has expressed a desire to use his clemency authority more robustly.  Commuting the sentences of these extraordinarily low-risk people would be a smart and easy start.

The Department could use its existing authority to keep people home by transferring those eligible for the Elderly Offender Home Detention Program.  It also could use its authority to seek compassionate release for those on CARES Act home confinement, especially those who have years left on their sentences.  At a minimum, the Department should direct that U.S. Attorneys not oppose compassionate release motions brought by people in those circumstances.

In all cases, the Department should direct the BOP to use its furlough authority to prevent anyone whose status is not resolved before the end of the emergency period from having to return to prison.  This approach also would be useful for those people nearing the end of their sentences and for whom the measures discussed above are not necessary because they will shortly be eligible for transfer under 18 U.S.C. § 3624(c).

Some prior recent related posts:

June 7, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Vera Institute reports on "People in Jail and Prison in Spring 2021" and finds US total below 1.8 million

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons and jails.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Impressively, and as reported in this post, Vera produced a great report titled "People in Jail and Prison in 2020" in January, and now it already produced this updated report titled "People in Jail and Prison in Spring 2021" with the latest nationwide prison and jail population headcounts. Here is part of the start of the report (with a few sentences I have emphasized):

When the COVID-19 pandemic was first detected in the United States, it was clear that the virus would cause widespread suffering and death among incarcerated people. Advocates were quick to call for prison and jail releases. However, a little more than a year later, decarceration appears to have stalled.  After an unprecedented 14 percent drop in incarceration in the first half of 2020 — from 2.1 million people to 1.8 million — incarceration declined only slightly from fall 2020 to spring 2021.  Generally, states that started 2020 with higher incarceration rates made fewer efforts to reduce incarceration through spring 2021. This pattern speaks to the political, economic, and social entrenchment of mass incarceration.

At the federal level, the number of people in civil custody for U.S. Immigration and Customs Enforcement (ICE) is less than one-third of the 2019 population, while the number of people detained for the U.S. Marshals Service (USMS) facing federal criminal charges reached an all-time high.

Jail populations in rural counties dropped by 27 percent from 2019 through March 2021, the most of any region.  The historic drop in the number of people incarcerated was neither substantial nor sustained enough to be an adequate response to the pandemic, and incarceration in the United States remains a global aberration.

Recent evidence from the Bureau of Justice Statistics also shows that racial inequity worsened as jail populations declined through June 2020.  Vera Institute of Justice (Vera) researchers collected data on the number of people incarcerated throughout 2020 and into early 2021 to provide timely information about how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the incarcerated population using a sample of approximately 1,600 jail jurisdictions, 50 states, and the Federal Bureau of Prisons, the USMS, and ICE.

I find all this data fascinating, and I am actually encouraged that prison populations as reported by Vera is now below 1.2 million, which is the lowest it has been in over 25 years (and probably the lowest per capital in more than three decades).  This Vera report is clearly eager to stress that incarceration is still "mass" in the US, but I am still eager to note that we are still generally trending in the right direction.  Whether that will hold as we get closer to getting past COVID, as as murders and gun assaults are spiking, is the story I will be watching closely in the months and years ahead.

June 7, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, June 04, 2021

"Jails, Sheriffs, and Carceral Policymaking"

The title of this post is the title of this recent paper authored by Aaron Littman just published in the Vanderbilt Law Review. Here is its abstract:

The machinery of mass incarceration in America is huge, intricate, and destructive.  To understand it and to tame it, scholars and activists look for its levers of power — where are they, who holds them, and what motivates them?  This much we know: legislators criminalize, police arrest, prosecutors charge, judges sentence, prison officials confine, and probation and parole officials manage release.

As this Article reveals, jailers, too, have their hands on the controls.  The sheriffs who run jails — along with the county commissioners who fund them — have tremendous but unrecognized power over the size and shape of our criminal legal system, particularly in rural areas and for people accused or convicted of low-level crimes.

Because they have the authority to build jails (or not) as well as the authority to release people (or not), they exercise significant control not merely over conditions but also over both the supply of and demand for jail bedspace: how large they should be, how many people they should confine, and who those people should be.  By advocating, financing, and contracting for jail bedspace, sheriffs and commissioners determine who has a say and who has a stake in carceral expansion and contraction.  Through their exercise of arrest and release powers, sheriffs affect how many and which people fill their cells. Constraints they create or relieve on carceral infrastructure exert or alleviate pressure on officials at the local, state, and federal levels.

Drawing on surveys of state statutes and of municipal securities filings, data from the Bureau of Justice Statistics, case law, and media coverage, this Article tells overlooked stories — of sheriffs who send their deputies out door knocking to convince voters to support a new tax to fund a new jail, and of commissioners who raise criminal court fees and sign contracts to detain “rental inmates” to ensure that incarceration “pays for itself.”  It also tells of sheriffs who override the arrest decisions of city police officers, release defendants who have not made bail, and cut sentences short — and of those who would rather build more beds than push back on carceral inertia.

A spotlight on jails and the officials who run them illuminates important attributes of our carceral crisis.  The power and incentives to build jail bedspace are as consequential as the power and incentives to fill it.  Expanding a county’s jailing capacity has profound ramifications across local, state, and federal criminal legal systems.  Sheriffs have a unique combination of controls over how big and how full their jails are, but this role consolidation does not produce the restraint that some have predicted.  Their disclaimers of responsibility are a smokescreen, obscuring sheriffs’ bureaucratic commitment to perpetuating mass incarceration.  State courts and federal agencies have increasingly recognized and regulated public profiteering through jail contracting, and advocates have begun to hold jailers accountable, challenging expansion in polling booths and budget meetings.

June 4, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, May 28, 2021

Most of California DAs file court action challenging new rules expanding good behavior credits to state prisoners

As reported in this recent AP piece, "three-quarters of California’s district attorneys sued the state Wednesday in an attempt to block emergency rules that expand good conduct credits and could eventually bring earlier releases for tens of thousands of inmates."  Here is more about the suit:

The lawsuit objects on procedural grounds, arguing that Corrections Secretary Kathleen Allison used the emergency declaration to bypass the usual regulatory and public comment process.  The rules affecting 76,000 inmates, most serving time for violent offenses, took effect May 1, although it will be months or years until inmates accumulate enough credits to significantly shorten their sentences.

Forty-four of the state’s 58 district attorneys brought the lawsuit, which says the only stated emergency was the corrections department’s desire to follow the “direction outlined in the Governor’s Budget Summary” nearly a year earlier.  Notably absent were district attorneys in Los Angeles and San Francisco who have backed criminal sentencing changes.

The lawsuit asks a Sacramento County Superior Court judge to throw out the regulations and bar the department from granting any of the good conduct credits until it goes through the regular process.  “There is no actual emergency, and they cannot meet those emergency requirements,” the lawsuit contends.  “Nowhere in the supporting documents is there an explanation of how last year’s budget has become an operational need for the adoption of the regulations on an emergency basis.”

The department said it acted under the authority given it by voters when they passed Proposition 57 in 2016, allowing earlier parole for most inmates.  It “filed regulations to promote changes in good behavior credits, and followed all policies and procedures by the Office of Administrative Law,” the department said in a statement promising to “continue to work with our partners to promote rehabilitation and accountability in a manner consistent with public safety.”

The emergency rules boost good behavior credits for a projected 63,000 inmates convicted of violent crimes, allowing them to prospectively serve two-thirds of their sentences rather than the previous 80%.  Another 10,000 prisoners convicted of a second serious but nonviolent offense and nearly 2,900 nonviolent third strikers would be eligible for release after serving half their sentences, down from two-thirds.  Inmate firefighters and minimum-security inmates in work camps, regardless of the severity of their crimes, are eligible under the new rules for a month of earlier release for every month they spend in the camp.

A press release about the suit from the Sacramento County District Attorney's Office is available here, and the actual filing is available here.

A few recent related posts:

May 28, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, May 26, 2021

Timely reminder of US Sentencing Commission's decarceral potential ... when it is functional

I flagged in this post last week that the US Sentencing Commission had just released a host of notable new materials with lots of interesting data via the USSC's website.  Upon reflection and review, I was especially struck by this new data run detailing retroactive application of "Amendment 782 -- The 2014 Drug Guidelines Amendment, often referred to as 'Drugs Minus Two'."  These data reminded me of how impactful a functional and forward-thinking US Sentencing Commission can be on its own ... and why I hope Prez Biden will soon put forward nominations that would lead the USSC to become functional and forward-looking once again.

A bit of background, drawn from this report: "On April 30, 2014, the Commission submitted to Congress an amendment to the federal sentencing guidelines that ... reduced by two levels the offense levels assigned to [drug] quantities....  On July 18, 2014, the Commission voted to give retroactive effect to Amendment 782."  In other words, the USSC in 2014 reduced the basic guideline offense level by two for all drug offenses and made this change retroactively applicable to all federal drug defendants still imprisoned for offenses before 2014.  Because drug offense are a huge part of the federal criminal docket and an even larger part of the federal prison population, this relatively small guideline change has had a huge prison time impact.

Specifically, as this retroactive new data report details, a total of 31,908 persons in federal prison were granted sentence reductions that averaged 26 months.  In other words, the retroactive application of the "drugs -2" guideline amendment resulted in just about 70,000(!) years of retroactive reduced imprisonment.  Further, with well over 100,000 federal drug cases sentenced over the last six years, the "prospective" impact of the  drugs -2 guideline amendment has surely been at least another 200,000 years of reduced imprisonment for federal drug offenders (and still counting). 

Critically, the drugs -2 amendment was not a direct reaction to any congressional legislation, it was a (bipartisan) decision made by a (bipartisan) expert commission shaped by evidence and sound policy analysis in all respects.  In other words, this was a consequential (decarceal) reform moved forward in precisely the good-government process that Judge Marvin Frankel envisioned when he astutely suggested the creation of a Commission on Sentencing for the federal criminal justice system. 

Sadly, the US Sentencing Commission is now essentially non-functional, at least for guideline amendments and any big initiatives, for going on three years because of the lack of commissioners.  As discussed in a number of prior posts linked below, I hope Prez Biden will get the USSC up and running again.  In the meantime, I will keep doing posts to note the wisdom and reform potential we risk losing until the USSC is functional and forward-looking once again.

 A few prior recent related posts:

May 26, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, May 23, 2021

More notable new essays in Brennan Center's "Punitive Excess" series

I highlighted here last month a new essay series assembled by the Brennan Center for Justice, titled "Punitive Excess," in which "writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm."  The first three essays in the series were linked in this prior post, and now I see that these three additional essays have been added to the series:

May 23, 2021 in Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Thursday, May 20, 2021

"But Who Oversees the Overseers?: The Status of Prison and Jail Oversight in the United States"

The title of this post is the title of this notable new article by Michele Deitch in the American Journal of Criminal Law.  Here is part of the issue's introduction:

In 2010, I published research demonstrating that external oversight over prisons and jails was a rarity in the United States.  Ten years later, this article reveals a similar conclusion — despite the extraordinary concerns surrounding conditions of confinement and the treatment of people in custody, relatively few jurisdictions have established independent agencies tasked with scrutinizing these institutions and addressing the problems they find.  However, there have also been significant signs of change over the last decade: the national landscape for independent correctional oversight is improving, with greater awareness of this issue, more calls for the creation of oversight mechanisms, more concrete efforts to establish these entities, and the successful implementation of several new oversight bodies.

This article builds on my 2010 report to highlight those recent developments and to assess the current state of correctional oversight in the United States.  Part I describes the concept of correctional oversight and explains its goals to improve transparency and increase accountability within prisons and jails.  It goes on to outline the benefits of oversight that can accrue to diverse stakeholders, including incarcerated persons, correctional administrators, policymakers, judges, the media, and the public at large.  This section also discusses the prevalence of independent oversight bodies in other countries, and how the lack of such oversight makes the United States an anomaly on the world stage.

In Part II, I discuss America’s historical reliance on court oversight as a way to address problematic institutional conditions and how this has inhibited the development of preventive oversight mechanisms.  But as litigation has become a less reliable tool for prison reformers, and as the drawbacks of court oversight have become more obvious, advocates have begun to emphasize the need for preventing harm through routine inspections of facilities rather than waiting until conditions hit rock bottom to get involved in reform efforts.

Part III examines the growing interest in correctional oversight and discusses recent calls for the development of independent oversight mechanisms in this country.  Since 2006, there has been a series of notable highlights in the nascent oversight movement, and this section sets forth a chronology of those key events.

Part IV describes a multi-year research project conducted at the Lyndon B. Johnson School of Public Affairs at the University of Texas to find, interview, and catalog all external prison and jail oversight bodies that currently exist for adult correctional facilities around the nation.  This part of the article presents and analyzes the key findings about these various oversight bodies.  In this section, I also highlight those jurisdictions that have established oversight bodies since 2010, to show the shifting landscape of correctional oversight in the United States. This section of the article also includes charts with lists of various prison and jail oversight bodies at the state and local levels.

Finally, Part V concludes with an overall assessment of the status of correctional oversight in the United States.  That assessment mixes optimism and excitement about the future of oversight with a dose of realism about the challenges ahead and a recognition that we continue to trail our peer nations when it comes to belief in the critical importance of independent oversight.  But still we must push on in our efforts to promote transparency and accountability in all places of confinement.

May 20, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, May 19, 2021

"The Origins of the Superpredator: The Child Study Movement to Today"

The title of this post is the title of this notable new report from the Campaign for the Fair Sentencing of Youth.  Here is its introduction:

The 1995 superpredator narrative is often called out as the impetus for our nation's harmful sentencing policies for Black children.  After all, 75 percent of all kids sentenced to life without parole (JLWOP) were sentenced in the 90s or later, and 70 percent of this population are kids of color (60 percent Black).  But the pseudo-scientific, unsubstantiated, and racialized superpredator theory is actually part of an American tradition of deeming some children something other than children.

The term superpredator first appeared in a publication by American political scientist John J. DiIulio, Jr. in 1995. DiIulio predicted that a wave of teenagers driven by "moral poverty" numbering in the tens of thousands would soon be on the streets committing violent crime. These "hardened, remorseless juveniles" were framed in the article as a pressing "demographic crime bomb."  DiIulio's narrative used racist tropes to further stoke fear — broadly attributing "moral poverty" to "Black inner-city neighborhoods" and families and specifically and repeatedly calling attention to gang violence and "predatory street criminals" among "Black urban youth." 

Five years later, DiIulio renounced the superpredator theory, apologizing for its unintended consequences.  While Dilulio predicted that juvenile crime would increase, it instead dropped by more than half.  Conceding that he made a mistake, Dilulio regretted that he could not “put the brakes on the super-predator theory” before it took on a life of its own.

Despite his later distancing from the idea, DiIulio's terminology spread like wildfire through major news outlets and academic circles.  Coming just a few years after headlines using "wilding" and "wolf pack" to describe five teenagers convicted and later exonerated of raping a woman in Central Park, the rhetorical dehumanization of youth suspected of violence was not new, but DiIulio's coining of "superpredator" lent new credibility and energy.  The superpredator myth reinforced and sought to legitimize longstanding fears of Black criminality, disguised as developmental science and resting on pseudo-scientific assumptions that certain children are not children at all.

While the widespread adoption and popularization of DiIulio's rhetoric and the broader tough on crime atmosphere of the 1990s is instructive in examining our extreme sentencing policies, it is important to place them in the context of our long history of only regarding some children as worthy of protection.  This report highlights the superpredator theory as one manifestation of a longstanding practice in which policymakers, lawyers, and academics classify children on the basis of moral and racial beliefs.  These classifications permit racially biased perceptions of deviance to replace chronological age as the defining characteristic of youth.

This report takes as its jumping off point the Child Study movement of the 19th century, which had long lasting impact on the contours of academic inquiry and the American legal system.  The Child Study movement itself was of course rooted in a deeply racist culture, profoundly influenced by the justifications used to uphold slavery and Jim Crow, and with its own ideological predecessors dating back to the Enlightenment of the 18th century.

May 19, 2021 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, May 14, 2021

"Mass Incarceration Retards Racial Integration"

The title of this post is the title of this recent working paper authored by Peter Temin for the Institute for New Economic
Thinking.  Here is its abstract:

President Nixon replaced President Johnson’s War on Poverty with his War on Drugs in 1971.  This new drug war was expanded by President Reagan and others to create mass incarceration.  The United States currently has a higher percentage of its citizens incarcerated than any other industrial country.  Although Blacks are only 13 percent of the population, they are 40 percent of the incarcerated.  The literatures on the causes and effects of mass incarceration are largely distinct, and I combine them to show the effects of mass incarceration on racial integration.  Racial prejudice produced mass incarceration, and mass incarceration now retards racial integration.

May 14, 2021 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Friday, May 07, 2021

"Life 'With' or 'Without'?: An Empirical Study of Homicide Sentencing"

The title of this post is the title of this notable new empirical paper authored by Michael O'Hear and Darren Wheelock now available via SSRN. Here is its abstract:

The number of Americans serving sentences of life without the possibility of parole (“LWOP”) has grown rapidly over the past generation and now exceeds 50,000.  Yet, little empirical research has been conducted on the determinants of LWOP sentences.  The dearth of research on LWOP sentencing stands in sharp contrast to the many dozens of studies that have been conducted on the determinants of death sentences — studies that have consistently found that race, gender, and other questionable factors may influence sentencing outcomes.  The present study is the first to employ a similar methodology to identify both case- and county-level variables that are correlated with the imposition of discretionary LWOP sentences.

More specifically, we have assessed the relationship between fifty different variables and LWOP decisions in 450 homicide cases in Wisconsin between 2001 and 2018.  In our final model, we find seven variables that are correlated with sentencing outcomes.  Of particular note, we find that judge and prosecutor personal characteristics are statistically significant correlates of LWOP decisions.  We also find a significantly greater likelihood that LWOP sentences will be imposed in counties that are more Republican.  We conclude with a proposal for a new LWOP sentencing process that may help to ensure that this very severe sentence is reserved for the most serious crimes committed by the most dangerous defendants.

May 7, 2021 in Offense Characteristics, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)