Sunday, January 17, 2021

"Mass Incarceration, Meet COVID-19"

The title of this post is the title of this paper now available via SSRN authored by Sharon Dolovich. Here is its abstract:

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions.  In this Essay, I take stock of where things now stand.  I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits.

Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control.  Part III addresses the steps taken by public officials at all levels to reduce the number of people in custody and offers initial thoughts as to why, after a concerted push for releases on the part of many public actors in the first months of the pandemic, these efforts had already considerably slowed by the latter part of May 2020. (Here, the focus is primarily, though not exclusively, on the federal courts’ nonresponse to urgent petitions from incarcerated plaintiffs.)

Part IV draws on the work of the UCLA Law COVID-19 Behind Bars Data Project.  It explores what the data shows regarding infection rates and COVID deaths in custody, describes the limits of the available data, and explains why the impact on people in jails and prisons is likely even greater than the official numbers suggest.  Part V zeroes in on the culture of secrecy that American corrections administrators have long been empowered to cultivate regarding what goes on behind bars.  It argues that this culture has exacerbated the threat COVID poses to the incarcerated as well as to staff, that such secrecy is at odds with the imperatives of a public institution, and that we need to replace the reigning default posture of concealment with an ethos of transparency.  This Essay concludes with a call for a broad normative reorientation toward assessing carceral policy through a public health lens.

January 17, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, January 03, 2021

Interesting account of folks in Washigton state having second thoughts about three-strikes sentences

This lengthy new local article, headlined "New laws lead some Washington prosecutors to rethink three-strike life sentences," is an interesting review of efforts to review extreme sentences in the Evergreen State. Here are some excerpts from the piece:

Following the law enforcement killing of George Floyd, policing has grabbed the lion’s share of attention when it comes to reforming criminal justice. Yet, statistics reveal stark racial disparities in who goes to prison, and for how long.

In Washington, there is probably no greater example than the three-strikes law approved by voters in 1993 — the nation’s first and an embodiment of the tough-on-crime era, designed to ensure “persistent offenders” would never be free to commit more crimes.  Judges are required to hand down life sentences to repeat offenders of a wide array of crimes, from murder and rape to robbery and assault, and every year, more men and women are sentenced under the law.

While a majority of three-strikes prisoners are white, ... Black people, representing about 4% of the state’s population, account for 38% of 289 current three-strikes prisoners sentenced in Washington (including eight transferred to other states), according to the most comprehensive data released to date by the Department of Corrections (DOC), provided to The Seattle Times in December.  An additional six of 16 people who died in prison while serving three-strikes sentences were Black....

Ever since three strikes was enacted, people have argued about whether those it targets deserve their fate.  And yet, it has been surprisingly hard to track what crimes they committed.  The state stopped reporting the records of three strikes prisoners after 2008 and only recently resumed.

But a Seattle Times analysis of DOC data for the 289 current three-strikes prisoners shows more than half, 155 people, received a life sentence after assault, burglary, robbery or drug-related convictions triggered the third and final strike. Some previously committed more severe crimes.  About half of current three-strikes prisoners have murder, manslaughter or sex crimes on their record.

January 3, 2021 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, December 31, 2020

Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Screenshot 2020-12-31 at 9.56.12 AMA helpful reader recently reminded me that the last federal prison population headcount from the Bureau of Prisons in 2019 — specifically from December 26, 2019 — reported "175,858 Total Federal Inmates."  That number was itself a pretty notable decarceration achievement for the federal system: just six years earlier, in 2013, the federal prison population clocked in at around 220,000 total inmates according to the BOP.

I am focused on the last federal prison population headcount from last year because the Bureau of Prisons this morning reported at this webpage the "Total Federal Inmates" count at the very end of 2020.  Remarkably, this remarkable year has brought a decline of over 23,500 inmates, as the total now stands at 152,184

The COVID pandemic, of course, accounts in various ways for these 2020 decarceral developments.  It is hard to unpack just how much this year's decline can be attributed to a lot more persons being moved out of federal prisons or a lot fewer people being moved into federal prison.  (As noted in this post, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.)  Interestingly, after the pace of declines in the federal prison population seemed to slow considerably in the late summer and fall, there has now been a 2000-person decline in the BOP population since Thanksgiving.  These data make me a bit more hopeful that we could end up below 150,000 total federal inmates during the first few months of 2021.

A few of many prior related posts:

December 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, December 22, 2020

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

December 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, December 15, 2020

Prison Policy Initiative reports on "Mass Incarceration, COVID-19, and Community Spread"

Gregory Hooks and Wendy Sawyer with the Prison Policy Initiative has authored this important new report titled "Mass Incarceration, COVID-19, and Community Spread." The full report is today's must-read, and here are parts of its introduction and conclusion:

In 2020, a decades-long American policy failure — mass incarceration — collided with a brand new American policy failure: the mismanagement of the COVID-19 pandemic. After decades of needlessly locking up ever more people in jails and prisons, state and federal lawmakers now faced a public health disaster if they were unable to decarcerate quickly. In this report, we show that the persistent overuse of incarceration — despite decades of evidence of its inefficacy and harms — has had serious consequences. Mass incarceration and the failure to reduce prison and jail populations quickly led directly to an increase in COVID-19 cases, not just inside correctional facilities, but in the communities and counties that surround them.

Since the beginning of the pandemic, it was abundantly clear that the crowded and unsanitary conditions in American prisons and jails would facilitate the rapid spread of the virus, putting incarcerated people and staff at serious risk once the novel coronavirus entered facilities. Officials across the country ignored the threat for too long, perhaps imagining that confined populations would be too isolated from the outside world to contract the virus. But the boundaries between life “inside” and surrounding communities are actually quite porous, with staff, vendors, volunteers, and visitors constantly flowing in and out of correctional facilities — not to mention the frequent turnover and transfers of incarcerated people themselves....

This report outlines our initial findings so that they may be immediately useful to policymakers and advocates; the full study, which includes an analysis of nursing homes and ICE facilities, will be published by co-author Gregory Hooks separately. In addition, we have compiled Appendix tables with more detailed state and local data. In brief, however, we find that:

  1. COVID-19 caseloads grew more quickly over the summer of 2020 in nonmetro counties with more people incarcerated.
  2. COVID-19 caseloads grew much more quickly over the summer of 2020 among counties in multicounty economic areas with more people incarcerated.
  3. Mass incarceration added to COVID-19 caseloads in multicounty economic areas and states. Nationally, this impact reached a tragic scale: Mass incarceration added more than a half million cases in just three months....

The number of people in prisons and jails has led to more COVID-19 cases, among those working or confined in these facilities and among those who simply live near them. As documented here, the number of new COVID-19 infections over the summer of 2020 was greater in counties and multicounty areas with larger and more concentrated incarcerated populations. In total, we estimate that mass incarceration led to 560,000 additional COVID-19 cases nationwide in just three months....

What is needed immediately, at the policy level, is an increased use of clemency, parole expansion, and other legal mechanisms to depopulate prisons and stop the virus from spreading behind bars.  But there is a greater need over the long term: a profound rethinking of how we use incarceration in this country.  It has never been more obvious that locking up millions of people in crowded and unsanitary conditions is harmful — not only for those who are locked up, but for people outside prisons as well.  With the pandemic dragging on, our ability to radically reduce our use of incarceration is now a life or death matter.  If lawmakers cannot make swift changes to reduce correctional populations and keep them low, we should expect that more COVID-19 outbreaks — and more deaths — in prisons and the communities that surround them are still to come.

December 15, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 10, 2020

"The Mass Criminalization of Black Americans: A Historical Overview"

The title of this post is the title of this article that is soon to be published in an issue of the Annual Review of Criminology and is authored by Elizabeth Hinton and DeAnza Cook. Here is its abstract:

This review synthesizes the historical literature on the criminalization and incarceration of black Americans for an interdisciplinary audience.  Drawing on key insights from new histories in the field of American carceral studies, we trace the multifaceted ways in which policymakers and officials at all levels of government have used criminal law, policing, and imprisonment as proxies for exerting social control in predominantly black communities from the colonial era to the present.  By underscoring this antiblack punitive tradition in America as central to the development of crime-control strategies and mass incarceration, our review lends vital historical context to ongoing discussions, research, and experimentation within criminology and other fields concerned about the long-standing implications of institutional racism, violence, and inequity entrenched in the administration of criminal justice in the United States from the top down and the ground up.

December 10, 2020 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Saturday, November 28, 2020

"Misaligned incentives and the scale of incarceration in the United States"

Thanks to twitter, I just saw this notable recent article, which I use for the title of this post, published in the November 2020 issues of the Journal of Public Economics. The article is authored by Aurélie Ouss and here is its "highlights" and "abstract":

Highlights
  • In the US, states typically pay for prison, while county employees (judges, prosecutors, probation officers…) determine time spent in custody.
  • When the cost of incarceration is internalized by the entity choosing punishment, incarceration is lower, without detectable effects on crime.
  • Misaligned incentives in criminal justice may have contributed to the growth of incarceration in the United States

Abstract

The incarceration rate has increased substantially in the United States between the 1980s and the 2000s.  In this paper, I explore an institutional explanation for this growth: the fact that costs of incarceration are not fully internalized.  Typically, prison is paid for at the state level, but county employees (such as judges, prosecutors or probation officers) determine time spent in custody.  I exploit a natural experiment that shifted the cost burden of juvenile incarceration from state to counties, keeping overall costs and responsibilities unchanged.  This resulted in a stark drop in incarceration, and no increase in arrests, suggesting an over-use of prison when costs are not internalized.  The large magnitude of the change suggests that misaligned incentives in criminal justice may be a significant contributor to the current levels of incarceration in the United States.

November 28, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, November 24, 2020

New Sentencing Project fact sheet on "Incarcerated Women and Girls"

The Sentencing Project has released today this notable new fact sheet titled "Incarcerated Women and Girls" which examines (pre-COVID) female incarceration trends. I recommend the full piece (which includes lots of informative graphics), and here are excerpts:

Over the past quarter century, there has been a profound change in the involvement of women within the criminal justice system.  This is the result of more expansive law enforcement efforts, stiffer drug sentencing laws, and post-conviction barriers to reentry that uniquely affect women.  The female incarcerated population stands over seven times higher than in 1980. More than 60% of women in state prisons have a child under the age of 18.

Between 1980 and 2019, the number of incarcerated women increased by more than 700%, rising from a total of 26,378 in 1980 to 222,455 in 2019....

Women in state prisons are more likely than men to be incarcerated for a drug or property offense.  Twenty-six percent of women in prison have been convicted of a drug offense, compared to 13% of men in prison; 24% of incarcerated women have been convicted of a property crime, compared to 16% among incarcerated men.

The proportion of imprisoned women convicted of a drug offense has increased from 12% in 1986 to 26% in 2018.

November 24, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, November 15, 2020

"The Curriculum of the Carceral State"

The title of this post is the title of this recently published essay by Alice Ristroph.  Here is its abstract:

This Essay scrutinizes the canons of substantive criminal law, with a particular focus on the curricular canon.  By curricular canon, I mean the conceptual model used to teach the subject of criminal law, including the cases, narratives, and ideas that are presented to students.  Since the middle of the twentieth century, American law schools have offered (and often required) a course in criminal law in which homicide is the paradigm crime and legality is a core organizing principle.  The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. 

This model does not correspond closely to actual legal practices, and it never did; it was designed to model what criminal law could become.  Though this curricular model was developed by men who wanted to improve and constrain the criminal law, instead it probably contributed to the vast expansion of criminal interventions in the second half of the twentieth century.  The Essay reveals the pro-carceral implications of the prevailing canon, and it offers the outline of a different model that could alter American attitudes toward criminal law.  

I highly recommend everything penned by Alice Ristroph, and I am especially excited to see her turn her attention to the gaps between "our curricular model and our present criminal law reality" and to how "American law schools, through the required course on substantive criminal law, have contributed affirmatively to the collection of phenomena commonly labeled mass incarceration."  And reading this great piece reminded me of this very short commentary I wrote in the very first issue of the Ohio State Journal of Criminal Law way back in 2003 to flag my concerns that "failing to discuss the modem dynamics of criminal law doctrine and practice ... [results in] a substantive criminal law course that is often archaic, incomplete and perhaps unjustifiable."  My point back then was that modern criminal justice developments, particularly the drug war, plea realities and sentencing reforms, made the Model Penal Code outdated as a fundamental teaching text.  As I put it then:

The original MPC retains important historical value as a compendium of post-war scholarly thinking about criminal law, and its impact as a practical reform project remains profound. However, because the fundamental issues and concerns of criminal law doctrine and practice have shifted so dramatically in the last 40 years, the original MPC's continued use as a criminal law textbook operates, in my view, as a considerable disservice to criminal law academics and students, and ultimately to the entire field of criminal justice....

[T]he front-line realities of modem criminal law doctrine and practice have become quite grim and messy, and yet study of the original MPC can suggest that criminal law doctrine and practice is quite enlightened and orderly.  The MPC — and our teaching of it — trumpets the foundational concepts of actus reus and mens rea; yet the act requirement is often functionally eclipsed in a world in which conspiracy and possession offenses are staples, and the import of mental states is often functionally eclipsed in a world in which most sentencing factors are strict liability elements.  The MPC — or perhaps more particularly our teaching of it — suggests that homicides and other serious offenses are the central concern of the criminal justice system; yet modem criminal dockets are clogged with 60 times more felony drug and property cases than homicide cases. The MPC — and especially our usual methods for teaching it — suggests that many cases raise legal and factual claims and defenses that are resolved at trials where burdens of proof and precise offense elements are scrupulously considered; yet such matters very rarely occupy real criminal courts as judges spend the bulk of their time processing and sentencing the 19 out of every 20 defendants whose convictions are secured through guilty pleas.  And of course the MPC could not discuss — and I fear our teaching still fails to discuss — the enormous economic and personal costs and consequences of making mass incarceration a defining element of the modem American criminal justice system.

Gosh, I sure wish these musings of mine from this 2003 article felt more dated now, but Alice Ristroph's article effectively highlights how these problems have only gotten worse over time.

November 15, 2020 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, November 11, 2020

Eager to honor our veterans caught up in our nation's massive criminal justice systems

5fa97d96f3264.imageEvery year when Veterans Day rolls around, I find myself giving a lot more thought to all the veterans who get caught up in our criminal justice systems.  I often see exhortations to honor "all who served" on this important day, and that necessarily means we need to be sure to honor the disconcerting large number of veterans who spend this day behind bars, or under active criminal justice supervision, or struggling with the enduring burdens of a criminal record.

According to these latest (but dated) BJS statistics, "in 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities."  Even if the present-day percentage had shrunk considerably, we can still state without any question that there are tens of thousands of veterans spending Veterans Day behind bars today.

And though I cannot find any detailed data on veteran status and probation/parole rate, even if veterans were only 5% of all persons on probation/parole in the US, that would still means that there are hundreds of thousands of veterans currently spending Veteran's Day subject to active community supervision today.

And though I cannot find any detailed data on veteran status and criminal convictions, even if veterans were only 5% of all persons with a criminal record in the US, that would still means that there are millions of veterans currently burdened with a criminal record on Veterans Day 202.

As highlighted in some posts below, I have often used this day to urge the President of the United States to use his clemency pen to honor this day with some grants to veterans.  But, of course, the vast majority of veterans involved in our nation's criminal justice systems are caught up in a state system.  So, those of us eager to really honor all who served ought to be advocating that all chief executives play their part in doing something meaningful for a population that has done something meaningful for all of us.

Some older (some very older) prior related posts: 

November 11, 2020 in Data on sentencing, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, November 05, 2020

New Jersey COVID-related prison releases results in single-day 15% drop of state's prison population

As detailed in this local article, headlined "'It's over, baby': NJ begins releasing inmates who survived COVID spread in prisons," there was a big reform story in New Jersey that became an especially tangible reality yesterday.  Here are some of the details:

"I'm coming out!" Lissette Cardoso shouted through a second-floor window of a beige, nondescript halfway house in Paterson.  Four family members stood on the street in the cold outside.  They'd been waiting for more than 10 years.

Cardoso walked out of the halfway house just before 8:30 a.m. Wednesday, after a decade-long prison term for a string of convenience store robberies.  Her sentence ended three months early and with a kiss to her boyfriend — through their masks — amid a flood of hugs and tears.  "It's over, baby," Luz Salamanca, Cardoso's sister, said as Salamanca's daughter kissed Cardoso's cheeks.  "It's over, you hear me?"

Cardoso was one of thousands of people expected to leave state prisons and halfway houses on Wednesday under a first-in-the-nation law reducing sentences for inmates who served time during the coronavirus pandemic.  State officials said 2,261 inmates would be released throughout the day, marking a single-day drop of 15% in the state prison population.

The drastic decline was lawmakers' response to the coronavirus's devastation in New Jersey prisons.  The death rate inside Garden State prisons was the highest in the nation, according to the nonprofit criminal justice newsroom The Marshall Project....

While Gov. Phil Murphy has scored high marks with the public for his handling of the virus overall, prisons remained a trouble spot.  Murphy and his administration were criticized for moving too slowly to test the incarcerated population and reduce the number of people locked up, both efforts seen as key ways to slow the contagious virus's spread in a setting where social distancing is nearly impossible.

In fact, all but one of the 52 COVID-related deaths in state prisons were reported after Murphy in April created a framework for people to be released.  Lawmakers and prisoner advocacy groups said Murphy's plan allowed the corrections commissioner, Marcus Hicks, too much discretion and that more people should have gotten out.

Ultimately lawmakers put forward a bill, S2519, that reduced sentences by up to eight months for inmates who served during the public health emergency.  According to the American Civil Liberties Union and Prison Policy Initiative, the effort is unique in the nation because it changed state law instead of leaving action up to the executive branch.

Only inmates who are within a year of release are eligible for time off their sentences, and those convicted of murder and some sexual offenses are not allowed to get out early. The law will also give inmates time off if there is another public health emergency.  "We now have a system in place that allows us to be prepared the next time there is an infectious disease that causes pandemonium in our prison systems," said Alexander Shalom, senior supervising attorney and director of Supreme Court advocacy for the ACLU in New Jersey. "And that puts us really far ahead.”

But the law wasn't easily passed.  It was delayed for weeks in Trenton because of concerns that the state cut funding for reentry programs just as it was about to embark on an unprecedented release effort.  Ultimately that state aid was replenished, and Murphy signed the bill into law last month, greenlighting up to 3,000 releases over the next three months. The bulk of those inmates were to get out Wednesday....

While many New Jerseyans were awaiting election results early Wednesday, an informal army of advocates, religious leaders and reentry professionals flooded transit centers, hoping to catch people as they were released.  Each inmate met with a social services worker before being released to connect them with resources, according to Department of Corrections spokeswoman Liz Velez.  The department also gave people with a financial need a food stipend, packages of food or "an emergency supportive stipend to those who have indicated the greatest hardship," she said.

Velez said on Tuesday afternoon, the eve of the releases, that she did not have numbers of how many people had been given identification cards or enrolled in benefits like food stamps or Medicaid.  Releasing a large number of people all at once has prompted concern among some reentry groups and officials, who said the Murphy administration was not providing them enough information to identify who needs help.

November 5, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, November 01, 2020

"Life Without Parole Sentencing in North Carolina"

The title of this post is the title of this notable new paper authored by Brandon Garrett, Travis Seale-Carlisle, Karima Modjadidi and Kristen Renberg now available via SSRN.  Here is its abstract:

What explains the puzzle of life without parole (LWOP) sentencing in the United States?  In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP.  Yet during this same period, homicide rates have steadily declined.  The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows.  Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition.

To shed light on what might explain the sudden rise of LWOP, we examine characteristics of the more than 1,627 cases in which LWOP was imposed from 1995 to 2017, in North Carolina, one of the states that imposes the largest numbers of these sentences.  We begin by analyzing defendant race, crime, and sentence patterns by county.  We associate LWOP with homicide rates, and examine interactions between homicide, victim race, and prior LWOP sentencing. 

This first empirical analysis of adult LWOP sentences finds important local variations in its imposition.  We find that as the homicide rate increases within a county, we observe fewer LWOP sentences.  We find that fewer LWOP sentences are predicted to occur as the number of black victim homicides increase in a county, but no such relationship is found when considering the number of white victim homicides.  Finally, we find a strong path dependency and concentration of LWOP sentences in counties, where counties that have imposed LWOP sentences in the past are more likely to continue to do so.  These findings have implications for efforts to reconsider the most severe sentences in the U.S., and they suggest that prosecutorial discretion in seeking long sentences will be important subjects for future research and policy.

November 1, 2020 in Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, October 30, 2020

Will problematic definition of "violence" convictions impact Oklahoma sentencing reform initiative SQ 805?

I have highlighted in a few prior posts SQ 805, a fascinating Oklahoma ballot initiative seeking to block non-violent prior convictions from enhancing statutory punishment ranges.  This new Mother Jones story provide useful context concerning Oklahoma reforms while also noting a potential problem with how SQ 805 is drafted.  The full headline of the piece serves to summarize its coverage: "How a Domestic Violence Loophole Could Doom a Campaign to Cut Oklahoma’s Harsh Prison Sentences: A wrinkle threatens public support for the state’s progress against mass incarceration."  I recommend the piece in full, and here are excerpts:

For the last four years, the fight against mass incarceration in Oklahoma has been a story of unlikely success.  In 2016, after decades of creeping prison populations, the state’s incarceration rate reached levels so astronomical that the Prison Policy Initiative would dub it the “world’s prison capital“: More than 1 in 100 Oklahomans was locked up in a prison, jail, juvenile hall, or immigration detention facility.  But that year, the same electorate that voted to send Donald Trump to the White House by a 36-point margin also approved a ballot measure softening their state’s notoriously hardline criminal code.

That measure, State Question 780, was a turning point.  It downgraded drug possession and a slate of minor property crimes from felonies to misdemeanors, while a second measure ensured the money saved by downsizing prisons would go to rehabilitative programs.  In 2017, 14,000 fewer felony charges were filed by Oklahoma prosecutors; not long after, the state’s prison population began to fall. Meanwhile, politicians took note of the message the voters had sent.  In 2018, the state legislature, where Republicans hold a supermajority, passed more reforms, including streamlining the parole process.  Republican businessman Kevin Stitt made reducing the prison population part of his pitch for the governor’s seat, and won.

This year, Oklahoma voters could send another jolt to the system by voting for State Question 805 — another adjustment to the state’s harsh sentencing practices.  If it passes, SQ 805 could reduce the prison population by 8.5 percent over the next 10 years, according to a projection by the Oklahoma Council of Public Affairs, a conservative think tank that supports the initiative.

SQ 805 would add a provision to the state constitution prohibiting prosecutors and courts from jacking up the sentences of people convicted of nonviolent felonies if they have an earlier nonviolent felony on their record....

But there’s a significant wrinkle threatening public support for SQ 805, and in turn, Oklahoma’s slow but steady progress against mass incarceration: The measure distinguishes violent from nonviolent felonies using an outdated list from Oklahoma’s legal code.  As of January, that list of “violent” crimes did not include certain domestic violence charges, such as domestic abuse by strangulation, or domestic assault with a dangerous or deadly weapon. If SQ 805 passes, it would continue to allow courts to impose enhanced sentences for any crimes on that list as of January 1, 2020 — including assault and battery, murder, rape, child abuse, and so on — but not those domestic violence charges.  (Oklahoma lawmakers added some domestic violence charges to the violent felonies list in May, too late for SQ 805’s cutoff date.)

Prior related posts:

October 30, 2020 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

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 155,197 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 (1)

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)