Tuesday, January 31, 2023

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

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

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

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

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

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

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

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

January 31, 2023 in Criminal justice in the Biden Administration, Scope of Imprisonment | Permalink | Comments (50)

Thursday, January 26, 2023

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

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

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

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

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

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

January 26, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (39)

Wednesday, January 25, 2023

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

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

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

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

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

January 25, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

Sunday, January 15, 2023

"A World Without Prosecutors"

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

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

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

January 15, 2023 in Scope of Imprisonment, Who Sentences | Permalink | Comments (21)

Thursday, January 12, 2023

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

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

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

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

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

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

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

January 12, 2023 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, January 11, 2023

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

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

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

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

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

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

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

January 11, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

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

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

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

January 11, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, January 05, 2023

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

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

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

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

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

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

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

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

+ Provide programming and counseling to all individuals serving long sentences

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

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

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

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

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

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

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

January 5, 2023 in Prisons and prisoners, Scope of Imprisonment, Victims' Rights At Sentencing | Permalink | Comments (6)

Sunday, January 01, 2023

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

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

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

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

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

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

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

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

Interesting times as we start a new year.

January 1, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, December 20, 2022

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

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

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

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

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

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

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

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

Additional findings in the report show that:

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

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

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

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

December 20, 2022 in Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (25)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 20, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Monday, December 19, 2022

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

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

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

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

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

December 19, 2022 in Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Saturday, December 17, 2022

Highlighting still more notable new Inquest essays

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

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

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

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

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

December 17, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 08, 2022

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

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

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

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

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

December 8, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, December 01, 2022

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

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

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

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

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

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

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

December 1, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Monday, November 21, 2022

"Punishment Externalities and the Prison Tax"

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

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

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

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

November 21, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, November 16, 2022

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

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

The reforms focus on nine areas:

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

November 16, 2022 in Criminal Sentences Alternatives, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, November 14, 2022

"The Inherent Problem with Mass Incarceration"

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

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

November 14, 2022 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (3)

Saturday, November 05, 2022

Rounding up recent disheartening stories in incarceration nation

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

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

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

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

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

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

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

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

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

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

November 5, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, October 20, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 20, 2022 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, October 11, 2022

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

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

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

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

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

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

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

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

October 11, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, October 07, 2022

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

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

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

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

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

October 7, 2022 in Clemency and Pardons, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Sunday, October 02, 2022

Weekend round-up of stories from incarceration nation

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

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

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

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

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

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

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

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

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

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

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

October 2, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, September 29, 2022

Spotlighting again the decarceral success of the CARES Act

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

September 29, 2022 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

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

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

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

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

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

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

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

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

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

September 29, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, September 28, 2022

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

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

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

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

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

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

September 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Tuesday, September 27, 2022

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

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

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

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

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

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

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

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

September 27, 2022 in Data on sentencing, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, September 26, 2022

Spotlighting the ugly problems with incarceration deaths (and with data collection by the Justice Department)

Last week brought this notable bipartisan Senate report with a title that largely highlights its main points: "Uncounted Deaths in America’s Prisons & Jails: How the Department Of Justice Failed to Implement the Death In Custody Reporting Act."  Here is the report's "Executive Summary":

Approximately 1.5 million people are incarcerated in state and local correctional facilities throughout the United States.  Thousands die every year.  The Death in Custody Reporting Act of 2013 (“DCRA 2013” or “the reauthorization”) — reauthorizing a law that first passed in 2000 — requires states that accept certain federal funding to report to the Department of Justice (“DOJ” or “the Department”) about who is dying in prisons and jails.

Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the law, the Permanent Subcommittee on Investigations (“PSI” or “the Subcommittee”) found that DOJ is failing to effectively implement DCRA 2013.  DOJ’s failed implementation of DCRA 2013 undermined the effective, comprehensive, and accurate collection of custodial death data.

This failure in turn undermined transparency and Congressional oversight of deaths in custody.  The Subcommittee has found that DOJ will be at least eight years past-due in providing Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.  The Subcommittee also highlights the following key facts: in Fiscal Year (“FY”) 2021 alone, DOJ failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete.  DOJ failed to implement effective data collection methodology, despite internal warnings from the DOJ Office of the Inspector General (“OIG”) and the Bureau of Justice Statistics (BJS).  DOJ’s failures were preventable.

Here was just some of the media coverage from the release of this report and the associated hearing:

From The Marshall Project, "‘A Moral Disgrace’: How The U.S. Stopped Counting Deaths Behind Bars; The Department of Justice is failing miserably at collecting data on deaths. Experts say that makes it hard to identify the worst prisons and jails."

From NBC News, "Hundreds of prison and jail deaths go uncounted by the federal government, report finds; A Senate subcommittee hearing is focusing on how lawmakers say the Justice Department has "failed to implement" the Death in Custody Reporting Act.

From The Washington Post, "DOJ slammed by senators over poor reporting on deaths in custody"

September 26, 2022 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Thursday, September 22, 2022

Council on Criminal Justice releases "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020"

Three years ago, as flagged in this post, the Council on Criminal Justice (CCJ) released a notable report detailing notable modern changes in the modern demographics of prison, jail, probation, and parole populations titled "Trends in Correctional Control by Race and Sex."  Today, CCJ has released another important data report looking a racial disparity data under the title "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020."  The full report is available at this link, and here is what's listed as "key findings" in the first few pages of the full report:

September 22, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, September 15, 2022

US organizations file complaint at United Nations stating LWOP and other extreme prison terms "are cruel in violation of the international prohibition on torture"

As reported in this new Guardian piece, headlined "US civil rights groups file complaint against ‘death by incarceration’ to UN," a coalition of organizations today filed a notable broadside against all extreme prison terms in the US.  Here are the basics:

A coalition of civil and human rights organizations on Thursday filed a complaint urging United Nations special rapporteurs to declare the United States’ longstanding practice of subjecting people to life sentences, including without possible release, “cruel, racially discriminatory” and “an arbitrary deprivation of liberty” that violates incarcerated people’s rights.

They argued that “death by incarceration”— a term describing life sentences without parole coined by [Terrell] Carter and other members of the Right to Redemption Committee, a group of incarcerated people seeking the abolition of the practice — amounted to torture.  In their complaint, the civil rights organizations asked the international watchdogs to pressure the United States, who leads the world in sentencing people to life imprisonment, to abolish the extreme practice altogether.  They proposed instead to impose maximum sentencing laws that would eliminate the practice of “virtual life” sentences — those longer than a person’s remaining years of life expectancy, often more than 50 years....

Dozens of testimonies from incarcerated people sentenced to life detail the horrific toll so-called “death by incarceration” has not just on their physical, mental and emotional wellbeing but also the lasting impact separation has on their family members.  Carlos Ruiz Paz, who is serving a life sentence in California, wrote in a testimonial that a life sentence without parole signaled a person was “irreparably damaged without hope of redemption”, adding: “Extreme sentences affect the kids who grow up without us and the parents that will die without us at their side.”

The complaint noted that the United States’ use of virtual life sentences increased exponentially since the 1970s, particularly after the supreme court abolished the death penalty in 1972, prompting states to strengthen life sentencing laws for offenders.  Even after the supreme court reversed course in 1976, extreme sentencing practices continued.  By the 1980s and 90s, as the federal government incentivized states to impose harsher sentencing practices in an effort to curtail perceived rises in crime, more and more people were imprisoned for longer.

The toll of that suffering has disproportionately upended the lives of Black and brown people who have been subjected to over-policing throughout time, exposing them to the US carceral system and led to escalating mass incarceration.  Organizers argue that that violates international human rights law prohibiting racial discrimination. “This systemic deprivation of resources, including education, healthcare and other social support and services, is coupled with the entry of more police and prisons in these communities and exposure to the criminal legal system,” the complaint noted.

The US is the only country that sentences children under 18 to life without parole, a practice that the United Nations has already singled out. And the US accounted for more than 80% of people worldwide serving life sentences without parole.

The full complaint is available at this link, and it runs 160 pages in total (though 3/4 of the document is comprised of an Appendix with testimonials from persons serving extreme sentences). Here is a paragraph from the complaint's introduction:

The United States’ use of DBI sentences violates a range of international human rights.  First, the disproportionate imposition of DBI sentences on racial minorities, in particular Black and Latinx people, violates the prohibition against racial discrimination.  Second, by arbitrarily and permanently sentencing individuals to prison terms that result in their premature death, DBI sentences violate individuals’ right to life.  Third, as recognized by numerous international human rights bodies, by depriving individuals of their right to hope and to rehabilitation, DBI sentences violate the international prohibition against torture and cruel, inhuman, and degrading treatment.  The devastating consequences on an individual’s right to family life further exacerbate the cruelty of DBI sentences.  Finally, the failure of DBI sentences to serve any legitimate purpose further demonstrates that such sentences are an impermissibly arbitrary deprivation of liberty.  To comply with international human rights standards, the United States must abolish DBI and restore incarcerated individuals’ right to hope.

September 15, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Monday, September 12, 2022

Noting opaque SCOTUS rulings, split Ninth Circuit panel rejects habeas Eighth Amendment claim against 292-year prison term

Being sentenced to serve in 292 years in prison for a bunch of non-violent offenses certainly seems pretty "cruel."  And such an extreme prison term is still somewhat "unusual" in modern times, and surely would have been entirely unknown to the Founders. (Remarkably, were someone sentenced to 292 years in prison in 1790, he would still have 60 years left to serve circa 2022.)  But, despite textualist and originalist turns in other areas, modern Eighth Amendment jurisprudence does not (yet?) focus on the text and original understanding of this provision.  Indeed, because there have been so few modern cases about application of the Eighth Amendment to extreme adult prison sentences, it remains unclear just whether and how the Eighth Amendment still serves to limit extreme adult prison terms at all.

I flag these issues in the wake of a notable recent split Ninth Circuit panel decision in Patsalis v. Shinn, No. 20-16800 (9th Cir. Sept. 6, 2022) (available here), in which the very opaqueness of Eighth Amendment jurisprudence provided the basis for rejecting a habeas challenge to a 292-year state prison term. Here is the start of the majority opinion in Patsalis providing context as well as passages from the discussion:

Petitioner-Appellant Atdom Patsalis seeks federal habeas relief, arguing that his 292-year total sentence imposed by an Arizona state court is grossly disproportionate to his crimes and, therefore, cruel and unusual in violation of the Federal and Arizona Constitutions. Patsalis was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. These were not his first crimes. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.

The Arizona Court of Appeals rejected Patsalis’s constitutional claim concluding that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences, and that none of Patsalis’s individual sentences were disproportionate. Patsalis sought habeas relief under 28 U.S.C. § 2254. He argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. Instead, he argued that he was entitled to de novo review on this claim. The district court disagreed, afforded AEDPA deference to the Arizona court, and concluded that Patsalis is not entitled to relief. We affirm....

There is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.... Lockyer is instructive....  The Court noted that its sentence-proportionality precedents “have not been a model of clarity.” Id. at 72. It further recognized that it has “not established a clear or consistent path for courts to follow” in analyzing proportionality of a sentence to a term of years. Id. Nor has it been clear about “what factors may indicate gross disproportionality” or provided “clear objective standards to distinguish between sentences for different terms of years.” Id. (cleaned up). Other than the basic principle of proportionality, the only thing that the Court has established is that the rule against grossly disproportionate sentences is violated “only in the exceedingly rare and extreme case.” Id. at 73 (cleaned up)....

To grant Patsalis’s habeas petition, we must conclude that “there is no possibility fairminded jurists could disagree” that the Arizona Court of Appeals’ decision conflicts with the Supreme Court’s clearly established precedents. Harrington, 562 U.S. at 102.  This we cannot do given the limited Supreme Court precedent regarding the prohibition against disproportionality of a sentence to a term of years.

Judge Christen penned a lengthy dissent, and here are parts of its opening and analysis:

Atdom Patsalis was convicted of various non-violent theft-related crimes committed over a three-month period when he was twenty-one years old. The total value of the property was about $5,000. Pre-trial, the State of Arizona made two plea offers of twenty years or less. Patsalis rejected both offers and was convicted of the charged offenses after a jury trial. The longest sentence imposed for any of his crimes was 15 years, but the court specified that his multiple sentences would run consecutively. The net result was a cumulative sentence of 292 years....

On appeal, my colleagues agree that AEDPA deference applies and they affirm on that basis. The majority acknowledges that the state court did not address Patsalis’s cumulative sentence — yet it asserts that the state court rejected Patsalis’s federal claim on the merits. The state court’s opinion is clear: it affirmed Patsalis’s individual sentences while expressly declining to consider whether his 292-year sentence was grossly disproportionate. Because the state court did not reach the merits of the claim Patsalis actually presented, there is no state-court decision to which we can defer and de novo review is the proper standard. Reviewing Patsalis’s claim de novo, I conclude that his cumulative sentence violates the Eighth Amendment. Accordingly, I respectfully dissent....

The facts and circumstances in the Supreme Court’s Solem and Graham opinions inescapably point to the conclusion that Patsalis’s 292-year sentence is one of the extremely rare cases that gives rise to an inference of disproportionality at the first step of the Eighth Amendment analysis. Patsalis was just 21 years old when he committed his offenses so he did not have a track record that had accumulated over the course of even the eleven years at issue in Solem. (Indeed, he had only been an adult for three years.) His offenses were non-violent and theft-related, and he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000. While four of his offenses involved entering private residences — admittedly serious conduct — eighteen of the twenty-two burglaries for which Patsalis received consecutive sentences did not involve entry into a home, but into a garage, a vehicle, and a detached shed. All of them were deemed “non-dangerous” by the trial court. As was the case in Graham, the sentence Patsalis received was multiples of the sentences imposed for murderers or rapists, yet Patsalis did not injure anyone and there is no indication that any violence or weapons were involved in any of his offenses.

Remarkably, in an era in which life sentences and lengthy term-of-years sentences keep reaching historic new levels (see reports discussed here and here), it has now been nearly two full decades since the Supreme Court has addressed an Eighth Amendment challenge to an adult term of years sentences.  Lockyer and Andrade were decided way back in 2003, and Justice Thomas is now the only member of SCOTUS who remains on the Court since those rulings were handed down. 

With SCOTUS transitions and the recent textualist and originalist turns in other jurisprudence, I would like to imagine Patsalis as the kind of case in which certorari might be granted and the Justices might look to finally clean up precedents that have not been a "model of clarity" and that seem quite inconsistent with the text and original understanding of the Eighth Amendment.  But, I should probably know better than to hope and expect that people sentenced to live in a cage for nearly three centuries will garner the kind of constitutional attention as praying football coaches and college admissions officers.

September 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Thursday, September 08, 2022

New Sentencing Project report addresses "How Many People Are Spending Over a Decade in Prison?"

The Sentencing Project has long done a lot of great work on long sentences, especially through various reports on life sentences (examples here and here).  Today, The Sentencing Project has a notable new publication looking at persons serving sentences of a decade or longer.  This new report is titled with a question: "How Many People Are Spending Over a Decade in Prison?".  But the subtitle of the report provides this answer: "In 2019, over half of the people in U.S. prisons — amounting to more than 770,000 people — were serving sentences of 10 years or longer — a huge jump from 2000."  Here are other "key findings" from the start of the report:

September 8, 2022 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, September 07, 2022

"Policing Mass Incarceration"

The title of this post is the title of this recent article available via SSRN authored by Fred O. Smith, Jr.  Here is its abstract:

In Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights, Dean Erwin Chemerinsky issues an indictment of the Supreme Court, charging that institution with facilitating undue state violence, wrongful convictions, invasions of dignity, and racial inequality.  The Supreme Court has produced these consequences by offering needlessly narrow remedies for constitutional wrongs and by issuing crabbed constructions of criminal procedural rights.  Chemerinsky’s indictment is written with clarity, comprehensiveness, and humanity.

This Book Review argues that mass incarceration presents an immense barrier to the author’s goals of producing less violent, more accurate, less invasive, and less racist policing.  First, many of Chemerinsky’s proposals for police reform assume a system of criminal trials.  In our system of mass incarceration, the overwhelming majority of incarcerated persons never receive a trial.  If the criminal legal system did attempt to rely on trials instead of coerced guilty pleas, the system would collapse under the weight of the sheer number of people we prosecute.  Second, Chemerinsky argues that we should revisit and raise the requisite standard for police to search a suspect from reasonable suspicion to probable cause.  But in a system of mass incarceration, probable cause is not hard to come by. The more things we label “crime,” the more reasonable it is to believe that someone is likely committing one.  Third, mass incarceration feeds on legal reforms that are not aimed at decarceration.  A “criminal caste” is more tolerable if the government gives the caste members “rights” before stripping them of humanity and core dimensions of citizenship.

It is imperative to reverse and control mass incarceration to achieve lasting transformation of the police.  There is no equitable way to police in a world of mass incarceration. 

September 7, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6)

Tuesday, September 06, 2022

"Have American jails become the inferior replacement for mental hospitals?"

The question in the title of this post is the headline of this new Salon piece.  Here are a few excerpts:

London's Bedlam psychiatric hospital is infamous today for how its staff brutally abused their patients....

Things are arguably better for mentally ill people in 21st century America.  Yet a new study by George Mason University's Schar School of Policy and Government, and published in the medical journal BMC Health Services Research, suggests that any improvement may not be as great as we'd like to think.  At present, there are 10 times as many people with mental illnesses in jails and prisons than in state psychiatric hospitals.  In other words, we've substituted jails for treatment facilities. 

Niloofar Ramezani, assistant professor of statistics at George Mason University and corresponding author of the study ... believes that the study's "most important finding," is that "one should focus on building up the community's capacity to provide mental health services."  Ramezani pointed out that their study also found that "after accounting for the availability of mental health care services, the size of the violent crime problem no longer has an effect to how the jail is used."  American society is filling up its jails with mentally ill individuals in a way that, quantifiably, cannot be plausibly linked to any kind of meaningful violent crime problem....

"We've known for some time that this country's chief response to serious mental illness is incarceration, a fact that stands out because prisons are so clearly unsuited to treating mental illness," Wanda Bertram, Communications Strategist at Prison Policy Initiative, told Salon by email.  "Our organization recently found that even though 43% of people in state prisons have been diagnosed with a mental disorder, only 26% have received some form of mental health treatment, and only 6% are currently receiving treatment."...

Ramezani and the study's other co-authors ultimately argue, as Ramezani put it to Salon, that "more research needs to be done on the type of individuals with mental health issues who are incarcerated and how they are handled.  Once we know more about them, their mental health journey, and how their mental health condition is changing over time while incarcerated, we can find better solutions to provide helpful support to them if they end up in jail."

In addition to doing more research, American policymakers need to exercise the "political will" necessary to address mental health issues in a humane and effective way.

September 6, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7)

Saturday, September 03, 2022

Lots of notable new briefings and other interesting items from the Prison Policy Initiative

The start of a new semester and other matters have left me behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  In an effort to catch up, here is a reprinting of links to notable recent PPI works:

September 3, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, September 02, 2022

"The Miseducation of Carceral Reform"

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

Public education looms large in criminal law reform.  As states debate what to invest in — other than criminal law enforcement — to provide safety and security to the public, public schools have emerged as a popular answer.  Today, legislatures move money from prisons to public education, arguing that this reinvestment can address the root causes of mass incarceration.  This Article analyzes this reinvestment trend from the perspective of public schools.  It takes seriously the possibility that diverting money from incarceration to public education can help address the root causes of mass incarceration and it argues that realizing this possibility requires a more expansive approach to reinvestment than is demonstrated in current legal reforms.  This expansive approach to reinvestment situates the provision of education within a constellation of interconnected needs, increases power over diverted funds for those who have historically been excluded from educational decisions, and confronts the underlying race, class, and gender resentments used to justify asymmetrical spending on incarceration and public education.  By analyzing reinvestment approaches to carceral reform from the perspective of public schools, this Article underscores the contested nature of the reinvestment movement.  It maps both the restrictive and transformative directions carceral reinvestment can take, and it points to several promising efforts that make use of a more transformative approach to reconfigure the relationship between public welfare and the carceral state.

September 2, 2022 in Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, August 27, 2022

"The Injustice of Under-Policing in America"

The title of this post is the title of this new paper authored by Christopher Lewis and Adaner Usmani and published in the American Journal of Law and Equality. Here is part of its introduction:

Since 2014, viral images of Black people being killed at the hands of the police — Michael Brown, Eric Garner, Breonna Taylor, and many, many others  — have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.  Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. And others have called for abolishing the police altogether.  It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans — especially poor, Black people.  This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.

The American criminal legal system is unjust and inefficient.  But, as we argue in this essay, over-policing is not the problem.  In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations . In this country, roughly three people are incarcerated per police officer employed.  The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate.  We argue that the United States has it backward.  Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world.  We call this the “First World Balance.”

We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration.  This essay offers a preliminary sketch of some of the arguments in the book.  In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor.  One of us is a social scientist, and the other is a philosopher and legal scholar.  Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct — but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system.  Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound.  In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.

August 27, 2022 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 26, 2022

Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells"

Solitary_report_cover_front_only_2021This Guardian article, headlined "Nearly 50,000 people held in solitary confinement in US, report says," reports on the latest version of the important work done by Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School to estimate the number of people held in solitary confinement in the United States.  Here is part of the press reporting:

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.“In the 1980s people promoted solitary confinement as a way to deal with violence in prisons,” said Judith Resnik, Yale’s Arthur Liman professor of law. “It is now seen as a problem itself that needs to be solved.”

California, a state with a dark history of abusive solitary confinement, is currently debating new legislation. The California Mandela Act would require every custodial institution in the state to impose strict rules and reporting, and would ban solitary for pregnant women, people under 26 or over 59, and those with mental or physical disabilities.

Last year New York state passed similar legislation, joining a growing list. The Yale study finds that three states – Delaware, North Dakota and Vermont – reported having no inmates in such confinement in 2021, and two other states said they had fewer than 10 people.

Despite such optimistic signs, restrictive housing continues to inflict untold suffering on thousands of men and women. 

This press release about the report provides some more details and context:

Time-In-Cell: A 2021 Snapshot of Restrictive Housing estimates that, as of July 2021, between 41,000 and 48,000 people were held in isolation in U.S. prison cells. The report defines solitary confinement as 22 hours or more on average a day for 15 days or more. 

The report’s co-authors have worked together for a decade to generate this data, producing the only longitudinal, nationwide database documenting the reported use of solitary confinement in prisons in the United States. 

According to the most recent study, three states reported holding no one in isolation in July 2021, two other states reported fewer than 10 people in solitary, and 10 states reported not using solitary in any of their women’s prisons. In contrast, in 2014, every jurisdiction reported using solitary confinement. That year, an estimated 80,000 to 100,000 people were in solitary in prisons throughout the United States.....

Time-in-Cell also examined the demographics of people held in isolation. The report found that solitary confinement continues to be used for people whom reporting jurisdictions define as having serious mental illness. Moreover, the report found that the number of Black women held in solitary was higher than the number of white women.

The full report includes the numbers, duration, and conditions of people in solitary confinement and the changes underway.

August 26, 2022 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 25, 2022

Bureau of Justice Statistics releases big report on COVID's impact on prisons during pandemic's first year

As detailed on this BJS webpage, this morning the Bureau of Justice Statistics released this 45-page "Special Report" titled "Impact of COVID-19 on State and Federal Prisons, March 2020–February 2021."  The BJS webpage has a press release, a summary and this overview:

Description

This report provides details on the effects of COVID-19 on state and federal prisons from March 2020 to February 2021. The report presents data related to COVID-19 tests, infections, deaths, and vaccinations.  It also provides statistics on admissions to and releases, including expedited releases, from state and federal prisons during the first year of the COVID-19 pandemic.

Highlights

  • BJS’s survey to measure the impact of COVID-19 on U.S. prisons from the end of February 2020 to the end of February 2021 found that the number of persons in the custody of state, federal, or privately operated prisons under state or federal contract decreased more than 16%.
  • The prison population declined by 157,500 persons during the first 6 months of the COVID-19 study period through the end of August 2020, and by 58,300 in the 6 months through the end of February 2021.
  • Twenty-four states released a total of 37,700 persons from prison on an expedited basis (earlier than scheduled) during the COVID-19 study period.
  • State and federal prisons had a crude mortality rate (unadjusted for sex, race or ethnicity, or age) of 1.5 COVID-19-related deaths per 1,000 prisoners from the end of February 2020 to the end of February 2021.
  • From the end of February 2020 to the end of February 2021, a total of 196 correctional staff in state and federal prisons died as a result of COVID-19.

August 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, August 14, 2022

"How Little Supervision Can We Have?"

The title of this post is the title of this new article authored by Evangeline Lopoo, Vincent Schiraldi, and Timothy Ittner which is forthcoming in the Annual Review of Criminology. Here is its abstract:

Use of probation and parole has declined since its peak in 2007 but still intrudes into the lives of 3.9 million Americans at a scale deemed mass supervision.  Originally intended as an alternative to incarceration and a means of rehabilitation for those who have committed crimes, supervision often functions as a trip wire for further criminal legal system contact. This review questions the utility of supervision, as research shows that, in toto, it currently provides neither diversion from incarceration nor rehabilitation.  Analysis of national supervision, crime, and carceral data since 1980 reveals that supervision has little effect on future crime and is not a replacement for incarceration.  Case studies from California and New York City indicate that concerted efforts to reduce the scope of mass supervision can effectively be achieved through sentencing reform, case diversion, and supervisory/legal system department policy change, among other factors, without increasing crime.  Therefore, we suggest extensive downsizing of supervision or experimentation with its abolition and offer actionable steps to enact each possibility.

August 14, 2022 in Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 12, 2022

"The Arbery case is heinous, but his killers’ sentences are extreme"

The title of this post is the headline of this notable new Washington Post commentary (which, as of noon Friday already prompted well over 3000 comments). The piece is authored by David Singleton, and I recommend it in full. Here are excerpts:

As a human being, I felt nauseated watching the video of Ahmaud Arbery being shot to death by three White men who had hunted him down as he jogged through a Brunswick, Ga., neighborhood.  As a Black man, I feared that Arbery’s killers would escape justice before an almost all-White jury in a state court.  And as a political progressive committed to dismantling white supremacy, I was relieved when the jury found Arbery’s killers guilty of murder.

Yet the punishments the three men received — in the state case, life in prison for William “Roddie” Bryan, who joined the pursuit of Arbery and recorded the incident with his cellphone, and life in prison without parole for Gregory McMichael and his son Travis, who fired the fatal shots; and just this week in the federal case, two more life sentences plus additional years for the McMichaels and 35 years for Bryan — left me questioning whether such lengthy sentences are what justice requires.  As a former public defender who now works to end mass incarceration and the extreme sentences that contribute to it, I believe the answer is clear: no....

Contrary to what many believe, mass incarceration is not the result of locking lots of people up for low-level, nonviolent crimes.  According to such sentencing experts as Marc Mauer and Ashley Nellis, life and other extreme sentences are the real drivers of the 500 percent increase in the prison population over the past 40 years.  In their book “The Meaning of Life: The Case for Abolishing Life Sentences,” Mauer and Nellis note that one out of seven people in prison in the United States has been sentenced to life.  They say that lengthy sentences make no sense from a public safety perspective, given that most people age out of committing violent crimes by their mid-20s. Additionally, continuing to imprison people long past the time when they can be safely released is expensive, especially when they are elderly.

But the economic costs of mass incarceration are not the only costs.  To paraphrase Bryan Stevenson and Sister Helen Prejean, people should not be defined forever by the worst things they’ve done.  But a life sentence, especially life without parole, does just that.  When we keep people incarcerated who have transformed themselves behind bars, are no longer dangerous, and have the potential to be productive citizens, we all lose....

If we are to end mass incarceration, state and federal authorities must eliminate such draconian punishment and enact laws that allow judges to revisit sentences based on the incarcerated person’s demonstrated rehabilitation and fitness to live in society.  Meanwhile, although I am relieved that Arbery’s murderers are being held accountable, I hope they will someday be released — after they have served an appropriate period of their sentences and demonstrated their fitness to return to society.

Prior related posts:

August 12, 2022 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Thursday, August 11, 2022

Man beats his dog ... and gets 25 years in a Texas prison!?!

I just saw a discussion of what sound like a remarkable local sentencing case out of Texas.  This local story, headlined "San Antonio man handed one of Texas' longest ever animal abuse prison sentences," provides these basics:

A San Antonio man is headed to prison on one of the longest sentences for animal abuse in Texas History.

Animal Care Services said that Frank Javier Fonseca was sentenced to 25 years in prison on animal abuse charges for a violent beating of his puppy, which was captured on video. He was sentenced in June and has previous felony convictions that include drug possession and crimes of retaliation, according to an ACS news release.

The video was captured in February 2019, showing Fonseca repeatedly hitting his young Rottweiler puppy named Buddy with his fists and a piece of wood, as well as kicking and choking the dog. ACS said the video was recorded by "an anonymous Good Samaritan." Court records show Fonesca was arrested in September 2021.

The 56-year-old San Antonio man told ACS that he was disciplining the dog for leaving his yard on Fenfield Avenue. Buddy survived the abusive attack and is now living with a new adoptive family, officials said.

This new Reason commentary, authored by Billy Binion, rightly questions this outcome under this full headline: "A 25-Year Prison Sentence for Beating Up a Dog Is Not Justice: Frank Javier Fonseca's punishment, which may amount to a life sentence, is a microcosm for many of the issues with the U.S. criminal legal system."  

A quick google search has not turned up much more information to justify or even fully explains what seems like a severe outcome, though I suppose I should never be too surprised by the lengthy sentences that can be and often are imposed under various habitual offender statutes.

August 11, 2022 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (6)

Wednesday, August 10, 2022

Visiting "The Visiting Room Project"

This week brought the launch of "The Visiting Room Project," a great new oral history project and website.  This new Guardian article provides an overview under the headline "An extraordinary story of forgiveness: from life without parole to finding grace; A new project gives a voice to people serving life sentences in Louisiana – and brought together two men whose lives collided in tragedy." Here is how the site itself describes the project at this link:

The Visiting Room Project is a digital experience that invites the public to sit face-to-face with people serving life without the possibility of parole to hear them tell their stories, in their own words.  More than five years in the making, the site is the only collection of its kind, containing over 100 filmed interviews with people currently serving life without parole.  The interviews were filmed at Angola, the Louisiana State Penitentiary, which is, in many ways, the epicenter of life without parole sentences worldwide.  As of 2022, more than 55,000 Americans are living in prisons serving life without parole, their lives largely hidden from public view.

Marcus Kondkar and Calvin Duncan created The Visiting Room Project.  Marcus is chair of the sociology department at Loyola University New Orleans, where he researches incarceration and sentencing patterns.  Calvin is an expert in post-conviction law. After being wrongfully convicted and sentenced to life without parole, he served 28½ years in Louisiana prisons before winning his freedom in 2011.  Originally, Marcus and Calvin gathered information on life sentences for an academic audience, but, due to their shared belief that the public needs to hear directly from people who had served decades in prison, their collaboration became The Visiting Room Project, documenting stories of growth behind prison walls.  Arthur Carter, who has served more than 30 years of a life sentence, captured the meaning of The Visiting Room Project during his interview, stating, “If I have to die here, I appreciate this opportunity to be able to let my voice be heard.”

This is a living project that didn’t conclude when the last interview was filmed. Instead, the project team and the men who were interviewed together created The Visiting Room Collaborative to share and document the continuing impact of these life stories.  The Visiting Room Collaborative has two missions.  First, to ensure that the participants’ loved ones and communities have access to their interviews.  Secondly, to create opportunities for public audiences to engage with the project material through exhibits, screenings, and collaborations with artists.  As The Visiting Room Project continues to evolve, this site will be updated with new information.

August 10, 2022 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 05, 2022

ABA House of Delegates considering a number of notable sentencing resolutions

As detailed in this ABA news release from last week, the "American Bar Association’s policymaking body, the House of Delegates, convenes next month to conclude the ABA 2022 Annual Meeting with more than 30 items on the agenda, including several resolutions that address the country’s incarceration challenges and other criminal justice issues." Here is more from the release with links to some key sentencing-related resolutions being considered:

The in-person-only ABA 2022 Annual Meeting begins on Wednesday, Aug. 3. The House, known as the HOD, encompasses 583 delegates from ABA entities and state, local and specialty bar associations and meets Aug. 8-9....

With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national developments during the past few weeks....

Resolution 501 offers the ABA Criminal Justice Standards on Diversion, which provide guidance on various aspects of diversion programs.  The standards are consistent with efforts to reduce collateral consequences; address over-criminalization; reduce incarceration; curtail the burden on and investment in the criminal legal system; and eradicate racial disparities throughout the system.

Resolution 502 urges governmental entities to enact legislation permitting courts to hear petitions that allow hearings to take a “second look” at criminal sentences where individuals have been incarcerated for 10 years.  The report to support the resolution noted that the U.S. is home to less than 5% of the world’s population but houses nearly 25% of the world’s prisoners, adding incarceration disproportionately impacts people of color.

A related Resolution 604 asks governmental entities to adopt the ABA Nine Principles on Reducing Mass Incarceration, suggesting governmental jurisdictions could immediately begin reducing the number of people they incarcerate by following the principles....

For details on all policy resolutions and other matters for consideration during the two-day session, click here. HOD proposals do not become ABA policy until approved by the House, which meets twice annually.

August 5, 2022 in Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, July 27, 2022

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

  • We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
  • Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

  • The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

  • Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
  • Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
  • COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
  • Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

  • Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
  • All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
  • Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

July 27, 2022 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, July 26, 2022

US Sentencing Commission reports on "Life Sentences in the Federal System"

Cover_life-sentencesI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

  • During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
  • Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
  • Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
  • Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
  • The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.
Offenders Sentenced to De Facto Life Imprisonment
  • There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
  • One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
  • More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
  • Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
  • The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 25, 2022

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

July 25, 2022 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (17)

Wednesday, July 20, 2022

Council on Criminal Justice releases "Long Sentences by the Numbers"

In this post a couple of month ago, I noted the formation of the Council of Criminal Justice's impressive Task Force on Long Sentences. Today, I was alerted to the release are this fascinating new resource from CCJ titled "Long Sentences by the Numbers."  The full resource merits a deep dive, and here are excerpts:

Launched by the Council in Spring 2022, the Task Force on Long Sentences is assessing our nation’s use of long prison terms and formulating recommendations to advance safety and justice.  This series of charts serves as a foundation for the deliberations of the group, a diverse set of experts from varied sectors of the criminal justice field and across the ideological spectrum.

The data below address three fundamental questions.  Each provides a different perspective on the nature and extent of long prison sentences, which the Task Force defines as a court-imposed prison term of 10 years or more, independent of the time people actually serve.

  • Admissions: What are the number and share of people admitted with a long prison sentence? Admissions data show changes in the frequency with which courts impose long sentences.
  • Population: What is the size of the prison population serving long sentences, and what share of the total population do these individuals represent?  Prison population data, based on a snapshot of people incarcerated at a moment in time (typically at year’s end), reveal how many people behind bars are serving long sentences.
  • Releases: What are the number and share of people released from prison after serving a long sentence and how much time did they actually serve?  Every jurisdiction has statutes and policies such as discretionary parole and credits for good behavior that permit people to be released prior to serving their maximum sentence. Release data enable us to discern how many people are released after having served 10 or more years, independent of the upper limit of their sentences.

[These data are drawn] from varying combinations of up to 29 state prison systems submitted to the U.S. Department of Justice's National Corrections Reporting Program (NCRP) from 2005 through 2019.  Council researchers selected the states and time period because they offered the most complete and consistent set of relevant national-level data to describe basic trends in long sentences....

Key Takeaways

  • People with long sentences account for a relatively small share of state prison admissions and releases, but because they serve long periods, their numbers stack up over time.  In 2019, 17% of people admitted to prison were sentenced to 10 years or more, and 3% of those released had served 10 years or more.  At year-end, 57% of people in prison were serving a long prison sentence, up from 46% in 2005.

  • The length of time served by people sentenced to 10 years or more has grown. Between 2005 and 2019, the average amount of time served by this group increased from 9.7 years to 15.5 years.

  • The share of people convicted of a violent crime who received long sentences grew from 7% in 2005 to 10% in 2019. The percentage of people convicted of property and drug offenses who received long sentences remained stable, at 3% and 2%, respectively.

  • The shares of Black and White people receiving long sentences have grown over time and the gap between those shares has widened, from 1 percentage point in 2005 to 4 percentage points in 2019. When accounting for conviction offenses, Black people are more likely to receive long sentences for violent crimes while White people are for some property crimes. White people convicted of drug crimes were more likely than Black people to get a long sentence in 2005 but less likely by 2019.

  • Compared to other age groups, people aged 55 and over are the fastest-growing age group serving long sentences. Between 2005 and 2019, the share of people serving long sentences who were aged 55 and over grew from 8% to 20%.

  • Men are more likely than women to receive and serve a long sentence. On average, men are about 72% more likely to receive a long sentence and over three times more likely to serve a long sentence than women, mostly because men are convicted of more serious, violent crimes. Greater shares of both men (up 4%) and women (up 3%) received sentences of 10 years or more in 2019 than in 2005.

July 20, 2022 in Data on sentencing, Detailed sentencing data, Scope of Imprisonment | Permalink | Comments (2)

Sunday, July 03, 2022

"What the end of Roe v. Wade will mean for people on probation and parole"

The title of this post is the title of this notable briefing authored by Wanda Bertram and Wendy Sawyer of the Prison Policy Initiative giving attention to how the Supreme Court's Dobbs's ruling will impact the large number of women on probation or parole. Here is how it gets started:

With several states preparing to criminalize abortion now that Roe v. Wade is over, and some states talking about criminalizing traveling out of state to get an abortion, it’s worth remembering that for many people on probation and parole, traveling out of state for abortion care is already next to impossible.  On any given day in the U.S., 666,413 women are on probation (a community-based alternative to incarceration) or parole (the part of a prison sentence that someone serves in the community).  In many jurisdictions — for instance, Louisiana, Tennessee, Kentucky, Idaho, Texas, and the federal system, as well as some juvenile probation systems — it’s common for people on probation and parole to face restrictions on where they can travel, whether they can move to another county or state, and with whom they can “associate” (including, potentially, people who assist in coordinating abortion access, where such help is criminalized).  All of these restrictions will make it harder for people under supervision to get abortion care.

In the last few days, many news outlets have reported on how people in prison can be blocked from seeking an abortion, especially in states where abortion is already illegal.  (Ironically, as we’ve discussed before, prisons deny people quality pregnancy care even as they deny abortion access.)  The end of Roe v. Wade will create new barriers to abortion care for incarcerated people, since it will likely trigger

But an even greater number of people on probation and parole stand to be affected: About 231,000 women are in prison or jail on any given day, but several times as many women are on probation and parole, the result of gendered differences in offense types: women are more likely than men to be serving sentences for lower-level property and drug crimes

In the thirteen states with abortion ban “trigger laws” on the way, more than 200,000 women are under probation and parole supervision, which will make it difficult or impossible for many of them to travel out of state for an abortion, or potentially even talk to people coordinating abortion care, given the typical restrictions of probation and parole.

A few prior related posts:

July 3, 2022 in Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 01, 2022

Two different criminal justice reforms now effective in two southern states

The start of July marks the official start for two notable and notably different criminal justice reforms in Florida and Tennessee. Here are parts of press accounts:

"Florida criminal justice reform laws go into effect Friday"

Florida’s new law making reforms to the state’s criminal justice system is set to go into effect on Friday. Senate Bill 752, signed into law by Gov. Ron DeSantis (R) earlier this month, will allow Floridians on probation to receive new education and workforce credits that will shorten their probation terms and help them gain a GED or other degree or vocational certification and maintain full-time employment.

Individuals under this law can earn at least 30 days off their supervision terms for each six-month period in which they work for at least an average of 30 hours per week. It also gives them the ability to earn 60 days off their probation term for each completed educational activity....

Multiple organizations and coalitions including the REFORM Alliance led the push for the Florida Legislature to pass the bill. The REFORM Alliance is a nonprofit social justice organization founded in 2019 by rapper Meek Mill, Fanatics CEO Michael Rubin and rapper and mogul Shawn “Jay Z” Carter.  “This new law will help more than 150,000 on probation in Florida by removing barriers to their success and rewarding them for doing well,” Rubin, who serves as a co-chair for the organization, said in a statement. “Not only was this unanimously supported by members of the Florida legislature, but probation officers, business owners, and community service providers all joined us in the effort to pass this new law.”

"New public safety laws to take effect on July 1 in Tennessee"

A truth in sentencing act is among a number of new criminal and public safety laws in Tennessee that are slated to go into effect on July 1.... The new law requires a person convicted of certain offenses to serve 100% of the sentence imposed before becoming eligible for release.

The new sentencing act requires felons convicted of eight different offenses to serve 100% of their sentences undiminished by any sentence reduction credits for which the person is eligible or earns.  Those eight offenses are attempted first-degree murder, second-degree murder, vehicular homicide, especially aggravated kidnapping, especially aggravated robbery, carjacking and especially aggravated burglary.

The law also identifies another 16 offenses that require 100% of the sentence to be served unless the inmate earns a satisfactory program performance.  In such cases, an inmate can receive credits for a GED or job training that can be used for parole eligibility once a person has served a minimum of 85% of their sentence.

July 1, 2022 in Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)