Friday, October 23, 2020

REMINDER Call for Papers: "Understanding Drug Sentencing and its Contributions to Mass Punishment"

6a00d83451574769e2026bde959014200c-320wiI said before that I was going to regularly remind folks of this recent call for papers relating to an exciting event I am excited to be involved in helping to plan, "Understanding Drug Sentencing and its Contributions to Mass Punishment."  So, here again is the full call, which is also available as a full pdf document at this link:

INTRODUCTION
Discussion of the “war on drugs” frequently fails to examine precisely how drug offenders are sentenced — and how they should be.  Drug sentencing practices are implicated in many fundamental criminal justice issues and concerns.  Research suggests incarcerating people for drug offenses has little impact on substance use rates or on crime rates more generally.  And, despite reports of comparable use rates, people of color are far more likely to be arrested and incarcerated for drug-related offenses than white counterparts.  Mandatory minimum sentencing statutes are applied commonly, but inconsistently, in drug cases and for persons with a criminal history that involves drug offenses.  And while states have created specialty courts to handle the cases of low-level drug offenders, the efficacy and appropriateness of the “drug court movement” has long been subject to debate.

Distinct state and federal realities complicate our understanding of the relationship between the drug war and punishment.  Nearly all federal drug defendants get sent to prison and nearly 50% of the federal prison population is comprised of drug offenders; relatively few state drug offenders are sent to prison and less than 20% of state prisoners are serving time on drug charges.  But data on arrests, jail populations, and community supervision highlight the continued, significant impact drug cases still have on state and local justice systems.  The role of drug criminalization and sentencing contributes to mass incarceration, yet mass punishment can look quite different depending on the criminal justice system(s) and the drugs.


ABOUT THE CALL
These issues and others related to drug sentencing will be part of a symposium jointly sponsored by the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Academy for Justice at the Arizona State University Sandra Day O'Connor College of Law.  "Drug Sentencing and its Contributions to Mass Punishment," will take place on June 10–12, 2021, at The Ohio State University Moritz College of Law in Columbus, Ohio. As part of this symposium, we invite scholars to submit papers for inclusion in the workshop scheduled for June 12.  Accepted submissions will be paired with a discussant who will review and provide feedback on the paper during the workshop.  Each paper should reflect on some aspect of drug prosecutions and sentencing in the United States.  Participants should have a draft to discuss and circulate by May 17, 2021.  The papers will be gathered and published in a Spring 2022 symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication.  Participants should have a completed version to begin the publication process by August 15, 2021.  Final papers may range in length from 5,000 – 20,000 words.

Deadline for submission is November 1, 2020. Please submit a title and an abstract of no more than 300 words to Jana Hrdinová at hrdinova.1@osu.edu. Accepted scholars will be notified by December 1, 2020

October 23, 2020 in Drug Offense Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Thursday, October 22, 2020

Bureau of Justice Statistics reporting that, as of end of 2019, "US imprisonment rate at its lowest since 1995."

I was pleased this morning to get see this press release from the Bureau of Justice Statistics with this ALL CAPS heading: "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1995." Here are the details from the press release, which are drawn from this latest BJS report titled "Prisoners in 2019":

The combined state and federal imprisonment rate of 419 sentenced prisoners per 100,000 U.S. residents in 2019 was the lowest imprisonment rate since 1995, the Bureau of Justice Statistics announced today.   The imprisonment rate in 2019 marked a 17% decrease from 2009 and a 3% decrease from 2018, and it marked the 11th consecutive annual decrease.  The imprisonment rate — the portion of U.S. residents who are in prison — is based on prisoners sentenced to more than one year.

The imprisonment rate rose 23% from 1995 to its peak in 2007 and 2008 (506 sentenced prisoners per 100,000 residents in both years).  It then fell back below the 1996 level (which was 427 sentenced prisoners per 100,000 residents) in 2019.  Across the decade from 2009 to 2019, the imprisonment rate fell 29% among black residents, 24% among Hispanic residents and 12% among white residents.  In 2019, the imprisonment rate of black residents was the lowest it has been in 30 years, since 1989.

At year-end 2019, there were 1,096 sentenced black prisoners per 100,000 black residents, 525 sentenced Hispanic prisoners per 100,000 Hispanic residents and 214 sentenced white prisoners per 100,000 white residents in the U.S.  Among sentenced state prisoners at year-end 2018 (the most recent data available), a larger percentage of black (62%) and Hispanic (62%) prisoners than white prisoners (48%) were serving time for a violent offense.

An estimated 14% of sentenced state prisoners were serving time for murder or non-negligent manslaughter at year-end 2018, and 13% were serving time for rape or sexual assault.  At the end of fiscal-year 2019, 46% of sentenced federal prisoners were serving time for a drug offense (99% for drug trafficking), and 8% were serving time for a violent offense.

The total prison population in the U.S. declined from 1,464,400 at year-end 2018 to 1,430,800 at year-end 2019, a 2% decrease.  This marked the fifth consecutive annual decrease of at least 1% in the prison population.  At year-end 2019, the prison population had declined 11% from its peak of 1,615,500 prisoners in 2009.

In 2019, privately operated facilities held 7% of state prisoners and 16% of federal prisoners. Public and private adult prisons held 653 prisoners age 17 or younger at year-end 2019, down 11% from the 730 held at year-end 2018.

This news and the broader trends represented are good news for those who care about human liberty, though I am disinclined to celebrate too much given that the US incarceration rate remains the highest in the world and still reflects worrisome disparities.  Still, progress is worth appreciating, and so I am today appreciative of this latest reporting of (modest) good news.

October 22, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, October 17, 2020

"Punishment in Prison: Constituting the 'Normal' and the 'Atypical' in Solitary and Other Forms of Confinement"

The title of this post is the title of this new lengthy article by multiple authors now available via SSRN.  Here is its abstract:

What aspects of human liberty does incarceration impinge?  A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s.  Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long-term isolation and to higher security levels.

Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, and filth, violated the Constitution. Today, even as implementation is erratic and at times abysmal, correctional departments no longer claim they have unfettered authority to do what they want inside prisons walls.  And, even as the courts have continued to tolerate the punishment of solitary confinement in the last decade, a few lower courts have held unconstitutional the profound sensory deprivations such isolation has entailed.

Prisoners have also sought procedural protections to constrain arbitrary decision-making about placements in solitary confinement and transfers to adverse settings.  In response, the Supreme Court has required that, to state a Fourteenth Amendment claim that their liberty had been infringed, prisoners have to demonstrate that a specific practice imposed an “atypical” and “significant hardship.”

What is typical in prisons?  What are the sources of knowledge and the baselines used by Justices to decide?  How did isolation come to be seen as an ordinary incident of prison life?  We answer these questions through analyzing debates in both the U.S. Supreme Court and lower courts about what deprivations in prison are “normal.”  After excavating the conflicts within the Court about the kinds of liberty interests prisoners retained, we mined hundreds of lower court opinions to learn how judges determine when constrictions on human movement meet the test of atypicality and hardship.  By documenting the high tolerance many federal judges have for periods of isolation lasting months, years, and decades, we demonstrate the central role judges play in constructing the “normal” of prisons.

October 17, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 13, 2020

"COVID-19 in Juvenile Facilities"

The title of this post is the title of this short new report written by Josh Rovner at The Sentencing Project. Here is the start of its coverage:

COVID-19 has infected hundreds of youth housed in and staff working in juvenile facilities.  Given the close proximity that defines life in congregate care settings, such as detention centers and residential treatment centers, such spread was inevitable without significant reductions in population in these facilities.  Since March, The Sentencing Project has urged the release of as many youth as possible to bend the curve of infections within the juvenile justice system.  As of July, four staff members working in these facilities have died from COVID-19.

Among detained youth, COVID-19 cases have been reported in 35 states, the District of Columbia and Puerto Rico. Cases among staff have been reported in 41 states and the District of Columbia.

October 13, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (3)

Sunday, October 11, 2020

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, October 08, 2020

Federal prison population hits new modern law at 155,483 according to BOP reporting

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  Roughly a month ago, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

Today, checking the new BOP numbers at this webpage report "Total Federal Inmates" shows seemingly a new modern population low at 155,197.  So, though it seems weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it is possible we have not yet hit "the bottom" as to COVID era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these weekly reported population numbers represent.  I remain hopeful that we may eventually get some timely sentencing data from the USSC, but I am not optimistic it will ever be easy to fully understand and account for all the ways the the federal criminal process and prison populations have been impacted by and are adjusting to the COVID era.

A few of many prior related posts:

October 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, October 05, 2020

"Decarceration and community re-entry in the COVID-19 era"

The title of this post is the title of this new piece by multiple authors published in The Lancet Infectious Diseases.  Here is its "Summary":

Jails and prisons are exceptionally susceptible to viral outbreaks, such as severe acute respiratory syndrome coronavirus 2.  The USA has extremely high rates of incarceration and COVID-19 is causing an urgent health crisis in correctional facilities and detention centres.  Epidemics happening in prisons are compounding the elevated risks that COVID-19 poses to people of colour, older people, and those with comorbidities.  Intersectoral community re-entry efforts in the USA and other countries have shown that releasing people from correctional facilities as a pandemic-era public health intervention is safe and can support both public safety and community rebuilding.  Therefore, substantial decarceration in the USA should be initiated.  A point of focus for such efforts is that many people in prison are serving excessively long sentences and pose acceptable safety risks for release.  Properly managed, correctional depopulation will prevent considerable COVID-19 morbidity and mortality and reduce prevailing socioeconomic and health inequities.

October 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, October 03, 2020

"#MeToo and Mass Incarceration"

The title of this post is the title of this new piece on SSRN authored by Aya Gruber.  Here is its abstract:

This Symposium Guest Editor’s Note is an adapted version of the Introduction to The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration (UC Press 2020).  The book examines how American feminists, in the quest to secure women’s protection from domestic violence and rape, often acted as soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting incarceration, and diverting resources toward law enforcement and away from marginalized communities.  Today, despite deep concerns over racist policing and mass incarceration, many feminists continue to assert that gender crime law is not tough enough.  This punitive impulse, I argue, is dangerous and counterproductive, and should be abandoned.  History reveals that feminists' carceral approach often exacerbated social inequalities by expanding and underwriting the repressive criminal system, that harmed defendants, victims, and their families and communities.

This essay begins with the feminist defense attorney dilemma I felt as a law student, when I trained to represent marginalized people against state prosecutorial power but did so with a dread of defending horrific rapists and batterers. Later, as a public defender, I represented clients like Jamal, an accused abuser whose story is related in detail, and I saw firsthand the costs of the tough-on-crime machine that carceral feminism built.  The essay then moves to the present day, with a discussion of the #MeToo movement and campus rape reform.  I counsel contemporary feminists that their noble fight against sexual misconduct can easily collapse into simple crime-control politics and urge them to articulate their complex beliefs about gender and violence without relying on penal discourses and institutions that are steeped in hypermasculinity and gratuitous violence.

October 3, 2020 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, October 01, 2020

"Explaining the Past and Projecting Future Crime Rates"

The title of this post is the title of this notable new report coming from the Harry Frank Guggenheim Foundation and authored by James Austin, Todd Clear and Richard Rosenfeld.  Here is the relatively short report's abstract:

To date criminologists have a poor record of anticipating future crime rates.  As a result, they are ill-equipped to inform policy makers about the impact of criminal justice reforms on future crime.  In this report, we assess the factors that explain changes in crime during the past three decades.  Our analysis shows that macro-level economic and demographic factors best explain trends in violent and property crime.  Together, those factors outweigh the impact of imprisonment rates on crime.  We also show that it is possible to lower imprisonment rates without causing an increase in crime.  Indeed, several states have done exactly that.  Finally, we present models for projecting future crime rates.  Based on these models, crime is projected to decrease over the next five years.  The next step should be to apply similar analyses to individual states and local jurisdictions to advise policy makers on the implications of their criminal justice reform strategies for public safety.

October 1, 2020 in National and State Crime Data, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 30, 2020

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, September 28, 2020

"Prosecutors and Mass Incarceration"

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

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry.  Yet among the major players — legislators, judges, police, and prosecutors — one of these is shrouded in mystery.  While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability.  Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings.  Why?

September 28, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Saturday, September 26, 2020

Might a notable celebrity endorsement help move a notable criminal justice reform ballot initiative toward passage in Oklahoma?

6416a9d467b9d4d8149586c51171eb55The question in the title of this post is prompted by this local press story headlined "Actress Scarlett Johansson supports Okla. State Question 805 in video."  Here are the basics from this short article (which includes the short video):

Actress Scarlett Johansson supported Oklahoma's State Question 805 in a video shared by Oklahomans for Sentencing Reform.

State Question 805, if passed on Nov. 3, ends repeat sentence penalties for nonviolent offenses in the state of Oklahoma, said officials with Oklahomans for Sentencing Reform. The penalties often add years, decades or even a life sentence for a nonviolent offense if someone had been convicted of a nonviolent offense in the past.

Oklahoma's overcrowded prisons put more women in prison per capita than any state in the nation, Oklahoma to lead the nation in incarceration rates. This is costing taxpayers over half a billion each year on corrections without improving public safety, said officials. If passed, State Question 805 will save the state almost $186 million over the next decade. This funding "could be reinvested in mental health and rehabilitative resources that have been proven to reduce the likelihood that someone will commit another crime," said officials.

State Question 805 is on the ballot in November 3, 2020 elections.

The full endorsement video, which is fairly somber and sadly does not include Black Widow costume or any other Avenger, is available at this link.  I have blogged a few times about this fascinating approach to criminal justice reform, which the "Yes on 805" campaign website describes this way:

WHAT DOES SQ 805 DO?

SQ 805 would end the practice of adding years to a person’s prison sentence for a nonviolent crime because they had a prior nonviolent conviction.  Under SQ 805, people who are convicted of nonviolent crimes could be sentenced up to the maximum allowable time in prison for their crime, but would not receive additional time in prison because of their past.  SQ 805 applies only to people with nonviolent offenses.

WHY IS SQ 805 NEEDED?

Oklahoma is handing down cruel and unfair sentences for minor crimes.  A second conviction for breaking into a shed can result in a life sentence. In Oklahoma an individual served 33 years in prison for writing $400 worth of bad checks, and a mother was sentenced to 15 years for stealing basic necessities and children’s toys from a Walmart. SQ 805 will limit sentences like these that are out of proportion to the crimes.

Unsurprisingly, the "No on SQ 805" campaign website present a distinct account of what this initiative would mean and do:

State Question 805 (SQ805) will create a culture where crime is okay in Oklahoma by reducing penalties for career criminals. With SQ805, habitual offenders of serious crimes will spend less time in prison. These crimes range from domestic violence in the presence of a child, home burglary, to child trafficking, soliciting sex from a minor using technology, animal cruelty and more.

  • SQ 805 will FOREVER treat convicted felons who repeatedly commit crimes, on any but the most heinous of crimes, to the same sentence range as first-time offenders.
  • SQ 805 is a CONSTITUTIONAL CHANGE which prohibits the legislature from addressing any of the myriad of negative consequences SQ 805 will bring.
  • SQ 805 is retroactive and will mandate reduced sentences for many of those currently in prison, disregarding the juries and judges who gave out those sentences.
  • Regardless of if the criminal has been convicted of a felony 20 or more times, under 805, the sentence can never be lengthened or enhanced because of these past actions.

This Ballotpedia page about SQ 805 provides a lot more background information about this initiative, but it does not reference any polling about the measure.  I know this initiative is one I will be watching closely on election night.  If it were to pass in a state like Oklahoma, it could well be rolled out in other initiative states in the years to come.

Prior related posts:

September 26, 2020 in Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

BOP reported federal prison population ticks up for first time in COVID era

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  As of last week, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483. 

Today, on the cusp of fall 2020, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,741.  In other words, there is reason to wonder whether we may have hit "the bottom" as to COVID era federal population declines, as this week we see an increase in the reported population of just ver 250 persons.  

I have wondered repeatedly in these posts whether COVID-delayed sentencings and stalled federal prison transfers may account for most of these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these reported population numbers represent.  As I have said before, I am hopeful we may eventually get some timely sentencing data from the USSC.  But we are now well over six months into the pandemic, and the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted by and adjusting to the COVID era.

A few of many prior related posts:

September 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, September 16, 2020

"Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps"

The title of this post is the title of this notable new report from the Alliance for Safety and Justice.  Here is how the report's Executive Summary gets started:

Toward Shared Safety: The First-Ever National Survey of America’s Safety Gaps is a first-of-its-kind national study of Americans’ unmet safety needs and public safety policy preferences.  In a moment of unprecedented change — and growing consensus on the need for new approaches to public safety — this report aims to fill critical gaps in information, to help point decision-makers toward a new set of safety solutions that can better serve vulnerable Americans, improve public safety and stop the cycle of crime.

Despite dramatic increases in safety and justice spending over the last several decades, few of those expenditures are informed by the needs of Americans lacking safety or consistently aligned with Americans’ policy preferences.  As concerns about spending and criminal justice grow, there’s never been a more important time to ask some fundamental questions about safety.  What are the gaps in safety that people impacted by crime, violence and criminal justice experience?  What are the priority safety investments that matter the most to Americans of all walks of life?

In June of 2020, over 4,000 Americans were surveyed about their experiences with safety and attitudes about safety policy.  In particular, the survey engaged with people vulnerable to the cycle of crime, including crime victims, people experiencing mental health or substance abuse challenges, and those living with past convictions, as well as voters of all backgrounds, regardless of experience.

As the report details, there is remarkable alignment between gaps in safety that vulnerable people face and the public safety policy preferences that most all Americans support  — policy preferences that would address those very gaps.  Broad consensus exists at the neighborhood level and across different demographics: public safety policies and investments should prioritize violence prevention, recovery, mental health, reentry and the most effective strategies to stop the cycle of crime, more than incarceration.  It’s time for federal, state and local expenditures to match these urgently needed and popularly supported priorities.  It’s time for Shared Safety.

September 16, 2020 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, September 12, 2020

A timely reminder that the war on drugs, and even the war on marijuana, is not anywhere close to over

Just last night I flagged here a new article by Michael Vitiello about the "war on drugs" and extreme sentences for drug crimes.  And this morning I saw this news article from Kansas this past week that provides a reminder that the US drug war as operationalized through extreme sentences even for marijuana offenses remains a very current reality for far too many.  The piece is headlined "Man serving 7.5 years on marijuana case says Kansas’ sentencing laws aren’t just," and here are excerpts:

A man sentenced to more than seven years in prison on a marijuana case wants Kansas Gov. Laura Kelly to consider his request for clemency and to see the state change its drug penalty laws.  Donte Westmoreland, 25, had no prior convictions when he was found guilty of possession of marijuana with intent to distribute and conspiracy to distribute in May 2017 in Riley County. Judge John Bosch sentenced him to 92 months....

Kansas has a sentencing range guideline intended to promote uniformity in penalties. Bosch gave Westmoreland the lower end of the range.  But Christopher Joseph, Westmoreland’s attorney during sentencing and his appeal, said many judges across the state depart from the guidelines for marijuana cases, instead handing down probation....

According to a motion filed in the case, probation was given in 95% of the marijuana distribution cases in Kansas involving defendants with low criminal history scores.

On March 8, 2016, police observed two vehicles traveling in close proximity to each other. Officers testified that they believed a Hyundai was an escort vehicle for a Lexus. Westmoreland, of Stockton, California, was a passenger in the Hyundai, which was stopped for an obstructed license plate and searched in Geary County.  A small amount of marijuana was found in the trunk, according to court documents.  The Hyundai was released and it continued to an apartment complex in Riley County, where the Lexus met them about 20 minutes later. Officers followed them to the apartment of Jacob Gadwood, where they searched the Lexus and found packages of drugs.

Westmoreland and the driver of the Hyundai were arrested. Three other co-defendants who fled the scene were later taken into custody. Gadwood agreed to become an informant for prosecutors and testified that Westmoreland came to his apartment to sell marijuana. The five defendants in the case faced varying charges related to possessing and distributing marijuana, court records showed.  Sentences ranged from time served to Westmoreland’s 92 months, which was the longest.

In a statement to The Star, Riley County Attorney Barry Wilkerson said Westmoreland went to Manhattan to sell large amounts of marijuana with three others in two vehicles, one of which was a decoy.  “These were sophisticated dealers of narcotics,” Wilkerson said. “One of the vehicles was a Lexus.  92 months was a fair sentence under the circumstances.”

In Kansas, a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter. “The current Kansas law and penalties for marijuana are unjust,” Joseph said. “The law is so out of sync with reality at this point.”

Lauren Bonds, legal director of the ACLU of Kansas, said Kansas is being closed in on.  Recreational marijuana became legal in Colorado in 2014.  Missouri and Oklahoma have passed medicinal marijuana laws and Nebraska has taken steps to decriminalize the drug....

Kansas Sen. Richard Wilborn, R-McPherson, chairs the Judiciary Committee and said sentencing guidelines is one of the topics “in the forefront.” He said he would take any recommendations from the Criminal Justice Reform Commission seriously, but that legislation has to be proportional with other illegal substances and not target a single issue.

Westmoreland said he supports reforms that address racial and sentencing disparities.  Twenty-eight percent of the Kansas Department of Corrections’ population is Black. According to the U.S. Census, Black people make up 6.1% of the state.

Earlier this year, Westmoreland submitted a clemency application to Gov. Laura Kelly’s office. The request included letters of support from Lansing Warden Shannon Meyer, Sen. Randall Hardy, R-Salina, and Rep. John Alcala, D-Topeka....  Kelly’s office is in the process of reviewing the clemency request, spokeswoman Lauren Fitzgerald said.

I fully understand why many advocates for criminal justice reform who are eager to end mass incarceration are now quick to stress that we need to address unduly long sentences for violent crimes.  But I see these kinds of extreme drug sentencing cases and continue to stress that we still need to make a whole lot more progress on reform for so many non-violent crimes, too, while also recognizing that it will be hard to get a place like Kansas to be less harsh in response to violent crimes if state law still provides that "a defendant could serve a longer sentence for marijuana crimes than violent crimes such as voluntary manslaughter."

Moreover, severe drug war attitudes are ultimately more enduring and perhaps even more problematic than even severe drug war laws.  That the prosecutor here is still eager to assert that such a long sentence for mere distribution of marijuana "was a fair sentence under the circumstances" showcases that many drug warriors are seemingly not inclined to rethink even the most severe weapons used to wage this unwinnable and damaging war. 

September 12, 2020 in Drug Offense Sentencing, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Friday, September 11, 2020

"Have Problem Solving Courts Changed the Practice of Law?"

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

Drug courts started thirty years ago in the United States.  The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach.  Has this happened?  Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law?  Have these courts actually been a “monumental change?”  The simple answer is no.  These courts have changed how some defendants are treated some of the time.  But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small.  And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration.  Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts.  This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works.  Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.

September 11, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, September 09, 2020

New report details racial disparities in every stage of the Massachusetts criminal justice system

Via email I received word of this notable new report released today by the Harvard Law School Criminal Justice Policy Program (CJPP) titled simply "Racial Disparities in the Massachusetts Criminal System."  Here is a brief account of the 100+-page report and its findings from the text of the email that I received:

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

September 9, 2020 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Sunday, September 06, 2020

"Lives on the Line: Women with Incarcerated Loved Ones and the Impact of COVID-19 Behind Bars"

The title of this post is the title of this interesting recent report I just came across from the "Lives on the Line Campaign." Here is part of the start of the report's executive summary:

Incarceration has always posed a grave threat to public health. Jails, prisons, and detention centers subject people to dangerous, unhealthy, inhumane conditions and experiences by design.  So, when COVID-19 became a pandemic, we knew that our loved ones’ lives were on the line. We knew that the crowded, unsanitary conditions behind bars and a lack of access to medical care would mean that incarcerated people would be among those hit hardest by the virus.  We knew that the patriarchal, punitive values embedded into the prison industrial complex would prevent incarcerated people from receiving the kind of care they need to survive a pandemic.  And we knew that this harm would ripple out to cause profound physical, emotional, and economic harm for the communities that mass incarceration targets: historically marginalized people, especially Black and Brown communities and women.

In response, Essie Justice Group, in partnership with Color of Change, created the Lives on the Line survey for people with incarcerated loved ones.  Knowing that carceral spaces are designed to obscure their own violence, the survey sought out concrete data that could illustrate what was happening behind bars and buoy the efforts of advocates across the country fighting to free incarcerated people amidst the COVID-19 pandemic.  Carceral facilities are using COVID-19 as poor justification to further isolate incarcerated women, men, and people of all genders from the outside.  Therefore, we put out a public call to people with incarcerated loved ones to share information and testimonies, acknowledging that women with family members behind bars are uniquely material witnesses to what is happening in prisons, jails and detention centers during COVID-19. Our survey ran over a four-week period from May 5th to June 7th, 2020.  We received 709 responses.

The data we collected makes clear that what is happening with COVID-19 behind bars is a humanitarian and public health disaster.  Jails, prisons, and detention centers are callously failing to take bare minimum measures to mitigate the spread of COVID-19, such as instating distancing protocols or providing adequate supplies of free soap, disinfectant, or masks to incarcerated people.  Facilities have exploited the virus as an opportunity to further sever connections between incarcerated people and their support networks, including their lawyers and their loved ones.  In a moment when people need to be released faster than ever, court dates, hearings, and release dates are being delayed.  As a result, incarcerated people are suffering and dying from COVID-19 at alarmingly high rates.  They and their loved ones live with fear, extraordinary anxiety, and extreme isolation.  Incarceration is fundamentally incompatible with human dignity and human health; COVID-19 makes that undeniable.

A key objective of this report is to highlight the disparate impact of COVID-19 behind bars on Black people and Black women, uplifting the crisis as a gender and racial justice issue.

September 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, August 31, 2020

"Locking up my generation: Cohort differences in prison spells over the life course"

The title of this post is the title of this new Criminology article authored by Yinzhi Shen, Shawn D. Bushway, Lucy C. Sorensen and Herbert L. Smith.  Here is its abstract:

Crime rates have dropped substantially in the United States, but incarceration rates have remained high.  The standard explanation for the lasting trend in incarceration is that the policy choices from the 1980s and 1990s were part of a secular increase in punitiveness that has kept rates of incarceration high.  Our study highlights a heretofore overlooked perspective: that the crime–punishment wave in the 1980s and 1990s created cohort differences in incarceration over the life course that changed the level of incarceration even decades after the wave. 
With individual‐level longitudinal sentencing data from 1972 to 2016 in North Carolina, we show that cohort effects — the lingering impacts of having reached young adulthood at particular times in the history of crime and punishment — are at least as large (and likely much larger) than annual variation in incarceration rates attributable to period‐specific events and proclivities.  The birth cohorts that reach prime age of crime during the 1980s and 1990s crime–punishment wave have elevated rates of incarceration throughout their observed life course.  The key mechanism for their elevated incarceration rates decades after the crime–punishment wave is the accumulation of extended criminal history under a sentencing structure that systematically escalates punishment for those with priors.

August 31, 2020 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 27, 2020

"The Scale of the COVID-19-Related Jail Population Decline"

The title of this post is the title of this new short "evidence brief" from the Vera Institute.  Here is its summary:

From mid-March to mid-April 2020 — the first month of rapid spread of COVID-19 in the United States — there was an unprecedented reduction in the number of people held in local jails.  Analysis conducted by the Vera Institute of Justice (Vera) of the most comprehensive jail data available shows that the number of people in jail in the United States fell by one quarter, mainly over the course of that month.  Jail bookings dropped as people who would otherwise have been arrested stayed home, and police and sheriffs made fewer arrests they deemed unnecessary.

Simultaneously, many judges and prosecutors used their broad discretion to facilitate the release of people they deemed safe, while public defenders filed thousands of motions to secure the release of their clients.  Although some highly visible judges and prosecutors continued to stand in the way of decarceration — even while the deadly virus spread quickly through jails and prisons — the overall impact was a rapid reduction in the sizable population of jailed people whose incarceration had no clear public safety rationale.

But as the United States faces continued outbreaks of COVID-19, it is crucial to recognize that decarceration has still been inadequate, from both a public safety and a public health perspective.  Future COVID-19 responsive policies should focus on facilitating the release of much broader categories of people and avoiding arrests and bookings that would refill jails.  In the immediate term, further reducing jail populations would help to slow or stop the continued spread of the virus inside and outside jail facilities, and it could also help reduce correctional spending as state and local budgets shrink.  In the long-term, this could enable an enduring shift of resources away from law enforcement and punishment and toward public services and responses. Such a policy approach would move the country toward ending both mass incarceration and the social and economic harms it inflicts on poor, Black, and brown communities.

August 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Bureau of Justice Statistics releases report on "Correctional Populations in the United States, 2017-2018"

Though I am sad that data in reports from the Bureau of Justice Statistics is often a bit dated, I am always grateful for the work BJS does to assemble and detail criminal justice data. And I am especially pleased to see this latest BJS report, titled "Correctional Populations in the United States, 2017-2018," in part because it details the continued decline in correctional populations for now more than a decade (which I certainly believe has continued into 2019 and 2020). This BJS webpage provides this context and highlights:

This report is the 23rd in a series that began in 1985. It provides statistics on populations supervised by adult correctional systems in the United States, including persons held in prisons or jails and those supervised in the community on probation or parole. It provides statistics on the size of the correctional populations at year-end 2017 and year-end 2018, and changes in populations over time.

Highlights:

  • The adult correctional-supervision rate (adults supervised per 100,000 adult U.S. residents) decreased 21% from 2008 to 2018, from 3,160 to 2,510 per 100,000 adult U.S. residents.
  • The percentage of adult U.S. residents under correctional supervision was lower in 2018 than at any time since 1992.
  • The adult incarceration rate (adults in prison or jail per 100,000 adult U.S. residents) has declined every year since 2008, and the rate in 2018 was the lowest since 1996.
  • The portion of adult U.S. residents in prison or jails fell 17% from 2008 to 2018.
  • The correctional population declined 2.1% from 2017 to 2018, due to decreases in both the community-supervision (down 2.4%) and incarcerated (down 1.4%) populations.

August 27, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, August 25, 2020

Two great new pieces providing perspectives on prosecutorial perspectives

Two great new press pieces from major outlets provide a great window into the work and thinking of modern prosecutors.  Here are links with headlines and subheadlines:

From the New York Times, "Can Prosecutors Be Taught to Avoid Jail Sentences?: At least 60 district attorneys have come to see incarceration as destructive, racist, expensive and ineffective. But can they persuade their own staffs?"

From Politico, "‘Prosecutors Are Not Exempt from Criticism’: Five Black, female prosecutors offer 11 ideas for how to make their profession part of the solution."

August 25, 2020 in Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, August 23, 2020

"Incarceration and the Law: Cases and Materials (Table of Contents and Ch. 1 Excerpt)"

The title of this post is the title of this SSRN posting with a part of the latest new edition of the casebook Incarceration and the Law: Cases and Materials.  Here is the abstract:

This posts a table of contents and much of the first chapter to a fully overhauled, updated, and expanded edition of the leading case book on incarceration.  The case book examines the complex legal regime that defines prisoners’ rights. Mass incarceration in America creates a host of controversies at the crossroads of constitutional liberty, legislation, public policy, and prison management.  It considers those issues from diverse perspectives by presenting an array of materials: Supreme Court and leading lower court caselaw, statutes, litigation materials, professional standards, academic commentary, prisoner writing, and more.  (There is also an associated website, http://incarcerationlaw.com, which offers additional open sources, supplementing the book for those who own it and providing a freestanding repository of materials for those who do not.)

Chapter 1 provides background on American jails and prisons (What’s the difference between a jail and a prison?  What is incarceration supposed to accomplish?  How do prison abolitionists conceptualize and justify their goals?  How did American incarceration develop?)  It provides longitudinal and contemporary statistics.  Finally, it offers narrative and case law background on the development of the modern conception of prisoners’ rights.

August 23, 2020 in Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

Friday, August 21, 2020

Ugly COVID headlines and stories not stopping in incarceration nation

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces.  Thankfully, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails, and here is a round-up of just a few recent headlines and pieces:

From ABC News, "'Who is going to man the prison if everyone tests positive?' Corrections officer union warns of dual threat facing federal prisons"

From the Detroit Free Press, "Nearly half the population at Michigan prison tests positive for COVID-19"

From Forbes, "A Look Inside A Federal Prison With Covid-19: FCI Seagoville"

From The Guardian, "'Severe inhumanity': California prisons overwhelmed by Covid outbreaks and approaching fires"

From MarketWatch, "U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more"

From the Miami Herald, "Rubio demands answers from Barr on sexual abuse, COVID response at Florida prison"

From the Phoenix New Times, "'We Are Not Animals': Prisoner Slams State Response to COVID-19 Outbreak"

From the Sacramento Bee, "Folsom Prison COVID-19 cases double, now California’s largest active inmate outbreak"

From the Seattle Times, "Virus outbreak at Washington State Penitentiary, and the response, alarm inmates’ friends and family"

From STLtoday.com, "COVID-19 cases in Missouri prison system increase 50% in less than a month"

August 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 20, 2020

Federal prison population, per BOP report of "Total Federal Inmates," now down to 156,415

Regular readers may have noticed that this month I stopped doing my regular Thursday morning updates on COVID-era changes in the federal prison population based on the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers. I did because the numbers through the end of July suggested that the federal prison population was getting closer to flattening out with weekly declines that were becoming considerably lower than in previous months. But I will still post episodically on this topic because the BOP population is still declining and this story still remains significant.

As I have noted before via this post, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  But by the tail end of July, as noted here, weekly reported population declines were trending under 500.

My post on July 30 noted that the federal population was at a another new historic low with the new BOP reported "Total Federal Inmates" at 157,862.  Three weeks later we have hit another new historic low,and we seem to keeping the pacing at reductions of just under 500 per week, as the new BOP numbers at this webpage report "Total Federal Inmates" at 156,415. I still suspect that more COVID-delayed sentencings and stalled federal prison transfers continued to account for these declines; but the lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent. 

I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now nearly six months into the pandemic the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. Grrr.

A few of many prior related posts:

August 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, August 19, 2020

"COVID-19, Incarceration, and the Criminal Legal System"

The title of this post is the title of this short new paper authored by Jessica Bresler and Leo Beletsky now available via SSRN.  Here is its abstract:

Even before the pandemic, contact with the criminal legal system resulted in health harms on both individual and community levels, with disproportionate impact on people of color.  The COVID-19 crisis magnified the deleterious public health impact of policing, prisons, community supervision, and other elements of the United States’ vast system of control and punishment. 

Despite the scientific consensus that prisons and jails needed to be rapidly depopulated to avert disaster, the number of people released has remained small, resulting in explosive outbreaks of COVID-19 behind bars.  Depopulation of correctional settings is also rarely paired with meaningful efforts to connect reentering individuals to vital supports. Community supervision systems failed to relax onerous probation/parole requirements, while police have taken on enforcement of physical distancing and other public health orders. Even as COVID-19 is raging, the criminal legal system is resisting changes necessary to facilitate pandemic response.

With a focus on incarceration, this Chapter provides an overview of how the U.S. criminal legal system has shaped its COVID-19 response, situating prescriptions in the current debate about divestment from structures of social control in favor of a renewed focus on the social contract.  This Chapter will discuss (1) how the criminal legal system has exacerbated the current public health emergency and (2) how the United States can use this moment to reform this system and its legal underpinning.  This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

August 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, August 11, 2020

"Millennial Futures Are Bleak. Incarceration Is to Blame."

The title of this post is the headline of this interesting Atlantic commentary authored by Jill Filipovic. Here is how it starts:

The oldest Millennials turn 40 this year, and their prospects are not looking much brighter than when they were recession-battered 20-somethings.  Millennials, born from 1980 to 1996, are the best-educated generation in American history, and the most indebted for it.  They are the largest adult generation, at 22 percent of the U.S. population, and yet hold only 3 percent of the country’s wealth (when Boomers were young adults, they held 21 percent).  From 2009 to 2016, Millennial homeownership rates actually fell by 18 percent. A 2015 Census report found that 20 percent of Millennials live in poverty.

The list of answers to “How did Millennials get here?” is long, but one reason stands out: Millennials are the incarceration generation.  From cradle through childhood to parenthood and near middle age, Millennial lives have been shaped and stymied by policing and prisons.

In the single decade from 1980 to 1990, thanks in no small part to the War on Drugs, the number of people in U.S. prisons more than doubled.  It peaked in 2009, having exploded by 700 percent since 1972.  Although incarceration rates are now declining, they are not going down nearly as quickly as they went up.  Indeed, if the pace of decline continues, it will take close to a century for the number of people in prison to reach what it was in 1980.  Even a more modest goal, such as halving the number of current prisoners, wouldn’t be achieved until nearly all Millennials are in their graves.

No living generation has made it through the incarceration explosion unscathed. In 2009, nearly one in five prisoners was a Baby Boomer.  Millennial timing, however, was spectacularly bad.  Born as imprisonment rates were on their meteoric rise, they grew up in a country that was locking up their parents, then were locked up themselves as the number of children behind bars hit a record high, and entered adulthood in an age of still-high incarceration rates and punishments that last long after a person steps out of the cage.

August 11, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 07, 2020

Notable Prison Policy Initiative update on pandemic changes to prison and jail populations

Prison Policy Initiative published yesterday this great updated analysis (with lots of helpful charts and data visuals) of jail and prison populations changes amid the pandemic.  The full title of this publication captures the essence of the analysis: "Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives:  Our updated analysis finds that the initial efforts to reduce jail populations have slowed, while the small drops in state prison populations are still too little to save lives."  Here are some of the data highlights:

At a time when more new cases of the coronavirus are being reported each day, state and local governments should be redoubling their efforts to reduce the number of people in prisons and jails, where social distancing is impossible and the cycle of people in and out of the facility is constant.  But our most recent analysis of data from hundreds of counties across the country shows that efforts to reduce jail populations have actually slowed — and even reversed in some places.

Even as the pandemic has spiked in many parts of the country, 71% of the 668 jails we’ve been tracking saw population increases from May 1st to July 22nd, and 84 jails had more people incarcerated on July 22nd than they did in March.  This trend is particularly alarming since we know it’s possible to further reduce these populations: in our previous analysis, we found that local governments initially took swift action to minimize jail populations, resulting in a median drop of more than 30% between March and May.

Meanwhile, state prisons — where social distancing is just as impossible as in jails, and correctional staff still come and go every day — have been much slower to release incarcerated people.  Since January, the typical prison system had reduced its population by only 5% in May and about 13% as of July 27th....

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails.  (At least two states, California and Oklahoma, did this.)
While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still incarcerated, but in different correctional facilities that have more population turnover and therefore more chances for the virus to spread.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases are not enough to protect vulnerable incarcerated populations from COVID-19.  For example, in California, thousands of people have been released weeks and months early, but the state’s prison population has only decreased by about 11% since January, leaving too many people behind bars in the face of a deadly disease.

Of the states with available data, the smaller systems have reduced their populations the most drastically. North Dakota’s prison population had already dropped by 19% in May. (North Dakota was also the state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey.) Two months later, North Dakota has continued these efforts, reducing its prison population by a total of 25% since January, a greater percent change than any other state.

August 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 06, 2020

Reviewing how California got under 100,000 prisoners, a huge cut from modern high and the lowest since the 1980s (but still above designed capacity)

This lengthy San Francisco Chronicle piece, headlined "How California reduced its inmate population to a 30-year low," reports on the remarkable modern decline in the prison population in the state of California. Here are some highlights:

California’s prison population of 99,000 is its lowest since 1990 and 74,000 below its peak in 2006. Court rulings, new state laws and policies on imprisonment, and changes in voters’ attitudes have all contributed to the reduction, which has not led to any statewide increase in crime.  But the events look somewhat different through a broader historical lens. In 1976, the state’s prison population was 20,000, and the crime rate was only slightly higher than it is today.

What followed were decades of lockup laws, ballot measures — notably the “three strikes” initiative of 1994 — and policies by a series of governors, starting with Jerry Brown, whose more recent actions were crucial to the state’s turnaround. The surge in incarceration drove California to open 22 new prisons between 1984 and 2013, bringing the total to 35.  Gov. Gavin Newsom has announced plans to close two prisons in the next three years.

“California was at the forefront of both the prison building boom and tough-on-crime sentencing,” said Michael Romano, who teaches law at Stanford, directs the law school’s Three Strikes Project, and has been appointed by Newsom to head a committee examining possible further rollbacks in the state’s sentencing laws.  “To this day, people are serving life sentences for shoplifting batteries, stealing a kid’s bike, possession of drugs.”

When Brown first took office in 1975, prison sentences in California were largely controlled by the parole board — a felony was punishable by 1 to 5 years in prison, 5 to 10, or 7 to life, for example — and the board decided when an inmate was suitable for release, based on the inmate’s record and prison conduct.  The system, in effect since 1917, had become unpopular on both sides of the aisle.  Conservatives said inmates convicted of serious crimes were released too early, while many liberals said the parole board was biased against minorities and the poor.

In 1976, with bipartisan support, Brown signed a “determinate sentencing” law that established a range of fixed terms for nearly all crimes — two, four or six years, for example — and let the judge choose the sentence. The inmate could get time off for good behavior in prison, but, except for some convicted murderers and a few other categories, would never see a parole board.

While the new system made sentences more uniform, it also invited lawmakers, and voters, to increase punishment. A steady stream of laws over the next three decades made imprisonment mandatory for many crimes and added years to sentences for a defendant’s past convictions, gang affiliation, drug dealing and gun use, expanding five-year terms to 20 or 25 years in some cases. Initiatives bearing titles such as the Victims’ Bill of Rights (1982) and the Crime Victims’ Justice Reform Act (1990) limited defendants’ rights to challenge prosecutions and police conduct.  And in 1994, after 12-year-old Polly Klaas was kidnapped from her Petaluma home and murdered by a man with a felony record, state lawmakers and voters passed the nation’s first three strikes law. For defendants with two previous convictions for serious or violent felonies, the law required a sentence of 25 years to life for a new felony conviction, which could include shoplifting in some cases. If the defendant had one prior serious or violent felony conviction, the sentence for a new felony would be doubled.

The sentencing overhaul “was well-meaning and there was some rationale in trying to create equity among sentences and avoid disparities, particularly racial disparities,” said Stanford’s Romano, whose panel is scheduled to make its proposals to Newsom in January. “But it created this one-way ratchet of longer and longer sentences.”  Unsurprisingly, California’s prison population soared, exceeding 100,000 in 1990 and topping out at 173,000 in 2006....

The pushback began in the early 1990s, when prisoners filed class-action suits over prison health care and treatment of disabled and mentally ill inmates. Federal judges initially ordered improvements in the care systems, but saw little progress in prisons with too many inmates and too few resources.

In 2005, a federal judge in San Francisco ordered the state to transfer prison health care management to a court-appointed receiver, saying shoddy care was killing more than one inmate per day.  Although the state had reduced its prison population after Gov. Arnold Schwarzenegger declared an emergency, in 2009 a three-judge panel, citing ongoing health care deficiencies, ordered California to lower imprisonment by an additional 40,000, to 137.5% of designed capacity — an order upheld by the U.S. Supreme Court in 2011.

Brown, after being elected to his third term as governor in 2010, responded to the court order with a legislatively approved plan to sentence thousands of lower-level felons to county jails instead of state prisons, an approach titled “realignment” that lowered the prison population without reducing sentences.  But the governor also supported some rollbacks in sentencing laws, and three measures have won approval from voters:

  • Proposition 36 of 2012, which narrowed the three strikes law by imposing a 25-to-life sentence only if the third felony was serious or violent.
  • Prop. 47 of 2014, which reduced nonviolent, small-scale property thefts and drug crimes from felonies to misdemeanors.
  • Prop. 57 of 2016, a Brown-sponsored measure that allowed the parole board to consider releasing inmates who were convicted of nonviolent felonies and have completed their sentences for those crimes, before serving additional years for past convictions and other increases tacked on by post-1976 sentencing laws.

Those measures showed that “the people were way ahead of the politicians in focusing on rehabilitation and in ending mass incarceration,” said Donald Specter, executive director of the nonprofit Prison Law Office, which represents inmates in the health care case.

That assessment will be tested in November when voters will consider Prop. 20, an initiative sponsored by prosecutors and police groups that would repeal many of the sentencing changes in Prop. 47.

The final factor in the recent reduction in imprisonment was the coronavirus pandemic. With infections soaring in still-crowded penal institutions and heightened by a bungled transfer of infected prisoners to San Quentin, Newsom has temporarily halted transfer of newly sentenced inmates from county jail to state prison and ordered early releases that have reduced inmate totals statewide by 8,000.

Despite the changes, California prisons are still more than 16% above their designed capacity of 89,663, according to state officials. Further reductions would require further changes in sentencing and treatment of certain categories of inmates — for example, the mentally ill. “Are we ready to say that people with serious mental illness and health problems should be cared for in society?” asked Michael Bien, a lawyer for mentally ill inmates who initially sued the state over their treatment in 1990.

August 6, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, July 27, 2020

"Decarceration and Crime During COVID-19"

The title of this post is the title of this notable new online report from the ACLU.  Here is how the short report gets started:

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order.

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.)

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.  The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

July 27, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, July 19, 2020

Perspectives from A to Z on how to reform incarceration nation

Though there is still plenty more to say about how the coronavirus is continuing to course through our nation's jails and prisons, I was pleased to see this week a number of new commentaries discussing prison and criminal justice reform more generally.  Notably, this round-up of pieces include works from sources that start with A and that start with Z, so here is a collection of pieces that all seem worth a midsummer read from A to Z:

From America: The Jesuit Review, "Religious ideals shaped the broken U.S. prison system. Can they also fix it?"

From Fast Company, "Here’s How We Get to a World Where We Don’t Need Prisons at All"

From The Morning Call, "We need justice system that values people"

From Salon, "Abolishing the whole prison-industrial complex"

From the Washington Times, "Keeping families together must be a priority for the criminal justice system"

From ZDNet, "Can technologists help end mass incarceration?: Data-driven approaches to criminal justice often backfire. Here's one way to do it right."

July 19, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 16, 2020

Important review of just why "Prison Populations Drop by 100,000 During Pandemic"

The quoted portion of the title of this post comes from the headline of this Marshall Project piece that has its theme in the subtitle: "But not because of COVID-19 releases."  The article chronicles nationwide what seems to be the story at the federal level, namely that prison populations are going down largely because a lot fewer people are going in, not so much because a lot of new people are coming out.  Here are the details:

There has been a major drop in the number of people behind bars in the U.S.  Between March and June, more than 100,000 people were released from state and federal prisons, a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  The drops range from 2 percent in Virginia to 32 percent in Rhode Island.  By comparison, the state and federal prison population decreased by 2.2 percent in all of 2019, according to a report on prison populations by the Vera Institute of Justice.

But this year’s decrease has not come because of efforts to release vulnerable prisoners for health reasons and to manage the spread of the virus raging in prisons, according to detailed data from eight states compiled by The Marshall Project and AP.  Instead, head counts have dropped largely because prisons stopped accepting new prisoners from county jails to avoid importing the virus, court closures meant fewer people were receiving sentences and parole officers sent fewer people back inside for low-level violations, according to data and experts.  So the number could rise again once those wheels begin moving despite the virus....

While many people may be qualified for early releases, very few actually got out.  In April, Pennsylvania launched a temporary reprieve program, allowing the state’s corrections department to send people home under the condition that they return to finish their sentences once the pandemic passes.  The governor’s office predicted more than 1,500 would be eligible for release.

So far, the state's corrections department has recommended 1,200 people for reprieves, but the application process is slow and tedious, said Bret Bucklen, the department’s research director.  Each application needs approval from the governor, the secretary of corrections and the assistant district attorney who oversaw the initial conviction.  Nearly three months later, fewer than 160 people have been released through the reprieve program, while Pennsylvania’s total prison population dropped by 2,800.

As in Pennsylvania, data from states such as North Carolina, Illinois and New Jersey shows coronavirus releases only account for less than one-third of the decrease in prison population, which suggests something else is driving the drop.  According to Martin Horn, professor emeritus at John Jay College of Criminal Justice and a former corrections commissioner for New York City, the pandemic has slowed the entire criminal justice system, which means fewer people are going to prisons...

Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project, a group that advocates for sentencing reform, said that while the prison population decreases are a step in the right direction, she is disappointed by the numbers.  Even if the COVID-19 release policies work as intended, they might not lower the prison population enough because states often exclude violent offenders from such releases, Ghandnoosh said.  “Even though we are sending too many people to prison and keeping them there too long, and even though research shows people who are older have the highest risk from COVID-19 and the lowest risk of recidivism, we are still not letting them out,” Ghandnoosh said.

July 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 15, 2020

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

July 15, 2020 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, July 10, 2020

Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset.

The question in the title of this post is my response to this recent lengthy Atlantic commentary by Barbara Bradley Hagerty headlined "Releasing People From Prison Is Easier Said Than Done: As the pandemic threatens the lives of those behind bars, the country must confront a system that has never had rehabilitation as its priority."  This piece is reform-minded, and I recommend it, but its headline, much of its prose, and its overall spirit embrace a kind of carceral mentality that serves to reify a mass incarceration message.  These excerpts, as I will explain below, spotlight my concerns:

Some governors, alarmed at the deaths in prisons and jails and worried about the risk to surrounding communities, are listening — sort of, with an ear attuned to the political liability. More than half of the states have agreed to release people convicted of low-level crimes, people who are nearing the end of their sentences, or people who merit compassionate release, such as pregnant people or older, vulnerable inmates.

“It’s been helpful. I know that people have gotten out, and I am moved by their release,” says Nicole Porter, the director of advocacy at the Sentencing Project, a research organization that campaigns for sentencing reform. “But none of it has been substantial.  And what I hope this moment tells us is that our incarceration rate is a function of politics — because there are many questions about who needs to be incarcerated.”

To meaningfully reduce America’s prison population and slow the pandemic will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes.  The difficulty of doing so, in both practical and moral terms, is enormous.  Which people convicted of murder or armed robbery do we release? How do we decide?  And how do we guarantee that they won’t offend again, especially as they try to restart their life during the worst economic collapse in nearly a century?...

Advocates say prisons are brimming with candidates who deserve a second chance—men and women who made egregious mistakes when they were young, whose crimes say more about the impulsiveness of youth and the trickiness of navigating inner-city violence than they do about character.  Yet in large part, these are not people whom the system has been preparing for release.

Prison can serve many purposes — to deter people from committing crimes in the first place, to punish them if they do, or to rehabilitate them and usher them back to normal life. America has by and large chosen the punitive path, imposing decades-long sentences intended to reduce crime on the streets.  During that time, inmates usually don’t receive the kind of training or care that would enable them to return to the outside world and build a new, stable life. This presents a giant hurdle for those who would wish to release prisoners now....

Those are the practical challenges.  The moral question — who deserves to be released? — is even more daunting.  Is the inmate truly penitent, or merely saying the right words? Has he matured past his violent tendencies, or is he a tinderbox waiting to ignite once he’s out?  Does the family of the victim agree, or will his release only add to their pain?  Is the crime simply so heinous that even a perfect record cannot overcome it?

The last paragraph I have excerpted here is perhaps the clearest example of a carceral mindset: when asking "who deserves to be released?", the writer is necessarily assuming that everyone incarcerated not only already "deserves" to be incarcerated, but also "deserves" to continue to be incarcerated.  Further, the author then suggests that, to "deserve" release, an "inmate" must be "truly penitent" AND must have "matured past his violent tendencies" AND must have the "family of the victim agree." And, even then it seems, a "perfect record" still should not permit release amidst a global pandemic killing hundreds of prisoners if a person's crime is "simply so heinous."

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this thinking should be — must be — completely flipped.  The proper "daunting" moral question  is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions.  If an incarcerated person is "truly penitent" OR likely has "matured past his violent tendencies" OR has the "family of the victim" in support, then that person ought no longer be incarcerated.  And, even without anything close to a "perfect record," an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Similar rhetoric earlier in the piece is comparably problematic, such as the query "how do we guarantee that they won’t offend again" when considering who to release from prison.  It is important — and I think this piece means to get us usefully thinking about — the importance of prison programming and outside support that seeks to minimize the risk of recidivism for persons leaving prison.  But we are never going to be able to "guarantee" that any cohort of individuals will never commit any kind of crime.  When we consider building a new highway, nobody expects public officials to "guarantee" there will never be an accident on that highway.  We want a new road to be as safe as possible, but we recognize that the array of benefits that can come from having a new road generally justify the inevitable public safety risks it creates.   Similarly, we must be ever mindful of the array of benefits that can come from having less people in prison and not demand or even suggest that people should be released from prison only if and only when public officials can "guarantee that they won’t offend again."

Finally, for now at least, I must again lament the tendency in so many of these kinds of discussions to start with the framing that meaningful action here "will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes."  I agree that cutting away the "fat" may not alone be enough, but let's focus on getting that hard work done before we fixate on the additional challenges of cutting "muscle."  As this great Prison Policy Initiative pie chart reminds us, roughly 50% of our national prison and jail populations are serving time for what are deemed "non-violent" offenses.  When we let out all or most or even some significant portion of this million+ people in cages, then I will be more than ready to wring my hands over which "violent" offenders to release.  But to now get deeply concerned about exactly which "people convicted of murder or armed robbery" should be released risks creating the impression that these types of offenders are the bulk of our prison populations, when they comprise less than 25% of all the people put in cages in the so-called home of the free and land of the brave.  (Also, for the very most serious of offenders, the debate is much less complicated since presumptive release when they are elderly or ill generally makes the most sense.)

I could go on and on, but I hope my point is clear.  Even as we discuss reform and recognize all the challenges surrounding decarceration efforts, we must be ever mindful of how decades of mass incarceration has not only badly hurt our nation and our values, but also badly hurt how we talk and think about doing better.

July 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Thursday, July 09, 2020

Federal prison population, per BOP report of "Total Federal Inmates," drops below 160,000

Two months ago, I noted in this post that federal Bureau of Prisons' official "Total Federal Inmates" count hit a notable milestone when the population dropped down below 170 thousand to an official total of 169,080 as of May 7, 2020.  Though I have been speculating that historic weekly declines would at some point stop or at least significantly slow, that has not happened yet.  In fact, the first part of July brings another modern low and another milestone passed: the new BOP numbers at this webpage now report "Total Federal Inmates" at 159,692.  (For recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).)

Given that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that historically generate lots of federal criminal cases like Arizona, California, Florida and Texas, I am lately starting to think these federal prison population declines might now be expected to continue for the foreseeable future.  Given that, as recent research notes, "COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population" and especially given that the death rate in the prison population is "3.0 times higher than would be expected" in the general population, responsible criminal justice and public health officials should still be seeking to drive down all prison populations as quickly and as robustly as possible.

A few of many prior related posts:

July 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 03, 2020

Effective review of the 1994 Crime Bill's complicated legacy

USA Today has this effective new piece about the impact and import of the 1994 Crime Bill under the headline "Fact check: 1994 crime bill did not bring mass incarceration of Black Americans."  I recommend the whole thing, and here are excerpts:

The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.

As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime....

Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program....

Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction.  But he added that "mass incarceration was already well under way prior to the adoption of that legislation."...

Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates....  A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.

This disparity, the report says, began to ease starting in the 1990s.  "Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said....

Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.  Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed.

This USA Today piece references and links to some effective research on this topic, although it does not mention the papers recently published by the Council of Criminal Justice on this topic (one of which I authored).  These CCJ papers provide a similar accounting of the impact of the 1994 Crime Bill:

July 3, 2020 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Thursday, July 02, 2020

As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

As we start July, we start with a new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 160,690.  (For recent context, the BOP reported population dropped from 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25).)

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases many regions, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And so maybe, just maybe, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

July 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, June 25, 2020

"Failing Grades: States’ Responses to COVID-19 in Jails & Prisons"

Newsletter_covidgrading_2.111929The title of this post is the title of this notable new ACLU and Prison Policy Initiative report by Emily Widra and Dylan Hayre.  Here is how it gets started:

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.”  This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.  Public health experts warned that the consequences were dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line.  Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19.  We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far.  The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst.  Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions.  Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly.  Universal testing was also scarce.  Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response.  Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities.  This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well.  It has never been clearer that mass incarceration is a public health issue.  As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

For a kind of video version of this story of significant and dangerous failure, also be sure to check out John Oliver's coverage.

Just a few of many, many prior posts from just the last month:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640

Today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it again appears that the pace of the decline is slowing just a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners in federal facilities.  As we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to now a BOP reported total of 161,640.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases in some regions and some talk of renewed shut-downs, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 24, 2020

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

June 24, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice
The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López
The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell
The Special Perils of Being Old and Sick in Prison by William J. Jefferson
Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck
Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

June 24, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, June 18, 2020

BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it now seems that the pace of the decline is slowing a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of decline increased to around 1,200 fewer reported prisoners in federal facilities.  But as we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as for June 11) to now a BOP reported total of 162,578.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  Time will tell.

Critically, though, dare anyone start wanting to think federal prisons are full of good stories, this new Marshall Project piece provides a reminder of grim realities in its full headline: "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps. The Bureau of Prisons was unprepared and slow to respond. Then officials took steps that helped spread the virus." 

A few of many prior related posts:

June 18, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 17, 2020

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

June 17, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 11, 2020

"Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers continue the extended pattern of big weekly drops in the overall numbers. In prior posts here and here, I have highlighted that, according to BOP's reporting, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we have been move from May into June, the new numbers at this webpage continue to show comparable weekly declines: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) and now a BOP reported total of 163,441.

I continue to fear that this persistent decline in total inmates is mostly a function of delays in the case-processing pipelines from COVIS shutdowns and that we will eventually see a (considerable?) a move upward in these numbers.  But maybe maybe we are still some ways from the bottom here and perhaps a much lower "new normal" for the federal prison population.  In the decade from 2006 to 2016, the BOP reported federal prison population averaged over 200,000 prisoners.  Would I be foolish to want to believe the decade of the 2020s might possibly see an average of under 150,000?  Could we dream of returning to the days of 1995 when the federal prison population was just 100,000?

A few of many prior related posts:

June 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 10, 2020

Two notable recent studies detailing connections between incarceration and community spread of COVID-19

One important theme of much COVID-era advocacy for decarceration efforts (early examples here and here and here) was that reducing the density of jails and prisons, and thereby slowing the spread of coronavirus, is critical not just for the well-being of incarcerated persons, staff and their families, but also for the communities and the general public around prison facilities.  In recent days, I have seen these two interesting new studies that explore various connections between incarceration and local community spread of this harmful virus:

Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail by Eric Reinhart and Daniel Chen:

Abstract: "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection.  Many jurisdictions in the United States have therefore accelerated release of low-risk offenders.  Early release, however, does not address how arrest and pre-trial detention practices may be contributing to disease spread.  Using data from Cook County Jail, in Chicago, Illinois, one of the largest known nodes of SARS-CoV-2 spread, we analyze the relationship between jailing practices and community infections at the zip-code level.  We find that jail cycling is a significant predictor of SARS-CoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as a predictor of variance.  The data suggest that cycling through Cook County Jail alone is associated with 15.7 percent of all documented novel coronavirus disease (COVID-19) cases in Illinois and 15.9 percent in Chicago as of April 19, 2020.  Our findings support arguments for reduced reliance on incarceration and for related justice reforms both as emergency measures during the present pandemic and as sustained structural changes vital for future pandemic preparedness and public health."

Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee Preliminary Results by Gipsy Escobar and Sema Taheri

"Following on the findings from previous research, we hypothesize that communities with higher levels of incarceration are more vulnerable to the spread of COVID-19 due to the impacts of mass incarceration on collective efficacy and concentrated disadvantage.  We look at the effect of the number of people sentenced to incarceration in 2015 on the concentration of COVID-19 cases between March 15 and May 11, 2020 at the census tract in Milwaukee county....

"In the context of ecological criminology, we explored the effect of incarceration rates on the number of COVID-19 cases in Milwaukee County neighborhoods and found preliminary support for our hypothesis.  The number of incarcerations is a strong predictor of the number of COVID-19 cases above and beyond the effect of other predictors in the model, including poverty, unemployment, and population not in the labor force.  Indeed, incarceration is an aggravating factor in poor health outcomes for disadvantaged communities."

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 04, 2020

"Total Federal Inmates," as reported by BOP, drops below 165,000

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now move from May into June, the new numbers at this webpage are continuing to show weekly declines checking in around 1,100 on average: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to 165,575 (as of May 28, 2020) to now a BOP reported total of 164,438.

I have repeatedly suggested that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP numbers might be mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  But this week shows reported  declines continuing at a steady pace, and so I am left to continue muttering about not "really" knowing just what is represented by the reported federal prison population or about how best to accurately gauge COVID's impact. 

A few of many prior related posts:

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, May 29, 2020

Terrific Prison Policy Initiative coverage of the limits of compassionate release and related pandemic problems

Pyle_compassionate_releasePrison Policy Initiative is a regular must-read for so many reasons in normal circumstance, and PPI has been especially effective with various "briefings" related to prison populations and other matters amidst this pandemic.  I have been remiss by failing to flag all of these on-point postings from the last few weeks

The last of these briefings, which is on the topic of compassionate release and was posted just today, includes a terrific visual from artist Kevin Pyle to help highlight why so very of those who apply for compassionate release get any relief.  Here is part of the text of the posting:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”
  • Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one....

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

May 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 28, 2020

Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now approach the end of May, the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to now a BOP reported total of 165,575.

I have repeatedly suggestions that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this recent post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP  numbers has been mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  Because this week we have not yet seen a spike in BOP reported inmates, and in fact declines are continuing at a steady pace, I am left to continue wondering just what the heck is going on and what these number now "really" represent about the federal prison population and COVID's impact. 

A few of many prior related posts:

May 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, May 25, 2020

Is the number of federal prisoners about to spike up as BOP moves nearly 7000 new inmates into federal facilities?

The question in the title of this post is my reaction to this new BOP press release titled "Bureau of Prisons Announces Update on Inmate Movement." The press release is dated May 22, and it starts this way:

The Bureau of Prisons (Bureau) and the United States Marshals Service (USMS) announced today that they will begin movement of approximately 6,800 new inmates who have been committed to the Bureau in recent months.

The Bureau, in coordination with the USMS, has decreased internal movement of inmates by 90% as compared to this time last year.  While inmate movement was significantly curtailed for several months, newly sentenced and newly admitted inmates have been held in local detention facilities across the country.  As the federal judiciary has continued to process new criminal cases and begins to phase-in expanded operations, the Bureau must, on a limited basis, move these inmates to alleviate population pressures in these local detention centers and allow inmates to begin serving their sentences.

This AP article provides addition background, including these details and context:

The inmates will be sent to one of three designated quarantine sites — FCC Yazoo City in Mississippi, FCC Victorville in California and FTC Oklahoma City — or to a Bureau of Prisons detention center.  All the inmates who are being moved will be tested for COVID-19 when they arrive at the Bureau of Prisons facility and would be tested again before they are moved to the prison where they would serve their sentence.

The prisoners have already been sentenced to federal crimes but were unable to be moved from local facilities as the coronavirus pandemic struck over concerns the virus would spread rampantly.... The federal prison system is continuing coronavirus-related restrictions, including a ban on visitors and minimal inmate transfers, at least through the end of June.

Regular readers know I have been tracking and wondering about the historic declines in the federal prison population in the last few months that the BOP has been reporting through its usual BOP weekly "Total Federal Inmates" population counts.  Specifically, as noted here, on April 9, the BOP reported population has already gone down to 173,686 inmates; six weeks later, as noted here, the BOP reported population was down to 166,647.  Notably, that reported difference in the BOP population represent almost exactly a 7000 inmate decline, which seemingly matches up pretty closely with the 6,800 new inmates being held in local detention facilities that are now to be moved into federal facilities.  In other words, it seems possible that what I thought might be an historic COVID decline is really largely just an artifice of 6,800 federal prisoners not being officially counted while being held in local detention facilities. 

Because I find BOP accounting opaque in many ways, I am not sure whether we should now expect to see a huge spike in the official BOP inmate count this week, nor am I sure there is any single predictable accounting metric for just how and why BOP inmate counts will fluctuate either in normal times or in these crazy COVID times.  But these stories provide further confirmation that the massive federal prison system has an extraordinary inflow and outflow of humans in all times.  It is dangerously easy to look at the federal prison population as relatively stable in some periods without realize that many, many thousands of persons move in and out of this system of human caging every year.

May 25, 2020 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (1)