Sentencing Law and Policy

A couple of notable new international death penalty stories

A couple of new headlines and Associated Press stories concerning the application of the death penalty worldwide caught my attention this morning.  Here are links and the essential:

"Singapore hangs 2nd citizen in 3 weeks for trafficking cannabis despite calls to halt executions":

Singapore on Wednesday hanged another citizen for trafficking cannabis, the second in three weeks, as it clung firmly to the death penalty despite growing calls for the city-state to halt drug-related executions....  Under Singapore laws, trafficking more than 500 grams (1.1 pounds) of cannabis may result in the death penalty....

Singapore executed 11 people last year for drug offenses after a two-year hiatus due to the COVID-19 pandemic.  The hanging of one particular Malaysian believed to be mentally disabled sparked an international outcry and brought the country's capital punishment under scrutiny for flouting human rights norms.

"Executions worldwide rose dramatically in 2022, Amnesty International reports":

Executions worldwide increased by 53% in 2022 from a year earlier, with a significant rise in Iran and Saudi Arabia, Amnesty International said in an annual report Tuesday that also criticized Indonesia as having one of the highest numbers of new death sentences in Asia.

Amnesty said 70% of the executions in the Middle East and North Africa were carried out in Iran, where their numbers rose by 83% from 314 in 2021 to 576 in 2022.  The number of executions in Saudi Arabia tripled from 65 in 2021 to 196 in 2022.

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

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

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

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

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

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

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

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

Additional findings in the report show that:

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

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

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

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

"Sentencing Commissions and Guidelines: A Case Study in Policy Transfer"

The title of this post is the title of this notable new article authored by Arie Freiberg and Julian V. Roberts now available via SSRN. Here is its abstract:

Over the past few decades, the traditional, discretionary approach to sentencing has been progressively replaced by structured regimes often administered by sentencing commissions or councils.  Sentencing guidelines of one kind or another have proliferated across the common law world and constitute the most significant development in sentencing in a century.  This article examines the creation and subsequent proliferation of sentencing commissions since the establishment of the first commissions in Minnesota and Pennsylvania in 1978.

The article explores the process by which the idea of a sentencing commission and its guidelines has spread to other jurisdictions.  This process, referred to as policy transfer, diffusion, transplantation, convergence, translation or policy learning, modelling or borrowing, can provide insight into why a policy innovation in one jurisdiction is emulated or adapted in another, and the means by which such innovations are communicated over time and between jurisdictions. 

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

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

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

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

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

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

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

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

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

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

Woman reportedly given 34-year prison term(!) for Twitter activity by Saudi Arabia's special terrorist court

I know relatively little about sentencing law and processes in other nations, but I do know that this new Guardian report about an extreme Saudi Arabian sentence is quite disconcerting.  The press piece is fully headlined "Saudi woman given 34-year prison sentence for using Twitter; Salma al-Shehab, a Leeds University student, was charged with following and retweeting dissidents and activists."  Here are excerpts:

A Saudi student at Leeds University who had returned home to the kingdom for a holiday has been sentenced to 34 years in prison for having a Twitter account and for following and retweeting dissidents and activists....

Salma al-Shehab, 34, a mother of two young children, was initially sentenced to serve three years in prison for the “crime” of using an internet website to “cause public unrest and destabilise civil and national security”. But an appeals court on Monday handed down the new sentence – 34 years in prison followed by a 34-year travel ban – after a public prosecutor asked the court to consider other alleged crimes.

According to a translation of the court records, which were seen by the Guardian, the new charges include the allegation that Shehab was “assisting those who seek to cause public unrest and destabilise civil and national security by following their Twitter accounts” and by re-tweeting their tweets. It is believed that Shehab may still be able to seek a new appeal in the case.

By all accounts, Shehab was not a leading or especially vocal Saudi activist, either inside the kingdom or in the UK. She described herself on Instagram – where she had 159 followers – as a dental hygienist, medical educator, PhD student at Leeds University and lecturer at Princess Nourah bint Abdulrahman University, and as a wife and a mother to her sons, Noah and Adam.

Her Twitter profile showed she had 2,597 followers. Among tweets about Covid burnout and pictures of her young children, Shehab sometimes retweeted tweets by Saudi dissidents living in exile, which called for the release of political prisoners in the kingdom. She seemed to support the case of Loujain al-Hathloul, a prominent Saudi feminist activist who was previously imprisoned, is alleged to have been tortured for supporting driving rights for women, and is now living under a travel ban....

A person who followed her case said Shehab had at times been held in solitary confinement and had sought during her trial to privately tell the judge something about how she had been handled, which she did not want to state in front of her father. She was not permitted to communicate the message to the judge, the person said. The appeals verdict was signed by three judges but the signatures were illegible....

The European Saudi Organization for Human Rights condemned Shehab’s sentence, which it said was the longest prison sentence to ever be brought against any activist. It noted that many female activists have been subjected to unfair trials that have led to arbitrary sentences and have been subjected to “severe torture”, including sexual harassment. Khalid Aljabri, a Saudi who is living in exile and whose sister and brother are being held in the kingdom, said the Shehab case proved Saudi Arabia’s view that dissent equates to terrorism.

“Salma’s draconian sentencing in a terrorism court over peaceful tweets is the latest manifestation of MBS’s ruthless repression machine,” he said, referring to the crown prince. “Just like [journalist Jamal] Khashoggi’s assassination, her sentencing is intended to send shock waves inside and outside the kingdom – dare to criticise MBS and you will end up dismembered or in Saudi dungeons.”

WNBA star Brittney Griner sentenced to 9 years(!) in prison by Russian judge for "drug smuggling"

I know next to nothing about Russia's criminal justice system, but I do know I was still shocked to hear about basketball star Brittney Griner's sentencing before a Russian judge today.  This Fox News report provides these details:

Brittney Griner, an American basketball superstar and Olympic gold medalist, learned her hate in a Russian court after she pleaded guilty to a drug charge last month.

A Russian judge convicted Griner of drug possession and drug smuggling and sentenced her to 9 years in prison. She was also fined 1 million rubles, the equivalent of about $16,400.

Griner, 31, appeared in a courtroom in Khimki, just outside Moscow. She issued an apology ahead of her verdict and sentencing as prosecutors pushed for a 9.5-year sentence....

Griner contended she made "an honest mistake" when she brought vape cartridges containing oils derived from cannabis into a Moscow airport back in February, adding "I hope in your ruling it does not end my life." Griner was returning to her Russian basketball team UMMC Ekaterinburg after their was a pause in the season for international play. She called Yekaterinburg her "second home."...

Russian prosecutors argued Griner purposely packed the cannabis oil. Griner’s lawyers argued that Griner was using marijuana to treat pain. But Russian officials said the U.S. laws regarding the legality of the drug had no bearing on the Russian judicial system.

The U.S. State Department had classified Griner as "wrongfully detained." United States Secretary of State Antony Blinken revealed last week that the Biden administration offered a "substantial proposal" for the return of the basketball player and fellow American Paul Whelan. Blinken said during a press conference that the Biden administration made the proposal weeks ago and is hoping to speak to Russian Foreign Minister Sergey Lavrov for the first time since Feb. 15.

Russian media has speculated the trade could be for Viktor Bout, a Russian arms dealer known as the "Merchant of Death," who is serving a 25-year sentence in the U.S. after being convicted of conspiracy to kill U.S. citizens and providing aid to a terrorist organization.

White House press secretary Karine Jean-Pierre told reporters Monday that Russia made a "bad faith" response to the U.S. government’s offer. She did not elaborate. Russian officials have made clear that no prisoner swap could happen until a conviction and sentence is handed down.

President Biden reacted to Russia’s sentencing. "Today, American citizen Brittney Griner received a prison sentence that is one more reminder of what the world already knew: Russia is wrongfully detaining Brittney. It’s unacceptable, and I call on Russia to release her immediately so she can be with her wife, loved ones, friends, and teammates. My administration will continue to work tirelessly and pursue every possible avenue to bring Brittney and Paul Whelan home safely as soon as possible," he said.

It seems likely that all sorts of politics, both international and domestic, played a role in this sentencing outcome. And I am inclined to predict that Griner will be back on American soil well before 2031. But despite all the international intrigue in play and whatever happens next, the sad reality is that the US in the past (and still today) has sentenced plenty of individuals to many years on various types of drug charges.  And that drug war reality necessarily impacts our nation's ability to assert the moral high ground when it comes to reacting to harsh law enforcement in other nations.

Amnesty International releases "The Power of Example: Whither the Biden Death Penalty Promise?"

Via this Death Penalty Information Center posting, I just saw that a few weeks ago Amnesty International issued this big new report, titled The Power of Example: Whither the Biden Death Penalty Promise?," which advocates for Prez Biden to fulfil his campaign pledge to work to "eliminate the death penalty."   Here are a few passages from the start of this 100+ page report:

Amnesty International opposes the death penalty in all cases without exception regardless of the nature or circumstances of the crime; questions of guilt, innocence, or other aspects of the case; or the method used by the state to carry out the execution....

Amnesty International submits that the 50th anniversary of Furman is an opportune moment for the US administration and members of Congress to be reminded that the world is waiting for the USA to do what almost 100 countries have achieved during this past half century — total abolition of the death penalty.  Abolition of the federal death penalty would be consistent with US obligations under international human rights law.  It would bolster the position of those states in the USA that have already got rid of the death penalty or are moving towards doing so.  It would set a positive example to individual state governments that continue to use this cruel, unnecessary, and flawed policy, as well as to the diminishing list of retentionist countries....

This report, then, stems from Amnesty International's concern that the clock is running on the Biden pledge with little to show for it.  It is not a study of the federal death penalty as such or an examination of the cases of the more than 40 individuals currently on federal death row, or of those federal defendants facing death penalty trials.  The report revisits the six-month federal execution spree in a bid to jog the collective governmental memory of that shameful episode and to reboot the political commitment to abolition.  It also seeks to remind the US authorities of their general and specific obligations under international human rights law in relation to the death penalty, including as provided in the International Covenant on Civil and Political Rights (ICCPR).

Supreme Court of Canada declares all LWOP sentences unconstitutional as "degrading in nature and thus intrinsically incompatible with human dignity"

As this press article details, "Canada’s supreme court has ruled that life sentences without the chance of parole are both “cruel” and unconstitutional, in a landmark decision that could give more than dozen mass killers who committed “inherently despicable acts” the faint hope of release in the future." Here is more from the press piece about Friday's ruling:

The court unanimously determined on Friday that sentencing killers to lengthy prison terms with little hope of freedom risked bringing the “administration of justice into disrepute”.

The closely watched case centred on the fate of Alexandre Bissonnette, the gunman who killed six worshippers at a mosque in Québec City in 2017, but the court’s decision will possibly have consequences for at least 18 others who are serving multiple life sentences.

In Canada, those serving a life sentence for first-degree murder are eligible to apply for parole at 25 years. But in 2011, the Conservative government gave justices the ability to hand out consecutive sentences, rather than concurrent blocks of 25 years.

In the case of Bissonnette, the 27-year-old pleaded guilty to six counts of first-degree murder and six counts of attempted murder in 2018, after he entered the Islamic Cultural Centre in Québec City with a semi-automatic rifle and pistol, opening fire on worshippers. The prime minister, Justin Trudeau, called the act a “terrorist attack”.

Drawing on the 2011 provision, Crown prosecutors asked a judge to impose a parole ineligibility period of 150 years, the harshest sentence ever handed down in Canada since the abolition of the death penalty. Prosecutors said Bissonnette should serve 25 consecutive years for each of the six people he murdered.

The sentencing judge instead ruled Bissonnette would have the chance of parole at 40 years. That decision was overturned in 2020 by Quebec’s court of appeal, which ruled unanimously that Bissonnette should have a chance of parole at 25 years. Bissonnette, now 32, will be eligible to apply for parole in his 50s.

The ruling of the court applies retroactively to 2011 and could affect at least 18 others whose parole eligibility exceeds 25 years, even those who have exhausted their appeals. In some cases, people have been handed a 75-year wait period before being able to apply for parole....

Acknowledging the heinous crimes of those serving multiple life sentences, Chief Justice Richard Wagner wrote that the ruling “must not be seen as devaluing the life” of innocent victims. “This appeal is not about the value of each human life, but rather about the limits on the state’s power to punish offenders, which, in a society founded on the rule of law, must be exercised in a manner consistent with the Constitution.”

The full ruling in R. v. Bissonnette, 2022 SCC 23 (Canada May 27, 2022), is available here.  Here is just one of many notable passages: 

The objectives of denunciation and deterrence are not better served by the imposition of excessive sentences. Beyond a certain threshold, these objectives lose all of their functional value, especially when the sentence far exceeds human life expectancy.  The imposition of excessive sentences that fulfil no function does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system.  A punishment that can never be carried out is contrary to the fundamental values of Canadian society.

The effects of a sentence of imprisonment for life without a realistic possibility of parole support the conclusion that it is degrading in nature and thus intrinsically incompatible with human dignity.  Offenders who have no realistic possibility of parole are deprived of any incentive to reform, and the psychological consequences flowing from this sentence are in some respects comparable to those experienced by inmates on death row, since only death will end their incarceration. For offenders who are sentenced to imprisonment for life without a realistic possibility of parole, the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world is very hard to tolerate, so much so that some prefer to put an end to their lives rather than die slowly and endure suffering that seems endless to them.  Furthermore, in international and comparative law, a sentence that deprives offenders of any possibility of being released is generally considered to be incompatible with human dignity.

To review, then, in Canada it is unconstitutional to impose functional life without parole sentences on even mass murderers, wheres in the United States many thousands of persons (and mostly persons of color) have been sentenced in recent decades to LWOP terms for federal drug offenses.

"Why Should Guilty Pleas Matter?"

The title of this post is the title of this forthcoming book chapter authored by Thom Brooks now available via SSRN.  Here is its abstract:

Most offenders plead guilty without a trial.  Their guilty plea typically earns a reduced punishment. It raises the issue of why should guilty pleas matter.  This chapter considers the use of plea bargaining in the United States and guilty plea discounts in England and Wales.  While the former is found deeply problematic, a limited defence of the latter is made. Offenders should normally receive discounted punishment and for more than instrumental reasons.  However, there must be more robust safeguards in place to ensure greater consistency and fairness for the use of guilty plea reductions to be justified more substantially.

"Private Prison Companies and Sentencing"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Pratt, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)  Here is this paper's abstract:

The use of private prisons in the United States to house federal and state inmates has added a voice to sentencing practice.  This voice is unnecessary and should not exist as a concern in sentencing law and policy.  Private prisons affect sentencing at the policy level through lobbying, networking, and by influence over judges’ sentencing decisions in individual cases.  These methods of influencing sentencing are not always blatant, but they do exist.  The United States should end the use of private prisons or adopt a hybrid model similar to that used in Europe to help quiet this unnecessary voice. However, eliminating the use of private prisons will not end the United States’ mass incarceration problem.  Policy makers must address other causes of mass incarceration along with ending the use of private prisons. 

This paper will explore the history of private prisons in the United States, how private prisons influence sentencing, and potential solutions to end or improve the use of private prisons, while addressing the larger causes of mass incarceration.  The suggested solution explored at the end of this paper is for the United States to develop and implement a hybrid model similar to that used in France, which eliminates completely private prisons, but still uses some private entities in the prison system.  Eliminating private interests from the prison system entirely is unrealistic and unlikely given their long history of presence in the United States criminal justice system.

Pope Francis speaking out again on behalf of "our brothers and our sisters who are in prison"

This new AP article, headlined "Pope on prisons: No inmate should ever be deprived of hope," reports on some of the latest comments from Pope Francis about prisons and prisoners.  Here are the highlights along with some Italian backstory that may account for the pope's latest remarks:

Pope Francis issued a plea on behalf of prison inmates Wednesday, saying they should never be deprived of hope and always be given the opportunity to redeem themselves.

In remarks at his weekly public audience at the Vatican, Francis told the faithful that “we risk being imprisoned in a justice that doesn’t allow one to easily get back up again and confuses redemption with punishment.”

“For this, I want to recall today in a particular way our brothers and our sisters who are in prison,” the pontiff said. “It’s right that those who have made a mistake pay for their mistake, but it’s even more right that those who have done wrong should be able to redeem oneself from their mistake. There can’t be sentences without windows of hope.’’

Francis didn’t cite the prison policies or justice systems of any particular countries as problematic. Catholic teaching holds that the death penalty has no justification in modern society. During his papacy, Francis has made attention to the needs of communities on society’s margins, including prison populations, a priority.

“Let’s think of our incarcerated brothers and sisters, and let’s think about the tenderness of God for them and pray for them so that they may find in that window of hope a way out toward a better life,” Francis said in concluding his remarks Wednesday.

Italy’s justice minister, while briefing lawmakers in Parliament on criminal justice reform Wednesday, decried overcrowding in the country’s prisons, describing it as the most serious of all the problems plaguing the penal system.  Justice Minister Marta Cartabia said Italy’s prisons were 14% overcrowded. “It’s a condition that aggravates the relationships among inmates and which makes the work of prison personnel, often victims of aggression, even more difficult,” she said. “Overcrowding means greater difficulty in guaranteeing security and greater difficulty in proposing activities that facilitate paths to rehabilitation.”

Cartabia said reforms were under way to allow for sentences that provide alternatives to prison. But she noted that 69,000 persons are already serving their sentences outside prison walls, compared to some 54,000 inmates in Italy’s criminal justice system.

Notably, the United States has about 5 times the population of Italy, but has about 25 times as many prisoners.  According to this site, the US violent crime rate and murder rate is also five times the rate in Italy.

A few prior related posts about Pope Francis'  "sentencing advocacy":

• Pope Francis, speaking to Congress, urges abolishing death penalty (and LWOP)
• Pope Francis categorically condemns death penalty as "inadmissible" in today's world 
• Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities" 
• Pope Francis now advocating for total abolition of LWOP sentences as well as the death penalty 
• Pope Francis' new encyclical clearly condemns the death penalty (as well as life imprisonment)

Japan hangs three persons for "extremely ghastly" crimes, completing first executions in two years

As reported in this CBS News piece, "Japan hanged three death-row inmates on Tuesday, its first executions in two years, amid growing criticism by human rights groups of the country's use of the death penalty."  Here is more about those executed and unique way Japan goes about carrying out death sentences:

One of the three, Yasutaka Fujishiro, was convicted of killing seven people and setting fire to their house in 2004, while the other two, Tomoaki Takanezawa and Mitsunori Onogawa, were convicted in the 2003 killings of two pinball parlor employees.

Executions are carried out in high secrecy in Japan, where prisoners are not informed of their fate until the morning they are hanged.  Since 2007, Japan has begun disclosing the names of those executed and some details of their crimes, but information is still limited.

Justice Minister Yoshihisa Furukawa said at a news conference that the three had committed "extremely ghastly" crimes and the punishment was appropriate.

Furukawa declined to comment on the timing of the executions, often carried out during the year-end holiday season when parliament is in recess, which opponents say is an attempt by the government to reduce criticism.  Japan's parliament had its final session of the year on Tuesday. "As justice minister, I authorized their executions after giving extremely careful considerations again and again," Furukawa said.

Japan now has 107 people on death row at detention centers, instead of regular prisons.  It has maintained the death penalty despite growing international criticism, saying the punishment is needed to take into consideration the victims' feelings and as a deterrence for heinous crime.

Japan and the U.S. are the only two countries in the Group of Seven industrialized nations that use capital punishment. A survey by the Japanese government showed an overwhelming majority of the public supports executions, Furukawa said.

He defended the short notice given to inmates about to be executed, citing a "serious mental impact" on them if they learn their fate way in advance. Two death-row inmates recently filed a lawsuit against the government saying the system causes psychological distress and seeking compensation over mental suffering from living in uncertainty until the last day of their lives....

The executions were the first since Dec. 26, 2019, when a Chinese citizen convicted in the 2003 killing of a family of four in Fukuoka was put to death. He was one of three hanged that year. In 2018, Japan executed 15, including 13 Aum Shinrikyo cult members convicted in a deadly 1995 nerve gas attack on Tokyo's subways.

"Crime and Punishment. Crime Rates and Prison Population in Europe"

The title of this post is the title of this new paper available via SSRN authored by Beata Gruszczyńska and Marek Gruszczyński. Here is its abstract:

We present the attempt of finding association between crime level and prison population across European countries.  We propose observation that Central and Eastern European countries distinctly differ from the rest of Europe.  Building on this we offer justification that is methodologically based on correlations and regressions of country incarceration rates on crime rates, with the reference to governance indicators.  We use data on crime and prisoner rates by offence from Eurostat and SPACE.  Our cross-sectional analysis is confined to year 2018.

The empirical part of the paper is preceded by specifying the challenges of comparing crime between countries in Europe.  Next, we present the review of research concentrated on relationships between incarceration and crime, with the emphasis on deterrence effect and the prison paradox.  This stream of research is typically dedicated to single countries or smaller areas, with the use of microdata.  International comparisons are rare and are usually based on time series and trend analyses.

Quantitative approach applied here is established on recognizing two clusters of countries: Central and Eastern European (CEE) cluster, and Western European (WE) cluster. We show that the observation of higher prisoner rates and lower crime rates for CEE countries is confirmed in a quantitative way. The analysis encompasses four types of offences: assault, rape, robbery and theft.  Final part of the paper presents the attempt to include World Governance Indicators into the analysis of association between incarceration and crime rates.

All results confirm that crime rates in WE countries are distinctly higher than in CEE countries while incarceration rates in WE are significantly lower than in CEE countries. We think it is because of the broader extent of crimes registered and better accuracy of police statistics.  Prison population is largely determined by the criminal and penal policy in each country. Those policies differ substantially between CEE and WE countries, e.g. in terms of frequency of sentencing to the prison and the length of imprisonment.  These result in higher incarceration rates in CEE countries, despite lower crime rates – as compared to WE countries.

"The Gladue Analysis: Shedding Light on Appropriate Procedures and Sanctions"

The title of this post is the title of this interesting-looking new paper about an interesting aspect of Canadian sentencing practice. This piece was authored by Marie-Andrée Denis-Boileau, is available via SSRN, and here is its abstract:

This paper intends to give practical tools to legal actors to better implement the second part of the s 718.2(e) of the Criminal Code analysis for sentencing Indigenous people, as first laid out in the Gladue case of the Supreme Court of Canada.  Following this, when sentencing an Indigenous person, judges have to pay attention to “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection”.  Drawing from case law, research and the work of Commissions and Public Inquiries in Canada, the author intends to provide practical tools to legal actors to support them in fully engaging with it.  The paper identifies and describes three elements that must be considered by courts in this analysis: (1) the community’s perspectives, needs and alternatives to incarceration, (2) The Aboriginal Perspective, which was interpreted as including the "laws, practices, customs and traditions of the group” and (3) Culturally sensitive, appropriate and responsive sentences addressing the “underlying cause of the criminal conduct”. Its main focus is on Indigenous law and providing practical and clear ways for judges and legal actors to consider it.

The content of this paper was first developed for Legal Aid BC’s Best Practices Guide for Writing Gladue Reports and Understanding Gladue Principles, with the intent to support Gladue writers in providing more information to courts with regard to this part of the Gladue analysis and support anyone who is interested in better understanding Gladue principles.  This paper should support legal actors in better engaging with it.

"States of Incarceration: The Global Context 2021"

The title of this post is the title of this notable new report from the Prison Policy Initiative authored by Emily Widra and Tiana Herring.  Here is part of the start of the report:

Louisiana once again has the highest incarceration rate in the U.S., unseating Oklahoma to return to its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth.  Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation ... every state appears extreme.  24 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 17th in the world with an incarceration rate higher than Iran, Colombia, and all the founding NATO nations.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkey, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts. Others struggle with “violent crime” on a scale far beyond that in the U.S.: South Africa, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “the land of the free,” tops them all....

The incarceration rates in every U.S. state are out of line with the entire world, and we found that this disparity is not explainable by differences in crime or “violent crime.”  In fact, there is little correlation between high rates of “violent crime” and the rate at which the U.S. states lock people up in prisons and jails.

When we compare U.S. states and other nations in terms of both “violent crime” and incarceration, we find ourselves more closely aligned with nations with authoritarian governments or recently large-scale internal armed conflicts.  Rather than any of the founding NATO member countries traditionally compared to the United States, the only countries that approach the incarceration rate and “violent crime” rates of the 50 states are El Salvador, Panama, Peru, and Turkey.  Every U.S. state, and the United States as a nation, is an outlier in the global context.  No other country incarcerates as many people, including countries with similar rates of “violent crime.”

Nova Scotia Court says "historic factors and systemic racism" should be considered in sentencing an African Nova Scotian offender

A helpful reader made sure I saw this interesting story about a notable new ruling in Canada headlined "Nova Scotia Court of Appeal rules to consider history of racism, marginalization in cases."  Here are the details:

The sentencing of Black offenders in Canada is on the verge of a dramatic change after Nova Scotia’s top court ruled that, as with Indigenous offenders, trial judges need to consider the history of racism and marginalization that shaped them, and do their utmost not to put them behind bars where appropriate.

The Criminal Code has spelled out since 1996 that incarceration is a last resort for Indigenous offenders.  It does not refer to any other racialized group.  But it does say that sentences are meant to fit both the offence and the offender.  The Nova Scotia Court of Appeal, in a ruling last week, became the country’s first appeal court to draw on that principle and require a judge-made, as opposed to legislated, approach to the sentencing of Black offenders.

“The moral culpability of an African Nova Scotian offender has to be assessed in the context of historic factors and systemic racism,” Justice Anne Derrick wrote in a 5-0 ruling. The ruling illustrates the sharp turn that will now be demanded of Nova Scotia’s judges -- a change in approach that could well spread to other provinces.  Ontario’s top court is expected to decide a case soon on whether to require a similar approach.

Like the reports written on some Indigenous offenders, known as Gladue reports, in-depth documents that tell a judge at sentencing about a Black offender’s history of exclusion and marginalization should be done from here on, or the appeal court may overturn the sentence, Justice Derrick warned.  The reports on Black offenders are known as an Impact of Race and Culture Assessment (IRCA).

The ruling was applauded by Roger Burrill, a lawyer for Rakeem Anderson, the offender in the Nova Scotia case, who was sentenced to two years of house arrest, to be followed by two years of probation for illegal gun possession.  “I think it’s impactful for the whole country, on the basis that systemic racism is completely, totally, unequivocally recognized as a factor in dealing with the principles of sentencing,” Mr. Burrill said in an interview.

It was also applauded by the Criminal Lawyers’ Association, based in Ontario, which intervened in the case. “Not to suggest colonialism is the same as what happened to Blacks in Canadian history,” Daniel Brown, a vice-president of the group, said in an interview, “but there has been a history of slavery, a history of segregation. All of that has contributed to many of these challenges they face today.”... 

The IRCA report on Mr. Anderson, co-authored by social worker Robert Wright and by Natalie Hodgson, said the offender’s best friend was killed by violence.  Ms. Hodgson testified gun possession was an accepted cultural norm in the North End of Halifax, where Mr. Anderson, in his 20s, had lived in substandard housing, surrounded by poverty and crime. “Many Black males arm themselves with guns, not because they have plans to harm someone, but rather they feel the need to protect themselves in case,” Ms. Hodgson testified.

Mr. Wright, the author of the first IRCA in Nova Scotia in 2014, testified that certain behaviours arise from “a community’s trauma and difficulty,” and that harsh treatment will neither reform the individual nor deter others from their community. His report said: “Rakeem was thrown into the world as a young adult lacking the skills and knowledge to thrive and survive; no resources, supports or interventions, without therapy for trauma and loss, and a very low elementary-level education.”

Chief Justice Williams said she had spent many hours “agonizing” over a just sentence. Mr. Anderson, a father of four young children and said to have a good heart, in some ways did not appear a good candidate for rehabilitation.  He had done little to address his education and training deficits while his case was before the court.  Ultimately though, the judge agreed with Mr. Wright and sentenced Mr. Anderson to two years of house arrest, with a 10 p.m. curfew and conditions that he attend Afrocentric therapy to address trauma, attend literacy and education programs with an Afrocentric focus and perform community service.  “Punishment does not change behaviour when the actions are rooted in marginalization, discrimination and poverty,” Chief Justice Williams said, while adding that those who endanger society must be separated from it....

The 1996 Criminal Code provision singling out Indigenous offenders for more lenient treatment has not stemmed an increase in the prison population.  Indigenous peoples now make up 31.5 per cent of federal prisoners, while they are just over 5 per cent of the country’s population.

The full ruling is available at this link.

An effective (but already quite dated) reminder that US mass incarceration has been getting a bit less mass (but still globally exceptional)

John Gramlich over at Pew Research Center has this effective new posting under the headline "America’s incarceration rate falls to lowest level since 1995." The piece looks at some data on US incarceration rates and puts them in a bit of historical and global context.  Unfortunately, the analysis is drawn from data as of the end of 2019, and a heck of a lot has obviously changed over the last 20 months.  In particular, as documented through March 2021 by the Vera Institute, there is a reasonable basis to think incarceration rates may have dropped an addition 10 to 15 percent (or more) since the end of 2019.  Still, the Pew discussion sets a useful marker for where we were heading into the pandemic, and here is some of the discussion (with links from the original):

The U.S. incarceration rate fell in 2019 to its lowest level since 1995, according to recently published data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite this decline, the United States incarcerates a larger share of its population than any other country for which data is available.

At the end of 2019, there were just under 2.1 million people behind bars in the U.S., including 1.43 million under the jurisdiction of federal and state prisons and roughly 735,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 810 prison or jail inmates for every 100,000 adult residents ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined steadily since then and, at the end of 2019, was at the same level as in 1995 (810 inmates per 100,000 adults).

The number of prison and jail inmates in the U.S. has also decreased in recent years, though not as sharply as the incarceration rate, which takes population change into account. The estimated 2,086,600 inmates who were in prison or jail at the end of 2019 were the fewest since 2003, when there were 2,086,500. The prison and jail population peaked at 2,310,300 in 2008....

A variety of factors help explain why U.S. incarceration trends have been on a downward trajectory. Violent and property crime rates have declined sharply in recent decades despite a more recent increase in certain violent crimes, especially murder. As crime has declined, so have arrests: The nationwide arrest rate has fallen steadily over the long term.

Changes in criminal laws, as well as prosecution and judicial sentencing patterns, also likely play a role in the declining incarceration rate and number of people behind bars. In late 2018, for example, then-President Donald Trump signed a law aimed at reducing the federal prison population. In its first year, the law led to shorter sentences for thousands of federal offenders and earlier release dates for many others, according to a 2020 report from the U.S. Sentencing Commission.

Despite these downward trends, the U.S. still has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Crime & Justice Policy Research at Birkbeck, University of London.  The database compares incarceration rates across more than 200 countries and territories using publicly available data for each jurisdiction....

In addition to its high rate of incarceration, the U.S. also has the largest overall number of people behind bars. With more than 2 million jail and prison inmates, the U.S.’s total incarcerated population is significantly greater than that of China (approximately 1.7 million) and Brazil (about 760,000).  But data limitations in China and other countries make direct comparisons with the U.S. difficult. The World Prison Brief notes, for instance, that China’s total excludes people held in pre-trial detention or “administrative detention” — a group that may number more than 650,000. China’s total also excludes the estimated 1 million Uyghur Muslims who are reportedly being detained in camps in the Xinjiang autonomous region.  If these two groups were added to the total, China would far surpass the U.S. in terms of its total incarcerated population.

Interesting review of African (and global) trends in capital punishment abolition

The New York Times has this interesting new article on capital punishment around the world under the headline "One by One, African Countries Dismantle Colonial-Era Death Penalty Laws."  Here are excerpts:

Lawmakers in Sierra Leone voted unanimously on Friday to abolish the death penalty, a momentous step that made the West African country the 23rd on the continent to prohibit capital punishment.

The decision was one more step in a long-sought goal of civil society organizations and legal practitioners who see the death penalty as a vestige of Africa’s oppressive colonial history.  “This is a horrible punishment and we need to get rid of it,” said Oluwatosin Popoola, a legal adviser at the rights group Amnesty International, a leading critic of capital punishment.

A vast majority of the 193 member states of the United Nations have either abolished the death penalty or do not practice it.... The vote in Sierra Leone came against the backdrop of a steady march in Africa to discard brutal laws imposed by past colonial masters.  In April, Malawi ruled the death penalty unconstitutional.  In May of 2020, Chad did the same. Nearly half of Africa’s 54 independent countries have abolished the punishment, more than double the number from less than two decades ago.

While death sentences and executions have declined globally in recent years, they do not necessarily reflect the growing number of countries that have banned capital punishment.  At least some of the declines are attributable to the Covid-19 pandemic, which slowed or delayed judicial proceedings in many countries.  And in some, like the United States, federal executions were ramped up in 2020.

As in previous years, China led the 2020 list of countries that execute the most people, killing thousands, according to Amnesty International, which compiles capital punishment statistics.  The exact figures for China are not known, as its data remains a state secret.  Next in 2020 came Iran, which executed at least 246 people, and then Egypt, Iraq, Saudi Arabia, and in sixth place the United States, with 17 executions.  Most of the American executions were of federal prisoners in the last six months of President Donald J. Trump’s term, a turnaround after years of an informal moratorium.

The legislators in Sierra Leone on Friday replaced the death sentence with a maximum life sentence for certain crimes, including murder and treason.  This means that judges will have the power to consider mitigating factors, such as whether the defendant has a mental illness.  They would have had no such flexibility if the lawmakers had voted instead to replace the death penalty with a mandatory life sentence....

Sierra Leone is the first of the English-speaking West African countries to abolish the punishment.  A decade ago, a commission in Ghana recommended abolition, but in recent years efforts have stalled.

In Nigeria, Africa’s most populous country, at least 2,700 people are on death row — the highest number by far on the African continent. Gambia had been on track to abolish the death penalty last year, when a new Constitution was drafted. But it was rejected by Parliament. Still, Gambia’s president has made some significant moves away from capital punishment, Mr. Popoola said.  These are all countries that, like Sierra Leone, obtained independence from the Britain in the late 1950s and 1960s — around the same time as that colonial power was carrying out its own last executions.

New UNODC report details interesting global realities and trends in incarceration

A section of the United Nations Office on Drugs and Crime has released this interesting new data report highlighting on its cover page "Nearly twelve million people imprisoned globally; nearly one-third unsentenced; with prisons overcrowded in half of all countries."  This release about the report provides some context and highlights: 

One in every three prisoners worldwide are held without a trial, which means that they have not been found guilty by any court of justice, according to the first global research data on prisons published by the United Nations Office on Drugs and Crime.

The research brief, released ahead of Nelson Mandela International Day on 18 July, examines the long-term trends of imprisonment, stating that over the past two decades, between 2000 and 2019, the number of prisoners worldwide has increased by more than 25 per cent, with a global population growth of 21 per cent in the same period, with 11.7 million people incarcerated at the end of 2019.  This is a population comparable in size to entire nations such as Bolivia, Burundi, Belgium, or Tunisia.

At the end of 2019 — the latest year data is available — there were around 152 prisoners for every 100,000 population. While Northern America, Sub-Saharan Africa and Eastern Europe have experienced a long-term decrease in imprisonment rates of up to 27 per cent, other regions and countries, such as Latin America and Australia and New Zealand, have seen growth over the last two decades of up to 68 per cent.

At 93 per cent, most of the persons detained in prison globally are men.  Over the past two decades, however, the number of women in prisons has increased at a faster pace, with an increase of 33 per cent versus 25 per cent for men.

For those concerned about mass incarceration in the US and elsewhere, this report provides a terrific global snapshot of recent trends and some of the latest data. For example:

As of 2019, there were an estimated 152 prisoners for every 100,000 population globally.  This global rate has not changed much over the last two decades — it stood at 151 prisoners in 2000.  There is, however, considerable sub-regional variation: as of 2019, a much larger share of the population was imprisoned in Northern America (577 per 100,000 population), Latin America and the Caribbean (267) and Eastern Europe (262), than in Sub-Saharan Africa (84), Melanesia (78), or Southern Asia (48).  Furthermore, gender-specific rates also vary substantially across sub-regions. The high male imprisonment rate in the Northern American sub-region (1,048 male prisoners per 100,000 male population) is particularly noteworthy.

"Promoting Proportionality Through Sentencing Guidelines"

The title of this post is the title of this short new paper authored by Julian V. Roberts now available via SSRN.  Here is its abstract:

This paper explores the ways that sentencing guidelines, properly constructed, can promote proportionality at sentencing.  The essay uses the sentencing guidelines created in England and Wales to illustrate the potential benefits, and challenges, associated with this method of structuring judicial discretion at sentencing. 

Reviewing realities of life imprisonment around the globe

The Economist has this effective lengthy article about life imprisonment around the world under the headline "As the death penalty becomes less common, life imprisonment becomes more so." I recommend the full piece, and here are excerpts:

Lifelong imprisonment seems to be spreading as a punishment for the worst crimes.  In 2019 Serbia passed “Tijana’s law” in response to the rape and murder of a 15-year-old girl.  It allows judges to sentence some murderers and rapists of children to life in prison without parole.  In June last year, after the gang rape of a 13-year-old girl by soldiers, Colombia overturned its constitutional ban on life sentences.  Britain’s government recently proposed legislation to reduce the age at which judges can impose “whole-life” sentences from 21 to 18.

The most heinous crimes are rare, but the world’s population of lifers is large and probably growing.  According to the World Prison List the population of inmates rose by 20%, to 10.4m, from 2000 to 2015. Meanwhile between 2000 and 2014 the number of people serving life sentences worldwide rose by 84%, to 479,000, according to “Life Imprisonment”, a recent book.  America held 40% of them, and more than 80% of those have no prospect of parole.  The Sentencing Project, a think-tank in Washington, DC, reckons that the number of Americans serving life sentences without parole rose by two-thirds, to 56,000, between 2003 and 2020. Turkey, India and Britain also lock up a lot of people for life.  South African jails hold nearly 17,000 lifers, up from 500 in 1995.  In 2014 some sort of formal life sentence was on the books of 183 countries and territories....

Opponents of life without parole hope to repeat the success of campaigners against capital punishment. Since 1976 more than 70 countries have abolished the death penalty.  The number of executions worldwide in 2020 fell for the fifth year running to its lowest in a decade, says Amnesty International, a human-rights group. In America just 17 people were executed last year.  If campaigners have their way, life sentences will be the next sort to be branded cruel and rendered unusual.

Making this case is not simple.  For one thing, life-sentencing regimes vary enormously.  Some are relatively lenient, as in Finland, where few “lifers” spend more than 15 years in prison.  Others are staggeringly harsh.  Some American states still lock up juvenile offenders for life. China imposes the sentence on corrupt officials.  Australia and Britain do so for drug offences.  Life with a chance of parole may not be much better than without it if parole is granted rarely.  Life sentences can be disguised as indeterminate or very long fixed-term sentences.  El Salvador, which does not impose life sentences, can lock people up for 60 years....

Some campaigners use the courts to curb life sentences.  A clutch of treaties prohibit governments from inflicting degrading treatment on anyone, including prisoners. In 2013 the European Court of Human Rights (ECHR) ruled that offenders have at the outset of their sentences a right to hope for eventual release. The International Criminal Court says after 25 years sentences must be reviewed.  “Twenty-five years is increasingly established in international law as the maximum minimum,” says Dirk van Zyl Smit, Ms Appleton’s co-author....

Malawi may become a model for countries seeking to avoid simply replacing capital punishment with life sentences. After its High Court struck down the death penalty as mandatory for murder in 2007, the top appeal court ordered that more than 150 condemned prisoners be resentenced. (In practice, all were serving life, since Malawi has executed no one since 1992.) It directed judges to consider the circumstances of each to determine whether the death penalty should be upheld, converted to life or to a shorter sentence....

Of the prisoners who have been resentenced, one was handed a life sentence but more than 140 have been released after completing shorter prison terms.  To prepare the way, workers on the project fanned out to villages to explain what the ex-cons had endured and to find out whether they would be welcomed back.

"Bargained Justice: The Rise of False Testimony for False Pleas"

The title of this post is the title of this new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining's innocence problem.

A view of plea discounts from across the pond

The Sentencing Academy, an expert group which examines sentencing in England and Wales, has published new report, "Sentence Reductions for Guilty Pleas: A review of policy, practice and research." This new report was authored by by Jay Gormley, Julian V. Roberts, Jonathan Bild and Lyndon Harris, and here is part of its executive summary:

Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea.  Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003).  Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction.  All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.

The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007....

The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction.  If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded.  The guideline also specifies that one-third is the maximum reduction appropriate across all cases.  A plea entered after the first stage attracts a maximum reduction of one-quarter.  The reduction awarded should decrease to a maximum of one-tenth on the first day of trial.  The guideline includes a series of exceptions to the recommended reductions.  These allow a departure from the recommended maximum reductions.  For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner.  In addition, there is a separate regime for young defendants....

The 2017 guideline modified a previous guideline issued in 2007.  The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity — rather than later in the criminal process.  In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons.  A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.

Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions.  Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline.  The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations.  No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.

"Death Penalty Abolitionism From the Enlightenment to Modernity"

The title of this post is the title of this new paper authored by Mugambi Jouet available via SSRN. Here is its abstract:

The modern movement to abolish the death penalty in the United States stresses that this punishment cannot be applied fairly and effectively.  The movement does not emphasize that killing prisoners is inhumane per se.  Its focus is almost exclusively on administrative, procedural, and utilitarian issues, such as recurrent exonerations of innocents, incorrigible racial discrimination, endemic arbitrariness, lack of deterrent value, and spiraling financial costs.  By comparison, modern European law recognizes any execution as an inherent violation of human rights rooted in dignity.  This humanistic approach is often assumed to be “European” in nature and foreign to America, where distinct sensibilities lead people to concentrate on practical problems surrounding executions.

In reality, this Article demonstrates that the significant transatlantic divergence in abolitionism is a relatively recent development.  By the late eighteenth century, abolitionists in Europe and America recurrently denounced the inhumanity of executions in language foreshadowing modern human rights norms.  Drawing on sources overlooked by scholars, including the views of past American and French abolitionists, the Article shows that reformers previously converged in employing a polyvalent rhetoric blending humanistic and practical objections to executions.  It was not before the 1970s and 1980s that a major divergence materialized.  As America faced an increasingly punitive social climate leading to the death penalty’s resurgence and the rise of mass incarceration, its abolitionists largely abandoned humanistic claims in favor of practical ones.  Meanwhile, the opposite generally occurred as abolitionism triumphed in Europe.

These findings call into question the notion that framing the death penalty as a human rights abuse marks recent shifts in Western Europe or international law.  While human rights have indeed become the official basis for abolition in modern Europe, past generations of European and U.S. abolitionists defended similar moral and political convictions. These humanistic norms reflect a long-term evolution traceable to the Renaissance and Enlightenment.  But for diverse social transformations, America may have kept converging with Europe in gradually adopting humanistic norms of punishment.

"Judicial Disparity, Deviation, and Departures from Sentencing Guidelines: The Case of Hong Kong"

The title of this post is the title of this notable new article appearing in the latest issue of the Journal of Empirical Legal Studies authored by Kevin Kwok-yin Cheng, Sayaka Ri, and Natasha Pushkarna.  Here is its abstract:

Analyzing sentencing disparity calls for more calibrated measures to capture the nuances of judicial discretion within jurisdictions that adopt strict sentencing guidelines.  This article uses an unconventional outcome variable, percent deviation, to investigate guideline digressions in a nested, multilevel model.  Percent deviation is calculated based on the difference between the guidelines’ “arithmetic starting point” and the actual starting point that a judge adopts.  Two equations were used to measure percent deviation from the arithmetic starting point before and after adjustment for guilty plea sentence reductions.

Extracting data on drug trafficking cases from an open‐source database from the Hong Kong Judiciary (n = 356), we illustrate how percent deviation can be employed as a measure of inter‐judge disparity using hierarchical linear models (HLMs).  Our findings suggest that approximately 8 to 10 percent of the deviation in sentence length can be attributed to judges’ differential sentencing behaviors.  The deviation is affected by case characteristics as well as judicial characteristics.  Due to the wide guideline ranges, departures from said guidelines’ ranges are not common.  This indicates that the guideline ranges mask the deviation and inter‐judge disparity that exist and recur.

"Does Prison Work? A Comparative Analysis of Contemporary Prison Systems in England and Wales and Finland, 2000 to Present"

The title of this post is the title of this recent paper now available via SSRN and authored by Joseph Hale. Here is its abstract:

The prison systems in Scandinavian countries have become regarded by many as some of the best in the world, with low incarceration and recidivism rates.  Conversely, riots, overcrowding, inadequate staffing numbers, and high recidivism rates surround the prison system in England and Wales; such failures raise questions on what the role of prison in society is: the prevention and reduction of crime or, the social control and marginalisation of the most vulnerable members in our community?

By focusing on the prison systems in both England and Wales and Finland, this article will argue 1) that prison system in England and Wales has in recent years developed in becoming more focused towards rehabilitation but, still faces numerous challenges including working within predominantly Victorian-era carceral spaces, limited funding, lack of vocational training opportunities and the perception within a significant sector of the public that they have become ‘holiday camps’. 2) The Finnish prison system appears to encompass much higher regard for both prisoners’ welfare and a greater emphasis on rehabilitation building upon changes throughout the twentieth and twenty-first centuries. 3) By addressing stigmas and ensuring that opportunities are actively encourage and made more available, the English system, like Finland, could become a world-leading example; reducing recidivism and incarceration rates, and demonstrating that prison can work.

A global look at pandemic-driving decarceration realities

Vice has this notable new piece headlined "COVID Has Reduced Prison Populations Around the World—Creating a Rare Chance to Fix the System."  The subheadline summaries its coverage: "The United States, United Kingdom, Australia and Europe have all reported significant decreases in prisoner numbers since the pandemic began.  Experts want it to stay that way." And here are excerpts:

A number of countries — including the United States, the United Kingdom and Australia — have reported major decreases in prisoner numbers as a result of pandemic-related factors such as reductions in crime, more leniency from authorities on bail applications, and tighter regulations around incarceration.  Legal experts have heralded the statistics as a cause for optimism, while at the same time warning that the numbers could rise again once societies return to some semblance of the old normal.  And many have therefore suggested that, if nothing else, the coronavirus pandemic could signal an opportunity for nations to rethink the way they operate their criminal justice systems.

These are the facts. Between March and June, more than 100,000 people were released from state and federal prisons in the United States—a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  In the whole of 2019, that same prison population decreased by just 2.2 percent.

Between March and July, 4,435 people were released from prisons in England and Wales — a decrease of about five percent. Between March and June, France released some 14,000 inmates — a decrease of about 23 percent — and between February and May, Italy, one of the first countries to experience the devastation of the pandemic on a national scale, released some 7,850 inmates — a decrease of about 15 percent.

Australia, meanwhile, saw the adult prison population drop by almost 11 percent in the state of New South Wales between mid-March and mid-May, and almost 13 percent in the state of Victoria between the end of February and the end of June.  These are the two most populous states in the country, as well as the two worst-affected by COVID-19....

Taken altogether, these figures reveal that the global pandemic has, overall, led to a positive development in the way criminal justice systems operate around the world.  The disruptions caused by COVID-19 have meant less people being incarcerated and detained unnecessarily.  And experts are calling for it to stay that way.

“This is absolutely a chance for countries to rethink the way they run their justice system,” Professor Lorana Bartels, Program Leader of Criminology at the Australian National University, told Vice News via email. “It should compel renewed attention to addressing underlying factors that contribute to crime and reoffending, including insecure housing, mental health (in particular, trauma), substance abuse, education, and employment.

“Especially as economies struggle, finding equally effective but much cheaper alternatives to prison will be imperative.”...

“This is a positive development,” said Professor Bartels. “There is no clear link between imprisonment rates and crime rates, and these decreases are a reminder that an inexorable rise in our use of imprisonment is neither beneficial, nor inevitable… there are better (and cheaper) ways of approaching criminal justice issues.”

Notable review of worldwide decarceration efforts in response to COVID-19

Via this webpage overview and this key findings document, the group Harm Reduction International has assembled some interesting information about how countries around the world have been approaching decarceration efforts in response to the coronavirus.  Here are excepts of the overview and key findings:

Harm Reduction International monitored prison decongestion measures adopted around the world between March and June 2020 in response to COVID-19, and found evidence of such schemes in 109 countries.  We tracked criteria for eligibility and implementation of the measures. Noting that UN experts recommended countries release "those charged for minor and non-violent drug and other offences" in the context of COVID-19, we further focused on how these measures impact on people in prison for drug offences.

Despite a scarcity of official information, we found that around a fourth of countries implementing decongestion schemes explicitly excluded people incarcerated for drug offences; effectively prioritising punitive approaches to drug control over the health of the prison population and the individual.

Looking at the cumulative effect of COVID-19-related schemes, we observe that in total, they reduced the global prison population by less than 6%, as at 24 June 2020.  This falls significantly short of expectations and the significant political commitments made in the name of public health.

109 countries and territories adopted decongestion measures in an attempt to curb the risk of COVID-19 transmission within prisons. The main measures introduced are:

• early releases, often through sentence commutation (54 countries),
• pardons (34 countries),
• diversion to home arrest (16 countries), and
• release on bail/parole (8 countries).

In some countries (including Belgium, Colombia, Costa Rica and Iran) release measures are temporary, therefore prisoners are expected to return to prisons at the end of the emergency....

A close up on countries:  

• No decongestion measures were reported in China and Russia, the countries with respectively the 2nd and 4th highest prison populations in the world.
• The majority of countries in Africa and Latin America introduced decongestion schemes.
• The most significant gap in uptake can be observed in Eastern Europe and Central Asia, where only Belarus and Kyrgyzstan adopted ad-hoc measures.  Several Southeast Asian countries adopted measures to decongest prisons, which are severely overcrowded — mainly due to the high rate of incarceration for drug offences. Indonesia, the Philippines, Myanmar and Thailand released a total of 90,000 prisoners.  However, people detained for certain drug offences are excluded from eligibility in Indonesia and the Philippines.
• Hundreds of foreign nationals, many of whom are migrant workers, were repatriated following pardons and other early release measures adopted in the Middle East —  including 150 Bangladeshi nationals imprisoned for drug offences in Bahrain.

"The Limits of Fairer Fines: Lessons from Germany"

The title of this post is the title of this new report from the The Criminal Justice Policy Program at Harvard Law School.  Here is a small part of the start and end of the long "Executive Summary" from the 156-page report:

Over the last few decades, advocates in the United States have exposed the injustices of high fines and fees that courts charge people sentenced to criminal and civil violations. Courts impose fines as punishment for offenses — often in addition to other punishment such as probation or jail — and they charge fees (also referred to as costs or surcharges) to fund the court and other government services.  The number of fees and the amounts assessed have been increasing over the last decades, in part because fees are being used to generate revenue for local and state governments.  Rarely, if ever, do U.S. courts consider people’s ability to pay before imposing these sanctions.  When people are unable to pay, they can become trapped in the system, facing a cycle of consequences including additional fees, court hearings, warrants, arrest, and incarceration.

In response to advocacy exposing how these punitive practices harm people and communities, jurisdictions have begun to reform.  The most direct efforts seek to repeal revenue-raising fines and fees.  More common, however, is the adoption of requirements that courts assess people’s ability to pay at the sentencing hearing, and/or before punishing people for nonpayment.  Though high monetary sanctions are prevalent in all courts, much of this reform attention has focused on misdemeanor courts that sentence ordinance violations and misdemeanor crimes. This is because fines are a common component of misdemeanor criminal sentences, and because there are clearer conflicts of interest inherent in the structure of some lower level courts that rely on fines and fees to fund their operations.

It is in this reform context that academics, advocates, and government leaders have considered day fines as a potential model for the United States.  Day fines are used in over 30 countries in Europe and Latin America to calculate fine amounts that are tailored to people’s ability to pay.   Day fines are set using a two-part inquiry.  Courts first consider the nature and seriousness of the offense, measured in units or days.  For example, a common low-level misdemeanor may receive 20 units.  Courts then calculate how much the person can pay per day/unit based on their individual financial circumstances.  The amount a person must pay per day is called the daily rate.  Someone earning very little may be required to pay $5 per unit for a total fine of $100, while someone earning more may be required to pay $20 per unit for a total fine of $400.  Day fines provide a framework for setting a fine based not just on the nature of the offense, but also on how much a fine will impact the person given their financial circumstances.  The resulting fines are theoretically more fair because people of different means experience the fines similarly.  A $400 fine affects a person earning that amount per week differently than a person who earns that amount in one day. In the United States, day fines hold the promise not only of making fines more fair, but also of making fines affordable to avoid the spiral of negative consequences that people face upon nonpayment.

Despite the theoretical resonance of day fines as a potential solution, there has been very limited information available about how this model works in practice.  This project fills this knowledge gap....

Germany’s example provides a useful starting point for jurisdictions in the United States that are considering the day fines model.  Germany’s experience demonstrates the need for strong political support, public education, and judicial buy-in, as well as a robust daily rate formula that will ensure day fines can be set at levels that people can afford to pay.  Germany also shows us that considering ability to pay at sentencing in every case is possible without being unduly cumbersome.  When considering day fines, jurisdictions should be thoughtful about their own political, socio-economic, and cultural realities, as well as the specific problems they are trying to address and how day fines would fit into their existing misdemeanor system.

This Report begins with a detailed overview of day fines in Germany, including specific policy details about the system’s design.  In the second part, we analyze that system and identify areas of consideration for those who might implement day fines in the United States.  We conclude with a decision guide for jurisdictions and advocates considering day fines.

"Sentencing Rape A Comparative Analysis"

The title of this post is the title of this new book authored by Graeme Brown for which I received an announce from the publisher offering a discount for SL&P readers.  Here are the details:

This book presents an in-depth comparative study of sentencing practice for rape in six common law jurisdictions: England and Wales, Scotland, Ireland, Canada, New Zealand, and South Africa.  It provides a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, and the victim’s role in sentencing.  Given the increasingly common practice of perpetrators using mobile and online technologies to film or photograph the commission of sexual offences, the book examines recent socio-legal research on technology-facilitated sexual violence and considers the implications for sentencing.

By building on recent scholarship on judicial decision making in sentencing and case law — comprising over 250 decisions of the relevant appellate courts — the book explores and critically analyses judicial approaches to rape sentencing. The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in ‘non-guideline’ jurisdictions.  In so doing, this book seeks to establish general principles for sentencing rape, assisting in the imposition of proportionate sentences.

This book will be of interest to judges and practising lawyers; to those researching criminal law, criminal justice, criminology, and gender studies; and to policy makers, including sentencing councils and commissions, in common law jurisdictions worldwide.

Graeme Brown is a solicitor and Assistant Professor in Criminal Law at Durham Law School, Durham University.

May 2020   |   9781509917570   |   328pp   |   Hbk   |    RSP: £75  

Discount Price: £60.  Order online at www.hartpublishing.co.uk – use the code HE6 at the checkout to get 20% off your order!

Connecting realities of incarceration to the outbreak of coronavirus

I have now seen a handful of notable stories connecting incarceration and coronavirus.  Here is a sampling:

• From the Los Angeles Times, "They were already in China’s prisons. Now the coronavirus is there, too"

• From the BBC, "Coronavirus: Iran temporarily frees 54,000 prisoners to combat spread"

• From the PA Post, "Coronavirus could pose big problem for Pennsylvania prisons and jails"

• From The Hill, "4 ways to protect our jails and prisons from coronavirus"

UPDATE: On the afternoon of March 4, I receive via email this press release from NACDL titled "Nation’s Criminal Defense Bar Calls for Prompt Implementation of Comprehensive, Concrete, and Transparent COVID-19 Coronavirus Readiness Plans for Nation’s Prisons, Jails, and Other Detention Facilities."

"The economic and moral costs of our inhumane prison system"

The title of this post is the headline of this recent Washington Examiner commentary authored by Arthur Rizer.  Here are excerpts:

In the U.S., we say we care about human dignity and rehabilitation. We say we want to promote public safety.  But our actions show a different reality. As a result, the American incarceration system produces little benefit to either those caught within the system or those forced to pay for it.

Mississippi, for example, houses more inmates on a per capita basis than nearly any other state in the country.  The reason has nothing to do with crime rates there but rather with how the state chooses to address crime.  Mississippi’s draconian habitual-offender laws have resulted in thousands of people serving decades in prison. Because these laws require prison sentences even for minor, nonviolent offenses, the punishment is often severely disproportionate to the underlying conduct.  A person can be sentenced to die in prison for possessing marijuana if they have two prior convictions — even if one conviction was for something as minor as shoplifting.

The conditions in Mississippi prisons are an added affront to America’s purported commitment to protecting human dignity.  Indeed, stories and photos of prison conditions at the state’s Parchman Farm penitentiary that were leaked earlier this year prompted Families Against Mandatory Minimums to send a letter to the U.S. Department of Justice’s Civil Rights Division demanding an investigation into the facility’s “unsafe conditions, violence, weapons, and understaffing.”

Unsurprisingly, U.S. prisons are also extraordinarily deadly.  Last year, more than 75 people died in Mississippi Department of Corrections custody — 16 in August alone. In 2019, the number of prisoner deaths spiked again.  Overcrowding, inadequate resources, and a focus on retribution over rehabilitation all contribute to an environment that is an affront to human dignity.

We pay not only a moral cost for this ineffective and inhumane system but also an economic one. Mississippi spends nearly $1 million a day on its prison system. But that money is not spent on making sure people are prepared to become productive members of society, so it is no surprise that many people return to prison after they are released. Warehousing people in prisons and then releasing them into society without any support, training, or opportunity rarely results in success....

Germans have a fundamentally different way of thinking about corrections. Article 1 of Germany’s postwar Constitution states that human dignity is “inviolable,” and one sees this value implemented nowhere more clearly than in the German approach to incarceration....  To Germans, the loss of freedom, not cruel treatment or inhumane prison conditions, is the punishment.  And that loss is administered for the shortest time necessary.  Approximately 75% of prison sentences are for 12 months or less, and 92% of sentences are for two years or less.  Compare this to the U.S., where the approximate average sentence is three years.

For Germans, corrections are not about humiliation or retribution.  They are about healing.  This means that their focus is squarely on rehabilitation.  Normalization, or making life in prison closely resemble life in a community, and preparation for reentering society take precedence over everything else.  Similarly, resocialization replaces isolation. Instead of simply treating inmates as potential problems, guards act as motivators and actively create a positive culture within the prison community.  By learning to respect the humanity of those within their care, the guards play an integral role in preparing those in prison for reentering their communities....

In our approach to criminal justice and corrections, we have fallen behind other major countries in the world.  Like the Germans, we have to change the way we think about our correctional systems.  Reforming Mississippi’s habitual sentencing laws and commuting overly harsh sentences would be a good place to start.

"The Case for Race-Based Sentencing"

The title of this post is the headline of this new Vice piece discussing an interesting sentencing issues being engaged by Canadian courts. The subheadline of the piece summarizes the essentials: "In a case that could change how judges punish Black people, Ontario's top court will soon decide how much systemic racism should be taken into account when sentencing." Here are excerpts (links from original):

[W]hen [Kevin] Morris was convicted of possessing a loaded gun, his first offence, Ontario Superior Court Justice Shaun Nakatsuru decided to reduce his sentence from four years to 15 months, noting the systemic disadvantages Morris faced in his life as a Black man growing up in Toronto.  Morris’s sentence was further reduced to one year because police interrogated him after he had requested a lawyer.

To help make his decision, Nakatsuru used a cultural assessment of Morris, written by a clinical social worker and consisting of interviews and data that gave insight on him.  In his judgment, Nakatsuru wrote, “You began to notice how many were dying in your neighbourhood. Dying of violence. You did not have a lot of options. You decided you would live with it. That you would survive. Yet at the same time, you felt hopelessness.”

But in the spring the Crown will challenge that decision in the Court of Appeal, arguing that the judge was too lenient in his decision. If Morris wins, it could set a precedent for the use of cultural assessments in sentencing....

Nana Yanful, a lawyer for the Black Legal Action Centre, one of the 14 interveners on Morris’s appeal case, says that Morris’s case gives courts a chance to address the circumstances of Black offenders. She says the courts should stop asking if race can be a reason for leniency, and start to ask, if the offender wasn’t Black, how likely is it that they would be involved with the criminal justice system?

Judges in Canada already consider personal circumstances such as mental health, age, and past criminal record when sentencing an offender. Since 1999 judges have been legally obliged to consider the systemic disadvantages Indigenous offenders experienced before sentencing.

This is called the Gladue principle, and came into effect after a Cree woman pleaded guilty to manslaughter and was handed a three-year prison sentence. The Crown requested a conditional sentence, due to the offender’s history of substance abuse and lack of education. The judge did not grant the request, since she was off reserve at the time of the murder.

But after the case went to the Supreme Court, and the sentencing decision was upheld, the court clarified a section of the Criminal Code that would allow judges to recommend restorative justice measures for Indigenous offenders, such as reduced sentencing.

There is no similar principle for Black offenders, who make up 9 percent of the federal prison population, even though Black people only represent 3.5 percent of the population. The Office of Correctional Investigators reported a 69 percent increase of Black inmates between 2005 and 2015. While lawyers and judges can request cultural assessments, it’s up to the presiding judge to decide if it’s appropriate based on the circumstances of the case.

In Nova Scotia there has been a growing trend of judges considering cultural assessments in sentencing Black offenders. In one notable Nova Scotia Supreme Court case, Honourable Justice Jamie Campbell reviewed the cultural assessment of an African Indigenous man convicted of second-degree murder, before sentencing him to life in prison in 2017. Although the cultural assessment did not lead to a lighter sentence, it prompted “a judge to struggle with difficult questions for which there may not really be entirely clear answers,” the decision stated.

“That is why the cultural assessment is both a fascinating and a challenging document,” Campbell wrote in his judgment. “It provides information that makes it harder, not easier, to reach a conclusion. That is a good thing. The challenge comes from acknowledging the role that race plays in the prevalence of violent crime among young African Nova Scotian men while not falling into racist traps.”

Nova Scotia has been collecting data for cultural assessments since 2016, with 20 total requests. And requests have been increasing: In 2018 there were five requests for cultural assessments, while 11 have been requested so far this year.

A defence win in Morris’s case would set the same standard in Ontario, and also affect the disproportionate rate of incarcerated Black people in Canada. “What we’ve been doing so far isn’t working. The disproportionate impact is leading to a disproportionate outcome,” Yanful said. “So let’s take a step back and see what the sentencing court, and what the criminal justice system can do to be able to address this issue meaningfully.”

Notable new materials from the Drug Policy Alliance on drug decriminalization in Portugal

There is no shortage of talk about trying to move from a criminalization approach to a public health model in response to drug use and misuse, but there often is a shortage of resources examining efforts to make this move. Thus, I am very pleased to see that the Drug Policy Alliance (DPA) has some terrific new resources on this topic.  This DPA press release, titled "DPA Releases New Briefing Paper & Video, Drug Decriminalization in Portugal: Learning From a Health and Human-Centered Approach," provide a link, background and some details:

The Drug Policy Alliance is releasing a new video and briefing paper examining the human impact and lessons to be drawn from Portugal’s removal of criminal penalties for the possession of drugs for personal use.
 
In March 2018, DPA led a delegation of advocates from 35 racial justice, criminal justice, and harm reduction organizations across the U.S. to Portugal to learn from its health and human-centered approach to drug use.  The group included individuals and organizations representing those hit hardest by the drug war — from those who have been incarcerated for drug offenses to those who have lost loved ones to an overdose. 

Since Portugal enacted drug decriminalization in 2001, the number of people voluntarily entering treatment has increased significantly, overdose deaths and HIV infections among people who use drugs have plummeted, incarceration for drug-related offenses has decreased, and rates of problematic and adolescent drug use has fallen....

By contrast, in the United States, the dominant approach to drug use is criminalization and harsh enforcement, with 1.4 million arrests per year for drug possession for personal use — that makes drug possession the single most arrested offense in the United States. Disproportionately, those arrested are people of color: black people are three times as likely as white people to be arrested for drug possession for personal use.  In addition to possible incarceration, these arrests can create devastating barriers to access to housing, education and employment that systematically oppress entire populations.  Meanwhile, 72,000 people are dying every year of overdose in the United States....
 
While several other countries have had successful experiences with decriminalization — including the Czech Republic, Spain and the Netherlands — Portugal provides the most comprehensive and well-documented example. The success of Portugal’s policy has opened the door for other countries to rethink the practice of criminalizing people who use drugs.  Delegation participants generally agreed that it’s time for the United States to do so as well.
  
“I really would love to see the public health community step up and really demand that the criminal justice system separate themselves,” said Deon Haywood, executive director of New Orleans-based Women With A Vision, who joined DPA’s delegation.  “They need to divest from each other. Addiction should be handled as a public health issue.  Drug use should be handled as a public health issue.  The criminal justice system needs to let go.” 
  
As detailed in a recent DPA report, It’s Time For the U.S. to Decriminalize Drug Use and Possession, there’s an emerging public, political, and scientific consensus that otherwise-law-abiding people should not be arrested simply for possessing an illegal drug for personal use.  A broad range of stakeholders — from the American Public Health Association & World Health Organization to the Movement for Black Lives & NAACP — have taken positions in favor of drug decriminalization.

"Neuroscience and Punishment: From Theory to Practice"

The title of this post is the title of this notable new paper appearing in the journal Neuroethics and authored by Allan McCay and Jeanette Kennett.  Here is its abstract:

In a 2004 paper, Greene and Cohen predicted that neuroscience would revolutionise criminal justice by presenting a mechanistic view of human agency that would change people’s intuitions about retributive punishment.  According to their theory, this change in intuitions would in turn lead to the demise of retributivism within criminal justice systems.  Their influential paper has been challenged, most notably by Morse, who has argued that it is unlikely that there will be major changes to criminal justice systems in response to neuroscience.

In this paper we commence a tentative empirical enquiry into the claims of these theorists, focusing on Australian criminal justice.  Our analysis of Australian cases is not supportive of claims about the demise of retributive justice, and instead suggests the possibility that neuroscience may be used by the courts to calibrate retributive desert.  It is thus more consistent with the predictive claims of Morse than of Greene and Cohen.  We also consider evidence derived from interviews with judges, and this leads us to consider the possibility of a backlash against evidence of brain impairment.  Finally we note that change in penal aims may be occurring that is unrelated to developments in neuroscience. 

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

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

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

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

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

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

Another big accounting of the big failings of the global drug war

As summarized in this CNN piece, the International Drug Policy Consortium (IDPC) has produced a big new report saying "the United Nations' drug strategy of the past 10 years has been a failure." Here is more:

The report claims that UN efforts to eliminate the illegal drug market by 2019 through a "war on drugs" approach has had scant effect on global supply while having negative effects on health, human rights, security and development. According to the report, drug-related deaths have increased by 145% over the last decade, with more than 71,000 overdose deaths in the United States in 2017 alone. At least 3,940 people were executed for drug offenses around the world over the last 10 years, while drug crackdowns in the Philippines resulted in around 27,000 extrajudicial killings.

The IDPC, a network of 177 national and international NGOs concerned with drug policy and drug abuse, is urging the UN General Assembly Special Session on Drugs to consider a different approach to narcotics strategy for the next 10 years in the run-up to a March 2019 summit in Vienna, Austria. "This report is another nail in the coffin for the war on drugs," said Ann Fordham, the Executive Director of IDPC, in a prepared statement.

"The fact that governments and the UN do not see fit to properly evaluate the disastrous impact of the last ten years of drug policy is depressingly unsurprising. "Governments will meet next March at the UN and will likely rubber-stamp more of the same for the next decade in drug policy. This would be a gross dereliction of duty and a recipe for more blood spilled in the name of drug control."

Farhan Haq, deputy spokesman for the UN Secretary-General, responded to CNN's Richard Richard on Monday. "Obviously, there have been significant successes and failures in dealing with the problem of drug trafficking, and we've made that clear over the many remarks we've made about the drug problem each year," he said....

In 2017, Mexico, for example, recorded its most murderous year on record due to soaring levels of drug-related violence. As previously reported by CNN, the Mexican National Institute of Statistics and Geography revealed that there were 31,174 homicides over the course of the year -- an increase of 27% over 2016. In addition to fueling violence, the existing policy of criminalizing drug use has also resulted in mass incarceration, the report said. One in five prisoners are currently imprisoned for drug offenses, many on charges related to possession for personal use....

"What we learn from the IDPC shadow report is compelling. Since governments started collecting data on drugs in the 1990s, the cultivation, consumption and illegal trafficking of drugs have reached record levels," wrote Helen Clark, former Prime Minister of New Zealand and a member of the Global Commission on Drug Policy, in the report's foreword. "Moreover, current drug policies are a serious obstacle to other social and economic objectives and the 'war on drugs' has resulted in millions of people murdered, disappeared, or internally displaced."

The full report is available at this link.

"Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty"

The title of this post is the title of this new report from the Cornell Center on the Death Penalty Worldwide. Here are excerpts from its executive summary:

We estimate that at least 500 women are currently on death rows around the world. While exact figures are impossible to obtain, we further estimate that over 100 women have been executed in the last ten years — and potentially hundreds more.  The number of women facing execution is not dramatically different from the number of juveniles currently on death row, but the latter have received a great deal more attention from international human rights bodies, national courts, scholars, and advocates.

This report aims to shed light on this much-neglected population.  Few researchers have sought to obtain information about the crimes for which women have been sentenced to death, the circumstances of their lives before their convictions, and the conditions under which they are detained on death row.  As a result, there is little empirical data about women on death row, which impedes advocates from understanding patterns in capital sentencing and the operation of gender bias in the criminal legal system.  To the extent that scholars have focused on women on death row, they have concluded that they are beneficiaries of gender bias that operates in their favor. While it is undeniable that women are protected from execution under certain circumstances (particularly mothers of infants and young children) and that women sometimes benefit from more lenient sentencing, those that are sentenced to death are subjected to multiple forms of gender bias.

Most women have been sentenced to death for the crime of murder, often in relation to the killing of family members in a context of gender-based violence.  Others have been sentenced to death for drug offenses, terrorism, adultery, witchcraft, and blasphemy, among other offenses. Although they represent a tiny minority of all prisoners sentenced to death, their cases are emblematic of systemic failings in the application of capital punishment....

Our research also indicates that women who are seen as violating entrenched norms of gender behavior are more likely to receive the death penalty. In several cases documented in this report, women facing the death penalty have been cast as the “femme fatale,” the “child murderer,” or the “witch.”  The case of Brenda Andrew in the United States is illustrative. In her capital trial, the prosecution aired details of her sexual history under the guise of establishing her motive to kill her husband.  The jury was allowed to hear about Brenda’s alleged extramarital affairs from years before the murder, as well as details about outfits she wore.  The trial court also permitted the prosecutor to show the underwear found in the suitcase in her possession after she fled to Mexico, because it showed that she was not behaving as “a grieving widow, but as a free fugitive living large on a Mexico beach.”  As one Justice of the Court of Criminal Appeals of Oklahoma noted, Brenda was put on trial not only for the murder of her husband but for being “a bad wife, a bad mother, and a bad woman.”...

Our country profiles aim to provide a snapshot of women facing the death penalty in several major regions of the world.  The stories of women on death row provide anecdotal evidence of the particular forms of oppression and inhumane treatment documented in this report.  It is our hope that this initial publication, the first of its kind, will inspire the international community to pay greater attention to the troubling plight of women on death row worldwide.

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018"

A pair of new reports from the Prison Policy Initiative compares US states to 166 countries on incarceration in order to highlight how each state relies on prisons and jails relative to the rest of the world. These report are titled "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018." Here are snippets from the first (and clicking through to see the graphics is a must for both):

Oklahoma now has the highest incarceration rate in the U.S., unseating Louisiana from its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth . Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation, ... every state appears extreme.  23 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 9th in the world, just below Brazil and followed closely by countries like Belarus, Turkey, Iran, and South Africa.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts.  Others struggle with violent crime on a scale far beyond that in the U.S.: El Salvador, Russia, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “land of the free,” tops them all....

For four decades, the U.S. has been engaged in a globally unprecedented experiment to make every part of its criminal justice system more expansive and more punitive.  As a result, incarceration has become the nation’s default response to crime, with, for example, 70 percent of convictions resulting in confinement — far more than other developed nations with comparable crime rates.

Today, there is finally serious talk of change, but little action that would bring the United States to an incarceration rate on par with other stable democracies.  The incremental changes made in recent years aren’t enough to counteract the bad policy choices built up in every state over decades.  For that, all states will have to aim higher, striving to be not just better than the worst U.S. states, but among the most fair and just in the world.

Updated archive of European Union engagement concerning death penalty in the United States

I have the great honor and pleasure of talking today about the application of the death penalty in Ohio to a delegation of the European Union to the United States. Prior to the meeting, the EU delegation drew my attention to this online archive of (past) EU engagement in the US on death penalty.

This archive includes letters of appeal, official statements and the link, and it has been recently modified to update all the links, going back 18 years. Here is the description that sets up the links that follow:

The EU unconditionally supports the right to life and the right not to be subject to cruel, inhuman, and degrading treatment or punishment— standards recognized in the Universal Declaration of Human Rights, other international human rights agreements, and many national constitutions.

Abolition of the death penalty is a prerequisite for EU membership, and the European Union actively promotes a global moratorium on the use of the death penalty and protests against the practice in individual cases throughout the world.  The EU has insisted that bilateral extradition treaties with non-EU countries automatically preclude the use of the death penalty in all cases of extradited prisoners from EU Member States.

As a global leader in the fight against torture and other forms of ill treatment, the EU works to prevent and eliminate torture and to end the impunity of those responsible.  Through its Guidelines on Torture and Other Cruel, Inhuman and Degrading Treatment, the EU strives to persuade non-EU countries to produce and apply effective measures to outlaw torture.  The EU also champions anti-torture initiatives in international forums, consistently raises its concerns with other countries through political dialogue and bilateral initiatives, and provides substantial funding for relevant projects by civil society organizations.

Thoughtful BBC series of articles on "Criminal myths: Misconceptions about criminals and crime"

I just came across this series of special articles via BBC Future under the headine "Criminal Myths."  Here is how this introductory piece sets up what follows:

In both the UK and the US violent crime has recently been rising, records show. There are now also record numbers of individuals behind bars around the world, about 10.35 million, a figure that has increased by 20% in under two decades.  The highest number of these are in the United States, where those convicted are serving increasingly long sentences.

Among the prison population, 70,000 are women and girls, a figure that has been rising higher than for males.  A high proportion of women behind bars have mental health problems and have been victims of abuse.

Despite these rises, we are not living in the most violent era of history (in 1991 the violent crime figures in the US were about double those of today).  While in the UK, although police figures indicate that crime is rising, a national crime survey found that most crimes "either fell or were at a similar level".

Meanwhile in the Netherlands, prisons are closing due to a lack of inmates to fill cells, as our reporter discovered on a visit to a Dutch jail, though this does not necessarily mean that crime is dramatically falling. These examples show that statistics can be confusing, and there is often more going on than the numbers suggest, such as falling police officers, longer jail terms, to a rise in community sentencing.

That's why we are taking a look at some of these issues, to tackle the misconceptions about criminals and the factors that shape crime.

Here are the full headline of some of the articles in this series:

• "How prison changes people: Longer and harsher prison sentences can mean that prisoners’ personalities will be changed in ways that make their reintegration difficult, finds Christian Jarrett."
• "The myth behind long prison sentences: Does spending ‘100 years’ behind bars actually help deter crime? BBC Future explores the impact of long prison sentences, and looks at how Norway is taking an opposite approach."
• "Locked up and vulnerable: When prison makes things worse. Many incarcerated women are victims themselves -- of mental health problems, and of crimes worse than their own. Is prison the wrong place for them?"
• "The unique way the Dutch treat mentally ill prisoners: In the Netherlands, criminals with mental illness are treated completely differently from many other countries."

India government moving forward with the death penalty for child rape

This new Bloomberg piece, headlined "India Approves Death Penalty for Child Rapists After Outcry," provides a useful reminder that the United States is not the only nation inclined to respond with punitive new laws in the wake of a high-profile horrible crime.  Here are the basics:

Prime Minister Narendra Modi’s cabinet cleared an ordinance that imposes the death penalty on convicted child rapists.

The amendment to the nation’s criminal law, which allows the death sentence in cases of rape of girls under age 12, was approved on Saturday, an official told reporters in New Delhi after the cabinet meeting. Once the president signs the ordinance, it will become a law.

The government acted after the recent failure of India’s ruling party to act on the growing outrage over two brutal rapes risked eroding Modi’s support ahead of state and national elections. United Nations Secretary General Antonio Guterres had urged authorities to act, according to the Times of India newspaper.

The cabinet also raised the minimum sentence in cases of rape of a woman to 10 years from the current seven, and in the rape of a girl under 16 years of age to 20 years from 10. In a crime that shocked India, an 8-year-old Muslim girl in Jammu and Kashmir was kidnapped in January, drugged, held for several days in Kathua, was raped multiple times then murdered, local police said. In Uttar Pradesh, a state lawmaker from Modi’s Bharatiya Janata Party is accused in a June 2017 rape case in Unnao.

Of course, this particular punitive reaction to an awful child rape is no longer possible in the US: the Supreme Court ruled a decade ago in Kennedy v. Louisiana that the use of the death penalty as punishment for child rape is unconstitutionally severe and thus barred by the Eighth Amendment.

Interestingly, just the other day I was doing a little research on the death penalty for non-capital crimes and I came across one especially notable reaction to the Kennedy ruling.  Here is the quote, and readers are welcome to guess who said it before clicking through to the link:

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," [this prominent federal politician] said at a news conference.  "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution." 

Former South Korean Prez gets 24 years in prison from three-judge sentencing panel

I do not usually cover many sentencing stories from other countries, but this news out of South Korea struck me as blogworthy: "Park Geun-hye, South Korea’s Ousted President, Gets 24 Years in Prison."  Here are some of the particulars, via the New York Times:

Park Geun-hye, South Korea’s impeached and ousted president, was sentenced on Friday to 24 years in prison on a variety of criminal charges, in a case that exposed the entrenched, collusive ties between South Korea’s government and huge conglomerates like Samsung.

A three-judge panel at the Seoul Central District Court also ordered Ms. Park to pay $17 million in fines, in a ruling that marked a climactic moment in an influence-peddling scandal that shook the country’s political and business worlds.

Ms. Park’s conviction on bribery, coercion, abuse of power and other charges was the first lower-court ruling on a criminal case to be broadcast live in South Korea.  She is the country’s first former leader to be arrested and convicted of crimes since two former military-backed presidents were found guilty of sedition and corruption in the 1990s.

Ms. Park did not appear in court for her case on Friday.  She has refused to attend any court hearings since October, staying in her solitary prison cell, complaining of poor health and insisting that she is the victim of a political conspiracy.

Although Ms. Park is expected to appeal her prison term, the sentencing is likely to bring a sense of closure to the corruption scandal that engulfed her.  Her supporters, mostly elderly South Koreans, have insisted on her innocence, and hundreds of them protested outside the courthouse Friday, demanding her release and calling her a victim of “political revenge.”...

At the center of the scandal that toppled Ms. Park’s government is the allegation that she and Choi Soon-sil, a longtime friend and confidant, collected or demanded large bribes from three big businesses, including Samsung, the country’s largest family-controlled conglomerate. Separately, the two women were accused of coercing 18 businesses into making donations worth $72 million to two foundations that Ms. Choi controlled.

The same court panel that handled Ms. Park’s case called her and Ms. Choi criminal co-conspirators when it sentenced Ms. Choi to 20 years in prison on Feb. 13 on bribery, extortion and other criminal charges.

Ms. Park has tearfully apologized to the public, cutting ties with Ms. Choi and insisting that she was not aware of many of her friend’s illegal activities.  Her lawyers also appealed for leniency, arguing that the money collected from big businesses was not used for her personal gain.  Some of the alleged bribes taken from Samsung were used to finance the equestrian pursuits of Ms. Choi’s daughter.

In Friday’s verdict, Ms. Park was convicted of collecting or demanding nearly $22 million in bribes from three of South Korea’s top business conglomerates, including Samsung, Lotte and SK.  Separately, she was found guilty of coercing the three companies — and 15 other businesses — into making donations worth $72 million to two foundations controlled by Ms. Choi.

"Prosecutors and Democracy: A Cross-National Study"

The title of this post is the title of this recently published book by Máximo Langer and David Sklansky. Here is how the publisher describes the book's contents:

Focusing on the relationship between prosecutors and democracy, this volume throws light on key questions about prosecutors and the role they should play in liberal self-government.  Internationally distinguished scholars discuss how prosecutors can strengthen democracy, how they sometimes undermine it, and why it has proven so challenging to hold prosecutors accountable while insulating them from politics.  The contributors explore the different ways legal systems have addressed that challenge in the United States, the United Kingdom, and continental Europe.  Contrasting those strategies allows an assessment of their relative strengths -- and a richer understanding of the contested connections between law and democratic politics. Chapters are in explicit conversation with each other, facilitating comparison and deepening the analysis. This is an important new resource for legal scholars and reformers, political philosophers, and social scientists.

"American Exceptionalism in Crime and Punishment"

The title of this post is the title of this new book published by Oxford University Press. The book is an edited collection of essays curated by Kevin Reitz. Here is the publisher's description of the book:

Across the U.S., there was an explosion of severity in nearly every form of governmental response to crime from the 1970s through the 2000s.  This book examines the typically ignored forms punishment in America beyond incarceration and capital punishment to include probation and parole supervision rates-and revocation rates, an ever-growing list of economic penalties imposed on offenders, and a web of collateral consequences of conviction unimaginable just decades ago.  Across these domains, American punitiveness exceeds that in other developed democracies-where measurable, by factors of five-to-ten.  In some respects, such as rates of incarceration and (perhaps) correctional supervision, the U.S. is the world "leader."  Looking to Europe and other English-speaking countries, the book's contributors shed new light on America's outlier status, and examine its causes.  One causal theory examined in detail is that the U.S. has been exceptional not just in penal severity since the 1970s, but also in its high rates of high rates of homicide and other serious violent crimes.

With leading researchers from many fields and national perspectives, American Exceptionalism in Crime and Punishment shows that the largest problems of crime and justice cannot be brought into focus from the vantage point of any one jurisdiction.  Looking cross-nationally, the book addresses what it would take for America to rejoin the mainstream of the Western world in its uses of criminal penalties.

Kevin kindly sent me a copy of the book's Table of Contents and his introductory chapter for posting. That chapter can be downloaded below, following these passages from that chapter's introduction:

One goal of this book is to broaden the scope of American Exceptionalism in Crime and Punishment (AECP) inquiry to include sanctions beyond incarceration and the death penalty.  From what we know, it is reasonable to hypothesize that the United States imposes and administers probation, parole, economic sanctions, and collateral consequences of conviction with a heavier hand than other developed democracies.  Although the inquiries in this book are preliminary, they raise the possibility that AECP extends across many landscapes of criminal punishment — and beyond, to the widespread social exclusion and civil disabilities imposed on people with a conviction on their record.

In addition, the book insists that any discussion of AECP should focus on US crime rates along with US penal severity.  More often than not, American crime is discounted in the academic literature as having little or no causal influence on American criminal punishment.  This is a mistake for many reasons but is especially unfortunate because it truncates causation analyses that should reach back to gun ownership rates, income inequality, conditions in America’s most disadvantaged neighborhoods, and possibilities of joint or reciprocal causation in the production of US crime rates and punitive severity.

This chapter is divided into three segments.  First, it includes a brief tour of the conventional AECP subject areas of incarceration and the death penalty.  Second, it will introduce claims that a wider menu of sanction types should be included in AECP analyses. Third, it will speak to the importance of late twentieth-century crime rates to US punitive expansionism.

Download AECP Reitz Introduction for SSRN

Notable account of notable application of death penalty in China

This article from The Guardian, headlined "Thousands in China watch as 10 people sentenced to death in sport stadium," highlights that criminal procedure and drug enforcement in another large nation can look a lot different than they do in the United States.  Here are the details:

A court in China has sentenced 10 people to death, mostly for drug-related crimes, in front of thousands of onlookers before taking them away for execution.

The 10 people were executed immediately after the sentencing in Lufeng in southern Guangdong province, just 160km (100 miles) from Hong Kong, according to state-run media. Seven of the 10 executed were convicted of drug-related crimes, while others were found guilty of murder and robbery.

Four days before the event, local residents were invited to attend the sentencing in an official notice circulated on social media.  The accused were brought to the stadium on the back of police trucks with their sirens blaring, each person flanked by four officers wearing sunglasses.

They were brought one by one to a small platform set up on what is usually a running track to have their sentences read, according to video of the trial.  Thousands watched the spectacle, with some reports saying students in their school uniforms attended. People stood on their seats while others crowded onto the centre of the field, some with their mobile phones raised to record the event, others chatting or smoking.

China executes more people every year than the rest of the world combined, although the exact figure is not published and considered a state secret.  Last year the country carried out about 2,000 death sentences, according to estimates by the Dui Hua Foundation, a human rights NGO based in the United States.  China maintains the death penalty for a host of non-violent offences, such as drug trafficking and economic crimes.

However, public trials in China are rare.  The country’s justice system notoriously favours prosecutors and Chinese courts have a 99.9% conviction rate. The trend to reintroduce open-air sentencing trials is reminiscent of the early days of the People’s Republic, when capitalists and landowners were publicly denounced.

The most recent public sentencing and subsequent executions were not a first for Lufeng. Eight people were sentenced to death for drug crimes and summarily executed five months ago in a similar public trial, according to state media.

The town was the site of a large drug bust in 2014, when 3,000 police descended on Lufeng and arrested 182 people. Police confiscated three tonnes of crystal meth, and authorities at the time said the area was responsible for producing a third of China’s meth.

"Portugal’s radical drugs policy is working. Why hasn’t the world copied it?"

The title of this post is the title of this lengthy recent Guardian article taking an in-depth look at how Portugal achieved and operationalizes its distinctive approach to drug use and abuse.  The extended article takes a deep dive into a lot of particular, but here are excerpts from the more general discussion:

In 2001, ... Portugal became the first country to decriminalise the possession and consumption of all illicit substances.  Rather than being arrested, those caught with a personal supply might be given a warning, a small fine, or told to appear before a local commission — a doctor, a lawyer and a social worker — about treatment, harm reduction, and the support services that were available to them.

The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates.  HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015.  The data behind these changes has been studied and cited as evidence by harm-reduction movements around the globe.  It’s misleading, however, to credit these positive results entirely to a change in law.

Portugal’s remarkable recovery, and the fact that it has held steady through several changes in government — including conservative leaders who would have preferred to return to the US-style war on drugs — could not have happened without an enormous cultural shift, and a change in how the country viewed drugs, addiction — and itself.  In many ways, the law was merely a reflection of transformations that were already happening in clinics, in pharmacies and around kitchen tables across the country.  The official policy of decriminalisation made it far easier for a broad range of services (health, psychiatry, employment, housing etc) that had been struggling to pool their resources and expertise, to work together more effectively to serve their communities....

In spite of Portugal’s tangible results, other countries have been reluctant to follow.  The Portuguese began seriously considering decriminalisation in 1998, immediately following the first UN General Assembly Special Session on the Global Drug Problem (UNgass).  High-level UNgass meetings are convened every 10 years to set drug policy for all member states, addressing trends in addiction, infection, money laundering, trafficking and cartel violence.  At the first session — for which the slogan was “A drug-free world: we can do it” — Latin American member states pressed for a radical rethinking of the war on drugs, but every effort to examine alternative models (such as decriminalisation) was blocked. By the time of the next session, in 2008, worldwide drug use and violence related to the drug trade had vastly increased.  An extraordinary session was held last year, but it was largely a disappointment — the outcome document didn’t mention “harm reduction” once.

Despite that letdown, 2016 produced a number of promising other developments: Chile and Australia opened their first medical cannabis clubs; following the lead of several others, four more US states introduced medical cannabis, and four more legalised recreational cannabis; Denmark opened the world’s largest drug consumption facility, and France opened its first; South Africa proposed legalising medical cannabis; Canada outlined a plan to legalise recreational cannabis nationally and to open more supervised injection sites; and Ghana announced it would decriminalise all personal drug use.

The biggest change in global attitudes and policy has been the momentum behind cannabis legalisation.  Local activists have pressed Goulão to take a stance on regulating cannabis and legalising its sale in Portugal; for years, he has responded that the time wasn’t right.  Legalising a single substance would call into question the foundation of Portugal’s drug and harm-reduction philosophy.  If the drugs aren’t the problem, if the problem is the relationship with drugs, if there’s no such thing as a hard or a soft drug, and if all illicit substances are to be treated equally, he argued, then shouldn’t all drugs be legalised and regulated?

Massive international cultural shifts in thinking about drugs and addiction are needed to make way for decriminalisation and legalisation globally.  In the US, the White House has remained reluctant to address what drug policy reform advocates have termed an “addiction to punishment”.  But if conservative, isolationist, Catholic Portugal could transform into a country where same-sex marriage and abortion are legal, and where drug use is decriminalised, a broader shift in attitudes seems possible elsewhere.  But, as the harm-reduction adage goes: one has to want the change in order to make it.

South African court more than doubles prison sentence of Oscar Pistorius

As reported here via CNN under the headlined "Pistorius' sentence more than doubled; slain girlfriend's family calls it 'justice'," a notable defendant got a notable new sentence via appeal in South Africa this week.  Here are the details:

"Reeva Steenkamp "can now rest in peace," her family said Friday, after a South African high court more than doubled Oscar Pistorius' sentence for her killing. The Supreme Court of Appeal increased his sentence to 13 years and five months for the murder of his girlfriend, Steenkamp. It issued the ruling after the prosecution appealed his previous sentence of six years as too lenient.

The former Olympic and Paralympic sprinter killed Steenkamp at his home in an upscale Pretoria neighborhood on Valentine's Day 2013 -- an act he says was an accident after he mistook her for an intruder. The prosecution called it a deliberate act after the two had an argument. The court's decision is "justice for Reeva," her family's spokeswoman said, adding that they hope "this is the end of the road and that everyone can move forward."

Prosecutor Gerrie Nel argued that Pistorius' sentence was "shockingly lenient," while the defense sought to dismiss the appeal.

Supreme Court Justice Willie Seriti said Pistorius failed to explain in court hearings why he fired the fatal shots and "does not appreciate the gravity of his actions."... Seriti said the facts of the case demanded a higher sentence. "The sentence of six years' imprisonment is shockingly lenient to a point where it has the effect of trivializing this serious offense," he added.

Pistorius can appeal the new sentence, according to Kelly Phelps, an adviser to his defense team, but no decision has been made.

Prior related posts:

• "Will Oscar Pistorius serve any prison time for killing Reeva Steenkamp?"
• Bladerunner Oscar Pistorius sentenced to five years in prison for killing girlfriend
• Prosecutors in South Africa indicate they plan to appeal Pistorius outcome
• Now a murderer, Oscar Pistorius facing resentencing
• Sharp criticisms of bladerunner Oscar Pistorius being sentenced only to six years for murdering his girlfriend 

"Attorney hopes to import the best practices of European prisons to the United States"

The title of this post is the headline of this lengthy ABA Journal article from the October 2017 issue. Here is how it starts:

Attorney Donald Specter spent more than three decades working to protect the rights of incarcerated people before he finally saw a prison he believed in.

He was in Europe, having just won perhaps the biggest ruling of his career — a 2011 U.S. Supreme Court decision in Brown v. Plata that required California to reduce its inmate population by more than 40,000. But Specter, executive director of the Berkeley-based Prison Law Office, wasn’t there to celebrate.  He was a co-instructor on a study-abroad trip about correctional practices with University of Maryland students.

This trip included visits to prisons in Denmark, Germany and the Netherlands. Specter says he was blown away. The prisons were nothing like those he had spent his career trying to change in the United States.  For starters, they were physically different — built to resemble life on the outside. Inmates had their own rooms and, in some cases, were allowed to cook in communal kitchens.  But what struck Specter most was that the prisoners were treated differently, too.  “They still regarded the people in prison as members of the community who were going to return to the community,” he says. “That has a whole bunch of implications.”

Specter, who began his legal career as a volunteer at the Prison Law Office, had long been frustrated by the limits of litigation to bring about meaningful change.  In Europe, he began to wonder whether there might be a different way to approach his life’s work.  “By the end of the trip, [the students’] basic question was: Why do we have such lousy prisons when they can be so much better?” he says.  “I started thinking about whether the same kind of transformation could happen with people who were a little older and more experienced — hardened correctional officers and the like.”

In 2013, Specter launched the U.S.-European Criminal Justice Innovation Program, sponsoring weeklong tours of European prisons for U.S. corrections officials, judges and lawmakers. He funds the trips using fees from his lawsuits, including some of the $2.2 million his office was awarded after the high court’s ruling in Brown.  In that case, Specter represented prisoners who challenged the delivery of health care in the California prison system.  The high court affirmed an earlier appeals court ruling that overcrowding was the primary cause of the deficient system and ordered the state to reduce its inmate population.

Specter’s first overseas trip was with representatives from Colorado, Georgia and Pennsylvania and included stops in Germany and the Netherlands. Subsequent tours, including one this fall with officials from Alaska, have focused on Norway, which is known for the freedoms it grants eligible inmates.  So far, officials from eight states have participated, including the executive director, president and vice president of the Association of State Correctional Administrators, which has members who oversee 400,000 correctional personnel and 8 million inmates or former inmates.

Although the United States has the highest incarceration rate in the world — 676 inmates per 100,000 people, according to the United Nations Office on Drugs and Crime — Specter thinks Americans still have a lot to learn about how to prepare prisoners for life on the outside.  (Norway’s incarceration rate is 80 inmates per 100,000 people.)

Making the case against the death penalty on the 15th "World Day against the Death Penalty"

Bill Richardson, the former New Mexico Gov and US ambassador to the United Nations, has this lengthy new Hill commentary headlined "Death penalty — a fatal, inhuman practice that discriminates against the poor." Here are excerpts:

We celebrate today the 15th World Day against the Death Penalty.  As of today, 105 countries have abolished the death penalty for all crimes. In the past 25 years, 60 countries have abolished the death penalty for all crimes and the number of states that carry out executions has fallen by nearly half.

But it is still not enough: the world’s most populated countries — China, India, United States of America and Indonesia still retain capital punishment along with countries like North Korea, Iran, Saudi Arabia, Iraq, Pakistan, Malaysia and Singapore.  Around half of the world’s population, who live in these countries, is not guaranteed the right to life, as prescribed in Article 3 of the Universal Declaration of Human Rights. Hundreds of executions are carried out every year and thousands are under sentence of death.

Worryingly, the death penalty has been carried out arbitrarily and in a manner that discriminates against the poor and the marginalized sections of society including minority groups and migrant workers.

When I was the Governor of New Mexico, I changed my mind from being a believer of capital punishment as I saw this discriminatory aspect of the death penalty. Besides, there is always the possibility of executing an innocent and so I abolished the death penalty in New Mexico in 2009.  My convictions have only strengthened as 159 persons facing capital punishment in the USA have been reportedly found to be innocent since 1973.

In the USA, most persons facing the death penalty even today cannot afford their own attorney at trial and most court-appointed attorneys are overworked, underpaid or lacked the experience necessary to defend capital punishment trials.

Moreover, prosecutors tended to seek the death penalty more often when the victim was white than when the victim was African-American or of another racial or ethnic origin. These factors have contributed to the arbitrariness of the death penalty. By doing so, the death penalty violates the right to equal dignity and this discrimination condemns them to further marginalization.

This discrimination against the poor and minority communities occurs not just in USA but in practically every country applying the death penalty.  Because of their limited economic means, because of their lack of knowledge of the legal systems and their rights, because of poor legal defense support, because of systemic bias that they face from law enforcement authorities, they are under greater risk of being sentenced to death.

In India, almost 75 per cent of the persons sentenced to death, and in Malaysia, nearly 90 per cent, reportedly belonged to economically vulnerable groups.  In Saudi Arabia, Iran and Pakistan hundreds are executed every year, most of whom are poor or from minority communities; in addition, there are concerns that these three countries carry out executions of those who were juveniles when they allegedly committed the crimes for which they faced the death penalty.

In China, the number of executions carried out is a state secret and reportedly, those executed, feared to be in the thousands, include those belonging marginalized communities including unskilled workers who have little means of defense.  In Indonesia, 13 of the 16 persons executed in the last two years were foreign nationals and there were questions of fair trials in several of these cases.