Wednesday, September 08, 2021

"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.”

September 8, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Monday, August 23, 2021

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.

August 23, 2021 in Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Monday, August 16, 2021

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

FT_21.08.12_Incarceration_2John 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.

August 16, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (1)

Sunday, July 25, 2021

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.

July 25, 2021 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (0)

Monday, July 19, 2021

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.

July 19, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Tuesday, July 13, 2021

"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. 

July 13, 2021 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Tuesday, July 06, 2021

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.

July 6, 2021 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Saturday, February 13, 2021

"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.

February 13, 2021 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (2)

Wednesday, December 16, 2020

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.

December 16, 2020 in Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (0)

Sunday, December 06, 2020

"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.

December 6, 2020 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (0)

Thursday, September 03, 2020

"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.

September 3, 2020 in Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Saturday, August 29, 2020

"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.

August 29, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Monday, August 10, 2020

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.”

August 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Thursday, July 09, 2020

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.

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

Monday, June 29, 2020

"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.

June 29, 2020 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Sentencing around the world | Permalink | Comments (0)

Sunday, June 28, 2020

"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!

June 28, 2020 in Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (0)

Tuesday, March 03, 2020

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:

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."

March 3, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (4)

Wednesday, January 15, 2020

"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.

January 15, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Wednesday, October 30, 2019

"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.”

October 30, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Sunday, March 03, 2019

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.

March 3, 2019 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Wednesday, February 06, 2019

"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. 

February 6, 2019 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Wednesday, January 23, 2019

"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.

January 23, 2019 in Assessing Miller and its aftermath, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Tuesday, October 23, 2018

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.

October 23, 2018 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Thursday, September 20, 2018

"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.

September 20, 2018 in Death Penalty Reforms, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (0)

Tuesday, June 05, 2018

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

NATO_OH_2018A 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.

June 5, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Tuesday, May 22, 2018

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.

May 22, 2018 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (6)

Tuesday, May 15, 2018

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:

May 15, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Saturday, April 21, 2018

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." 

April 21, 2018 in Death Penalty Reforms, Sentencing around the world, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Friday, April 06, 2018

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.

April 6, 2018 in Sentencing around the world, White-collar sentencing | Permalink | Comments (1)

Friday, January 05, 2018

"Prosecutors and Democracy: A Cross-National Study"

9781316638149The 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.

January 5, 2018 in Recommended reading, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Tuesday, January 02, 2018

"American Exceptionalism in Crime and Punishment"

9780190203542The 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

January 2, 2018 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (1)

Tuesday, December 19, 2017

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.

December 19, 2017 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentencing around the world | Permalink | Comments (6)

Saturday, December 09, 2017

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

1960The 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.

December 9, 2017 in Drug Offense Sentencing, Sentencing around the world, Who Sentences | Permalink | Comments (4)

Friday, November 24, 2017

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:

November 24, 2017 in Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (2)

Sunday, October 15, 2017

"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.)

October 15, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (4)

Tuesday, October 10, 2017

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.

October 10, 2017 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (6)

Sunday, August 27, 2017

Will deadly protests impact high-profile sentencing in India? Should they?

A classic hypothetical question for hard-core fans of a strictly utilitarian approach to punishment is whether they should and would be inclined to go easy or even release a guilty criminal in order to avoid possible harms being threatened by an angry mob.  (The even harder variation is whether they would punish an innocent person to mollify a mob.)  I bring this up because, as reported in this Reuters article, concerns about mob violence are now not hypothetical in the northern part of India.  The article is headlined "After deadly protests, Indian states in lockdown for 'godman's' rape sentencing," and here are excerpts:

India is deploying thousands of riot police and shutting down internet services in two northern states, as it prepares for the sentencing on Monday of a self-styled ’godman’ whose followers went on the rampage after he was convicted of rape on Friday.

Gurmeet Ram Rahim Singh’s cult Dera Sacha Sauda has a vast rural following in Punjab and Haryana states, where frenzied mobs burned down gas stations and train stations and torched vehicles after a local court found him guilty of raping two women in a 2002 case.  At least 38 people were killed and more than 200 injured in the violence in Haryana, officials said, drawing sharp criticism for the state government run by Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP).

The case has also highlighted the Indian heartland’s fascination with spiritual gurus, who enjoy immense political clout for their ability to mobilize millions of followers frustrated by the shortcomings of the state.  Security forces have cordoned off a jail in Rohtak city, 70 km (44 miles) from New Delhi, where Singh - also known as the guru of bling for the clothes he wears in the movies he has starred in - is being held.

The judge who convicted Singh will hold a special hearing inside the prison in Rohtak around 2.30 pm local time (0900 GMT) on Monday to decide the punishment, in a move that officials hope will prevent his followers from gathering in the streets like they did on Friday. Singh faces a minimum of seven years in prison.

The town of Sirsa, home to Dera’s headquarters, is already under lockdown, BS Sandhu, Haryana’s police chief, told Reuters. School and colleges have been ordered shut, the government said....

In godman Singh’s two films, “Messenger of God” and its sequel, there are sequences in which he fights off villains and tosses burning motorbikes into the air. In his spiritual avatar, Singh dresses in plain white traditional clothes, giving sermons or planting trees. In the movies he dons bejeweled costumes, rides motorbikes and sends bad guys flying.

The Haryana government has faced severe criticism from opposition Congress and a state court for failing to stop the rioting and vandalism. Singh, whose verified Twitter profile calls him a saint, philanthropist, sportsman, actor, singer, movie director, writer, lyricists, and autobiographer, has been photographed with senior BJP leaders including Haryana chief minister Manohar Lal Khattar....

Singh's conviction in a rape case is the latest in a series of cases involving spiritual leaders who have been accused of sexually abusing followers, amassing untaxed money and finding favor with politicians. Besides the rape charges, he is also under investigation over allegations that he convinced 400 of his male followers to undergo castration, allegations he denies.

August 27, 2017 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (3)

Monday, August 14, 2017

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Tuesday, May 30, 2017

Australia working on a novel travel ban for certain sex offenders ... to keep them in the country

This new AP article, Headlined "Australia plans to ban pedophiles from traveling overseas," reports on a kind of travel ban being discussed down under that is quite distinct from the one now being litigated here in the US.  Here are the details:

Australia plans to ban convicted pedophiles from traveling overseas in what the government said Tuesday is a world-first move to protect vulnerable children in Southeast Asia from exploitation.  Australian pedophiles are notorious for taking inexpensive vacations to nearby Southeast Asian and Pacific island countries to abuse children there.

Foreign Minister Julie Bishop said she would cancel the passports of around 20,000 pedophiles on the national child sex offender register under legislation that will be introduced to Parliament soon.  "There has been increasing community concern about sexual exploitation of vulnerable children and community concern is justified," she told reporters.

Almost 800 registered child sex offenders travelled overseas from Australia last year and about half went to Southeast Asian destinations, she said.  "There will be new legislation which will make Australia a world leader in protecting vulnerable children in our region from child sex tourism," Bishop said.

Justice Minister Michael Keenan said no country has such a travel ban.  He said 2,500 new convicted pedophiles would be added to the sex offender register each year and would also lose their passports.

The register contains 3,200 serious offenders who will be banned from travel for life.  Less serious offenders drop off the register after several years of complying with reporting conditions and would become eligible to have their passports renewed.

Independent Senator Derryn Hinch, who was molested as a child and was jailed twice as a radio broadcaster for naming pedophiles in contravention of court orders, took credit for the government initiative. Hinch said he had not known that convicted pedophiles were allowed to travel before he received a letter from Australian actress and children's rights campaigner Rachel Griffiths soon after he was elected to the Senate last year. "If we can take a passport from a bankrupt, why can't we stop our pedophiles from traveling to Myanmar?" Griffiths wrote. Under Australian law, a bankrupt person cannot travel overseas without a trustee's permission.

Hinch, who was involved in drafting the legislation, said temporary passports could be provided to pedophiles who need to travel for legitimate business or family reasons, and for pedophiles living overseas who need to return to Australia as their visas expire. "This will not apply to a teenager who has been caught sexting to his 15-year-old girlfriend," said Hinch, referring to sexual phone communications. "I know sometimes, I think unfairly, they go on registers, but we're trying to work it out so they don't," he added....

Australia has attempted to crack down on Australian child sex tourists by adding a new criminal offense punishable by up to 25 years in prison for Australian citizens or residents who molest children overseas.

May 30, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences | Permalink | Comments (12)

Thursday, April 13, 2017

"Four Decades and Counting: The Continued Failure of the War on Drugs"

The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:

Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods.  While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last.  The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.

Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.

We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels.  Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan.  While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.

We conclude that prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad.  Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.

April 13, 2017 in Drug Offense Sentencing, Offense Characteristics, Race, Class, and Gender, Sentencing around the world | Permalink | Comments (4)

Monday, April 10, 2017

Amnesty International releases report on global death sentences and executions in 2016

Amnesty International has released this new report on the worldwide use of the death penalty in 2016. This AI webpage provides a kind of summary of some of the full report's most salient facts and figures.  Here are some of those numbers:

At least 1,032 people were executed in 23 countries in 2016. In 2015 Amnesty International recorded 1,634 executions in 25 countries worldwide — a historical spike unmatched since 1989. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan — in that order.

China remained the world’s top executioner — but the true extent of the use of the death penalty in China is unknown as this data is considered a state secret; the global figure of at least 1,032 excludes the thousands of executions believed to have been carried out in China.  Excluding China, 87% of all executions took place in just four countries — Iran, Saudi Arabia, Iraq and Pakistan.

For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt. The 20 executions in the USA was the lowest in the country since 1991.

During 2016, 23 countries, about one in eight of all countries worldwide, are known to have carried out executions. This number has decreased significantly from twenty years ago (40 countries carried out executions in 1997). Belarus, Botswana, Nigeria and authorities within the State of Palestine resumed executions in 2016; Chad, India, Jordan, Oman and United Arab Emirates — all countries that executed people in 2015 — did not report any executions last year.

141 countries worldwide, more than two-thirds, are abolitionist in law or practice.

In 2016, two countries — Benin and Nauru — abolished the death penalty in law for all crimes.  In total, 104 countries have done so — a majority of the world’s states.  Only 64 countries were fully abolitionist in 1997.

Commutations or pardons of death sentences were recorded in 28 countries in 2016.  At least 60 people who had been sentenced to death were exonerated in 9 countries in 2016: Bangladesh (4), China (5), Ghana (1), Kuwait (5), Mauritania (1), Nigeria (32), Sudan (9), Taiwan (1) and Viet Nam (2).

Amnesty International recorded 3,117 death sentences in 55 countries in 2016, a significant increase on the total for 2015 (1,998 sentences in 61 countries).  Significant increases were recorded in 12 countries, but for some, such as Thailand, the increase is due to the fact that the authorities provided Amnesty International with detailed information.

At least 18,848 people were on death row at the end of 2016.  The following methods of execution were used across the world: beheading, hanging, lethal injection and shooting.  Public executions were carried out in Iran (at least 33) and North Korea.

April 10, 2017 in Data on sentencing, Death Penalty Reforms, Sentencing around the world | Permalink | Comments (10)

Sunday, March 19, 2017

A Canadian perspective on constitutional proportionality review

Given the US Supreme Court's various struggles with proportionality review of sentences under the Eighth Amendment, I was intrigue to see this article recently posted on SSRN discussing how the Supreme Court of Canada has approached this same issue. The article authored by Lauren Witten is titled "Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties," and here is its abstract:

This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment.  It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism.

This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing — the offender, the judge, and the public — and that this tripartite justification is integral to moral punishment.  This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.

March 19, 2017 in Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (4)

Monday, December 19, 2016

Philippine Prez Duterte talking up conducting thousands of executions yearly if death penalty restored

In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels.   This article from ABS-CBN News, headlined "Duterte threatens up to 6 executions daily if death penalty is restored," highlights the latest dimension of this story:

President Rodrigo Duterte has issued a grim warning, saying he will carry out daily executions of criminals once the death penalty is restored. 

"Ibalik mo sa akin 'yan...araw-arawin ko yan. Lima, anim," he said during Senator Manny Pacquiao's 38th birthday celebration in General Santos on Saturday. (Give it back to me, and I will perform daily executions. Five, six.)  "You destroy my country, I destroy you," he added.

The president believes capital punishment failed to deter crime in the past only because only few executions were carried out.

Death penalty in the country was abolished under the 1987 Constitution -- the first Asian country to do so -- but was reinstated under President Fidel V. Ramos in 1993 in response to increasing crime rates. It was again abolished under President Gloria Macapagal-Arroyo in 2006, reducing the harshest penalties to life imprisonment and reclusion perpetua.

Even before being elected in the 2016 polls, Duterte has been pushing for the revival of death penalty, saying it would serve as retribution for those who committed heinous crimes.

In a meeting after it was clear he won the elections, Duterte told some lawmakers he favors hanging over lethal injection as means of execution.

A bill seeking to reinstate the death penalty has recently been approved at the sub-committee level in the House of Representatives, and a principal author is optimistic on an "overwhelming" support from his colleagues. Pacquiao, who had filed Senate Bill 185 proposing that death penalty be reimposed and the penalties be increased for heinous crimes involving dangerous drugs in October, is positive that fellow senators would back the bill.

Prior related posts:

December 19, 2016 in Death Penalty Reforms, Sentencing around the world, Who Sentences | Permalink | Comments (10)

Monday, November 07, 2016

"Global Overview of Sex Offender Registration and Notification Systems"

A helpful reader altered me to this interesting publication with the same title as this post.  The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:

Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws.  A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.

The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.

The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.

What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws.  Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.

As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.

November 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

Thursday, September 22, 2016

Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US

The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:

When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.

Born in Mexico, Nava, 36, had come to the United States years earlier. He had already been convicted of assaulting Plott on two earlier occasions. A murder conviction could result in the death penalty. It was up to Rebecca Thomason, Nava’s lawyer, to convince the Franklin County district attorney to instead seek a life sentence, or, failing that, to convince a jury to spare his life. It didn’t help that Nava was undocumented, and they were in Alabama, a state with some of the harshest anti-immigration laws in the country.

Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.

One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.

To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.

Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice.  That comes out to roughly $29,000 per case, per year.  By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Sentencing around the world, Who Sentences | Permalink | Comments (3)

Saturday, August 27, 2016

Remarkable and disconcerning stories emerging from just a few months into Philippine Prez Duterte's aggressive new "war on drugs"

In prior posts here and here, I noted the eagerness of the Philippines new Prez to rachet up a "war on drugs" to almost unheard-of new levels. This new Washington Post article reports on recent developments on this front under the headline "Nearly 2,000 have died in Duterte’s ‘war on drugs’ in the Philippines. One is a 5-year-old girl."  Here are excerpts:

Philippine President Rodrigo Duterte's "war on drugs" has left hundreds of people killed in less than two months.  One of the most recent victims — and possibly the youngest — is 5-year-old Danica May Garcia, who was shot in the head on Tuesday.

According to the online news website Rappler, two motorcycle riders barged into the girl's family's home in Dagupan City, more than 130 miles northwest of Manila, while they were having lunch and opened fire.  The men's main target was Danica's grandfather, 53-year-old Maximo Garcia, who had already surrendered to police a few days earlier after he was told he was on a drug watch list.  Garcia ran to the back of the house toward the bathroom as the gunmen chased and shot at him. Danica, who was stepping out of the bathroom, was gunned down, Rappler reported.

"This is so painful for us," Garcia's wife, Gemma, told the Philippine Daily Inquirer.  "I would miss the nights when Danica would massage us until we fell asleep. I would miss her laughter when she teased her mother." Gemma Garcia, who runs a small eatery, told the Inquirer she was surprised to find out that her husband was a drug suspect, saying he had never been involved in illegal drugs.  Maximo Garcia used to earn a living by driving a tricycle, a form of auto rickshaw commonly used to carry passengers in the Philippines.  But he had to stop after he suffered a stroke three years ago, according to the paper.

Superintendent Neil Miro, Dagupan's police chief, told the Inquirer that 26 suspected drug dealers have been killed in the city as of Tuesday.  Nationwide, more than 1,900 killings have occurred since Duterte took office June 30, according to estimates by several media outlets.  Nearly 700,000 drug users and peddlers have turned themselves in, according to Reuters.

Duterte, a tough-talking former mayor of the southern city of Davao, ran on a pledge to eradicate his country's problems with drugs. Illegal drugs, particularly methamphetamine, locally known as "shabu," have been rampant in the Philippines for decades. The 71-year-old former prosecutor has publicly advocated killing suspected criminals, even once urging citizens to take matters into their own hands.

On Monday, Philippine senators started an investigation into the rising death toll under Duterte's administration. Witnesses, with their faces covered to protect their identities, testified about how their loved ones were arrested and gunned down by police.  Sen. Leila de Lima, head of the Senate justice committee leading the investigation, said in her opening remarks Monday that she's concerned about the spate of killings that appear to have been carried out by vigilantes, not by the government.  "What is particularly worrisome is that the campaign against drugs seems to be an excuse for some — may I just emphasize, some — law enforcers and other vigilantes to commit murder with impunity," de Lima said.

De Lima has been accused of having an affair with her former driver and authorizing him to collect money from drug lords detained in the New Bilibid Prison in Muntinlupa City, Metro Manila when de Lima was justice secretary. De Lima has denied the allegations.

Philippine National Police Director General Ronald dela Rosa reported to the Senate committee earlier this week that of those who died, only 756 were killed during confrontations with police. Dela Rosa, nicknamed "Bato," which means rock or stone, told the Senate committee that the drug suspects were killed because they resisted arrest. "If they did not resist, they would still be alive," dela Rosa told the committee, according to the Inquirer.

The majority of the killings — 1,160 — were committed outside police operations, mostly by vigilantes, and are under investigation, dela Rosa said. He added that not all the deaths are drug-related.

International advocacy groups, meanwhile, have been vocal in opposing Duterte's policy. Phelim Kine, deputy director of the Human Rights Watch's Asia Division, wrote Thursday about Danica May's death. Kine noted that Philippine Justice Secretary Vitaliano Aguirre defended the killings linked to Duterte's war on drugs. "If you're in the Philippines, you will choose to kill these drug lords," Aguirre said. "Desperate times call for desperate measures. So this is what the president is doing, and we support it."

Amnesty International has called on Duterte to "break the cycle of human rights violations" and to curb his "inflammatory" rhetoric. "President Duterte has been elected on a mandate to uphold the rule of law. It is encouraging that he spoke of honouring the Philippines' obligations under international law in his inauguration speech," Rafendi Djamin, Amnesty International's director for Southeast Asia and the Pacific, wrote in June. "But now he is in power, he needs to lend substance to those words and break with his earlier rhetoric."...

Gemma Garcia said that her granddaughter's death has left her and her family in fear for their lives. "We are afraid to stay here. But the problem is, where will we go?" Gemma Garcia told the Inquirer. "The killers may come back for my husband."

When I discuss deterrence and related utilitarian justifications for various sentencing and punishment schemes, I often suggest that a "hard core" utilitarian with no concens about retributivist/desert-based limits on punishment might be willing to consider not just summary executions of convicted criminals, but even executions of relatives of criminals as part of an effort to dramatically deter certain types of wrong-doing. This report suggests that Philippine Prez Duterte's regime is functionally trying out what I always considered just a hypothetical thought experiement.

Prior related posts:

August 27, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Sunday, August 07, 2016

"Norway Proves That Treating Prison Inmates As Human Beings Actually Works"

The title of this post is the headline of this lengthy recent Huffington Post piece drawn from a book about prisons around the world authored by Baz Dreisinger. Here are excerpts: 

Bastoy is an open prison, a concept born in Finland during the 1930s and now part of the norm throughout Scandinavia, where prisoners can sometimes keep their jobs on the outside while serving time, commuting daily.  Thirty percent of Norway’s prisons are open, and Bastoy, a notorious reformatory for boys converted in 1982 to a prison, is considered the crown jewel of them all....

Nothing represents the Norwegian way like its prison system, which has adopted a “principle of normality,” according to which punishment is the restriction of liberty itself and which mandates that no one shall serve their sentence under stricter circumstances than is required by the security of the community.

Criminologist John Pratt summed up the Scandinavian approach using the term “penal exceptionalism,” referring to these countries’ low rates of imprisonment and humane prison conditions.  Prisons here are small, most housing fewer than 100 people and some just a handful.  They’re spread all over the country, which keeps prisoners close to their families and communities, and are designed to resemble life on the outside as much as possible.

An incarcerated person’s community continues to handle his health care, education and other social services while he’s incarcerated.  The Norwegian import model, as it is known, thus connects people in prison to the same welfare organizations as other citizens and creates what’s called a seamless sentence ― a person belongs to the same municipality before and after prison.  Sentences here are short, averaging an estimated eight months, as compared to America, where the estimated average sentence was 4.5 years in 2012.  Almost no one serves all his time, and after one-third of it is complete, a person in prison can apply for home leave and spend up to half his sentence off the premises.

And the most highly touted aspect of the humane Norwegian prison system is the fact that it seems to work.  Crime rates are very low, and the recidivism rate is a mere 20 percent.

August 7, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (5)

Friday, August 05, 2016

"Behind the Olympics: Brazil's Dirty Incarceration Secret"

I thought this Ozy article, which has the headline that I am using as a post title, woud make a fiting and timely posting in light of tonight's Opening Ceremonies.  Here are excerpts:

“Brazil’s prisons are illegal, and if I wanted to, I could set thousands of prisoners free,” Luis Carlos Valois declares. It is both a comment on the power of judges in Brazil to interpret the law at will, and an insight into Valois’ rebelliousness.  Seated behind his huge wooden desk, with an enormous flag of Brazil posted nearby, he cuts an imposing figure.  But his shaved head, muscles and tattoos make Valois resemble the Brazilian jujitsu champion he was in 1995 more than an establishment man.

OK, he concedes, he would end up behind bars himself if he really unleashed thousands of prisoners into the streets. But he’s serious about using the system to do just that.  His work agitating for better prison conditions and offering lenient sentences for petty drug offenses has earned him at least one death threat and a flurry of bad press.  Under Brazilian and international law, prisons in Brazil are supposed to provide inmates access to healthcare, individual cells and protection from death threats.  In reality, however, prisons in Manaus are two to three times more crowded than they should be, Valois says, with scores of inmates sharing the same cell.  Access to basic healthcare was described as “inadequate” in a 2014 Human Rights Watch report.  Inmates sleep in hammocks or in corridors, with cockroaches and rats scuttling past.  A study in Rio de Janeiro last year found 54 percent of those in pretrial detention may be innocent.

The conditions recall America’s prison system, overcrowded and rife with drug offenders.  Brazil trails only the U.S., China and Russia in size of prison populations, according to Human Rights Watch.  The homicide rate among the prison population — totaling half a million — reaches 150 for every 100,000, says Ilona Szabó of think tank Igarapé Institute. Additional terrifying stats: More than half of prisoners are 18 to 29 years old, many of whom are incarcerated for carrying small amounts of drugs.  Those young men often remain in prison for five to 15 years. In rural locales, men and women sometimes share cells.  Oh, and race: “It seems like they lock up more poor and Black people every time,” Valois says with a sigh.  “Many are more afraid of someone who has stolen a cellphone than a politician who has stolen millions from the people.”  (This in a nation embroiled in its own debates over the 2,000-plus people, many of them Black, killed by police in 2013, according to the Brazilian Public Security Forum.)...

Meanwhile, Brazil has increased its prison population by 74 percent between 2005 and 2012, according to the UNDP; the charitable explanation of the hard-on-crime stance is chalked up to a society fed up with violent crime and the increasing power and presence of drug gangs across Brazil.  A “bullet bench” of mainly ex-military or law enforcement officers is busy whipping up popular hard-line laws lowering the age of criminal responsibility.  Yet Valois drives a car that isn’t bulletproof, letting state-funded security men care for his two children instead.  He is best seen as local cartoonist Jack Cartoon depicted him: with a gavel in one hand and a bunch of flowers in the other — a pacifist at heart.

August 5, 2016 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Tuesday, July 26, 2016

Looking at juvenile justice in a worldly way

Recenlty posted to SSNR are these two chapters from a recenly published book of essays titled "Juvenile Justice in Global Perspective":

One Theme or Many? The Search for a Deep Structure in Global Juvenile Justice by Franklin Zimring and Maximo Langer

Myths and Realities of Juvenile Justice in Latin America by Maximo Langer and Mary Beloff

Here is the abstract for the first of these chapters which serves as an introduction to the book:

This chapter uses the global portrait of juvenile justice found in the rest of this volume — that includes chapters on juvenile justice in China, Europe, India, Latin America, Muslim-majority states, Poland, Scandinavia, South Africa, and South Korea and Japan — to discuss possible explanations for the almost ubiquitous existence of separate juvenile courts around the world.  After briefly analyzing the role that power, emulation, and structural factors have played in the global diffusion of the juvenile court, we discuss what theory of juvenile courts may underlie their actual practices.  We argue that the main function that juvenile courts have performed has been letting juvenile offenders grow up out of crime and that such a function also provides the best justification for the continuing existence of these courts.

July 26, 2016 in Offender Characteristics, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (0)

Friday, July 08, 2016

The demise of irreducible life sentences in the Netherlands

I am pleased to be able to provide this guest posting from Dirk van Zyl Smit, who runs the Life Imprisonment Worldwide Project at the University of Nottingham, concerning a big recent ruling from the Netherlands:

The Netherlands has long been an exception to the general European rule that all persons sentenced to life imprisonment must have a realistic prospect of release before they are too old or ill to again lead a full life in free society. There are only a small number of life-sentenced prisoners in the Netherlands, 32 at the last count, but they all serve sentences akin to US-style life without parole, and are rarely, if ever, released. On 5 July 2016, that position changed dramatically. The Hoge Raad, the Supreme Court of the Netherlands, ruled that the remote possibility of a pardon, which hitherto has been the sole mechanism by which Dutch life-sentenced prisoners theoretically could be released, was inadequate. The current pardon system did not provide them with a clear prospect of being considered for release and was therefore contrary to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.

In coming to this conclusion the Hoge Raad quoted extensively from the standards developed by the Grand Chamber of the European Court of Human Rights (ECtHR) in 2013 in Vinter and others v United Kingdom and in 2016 in Murray v The Netherlands but then set them out and developed them further in its own words. (The translations are my own.)

The Hoge Raad began cautiously (para 3.2), noting

that the life sentence is not inherently contrary to the provisions of art. 3 of the ECHR, even if it is fully executed. From the jurisprudence [of the European Court of Human Rights] however, it follows that life imprisonment cannot be imposed if it is not already clear at the time of imposition that in due course there will be a real opportunity to reassess the life sentence, which in the appropriate cases can lead to the shortening of the sentence or (conditional) release. This does not mean that providing an opportunity for review of the sentence will always lead to a reduction of the penalty. Reassessment can indeed also lead to a finding that there is no ground for reducing the sentence.

The Hoge Raad then explained the various conditions it regarded as essential prerequisites for a review of a life sentence (para 3.3):

In the review, the question that needs to be addressed is whether there have been such changes on the part of the convicted person and whether he or she has made such progress in their resocialisation that the continued implementation of life imprisonment is no longer justified. The criteria used in this context should not be so stringent that release is allowed only when a serious illness or other physical obstacle stands in the way of the further implementation of life imprisonment, or upon reaching an advanced age. The review must be based on information with respect to the convicted person as an individual as well as the opportunities offered for resocialisation. Moreover, at the time of the imposition of a life sentence, it must be clear to the convicted person to a sufficiently precise extent what objective criteria will be applied in the review, so that he knows what requirements must be met, if he wants - eventually – to be considered for a reduction of his sentence or for (conditional) release.

The point of departure in the future must be that the review must take place after no more than 25 years after the imposition of life imprisonment and that after that period the possibility of periodical re-assessment is required. The reassessment shall be surrounded with sufficient procedural safeguards. The case law of the European Court of Human Rights does not require that a provision to curtail a life sentence can only consist of a statutory periodic review of the sentence by a judge. That does not detract from the view of the Hoge Raad that assigning the reassessment to a judge in itself represents an important guarantee that the implementation of life imprisonment will take place in accordance with Art. 3 of the ECHR.

Finally, in order to provide a real opportunity for reassessment, it is important that the convicted person during the execution of the life sentence - even before the reassessment takes place - must be able to prepare for a possible return to society and that, related to this, possibilities for resocialisation should be offered within the framework of the implementation.

The very basis of this decision is a rejection of official Dutch policy on the treatment of life-sentenced prisoners, for until now they have not been offered opportunities for resocialisation, because it had been presumed that they would never be released. The prison regimes for these prisoners will have to change.

The remedy that the Hoge Raad put forward is equally drastic. It ordered the Dutch government to legislate in order to reform the law relating to life imprisonment so that it would meet the standards it had spelled out. Such reforms have to be introduced by 5 September 2017. The Hoge Raad will remain seized with the case until then, when it will again consider the matter and decide whether the legislative reform meets the standards it has now set.

The decision of the Hoge Raad of 5 July 2016 is recognition that Dutch jurisprudence on life imprisonment must move forward to take account of the development in European human rights law that has led to a clear rejection of irreducible life sentences. It stands in contrast to the much more conservative approach of the English Court of Appeal, in R v Mcloughlin, which has insisted that English provisions that would allow life-sentenced prisoners, subject to a whole life order, to leave prison only when ill or dying are sufficiently flexible to be regarded as a form of release to meet the standards of Art. 3 of the ECHR. This interpretation of European standards by the Court of Appeal has been challenged before the Grand Chamber of the ECtHR in Hutchinson v the United Kingdom. Judgment in this last case, which was argued in October 2015, is keenly awaited. What remains to be seen is how the British authorities, including the UK courts, will respond if the ECtHR follows the trend that the Dutch Supreme Court has endorsed and rejects the interpretation of the Court of Appeal. The recent British referendum in favour of leaving the European Union does not affect the legal status of the United Kingdom as a party to the ECHR. However, there has been much press speculation that a decision against the United Kingdom in this latest case about irreducible life sentences may prompt a reconsideration of Britain’s relationship with the ECtHR and lead eventually to a formal withdrawal from its jurisdiction. The measured decision of the Hoge Raad on 5 July 2016 is an example of a less confrontational approach to European jurisprudence by a national apex court. One can only hope that the courts and indeed the government of the United Kingdom will learn from it.

July 8, 2016 in Sentences Reconsidered, Sentencing around the world, Who Sentences | Permalink | Comments (2)