Wednesday, June 23, 2021

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

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

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

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

Analysis of the eleven jurisdictions:

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

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

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

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

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

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

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

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

Monday, June 21, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 17, 2021

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

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

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

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

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

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

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

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

Tuesday, June 15, 2021

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

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

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

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

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

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

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

Wednesday, June 09, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 07, 2021

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

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

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

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

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

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

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

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

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

Some prior recent related posts:

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

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

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

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

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

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

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

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

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

Friday, June 04, 2021

"Jails, Sheriffs, and Carceral Policymaking"

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

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

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

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

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

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

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

Friday, May 28, 2021

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

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

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

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

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

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

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

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

A few recent related posts:

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

Wednesday, May 26, 2021

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

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

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

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

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

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

 A few prior recent related posts:

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

Sunday, May 23, 2021

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

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

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

Thursday, May 20, 2021

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

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

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

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

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

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

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

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

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

Wednesday, May 19, 2021

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

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

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

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

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

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

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

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

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

Friday, May 14, 2021

"Mass Incarceration Retards Racial Integration"

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

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

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

Friday, May 07, 2021

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

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

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

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

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

Thursday, May 06, 2021

Federal prison population holding steady at just over 152,000 through first 100 days of the Biden Administration

The day after Joe Biden was inaugurated as President, I authored this post posing a question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable numerical realties about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population (surprisingly?) increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term in office, this population count (surprisingly!) decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

Of course, lots of factors play can and do play lots of different expected and unexpected roles in shaping federal prosecutions and sentencings, and these case processing realities in turn can have unpredictable impacts on the federal prison population.  Consequently, I was disinclined in this January 2021 post to make any bold predictions about what we might see in the Biden era, though I suggested we should expect the federal prison population to be relatively steady at the start because it could take months before any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population.  

Sure enough, we are now well past the "100 days" milestone for the Biden Administration, and the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage show little change.  Specifically, as of May 6, 2021, the federal prison population clocks in at 152,085. 

Given that the federal prison population has not been anywhere near 150,000 in over two decades, folks troubled by modern mass incarceration should perhaps be inclined to celebrate that the considerable yearly population declines that got started in 2014, and that kicked into a higher gear during to the pandemic, may now have set something of a "new normal" for these population totals.  But, few should forget that, in historical and comparative terms, the modern federal prison population is still quite massive, that almost half of this population is incarcerated for a drug offense, that almost a third of this population has "little or no prior criminal history," and that only around a quarter of this group is "serving a sentence for an offense involving weapons" (details drawn from this USSC quick facts as of June 2020).

A few prior related posts:

May 6, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, May 05, 2021

"Prisons and jails will separate millions of mothers from their children in 2021"

The title of this post is the title of this notable, timely new briefing from the Prison Policy Initiative authored by Wanda Bertram and Wendy Sawyer.  Here is how it gets started (with links in original): 

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at serious risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for non-violent offenses.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women who will become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

May 5, 2021 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, May 02, 2021

With new good behavior rules, is California on track to achieve historic "cut 50" in its prison population?

The question in the title of this post is prompted by this new AP article, headlined "76,000 California inmates now eligible for earlier releases," though it also picks up on a broader, decades-long prison reform story in the Golden State. First, from the AP:

California is giving 76,000 inmates, including violent and repeat felons, the opportunity to leave prison earlier as the state aims to further trim the population of what once was the nation’s largest state correctional system.

More than 63,000 inmates convicted of violent crimes will be eligible for good behavior credits that shorten their sentences by one-third instead of the one-fifth that had been in place since 2017.  That includes nearly 20,000 inmates who are serving life sentences with the possibility of parole.

The new rules take effect Saturday but it will be months or years before any inmates go free earlier. Corrections officials say the goal is to reward inmates who better themselves while critics said the move will endanger the public.

Under the change, more than 10,000 prisoners convicted of a second serious but nonviolent offense under the state’s “three strikes” law will be eligible for release after serving half their sentences.  That’s an increase from the current time-served credit of one-third of their sentence.  The same increased release time will apply to nearly 2,900 nonviolent third strikers, the corrections department projected....

The changes were approved this week by the state Office of Administrative Law. “The goal is to increase incentives for the incarcerated population to practice good behavior and follow the rules while serving their time, and participate in rehabilitative and educational programs, which will lead to safer prisons,” department spokeswoman Dana Simas said in a statement.  “Additionally, these changes would help to reduce the prison population by allowing incarcerated persons to earn their way home sooner,” she said....

Simas said the department was granted authority to make the changes through the rulemaking process and under the current budget.  By making them “emergency regulations” the agency could impose the new rules without public comment.  The department now must submit permanent regulations next year. They will be considered a public hearing and opportunity for public comment.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that represents crime victims, said the notion that the credits are for good behavior is a misnomer. “You don’t have to be good to get good time credits. People who lose good time credits for misconduct get them back, they don’t stay gone,” he said. “They could be a useful device for managing the population if they had more teeth in them. But they don’t. They’re in reality just a giveaway.”...

California has been under court orders to reduce a prison population that peaked at 160,000 in 2006 and saw inmates being housed in gymnasiums and activity rooms.  In 2011, the U.S. Supreme Court backed federal judges’ requirement that the state reduce overcrowding.

The population has been declining since the high court’s decision, starting when the state began keeping lower-level felons in county jails instead of state prisons.  In 2014, voters reduced penalties for property and drug crimes.  Two years later, voters approved allowing earlier parole for most inmates.  Before the pandemic hit, the population had dropped to 117,00 inmates. In the last year, 21,000 more have left state prisons — with about half being held temporarily in county jails.

This blog has long followed the many remarkable chapters in California's prison reform story (see a sampling below).  I particularly recall amusing myself with this post and title, "Hasta la vista, prison overcrowding!", when Gov Schwarzenegger 15 years ago issued a proclamation calling the California Legislature into special session to address prison crowding issues.  The state prison population was actually well over 170,000 around that time.  Some population reductions started around the Plata litigation — the SCOTUS ruling noted that, at "the time of trial, California’s correctional facilities held some 156,000 persons" — and further prison population reduction efforts kicked into high gear in the years following the Supreme Court's important Plata decision.

As this AP article notes, before the pandemic, the California prison population was under 120,000.  But as of last week, as detailed in this state weekly population report, the population now stands at 95,817.  If these new good behavior rules could possibly result in another prison population reduction of around 10,000 — and that is probably a very big "if"  — then California will have achieved a remarkable decarceration milestone.  If it can get down to around 86,000 prisoners, the state of California — which not so long ago had the largest state prison population within a country with the largest prison populaion in the world — will have cut its prison population by 50%.  I would surely call that a golden achievement for the Golden State. 

A few of many prior related posts about California prison populations and reforms:

May 2, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, April 30, 2021

"A better path forward for criminal justice: A report by the Brookings-AEI Working Group on Criminal Justice Reform"

The title of this post is the title of this lengthy new report which, as the title explains, is a product of a working group of The Brookings Institution and The American Enterprise Institute for Public Policy Research.  In addition to the full pdf, one can also access each part of this report online here, and here is are the closing sentiments authored by Rashawn Ray and Brent Orrell in the report's conclusion:

As we prepare to exit pandemic conditions, we recommend a strategic pause to gather data that will help us understand why criminal activity has gone up and inform both immediate responses as well as longer-term reform initiatives. There will be a temptation – on both sides – to argue that the recent spike confirms their prior understandings and policy preferences; either that the recent burst of crime can be effectively controlled by a ratcheting up “tough-on-crime” policies and practices or that it is exactly these practices that create the predicate for crime surges by disrupting lives, families, and neighborhoods through excessive reliance on force and incarceration. We should resist both of these views while we strive for a better understanding of the forces driving and shaping patterns of criminal offenses. It is entirely possible, given the unprecedented conditions of the past 12 months, we will find ourselves surprised by what we learn.

As is often the case, we may need an “and” approach rather than an “or” approach. Policies need to address recent rises in crime and overpolicing. This is why our report focuses on the criminal justice as a whole. Policing is the entree to the criminal justice system that sorts people based on race, social class, and place. Most people do not want less policing. They want equitable policing, and equitable treatment once interacting with the criminal justice system, either as a victim or perpetrator.

The sources of criminal activity and public safety challenges are multifaceted while our responses to them are often singular: more and tougher policing, prosecution, and incarceration. Not every public order challenge is a nail in need of a hammer. If we are to honor the dignity of every person and respect the sanctity of human life, we need a more balanced and diversified approach that recognizes confrontation and coercion are not the only, and often not the best, strategies for protecting our communities. Research-informed innovation that builds a more flexible and effective toolbox of responses is needed to move us towards the more peaceful, flourishing, and just society that is the shared objective of conservatives and progressives alike.

The essays in this volume and the recommended supplemental readings provide much food for thought about the major areas of criminal justice reform that should be at the top of the nation’s agenda.  The recommendations are varied and informed by differing perspectives on how to better balance the requirements of community safety, civil liberty, policing and procedural protections, and supporting and achieving lasting changes in attitudes, behaviors, and outcomes among justice-involved individuals as befits a nation committed to the idea of rehabilitation and not just retribution.  The authors in this volume will continue convening to discuss, debate, and research these complex issues, with a shared goal of identifying ways to improve our country’s criminal justice system.  These are deeply interconnected issues requiring a thorough, thoughtful, and comprehensive response rather than an immediate reversion to long-held and -argued views that may fit recent history or current conditions. A nation that incarcerates so many at such a high cost in public resources and wasted human lives can ill-afford to do otherwise.

All the individual chapter should be of interest to folks concerned about all aspects of criminal justice reform, and these chapters ought to be of particular interest to those who follow sentencing and corrections issues closely:

April 30, 2021 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, April 15, 2021

"Long Road to Nowhere: How Southern States Struggle with Long-Term Incarceration"

The title of this post is the title of this recent report from Southern Poverty Law Center.  I just noticed the report because it was recently made available here via SSRN, where one finds this abstract:

The Deep South is the epicenter of mass incarceration.  The United States incarcerates more people per capita than any other country, with prison populations growing by 86% between 1990 and 2019.  For Southern states, prison populations exploded by 127% during that same period.  During this time in history, America implemented “tough on crime” policies that responded to public health issues like the drug epidemic with incarceration instead of rehabilitation.  Laws for even nonviolent crimes became more punitive with longer sentences, and people of color were disproportionately pushed into prisons with little hope for parole.  Today, incarceration rates for Latinx and Black people are more than two and five times the incarceration rate of whites, respectively.  The commitment to the “tough on crime” narrative led to significantly overcrowded prisons, which not only put a strain on state budgets, but also created human rights challenges regarding how to maintain a safe and healthy prison environment.

Three Southern states in particular — Alabama, Florida, and Louisiana — exemplify how prison populations have grown to be problematic in three unique ways.  Alabama is home to the most overcrowded prisons in the country, currently at 151% of capacity.  Even after sentencing reforms were passed in 2017, recent legislation concerning the Alabama Board of Pardons and Paroles has severely diminished the parole chances of currently incarcerated people.  Florida, with over 95,000 imprisoned people, has the third-largest prison population of any state in the country, and still adheres to a “Truth in Sentencing” rule requiring incarcerated people to serve at least 85% of their sentences, regardless of any demonstration of rehabilitation.  As a result, Florida has grown to have the oldest prison population in the South, a group whose care is increasingly expensive.  Louisiana has been known as the “incarceration capital of the world” for consistently having incredibly high incarceration rates.  A large factor is the number of people serving life sentences without the possibility of parole, including juveniles.

The lack of early prison release is just one of many contributors to mass incarceration in the South. The solutions also vary — from expanding parole eligibility and making it retroactive, to increasing incentives for rehabilitation credits, to re-calibrating triggers for life without parole sentences.  This report will investigate the impact that over-incarceration has had in three Southern states, and provide recommendations on how each state can address the issue through policy change.

April 15, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 13, 2021

Brennan Center launches notable new essay series titled "Punitive Excess"

I was very pleased to receive a few emails this morning alerting me to a new essay series unveiled today by the Brennan Center for Justice, titled "Punitive Excess." Here is how L.B. Eisen, the Director of the Brennan Center Justice Program, describes this notable new series of essays:

America’s criminal legal system is unduly harsh.  Experts explain how we got here and solutions that will benefit everyone.

America can’t shrink its reliance on mass incarceration until we confront our approach to punishment.  These essays by renowned experts in a variety of fields focus on our deep-rooted impulse to punish people in ways that are far beyond what could be considered proportionate.  Together, they illustrate how necessary it is to rein in the punitive excess of the criminal legal system, which is inexorably entwined with the legacy of slavery. T hey also highlight how we have marginalized poor communities and people of color through criminalization and punishment.

Addressing a range of issues — from policing to prosecution to incarceration to life after prison — the writers highlight how our nation has prioritized excess punishment over more supportive and less traumatic ways of dealing with social harm. The essays explore whether, when, and how we could have made different decisions that would have changed the way these systems of punishment and social control evolved.

Looking ahead, they also ask how we can learn from this failed experiment with mass incarceration and prioritize human dignity over human misery.  We hope this series will spur increased discussion on these vital topics.

And here are the first set of essays in the series:

April 13, 2021 in Race, Class, and Gender, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 12, 2021

"The Practice and Pedagogy of Carceral Abolition in a Criminal Defense Clinic"

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

For many, carceral abolition might once have been considered irreconcilable with the goals of legal education.  However, the energy produced by recent social movements focused on issues of race and the criminal legal system has helped to advance widespread interest in the long-standing work of abolitionists.  While abolitionist thought has flourished in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal education and practice.  Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively create, the underlying problems that produce violence and harmful behavior in our communities.  Abolition focuses on dismantling our current carceral systems and finding completely new, restorative and collaborative ways of addressing harmful social behaviors.

This Article examines whether abolitionist ethics fit into the practice and pedagogy of law school criminal defense clinics. It argues that although carceral abolition and the institutional role of public defense are an imperfect fit, criminal defense clinics should teach students how to effectively advocate for their clients through a lens of carceral abolition.  Clinicians have an opportunity to expose students to practice that does more than just reinforce or merely critique the criminal legal system as it exists.  Rather clinic students can explore ways to lawyer as “fellow travelers,” operating to actively shield individual clients from the weight of the state, while also supporting the efforts of organizers who are seeking to transform how we deal with social problems.  The Article provides a brief introduction to abolitionist thought, explores the challenges and benefits of incorporating an abolitionist framework into defense clinics, and provides an approach for clinicians seeking to inform their teaching and practice with an understanding of carceral abolition.

April 12, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, April 11, 2021

New statement from prosecutors and law enforcement urging review of extreme prison sentences

The Fair and Just Prosecution folks this past week released this joint statement from "64 elected prosecutors and law enforcement leaders ... urging policymakers to create mechanisms to reduce the number of people serving lengthy sentences who pose little or no risk to public safety, including by creating second chances for many in our nation currently behind bars."  (This quoted language comes from this extended press release about the joint statement.)  Here is the start and key section of the statement:

As current and former elected prosecutors and law enforcement leaders from across the country, we know that we will not end mass incarceration until we address the substantial number of individuals serving lengthy sentences who pose little or no risk to public safety.  We call on all other leaders, lawmakers, and policymakers to take action and address our nation’s bloated prison populations.  And we urge our state legislatures and the federal government to adopt measures permitting prosecutors and judges to review and reduce extreme prison sentences imposed decades ago and in cases where returning the individual to the community is consistent with public safety and the interests of justice. Finally, we call on our colleagues to join us in adopting more humane and evidence-based sentencing and release policies and practices.  Sentencing review and compassionate release mechanisms allow us to put into practice forty years of empirical research underscoring the wisdom of a second look, acknowledge that all individuals are capable of growth and change, and are sound fiscal policies....

Therefore, we are committing to supporting, promoting and implementing the changes noted below, and calling on others to join us in this critical moment in time in advancing the following reforms:

1. Vehicles for Sentencing Review: We call on lawmakers to create vehicles for sentencing review (in those states where no mechanisms exist) that recognize people can grow and change.  These processes should enable the many middle aged and elderly individuals who have served a significant period of time behind bars (perhaps 15 years or more) to be considered for sentence modification.... We do not ask that all such persons be automatically released from custody. We ask only that there be an opportunity, where justice requires it, to modify sentences that no longer promote justice or public safety.

2. Creating Sentencing Review Units and Processes: We also urge our prosecutor colleagues to add their voices to this call for change and to create sentencing review units or other processes within their offices whereby cases can be identified for reconsideration and modification of past decades-long sentences.

3. Expanded Use of Compassionate Release: We urge elected officials, criminal justice leaders (including judges, prosecutors and corrections leaders), and others to pursue and promote pathways to compassionate release for incarcerated individuals who are eligible for such relief, including people who are elderly or terminally ill, have a disability, or who have qualifying family circumstances....

4. High Level Approval Before Prosecutors Recommend Decades-Long Sentences: Finally, we urge our prosecutor colleagues to create policies in their offices whereby no prosecutor is permitted to seek a lengthy sentence above a certain number of years (for example 15 or 20 years) absent permission from a supervisor or the elected prosecutor. 

April 11, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Thursday, April 08, 2021

"What is Life?" podcast gives voice to people serving LWOP in Pennsylvania

2000WhatisLifeDarkI had seen last month this enticing podcast preview:

What is Life?

Through phone calls with men and women serving life without parole in Pennsylvania, What is Life takes you inside the prison walls to answer the question -- what is life to someone sentenced to die behind bars.

Now I see the first three episodes of this podcast are available at this link.  Here is how they are previewed:

What is Life?  Charles Diggs

In this episode you'll hear from Charles Diggs, a man who has spent nearly 50 years in prison serving life without the possibility of parole.  Charles discusses the effect the COVID-19 pandemic, which he described as the worst experience of imprisonment, has had on incarcerated people.

What is Life?  Heather Lavelle

In this episode of What is Life? you'll hear from Heather Lavelle, a woman who after more than 20 years of substance use and mental health issues killed her ex-boyfriend.  In Heather's poem, "Under the Glass," she discusses living a life feeling separated from others, reckoning with harms she's caused and trying to find redemption in prison.

What is Life?  David Mandeville

In this episode of What is Life? you'll hear from David Mandeville as he discusses the realities of living in prison knowing he, and many others, will die behind bars.

All of the episodes include this program note: "This podcast is sponsored by FAMM, a national nonpartisan advocacy organization that promotes fair and effective criminal justice policies that safeguard taxpayer dollars and keep our communities safe.  Founded in 1991, FAMM is helping transform America’s criminal justice system by uniting the voices of impacted families and individuals and elevating criminal justice issues all across the country."

April 8, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, March 30, 2021

Four notable new short reports on prison populations from the Bureau of Justice Statistics

I received this press release this morning pointing me to a number of new notable publications. Here is the text of the release, with links to the materials:

The Department of Justice’s Bureau of Justice Statistics today released Time Served in State Prison, 2018.  This report presents findings on the time served by prisoners released from state prison in 2018, including the length of time served by most serious offense and the percentage of sentence served.  Findings are based on data from BJS’s National Corrections Reporting Program, which is an annual voluntary data collection of records on prisoners submitted by state departments of corrections.

BJS also released three briefs: Veterans in Prison, Parents in Prison and Their Minor Children, and Disabilities Reported by Prisoners. The brief on veterans describes their demographics, offenses, sentence length, military branch and combat experience.  The brief on parents provides demographic information about prisoners who have at least one minor child and the number of minor children reported by parents in prison.  The brief on disabilities details statistics about demographics and types of disabilities reported by prisoners.  The findings are based on data collected in the 2016 Survey of Prison Inmates, a survey conducted through face-to-face interviews with a sample of state and federal prisoners.

Time Served in State Prison, 2018 (NCJ 255662) by BJS Statistician Danielle Kaeble

Veterans in Prison: Survey of Prison Inmates, 2016 (NCJ 252646) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Parents in Prison and Their Minor Children: Survey of Prison Inmates, 2016 (NCJ 252645) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

Disabilities Reported by Prisoners: Survey of Prison Inmates, 2016 (NCJ 252642) by BJS Statisticians Laura M. Maruschak, Jennifer Bronson, Ph.D. (former) and Mariel Alper, Ph.D. (former)

The Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for collecting, analyzing and disseminating reliable statistics on crime and criminal justice in the United States. Doris J. James is the acting director.

March 30, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, March 25, 2021

Notable new briefings from the Prison Policy Initiative

Regular readers are familiar with my posts highlighting the cutting-edge research and analysis by the Prison Policy Initiative, and in recent weeks PPI has a bunch of notable new "briefings" on pressing and persistent prison and jail issues:

Visualizing the unequal treatment of LGBTQ people in the criminal justice system; LGBTQ people are overrepresented at every stage of our criminal justice system, from juvenile justice to parole.

New data on jail populations: The good, the bad, and the ugly; A new BJS report shows that U.S. jails reduced their populations by 25% in the first few months of the pandemic. But even then, the U.S. was still putting more people in local jails than most countries incarcerate in total.

Research roundup: Violent crimes against Black and Latinx people receive less coverage and less justice; We explain the research showing that violent crimes against Black Americans — especially those in poverty — are less likely to be cleared by police and less likely to receive news coverage than similar crimes against white people.

It’s all about the incentives: Why a call home from a jail in New York State can cost 7 times more than the same call from the state’s prisons

March 25, 2021 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Sunday, March 14, 2021

With a new Attorney General now in place, should we expect to see any changes in the federal prison population?

Regular readers know that I have been following federal prison population data quite closely during the COVID era, giving particular attention to the numbers that the federal Bureau of Prisons updates weekly at this webpage.  But I have not blogged on this topic in nearly two months because, after a tumultuous 2020, there has been a notable stability in BOP reports of "Total Federal Inmates" during the Biden era.  As noted here, the day after Prez Biden's inauguration, BOP reported a total population of 151,646; as of March 11, 2021, this population stands at 151,703. 

Back in 2017, when Prez Trump was elected and Jeff Sessions took over as Attorney General and implemented new charging and sentencing policies for federal prosecutors, there was understandable concern (see articles here and here) that reductions in the federal prison population that took place during Prez Obama's second term would get reversed.  Indeed, Trump's Justice Department back in 2017, as noted here, was forecasting and budgeting for federal prison population increases.  But, due to a varety of factors, most notably the passage of the FIRST STEP Act and especially the COVID pandemic, the federal prison population actually dropped dramatically during in Trump era.  Specifically the federal prison population decreased by nearly 38,000 persons during Prez Trump's term (nearly 20%), which highlights that the plans, policies and practices of any Attorney General can be eclipsed by other factors impacting the federal prison population.

Against this backdrop, I am wondering (a) if new Attorney General Merrick Garland is going to implement policies and practices that consciously seeks to continue shrinking the federal prison population, and (b) whether we will see any real changes in the federal prison population anytime soon.  In this January post, I predicted the federal prison population would be relatively steady to start the Biden era because it could take months before we see any major DOJ policy changes and many more months before any big policy changes start impacting the federal prison population. 

A few recent prior related posts:

March 14, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, March 12, 2021

"Are Life Sentences a Merciful Alternative to the Death Penalty?"

The question in the title of this post is the headline of this new extended Mother Jones article.  Here are excerpts:

In the midst of [recent] victories in the fight against capital punishment, many advocates are attempting to address a different form of punishment, questioning how much more merciful life imprisonment is compared to the death penalty.

Life without parole has many of the same qualities that make the death penalty so abhorrent.  Capital punishment is riddled with racial disparities, junk science, and a legal system that routinely fails the marginalized. “Those same exact flaws exist across the whole system,” says Ashley Nellis, a senior research analyst at the advocacy organization The Sentencing Project.  Looked at logically, staying alive, albeit in prison, just has to be a better outcome than being executed.  But looked at more closely, is the lesser sentence really “better” than the harshest one?  “I would not call it a humane alternative to the death penalty,” Shari Silberstein, the executive director of the Equal Justice USA, a criminal justice nonprofit, tells me.  In fact, it’s a punishment both extreme and one that disproportionately affects the most marginalized people....

For Silberstein, anti-death penalty activists shouldn’t focus solely on life without parole as an alternative to the death penalty, but they should consider an entire reconfiguration of what justice means, and what it should look like.  After someone has been harmed, “there’s a need for healing, safety, accountability, and a sense of justice,” she explains. But it is unrealistic to expect “that a prison sentence can meet all of those needs.”  Clearly, they haven’t, she notes.  Harsh sentences persevere, even in places where the death penalty has already been abolished because of the underlying belief that, as Silverstein explains succinctly, “The only sense that justice has been done is if someone else suffers.”

Perhaps now — when execution as a punishment has never seemed so obscene and unacceptable — it’s the right time to reconsider all punishments.  What is the real difference between spending years behind bars only to die strapped to a gurney while correctional staff administer enough drugs to kill you, and languishing behind bars until so-called natural causes finally, mercifully, takes your life?  Are these differences sufficient to end one punishment and while still justifying another?  If the United States is on the cusp of abolishing the death penalty, perhaps it should take the next logical step and abolish another form of cruel and unusual punishment as well: life imprisonment.

March 12, 2021 in Death Penalty Reforms, Scope of Imprisonment | Permalink | Comments (4)

Thursday, March 11, 2021

Bureau of Justice Statistics releases new report on "Impact of COVID-19 on the Local Jail Population, January-June 2020"

The Bureau of Justice Statistics yesterday released this notable new report titled "Impact of COVID-19 on the Local Jail Population, January-June 2020."  Here is part of the start of the document and its listed "Highlights."

Local jails in the United States experienced a large decline (down 185,400 inmates) in their inmate populations from June 30, 2019 to June 30, 2020, which can be attributed mainly to the COVID-19 pandemic (figure 1 and table 1). The inmate population confined in local jails was 549,100 at the end of June 2020, down from 734,500 at the end of June 2019. The midyear 2020 inmate population was the lowest since 1996, when 518,500 inmates were confined in local jails (not shown in tables).

The impact of COVID-19 on local jails began in March 2020, with a drop of 18% in the inmate population between the end of February and the end of March, followed by an 11% drop by the end of April. By the last weekday in April 2020, the number of jail inmates dropped to a low of 519,500. By the end of May 2020, the population increased about 3% and was up another 2% by the end of June 2020.

The decline in the inmate population since midyear 2019 resulted from both a reduction in admissions to jails and expedited releases in response to the COVID-19 pandemic from March to June 2020.

Local jails reported 8.7 million admissions during the 12-month period ending June 30, 2020, which was about 16% lower than the 10.3 million admissions during the 12-month period ending June 30, 2019 (appendix table 10)....

This special report is the first of two that describe the impact of COVID-19 on the local jail population. BJS will release a final report that will include results from July to December 2020.

HIGHLIGHTS:

  • From March to June 2020, about 208,500 inmates received expedited release in response to COVID-19.

  • During the pandemic, jail facilities became less crowded, as indicated by the decrease in occupied bed space from 81% at midyear 2019 to 60% at midyear 2020.

  • The number of inmates held for a misdemeanor declined about 45% since midyear 2019, outpacing the decline in the number of inmates held for a felony (down 18%).

  • The percentage of inmates held for a felony increased from 70% at midyear 2019 to 77% at midyear 2020.

  • From March to June 2020, jails conducted 215,360 inmate COVID-19 tests. More than 11% of these tests were positive.

  • Jails in counties with confirmed residential COVID-19 infection rates of 1% or more tested nearly 21% of persons admitted to their jails from March to June 2020. 

  • From March to June 2020, nearly 5% (10,850) of all local jail staff (233,220) tested positive for COVID-19.

March 11, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, March 09, 2021

Highlighting why those concerned about mass incarceration need to be concerned with murder spike

Adam Gelb has this notable new USA Today opinion piece under the headline "America's surge in violence: Why we must reduce violent crime for prison reform to work: We simply won’t shed our status as the planet’s leading incarcerator without reducing violence." Here are excerpts:

Amid the pandemic and protests last year, violent crime spiked. Homicides in 34 large cities rose 30%, a single-year jump that is unprecedented in modern American history.

In those cities alone, there were 1,268 more murders in 2020 than in 2019. On top of the tragic loss of life, the burst of violence represents a major setback for the movement to reduce incarceration and achieve racial justice.

There has been significant progress on these fronts: the overall rate of serious crime is less than half what it was in the early 1990s, and a wave of state and federal reforms has cut the level of punishment per crime, especially for minor offenses.

As a result, the number of people locked up at the end of 2020 had fallen to 1.8 million, a sizable dip from the 2.3 million held at the peak of U.S. incarceration in 2008. But a large chunk of that drop came from reductions in arrests and other COVID-related adjustments, which may prove temporary. Jail populations already are creeping back to prepandemic levels.

The upshot is that if we hope to further shrink the number of Americans behind bars and reduce racial disparities, we can’t rely on cutting punishment alone.  We must also curb the commission of crime in the first place, particularly the serious, violent crime that victimizes so many young Black men and lands them in prison....

A nonpartisan Council on Criminal Justice task force outlined a plan for strategic federal assistance to the 40 cities hardest hit by homicide.  By one estimate, a $900-million targeted federal investment in those cities over eight years could cut murders in half, and save many times that much in social and taxpayer costs.  President Joe Biden endorsed this plan during his campaign.

Perhaps the 2020 homicide spike is a blip, a fleeting artifact of the toxic mix of pandemic stress, economic hardship and protest outrage.  Once the COVID-19 lockdowns and social distancing mandates end, the face-to-face outreach that characterizes the most successful anti-violence programs can resume, and the bloodshed hopefully will ebb.

But even before last year’s startling rise in crime, too many Americans were becoming victims, and too many were facing long years behind bars. Until we change that, the death toll will mount and the pace of progress toward a more racially equitable justice system will be glacially slow.

March 9, 2021 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

Monday, March 08, 2021

"Expanding Voting Rights to All Citizens in the Era of Mass Incarceration"

The title of this post is the title of this short new document from The Sentencing Project, which gets started this way:

In order to strengthen democracy and address significant racial disparities, states must pass reforms establishing universal voting for people impacted by the criminal legal system.

5.2 million people in the United States are currently denied access to the vote because of a felony conviction.  The number of people disenfranchised has grown, from 1.2 million in 1976, as a product of mass incarceration and supervision.  Of people denied the vote, one in four (1,240,000) are currently incarcerated.  While many states have expanded access to the vote for people who have completed their sentences, only DC has joined Maine, Vermont, and Puerto Rico by granting full voting rights to people in prison. In order to strengthen democracy and address significant racial disparities, states must pass reforms establishing universal voting for people impacted by the criminal legal system.

The United States maintains far greater restrictions on voting while in prison than any other democratic country in the world.  The Supreme Court of Canada has twice ruled in favor of protecting voting rights for people in prison, stating that the “denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy.”  Five years after the fall of Apartheid, the Constitutional Court of South Africa ensured voting rights for people in prison.

March 8, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Prisons as first frontier of the welfare state in The Last Frontier state

The nickname of the state of Alaska is The Last Frontier, which inspired the title of this post about this local article headlined "Alaska now spends more on prisons than its university system, and the gap is widening."  Here are excerpts explaining what I mean by the post title (with my emphasis added):

Alaska is now spending more on prisons than its state university, a reversal of the state’s longtime practice, and the gap would widen under a draft budget being considered by the state legislature.

Since 2015, when adjusted for inflation, Alaska has cut by 22.4% the amount it spends on the operations of all state agencies combined.  The Alaska Department of Corrections is the only agency whose inflation-adjusted budget has grown during that period.

Sen. Click Bishop, R-Fairbanks, called the current situation “sad.”  Bishop is co-chairman of the Senate Finance Committee, which on Thursday held a hearing that questioned whether the Legislature and governor have reached the limit of budget cuts they can make without significant changes to state law.

Though state spending (not including the Permanent Fund Dividend) has declined by almost half from its peak in 2015, most reductions came early in that period.  The cuts of the past two years have been almost entirely erased by inflation and other annual cost increases....

The budgets for the University of Alaska and the state prison system illustrate the problems now faced by the Legislature and governor.  In 2019, the governor signed an agreement with the University of Alaska Board of Regents that called for three years of budget cuts.  Though the Alaska Legislature was not party to the agreement, it has followed it so far.

At the time, the university system received $327 million from the portion of the budget paid for with revenue from the Permanent Fund and taxes. In the budget under consideration now by the Legislature, the university is slated to receive just $257 million.

One month before signing the university agreement, Dunleavy signed a bill that rolled back prior prison reform legislation.  That prior legislation, known as Senate Bill 91, had encouraged alternatives to prison, such as electronic monitoring, halfway houses and supervised release.

SB 91 reduced prison costs, but many Alaskans believed it was contributing to an increase in property crime and pushed for its repeal.  Since then, the budget of the Alaska Department of Corrections has grown from $291 million in 2019 to $345 million in the plan now being considered by the Legislature.

Much of that increase is due to increases in spending on inmate healthcare and rehabilitation, budget documents show. Department officials told a legislative panel last month that 65% of Alaska’s prison inmates are mentally ill, 80% have some kind of substance abuse disorder, and 65% have reported some kind of traumatic brain injury. Almost one in four inmates is positive for Hepatitis C.

Several hundred inmates were released from custody to relieve prison crowding during COVID-19, but the department now projects a continued rise in the state’s prison population, estimating that by June 2025, more than 4,900 Alaskans will be in prison.  As of February, more than half of the state’s prison population consisted of people who were awaiting trial, not those who had been sentenced.

I share the view that this situation is "sad" with more money now to be spent by Alaskans to cage its citizens than to provide higher education. And it is especially interesting to read that the increased prison spending is mostly for "healthcare and rehabilitation," which likely includes some educational programming, and that the majority of Alaskan prison inmates are mentally ill and/or have substance abuse disorder and/or a serious brain injury.  As is likely true in many states, Alaska is spending more and more monies on prisons in order to tend to its most vulnerable populations, though only after they get involved with the criminal justice system (while other welfare programs like higher education get cut in order to provide welfare services to the incarcerated).

March 8, 2021 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, March 04, 2021

New Sentencing Project fact sheet provides updated data on private prison populations in US

The Sentencing Project has this new fact sheet titled simply "Private Prisons in the United States."  The document has lots of data and helpful graphics in a short space, and here is how it gets started:

Private prisons in the United States incarcerated 115,954 people in 2019, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 33% compared to an overall rise in the prison population of 3%.

However, the private prison population has declined 16% since reaching its peak in 2012 with 137,220.  Declines in private prisons’ use make these latest overall population numbers the lowest since 2006 when the population was 113,791.

States show significant variation in their use of private correctional facilities.  Indeed, Montana held 47% of its prison population in private facilities, while 19 states did not employ any for-profit prisons. Data compiled by the Bureau of Justice Statistics (BJS) and interviews with corrections officials find that in 2019, 32 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), LaSalle Corrections, and Management and Training Corporation.

Twenty-one states with private prison contracts incarcerate more than 500 people in for-profit prisons. Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 12,516.

Since 2000, the number of people in private prisons has increased 33%, compared to an overall rise in the prison population of 3.5%. In eight states the private prison population has more than doubled during this time period: Arizona (480%), Indiana (313%), Ohio (253%), North Dakota (221%), Florida (205%), Montana (125%), Tennessee (118%), and Georgia (110%).

March 4, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, March 02, 2021

"Association between county jail incarceration and cause-specific county mortality in the USA, 1987–2017: a retrospective, longitudinal study"

Concerns about public safety and justice have long been central to discussions and debate over modern mass incarceration in the United States.  But, especially as a result of the COVID pandemic, we are seeing more and more consideration of incarceration as a public health issue.  Consequently, I was really struck by this new research published online at The Lancet Public Health which analyzes mortality associated with jails over three decades (and has the title that serves as the title of this post).  Here is the "Summary" from this paper:

Background

Mass incarceration has collateral consequences for community health, which are reflected in county-level health indicators, including county mortality rates.  County jail incarceration rates are associated with all-cause mortality rates in the USA. We assessed the causes of death that drive the relationship between county-level jail incarceration and mortality.

Methods

In this retrospective, longitudinal study, we assessed the association between county-level jail incarceration rates and county-level cause-specific mortality using county jail incarceration data (1987–2017) for 1094 counties in the USA obtained from the Vera Institute of Justice and cause-specific mortality data for individuals younger than 75 years in the total county population (1988–2018) obtained from the US National Vital Statistics System.  We fitted quasi-Poisson models for nine common causes of death (cerebrovascular disease, chronic lower respiratory disease, diabetes, heart disease, infectious disease, malignant neoplasm, substance use, suicide, and unintentional injury) with county fixed effects, controlling for all unmeasured stable county characteristics and measured time-varying confounders (county median age, county poverty rate, county percentage of Black residents, county crime rate, county unemployment rate, and state incarceration rate).  We lagged county jail incarceration rates by 1 year to assess the short-term, by 5 years to assess the medium-term, and by 10 years to assess the long-term associations of jail incarceration with premature mortality.

Findings

A 1 per 1000 within-county increase in jail incarceration rate was associated with a 6·5% increase in mortality from infectious diseases (risk ratio 1·065, 95% CI 1·061–1·070), a 4·9% increase in mortality from chronic lower respiratory disease (1·049, 1·045–1·052), a 2·6% increase in mortality induced from substance use (1·026, 1·020–1·032), a 2·5% increase in suicide mortality (1·025, 1·020–1·029), and smaller increases in mortality from heart disease (1·021, 1·019–1·023), unintentional injury (1·015, 1·011–1·018), malignant neoplasm (1·014, 1·013–1·016), diabetes (1·013, 1·009–1·018), and cerebrovascular disease (1·010, 1·007–1·013) after 1 year.  Associations between jail incarceration and cause-specific mortality rates weakened as time lags increased, but to a greater extent for causes of death with generally shorter latency periods (infectious disease and suicide) than for those with generally longer latency periods (heart disease, malignant neoplasm, and cerebrovascular disease).

Interpretation

Jail incarceration rates are potential drivers of many causes of death in US counties.  Jail incarceration can be harmful not only to the health of individuals who are incarcerated, but also to public health more broadly. Our findings suggest important points of intervention, including disinvestment from carceral systems and investment in social and public health services, such as community-based treatment of substance-use disorders.

March 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Will NJ Gov veto a bill to repeal mandatory minimums for certain non-violent crimes because it repeals too many?

The question in the title of this post is prompted by this local story reporting on notable legislative developments our of New Jersey, headlined "Bill to end mandatory minimum sentences for certain crimes in N.J. now goes to Murphy’s desk."  Here are highlights of a story with so many interesting elements (with links from the original and my emphasis added):

A landmark criminal justice bill that would end mandatory minimum sentences for certain crimes in New Jersey, including non-violent drug offenses, is now heading to Gov. Phil Murphy’s desk after being passed by the state Assembly on Monday.

The bill (S2586/A4369) is the major reform recommended by the state’s Criminal Sentencing and Disposition Commission, which Murphy convened in 2018 due to the state having the worst disparity in the country for rates of incarceration between Black and white offenders.  The commission found that ending mandatory minimums for certain crimes would help to eliminate the disparity in the state’s criminal justice system, an initiative Murphy has championed as governor.

It is unclear if Murphy, a Democrat, will sign the bill into law.  “We’ll have further comment when we are ready to take action on the bill,” a spokesman for the governor said Monday afternoon.

As the bill was moving through the legislature, state Sen. Nicholas Sacco, D-Hudson, added an amendment to the bill to make the legislation also apply to official misconduct charges, which is sometimes used to prosecute politicians, police officers and other public workers.  The son of Sacco’s girlfriend is facing an official misconduct offense for allegedly submitting false timesheets in North Bergen, where Sacco is the mayor. 

Murphy has been publicly steadfast in that he does not support a bill that included ending mandatory sentences for official misconduct. “Let me say unequivocally, official misconduct was not on the list. I just want to say as clearly as I can, I do not support official misconduct being roped into this legislation,” the governor said in September.

But advocates continued to press lawmakers to move forward with the bill with or without the official misconduct charge included in it due to the number of people impacted, and the few number of people charged with official misconduct in recent years.

“Pass it for the thousands of people who will see earlier parole,” NJ Together, a non-partisan coalition of faith groups, wrote in a letter to lawmakers last week. “Pass it for the tens of thousands who will benefit in the future because they will not be subject to these unfair sentencing practices. Pass it for their families and for a more just criminal justice system here in New Jersey.”...

“This legislation, if signed by Gov. Murphy, will serve as a national model for criminal justice reform,” said Assemblyman Nick Chiaravalloti, D-Hudson. “This is an important social justice issue.”

The bill retroactively applies to inmates serving certain mandatory minimum sentences, including non-violent drug offenses, making more than 2,000 inmates immediately eligible for parole, if signed into law.  More than 80% of inmates serving mandatory minimum sentences for drug offenses are either Black or Hispanic, Joseph Krakora, the state’s top public defender, previously said.

Assemblyman John DiMaio, R-Warren, said he recognized the “social injustice issues that would be addressed by this bill,” but added, “I just do not understand where the social justice issue comes in” when removing official misconduct from the list of mandatory minimum sentences.  “Those sections that deal with the public trust, elected officials and public officials should not be in this bill,” he said before Monday’s vote.

However, NJ Together also found that official misconduct charges overwhelming are handed down to Black New Jerseyans.  It found that Black people in New Jersey are three and a half times as likely to spend time in state prison for official misconduct than others, according to an analysis of 36,000 prison records....

A spokesman for Murphy did not immediately respond when asked when the governor may make a decision.

I am instinctually against all (prison-time) manadtory minimums, which fundamentally shift sentencing powers from judges to prosecutors and make sentencing more opaque and often less consistent.  Mandatory minimums seem especially pernicious when applied to non-violent offenses where there can be a broad array of offense conduct and offender circumstances that a judge ought be able to consider in open court (and be subject to appeal).  Against that backdrop, from the get-go I think it is problematic (and telling) that reform-minded officials are so quick to oppose the repeal of the official misconduct NJ mandatory minimums (which seem pretty severe, though do include some waiver opportunities).

Even more important, and kudos for this reporting, racial disparity would seem to be a real concern in the application of this particular mandatory minimum in New Jersey, just as there tends to be disparity in the application of so many other mandatory minimums in so many jurisdictions.  If a primary goal of this whole bill is to reduce racially disparate sentencing laws, then repealing the misconduct minimums seems very much in service to a main goal of this bill.

FInally, and perhaps most important in service to criminal justice reform generally, any vision of the best reforms cannot and should not be the enemy of good reforms.  Today, tomorrow and every day until misguided sentencing laws are reformed and made retroactive, real people and their families are subject to real excessive prison time (and taxpayers are paying the economic and other  costs of excessive and unfair sentences).  If Gov Murphy were to veto this bill, he would be denying immediate relief and hope for more than 2,000 folks now serving problematic sentences in order to .... just preserve prosecutorial sentencing powers that they seem to be using unevenly and that should be in the hands of judges.

Prior related post:

March 2, 2021 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Sunday, February 28, 2021

"Prisons are getting Whiter. That’s one way mass incarceration might end."

The title of this post is the headline of this provocative Washington Post commentary authored by Keith Humphreys and Ekow N. Yankah. Here are excerpts:

Research shows that many White Americans see incarceration as a “Black problem,” and the more they see it that way, the less willing they are to do anything about it.  Biden and others might surmount this resistance, however, by highlighting a surprising trend: White Americans have been filling jails and prisons at increasing rates in the 21st century. Reducing incarceration, reformers can credibly argue, will benefit Whites as much as Blacks....

Racial codings of social problems influence public attitudes through two basic processes.  The first is in-group favoritism, which is greater appreciation of and empathy for people we perceive as similar to ourselves.  Such favoritism increases willingness to help a stranger in distress, leave a big tip at a restaurant or grant a promotion at work, among many other kindnesses. In-group favoritism is not limited to race (we can be favorably disposed to someone over something as trivial as sharing a first name or a birthday), and people of all races are prone to it.  But race is clearly one of the many dimensions by which we judge similarity, so that as more White Americans understand that more Whites are behind bars, they may feel increased compassion toward prisoners and voice more support for policies to reduce incarceration.

The other process in play is more disturbing, because it implies an active attempt to harm others.  Sociologists Rachel Wetts and Robb Willer documented that, when told the income gap between White Americans and Black and Latino Americans was shrinking, Whites favored social welfare programs that they believed particularly helped other Whites. But they became less supportive of programs that they thought particularly helped minorities.  Wetts and Willer concluded that perceived threats to the racial hierarchy drive White opposition to helping Black Americans.  The same Whites who recoiled at a Black man rising to the presidency, for example, might oppose prison reforms (shorter sentences, better health care, early release for the sick and elderly) precisely because they believe that the beneficiaries will mainly be Black. Informing such people that prisoners are increasingly White could soften their hostility.

Persuading people to join the fight against mass incarceration because Whites stand to benefit is bound to repulse those already committed to the cause.  But because each state runs its own prison system and sets most criminal penalties, building a nationwide coalition is essential.  That can happen only by shifting the opinion of people who are not moved by — or indeed are even comforted by — the thought of prison populations being mostly Black. And exploding the idea that mass incarceration is only a “Black problem” may allow us to reimagine a broad range of other issues, such as the policing that helps feed it....

In the effort to control Black and Brown people through the criminal justice system, White Americans have shown a stunning willingness to tolerate a huge number of White prisoners as collateral damage.  And once such systems are built, they have a remarkable capacity for self-preservation; jail populations, for instance, have stayed constant even as crime has plummeted.  So we cannot say how well a strategy drawing attention to the Whitening trend will work. In his book “Dying of Whiteness,” physician Jonathan Metzl argues that White people’s racial resentment can lead them to cut off their nose to spite their face — opposing policies that would help them because they would help Black citizens, too. Indeed, numerous economists have concluded that America’s long history of hostility toward Black people has left it the sole advanced economy without some form of universal health care.  If some White Americans are willing to give up health care to keep their place in the racial hierarchy, perhaps they are willing to risk imprisonment as well.  Yet the reversal in rhetoric during the opioid crisis shows that entrenched policies can be changed.

What’s more, in a remarkable moment of convergence, libertarians, religious leaders and racial-justice advocates oppose mass incarceration for separate but overlapping reasons.  Were our country more just and less dismissive of Black pain, growing White incarceration would have no special weight in assessing the moral value of locking up more than 2 million of our fellow citizens.  Opponents of mass incarceration — including Biden — should continue to denounce racism within the criminal justice system.  But the president can also remind Americans that our racial fates are joined: All of us would benefit from the end of mass incarceration.

February 28, 2021 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Wednesday, February 17, 2021

The Sentencing Project releases "No End in Sight: America’s Enduring Reliance on Life Imprisonment"

The Sentencing Project has done remarkable work in recent years tracking (and advocating against) the growth of life and functional life sentences in the United States. This great work continues with the release today of this big report authored by Ashley Nellis titled "No End in Sight: America’s Enduring Reliance on Life Imprisonment." The whole 46-page report is worth a close read for anyone concerned about extreme punishments and mass incarceration, and here the start of the report's initial "Findings and Recommendations" section:

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000.  Today, it’s 1.4 million; and more than 200,000 people are serving life sentences — one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.
Nearly five times the number of people are now serving life sentences in the United States as were in 1984, a rate of growth that has outpaced even the sharp expansion of the overall prison population during this period.  The now commonplace use of life imprisonment contradicts research on effective public safety strategies, exacerbates already extreme racial injustices in the criminal justice system, and exemplifies the egregious consequences of mass incarceration.
In 2020, The Sentencing Project obtained official corrections data from all states and the Federal Bureau of Prisons to produce our 5th national census on life imprisonment.
KEY FINDINGS
• One in 7 people in U.S. prisons is serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more), totaling 203,865 people;
• The number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since our first census in 2003;
• 29 states had more people serving life in 2020 than just four years earlier;
• 30% of lifers are 55 years old or more, amounting to more than 61,417 people;
• 3,972 people serving life sentences have been convicted for a drug-related offense and 38% of these are in the federal prison system;
• More than two-thirds of those serving life sentences are people of color;
• One in 5 Black men in prison is serving a life sentence;
• Latinx individuals comprise 16% of those serving life sentences;
• One of every 15 women in prison is serving life;
• Women serving LWOP increased 43%, compared to a 29% increase among men, between 2008 and 2020;
• The population serving LWOP for crimes committed as youth is down 45% from its peak in 2016;
• 8,600 people nationwide are serving parole-eligible life or virtual life sentences for crimes committed as minors.

February 17, 2021 in Data on sentencing, Detailed sentencing data, Examples of "over-punishment", Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, February 09, 2021

New California Committee on the Revision of the Penal Code issues report urging sweeping sentencing reforms

As reported in this local article, headlined "California Commission Recommends Ending Mandatory Minimum Sentences," a notable new government body in the Golden State is recommending an array of notable new sentencing reforms.  Here are the basics:

A newly formed state commission is recommending that California end mandatory minimum sentences for nonviolent crimes and allow judges to reconsider all criminal sentences after someone has spent 15 years in prison.

Those are two of the 10 recommendations laid out in an 89-page report by the Committee on Revision of the Penal Code, which is charged with examining California’s criminal sentencing laws and recommending changes.

Among their findings: That the state’s legal system has racial inequality at its core and that many laws are outdated, unsupported by data and don’t make the public more safe. "We really tried to do a complete survey of punishments in California from driving infractions, all the way to life in prison," said commission Chair Mike Romano, who runs the Three Strikes Clinic at Stanford Law School.

"What we found is that California has an unbelievably bloated criminal legal system and that there are a tremendous number of people who are serving punishments that are unnecessary in terms of enhancing public safety, in fact quite the opposite," he said.

The group heard from a wide range of experts, including every major law enforcement group in the state, current and former prosecutors and judges and state officials. The commission learned that California is spending $83,000 a year to lock up each prisoner, for a total of $16 billion. Yet the report also details evidence that California is enjoying the lowest crime rates since statewide tracking began in 1969, even as the state has enacted laws that reduce the number of people incarcerated.

“Aspects of California’s criminal legal system are undeniably broken," the report states. “The current system has racial inequity at its core," the commission wrote, adding that inequality may be worse than imagined as "people of color are disproportionately punished under state laws.”

The group is made up of legal experts and two state lawmakers. There are 10 recommendations in its inaugural report — all focusing on changes that could be made by the Legislature, without going to voters.

The full report is available at this link, and here is its executive summary:

When the Legislature and Governor Gavin Newsom established the Committee on Revision of the Penal Code, California launched its first concerted effort in decades to thoroughly examine its criminal laws. The Legislature gave the Committee special data-gathering powers, directing it to study all aspects of criminal law and procedure and to make recommendations to “simplify and rationalize” the state’s Penal Code. This is the Committee’s first report, and it details 10 reforms recommended unanimously by Committee members. Our recommendations span California’s entire criminal legal system, ranging from traffic court to parole consideration for people serving life sentences. If enacted, these reforms would impact almost every person involved in California’s criminal system and, we believe, measurably improve safety and justice throughout the state.

Our recommendations follow a year of studying California’s criminal punishments. We were guided by testimony from 56 expert witnesses, extensive public comment, staff research, and over 50 hours of public hearings and Committee deliberation. We believe the recommendations represent broad consensus among a wide array of stakeholders, including law enforcement, crime victims, civil rights leaders, and people directly impacted by the legal system. The report contains extensive support for each recommendation, including empirical research, experiences from other jurisdictions, and available data on California’s current approach to these issues.

The recommendations are: 

  1.  Eliminate incarceration and reduce fines and fees for certain traffic offenses.
  2.  Require that short prison sentences be served in county jails. 
  3.  End mandatory minimum sentences for nonviolent offenses.
  4.  Establish that low-value thefts without serious injury or use of a weapon are misdemeanors.
  5.  Provide guidance for judges considering sentence enhancements.
  6.  Limit gang enhancements to the most dangerous offenses.
  7.  Retroactively apply sentence enhancements previously repealed by the Legislature.
  8.  Equalize custody credits for people who committed the same offenses, regardless of where or when they are incarcerated.
  9.  Clarify parole suitability standards to focus on risk of future violent or serious offenses.
  10.  Establish judicial process for “second look” resentencing.

February 9, 2021 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 03, 2021

The Sentencing Project releases new report documenting "Racial Disparities in Youth Incarceration Persist"

Josh Rovner has authored this new report for The Sentencing Project titled " "Racial Disparities in Youth Incarceration Persist." Here is its executive summary:

In an era of declining youth incarceration, Black and American Indian youth are still overwhelmingly more likely to be held in custody than their white peers.

In ten years, the United States has cut youth incarceration in half. While the reduction is impressive, youth involvement in the juvenile justice system continues to impact youth of color disproportionately.

In every state, Black youth are more likely to be incarcerated than their white peers, about five times as likely nationwide. American Indian youth are three times as likely to be incarcerated as their white peers. For Latinx youth disparities are smaller but still prevalent; Latinx youth are 42 percent more likely than their white peers to be incarcerated.

Nationally, disparities are essentially unchanged from 10 years’ prior for Black and American Indian youth, but represent a 21 percent decrease in incarceration disparities for Latinx youth. In state rankings, New Jersey warrants special mention due to its number one and number three status for highest Black-white and Latinx-white disparities in youth incarceration, respectively.

These disparities are not only caused by differences in offending but also by harsher enforcement and punishment of youth of color.  White youth are less likely to be arrested than other teenagers, which is partly attributable to unequal policing and partly to differential involvement in crime.

After arrest, youth of color are more likely to be detained pre-adjudication and committed post adjudication.  They are also less likely to be diverted from the system.  These patterns hold across a range of offenses.

Advancement of racial justice priorities with youth decarceration efforts has proven elusive.  More steps must be taken to invest in youth and communities in order to prevent crime and to protect youth from overly punitive system responses to misbehavior.

Recommendations

1. Racial impact statements

States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.

2. Publish demographic data quarterly

States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.

3. Invest in communities

States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

February 3, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, February 02, 2021

"Local Spending on Jails Tops $25 Billion in Latest Nationwide Data"

The title of this post is the title of this new report from the Pew Charitable Trust folks.  Here are excerpts from the report's overview:

Historically, the roughly 3,000 local jails operating in the United States have received less public and policymaker attention than prisons.  But now, the COVID-19 pandemic has put jails — secure correctional facilities, generally operated by county or municipal governments, where people are detained before trial or confined post-conviction for periods usually lasting less than a year — under additional scrutiny.  Jails rely on close confinement and so are high risk for disease transmission.  Local governments are also confronting the budget implications of the pandemic and looking for potential savings, especially in costly areas such as corrections.

This environment provides an opportunity to examine correctional expenditures and consider strategies that may offer enduring public safety and fiscal benefits.  The available data indicates that to mitigate COVID-19 exposure risk, jurisdictions reduced jail populations by about 31% nationwide from March to May 2020, and although those populations partially rebounded, they were still 15% below March levels as of October 2020.  Further, people released from jail in March were readmitted less often over the ensuing six months than those released in January, suggesting that the pandemic-related decreases in jail populations did not affect public safety.  These reductions may not yield immediate savings, but a sustained commitment to safely cutting the number of people in jail could provide long-term financial benefits.  The recent experience of reducing prison populations offers a glimpse of the potential cost savings: The 9% drop in the prison population from 2008 to 2018 virtually flattened corrections spending, which had averaged 5.4% annual growth from 1991 to 2007.

To support state and local efforts to reduce jail spending and protect public safety, The Pew Charitable Trusts undertook an analysis of jail costs, using expenditure data for all U.S. localities, primarily from 2007 and 2017, and related criminal justice data..... 

Key findings include:

Local governments spend billions on jails.  As of the end of 2017:

  • Jail and other local corrections costs had risen sixfold since 1977, with jail costs reaching $25 billion.
  • Almost 2 in 5 dollars spent on state and local correctional institutions went to jails.
  • About 1 in 17 county dollars was spent on jails.
  • The average annual cost of holding a person in jail was about $34,000.
  • Roughly a third of jail facility capacity was more than 30 years old, and about 20% of jails were overcrowded, which could present significant capital challenges to local budgets.

Jail costs rose even as crime and admissions to jail fell.  As of the end of 2017:

  • A 20% decrease in crime and a 19% drop in jail admissions since 2007 had not led to reduced jail spending.
  • The portion of local budgets spent on jails did not correlate with state crime rates.
  • Small localities spent more per capita on jails than most other jurisdictions, despite having lower crime rates.

Nationwide, counties and cities are seeking to address budgetary pressures during these difficult fiscal times and for the long term.  New policies and practices — including many they already have embraced in response to the pandemic — can safely reduce jail populations and associated costs and help them achieve those goals.

February 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, January 29, 2021

"The Transparency of Jail Data"

The title of this post is the title of this new paper available via SSRN and authored by William Crozier, Brandon L. Garrett and Arvind Krishnamurthy. Here is its abstract:

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes.  A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities.  In the following Essay, we present the results of a case study in Durham, North Carolina.  We began this project in the fall of 2018 by scraping data portraying daily pretrial conditions set for individuals in the Durham County Jail.  The data was scraped from the Durham County Sheriff’s Inmate Population Search website and details the individual’s name, charges, bond type, bond amount, court docket number and time served.  Scraping was initiated on September 1, 2018, and continues to the present.

Beginning in early 2019, the judges and prosecutors in Durham, North Carolina, adopted new bail policies, reflecting a shift in the pretrial detention framework.  This Essay provides a firsthand look into the pretrial detention data following these substantive policy changes. Our observations serve as a reflection on how the changes in Durham reflect broader pretrial detention reform efforts.  First, we observe that a dramatic decline in the jail population followed the adoption of these policy changes.  Second, we find that the policy changes corresponded with changes in aggregate conditions imposed pretrial. We describe, however, why public data that simply reports initial pre-trial conditions cannot answer additional questions concerning the jail population or outcomes for the released population.  Nor can this data fully answer questions concerning which actors can be credited with the observed changes.  During a time in which jail populations are a subject of pressing public concern, we have inadequate information, even in jurisdictions with public jail websites, to assess policy.  We conclude by discussing the implications of data limitations for efforts to reorient bail policy.

January 29, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 28, 2021

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

January 28, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, January 27, 2021

Vera Institute reports on "People in Jail and Prison in 2020" and finds US total now well below two million

Images (7)The Vera Institute of Justice has been taking on the challenging task of collecting data on the number of people in state and federal prisons and jails to provide more timely information on incarceration that the Bureau of Justice Statistics releases in its annual reports. Impressively, Vera has already produced this great new report, titled "People in Jail and Prison in 2020," with the latest nationwide prison and population headcounts. Here his part of the start of the report (with a few sentences I have emphasized):

The United States saw an unprecedented drop in total incarceration between 2019 and 2020.  Triggered by the onset of the COVID-19 pandemic and pressure from advocates to reduce incarceration, local jails drove the initial decline, although prisons also made reductions.  From summer to fall 2020, prison populations declined further, but jails began to refill, showing the fragility of decarceration.  Jails in rural counties saw the biggest initial drops, but still incarcerate people at double the rate of urban and suburban areas.  Despite the historic drop in the number of people incarcerated, the decrease was neither substantial nor sustained enough to be considered an adequate response to the COVID-19 pandemic, and incarceration in the United States remains a global aberration.

Vera Institute of Justice (Vera) researchers collected data on the number of people in local jails and state and federal prisons at both midyear and fall 2020 to provide timely information on how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the national jail population using a sample of 1,558 jail jurisdictions and the national prison population based on a sample of 49 states and the Federal Bureau of Prisons....

Generally, jails and prisons do not make race and gender data available.  However, preliminary results from other studies suggest that race inequity in incarceration may be worsening during the pandemic.

The number of people incarcerated in state and federal prisons and local jails in the United States dropped from around 2.1 million in 2019 to 1.8 million by mid-2020 — a 14 percent decrease.  This decline held through the fall. This represents a 21 percent decline from a peak of 2.3 million people in prison and jail in 2008.  State and federal prisons held an estimated 1,311,100 people at midyear 2020 — down 124,400, or 9 percent, from 2019.  Prisons declined by an additional 61,800 people in late 2020, bringing the total prison population to 1,249,300 people, a 13 percent decline from 2019 to late 2020 (the end of September or beginning of October).

Local jails had steeper population declines than prisons in the first part of 2020. From June 2019 to June 2020, the jail population decreased by 182,900 people, or 24 percent.  However, from June to September, jail populations increased substantially, growing 10 percent in just three months. By late 2020, there were 633,200 people in local jails, up from an estimated 575,500 people at midyear.  In total, the national jail population declined 17 percent from midyear 2019 to late 2020, with jail incarceration trending upward in recent months.

The national jail population counts hide stark divergence across the urban-to-rural continuum. In the past year, the largest and most sustained jail population declines were in rural areas, where the jail population dropped by 60,400 (33 percent) between midyear 2019 and midyear 2020, and subsequently grew by 10,600 (9 percent) between midyear 2020 and late 2020.  Urban areas and small and midsized metro areas had smaller incarceration declines followed by slightly higher subsequent growth from June to September 2020. Even with dramatic declines, rural areas still have the highest incarceration rates by far.  Three out of five people incarcerated in local jails are in smaller cities and rural communities.

This four-page fact sheet goes with the report and provides a lot of its highlights and includes recommendations for policy-makers.

January 27, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, January 25, 2021

"Is Mass Incarceration Here to Stay?"

The title of this post is the title of this recent essay authored by Lynn Adelman and now available via SSRN. Here is its abstract:

This article argues that the number of people imprisoned in the United States is so large and that policymakers’ concerns about being perceived as soft on crime are so significant that it is very possible that mass incarceration will be with us for a very long time.  The article discusses some of the reasons that have been put forward as to why the United States has imprisoned so many people in the last 50 years and the harms that mass incarceration has brought about.  The article also explores some of the proposals that scholars and others have offered to reduce the number of people imprisoned.  Ultimately, however, the article questions whether there is sufficient will to address the enormity of the problem.

January 25, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, January 22, 2021

"Can We Wait 60 Years to Cut the Prison Population in Half?"

The question in the title of this post is the title of this new publication authored by The Sentencing Project's Senior Research Analyst Nazgol Ghandnoosh.  Here is how it gets started:

The U.S. prison population declined 11% in 10 years after reaching an all-time high in 2009.  This modest reduction follows a nearly 700% increase in the prison population between 1972 and 2009.  As of year end 2019, 1.4 million people were in U.S. prisons; an imprisonment rate unmatched worldwide.  At the recent pace of decarceration, it will take nearly six decades to cut the U.S. prison population in half.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic began in 2020, a number of states and the federal system have made additional, albeit limited, reductions in their prison populations.  This analysis underscores the need to reduce unnecessarily high levels of imprisonment amidst a public health crisis and going forward.  Meaningful decarceration, as explained below, requires reducing excessive prison terms for violent convictions.

January 22, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 21, 2021

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

January 21, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Sunday, January 17, 2021

"Mass Incarceration, Meet COVID-19"

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

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

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

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

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

Sunday, January 03, 2021

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

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

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

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

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

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

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

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

Thursday, December 31, 2020

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

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

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

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

A few of many prior related posts:

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

Tuesday, December 22, 2020

Following the Garden State's path to ending mass incarceration

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

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

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

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

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

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

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

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

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