Thursday, June 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Tuesday, June 11, 2019

"Bail and Mass Incarceration"

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

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

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

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

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

Thursday, June 06, 2019

Spotlighting the enduring business of jails

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

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

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

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

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

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

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

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

Thursday, May 23, 2019

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

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

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

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

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

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

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

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

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

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

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

A few prior related posts:

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

Tuesday, May 21, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some (of many) prior posts on sentencing finality:

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

Thursday, May 16, 2019

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

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

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

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

Prior related posts about 2015 volume:

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

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

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

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

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

Saturday, May 11, 2019

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

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

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

Wednesday, May 08, 2019

"Does our county really need a bigger jail?"

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

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

The report’s 33 questions for policymakers include:

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

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

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

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

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

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

Wednesday, May 01, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 30, 2019

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

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

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

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

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

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

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

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

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

Thursday, April 25, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 24, 2019

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

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

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

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

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

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

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

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

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

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

Tuesday, April 23, 2019

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

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

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

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

Monday, April 22, 2019

"The case against solitary confinement"

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

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

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

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

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

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

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

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

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

Saturday, April 20, 2019

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

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

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

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

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

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

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

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

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

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

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

Thursday, April 18, 2019

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

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

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

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

Tuesday, April 16, 2019

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

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

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

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

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

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

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

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

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

Saturday, April 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 09, 2019

"Who Belongs in Prison?"

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

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

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

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

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

Friday, April 05, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, April 03, 2019

"Limiting Identity in Criminal Law"

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

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

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

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

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

Tuesday, April 02, 2019

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

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

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

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

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

Rejecting torture in prison

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

Using discretion to reduce extreme sentences

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

Legislators reducing excessive sentences

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

Recognizing the rehabilitative potential of youth and young adults

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

Scaling back collateral consequences

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

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

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

Friday, March 29, 2019

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

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

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

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

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

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

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

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

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

Thursday, March 28, 2019

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

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

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

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

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

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

Wednesday, March 27, 2019

"Regulating Mass Prosecution"

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

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

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

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

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

Thursday, March 21, 2019

"Reduce prison populations by reducing life sentences"

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

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

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

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

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

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

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

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

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

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

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

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

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system.  Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.  Jail churn is particularly high because most people in jails have not been convicted.  Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.  Only a small number (less than 150,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year....

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

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

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

Saturday, March 09, 2019

Notable review of juvenile lifers in Tennessee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, February 25, 2019

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

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

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

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

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

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

Combating state and local corruption....

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

Punishing crimes specifically against the federal government....

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

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

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

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

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

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

A few prior related posts:

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

Friday, February 22, 2019

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

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

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

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

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

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

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

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

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

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

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

Tuesday, February 12, 2019

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

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

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

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

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

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

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

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

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

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

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

Monday, February 11, 2019

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 07, 2019

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

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

Bruce Western, The Challenge of Criminal Justice Reform

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

Arthur Rizer, A Call for New Criminal Justice Values

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

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

Wednesday, January 30, 2019

Contextualizing passage of the FIRST STEP Act and its likely echoes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, January 25, 2019

Timely questions on enduringly important topics via The Crime Report

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

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

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

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

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

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

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

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

Wednesday, January 23, 2019

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

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

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

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

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

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

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

Saturday, January 19, 2019

"Positive Sanctions versus Imprisonment"

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

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

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

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

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

Wednesday, January 16, 2019

"Mens Rea Reform and Its Discontents"

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

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

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

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

"Top Trends in State Criminal Justice Reform, 2018"

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

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

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

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

Monday, January 07, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, January 03, 2019

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

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

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

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

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

Sunday, December 30, 2018

Highlighting continued work (and optimism) on alternatives to incarceration

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

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

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

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

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

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

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

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

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

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

Monday, December 24, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A few of many recent related posts: 

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

Thursday, December 20, 2018

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

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

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

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

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

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

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

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

La-1545291841-6s9kam0io9-snap-image

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 14, 2018

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

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

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

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

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

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

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

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

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

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

Download Text Cotton Kennedy First Step Amendment

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

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

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

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

Some of the most recent of many prior related posts:

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

Wednesday, December 12, 2018

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

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

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

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

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

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

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