Monday, April 26, 2021

"Handling Aggravating Facts After Blakely: Findings From Five Presumptive-Guidelines States"

The title of this post is the title of this great new paper authored by Nancy King ow available va SSRN. Here is its abstract:

This Article reveals how five states with presumptive (binding) sentencing guidelines have implemented the right announced in Blakely v. Washington to a jury finding of aggravating facts allowing upward departures from the presumptive range.  Using data provided by the sentencing commissions and courts in Kansas, Minnesota, North Carolina, Oregon, and Washington, as well as information from more than 2,200 docket sheets, the study discloses how upward departures are used in plea bargaining, sometimes undercutting policy goals; how often aggravating facts are tried and by whom; common types of aggravating facts; and the remarkably different, sometimes controversial interpretations of Blakely and Alleyne v. United States that frame each state’s practice.  This new information is essential for any evaluation of presumptive sentencing guidelines systems or the appropriate scope of the doctrine established in Apprendi v. New Jersey.

April 26, 2021 in Blakely in the States, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, April 01, 2021

"Who Controls Criminal Law? Racial Threat and the Adoption of State Sentencing Law, 1975 to 2012"

The title of this post is the title of this interesting article published in the American Sociological Review earlier this year that I just came across. This research was authored by Scott Duxbury, and here is its abstract:

Threat theory argues that states toughen criminal laws to repress the competitive power of large minority groups.  Yet, research on threat suffers from a poor understanding of why minority group size contributes to social control and a lack of evidence on whether criminal law is uniquely responsive to the political interests of majority racial groups at all.  By compiling a unique state-level dataset on 230 sentencing policy changes during mass incarceration and using data from 257,362 responses to 79 national surveys to construct new state-level measures of racial differences in punitive policy support, I evaluate whether criminal sentencing law is uniquely responsive to white public policy interests.  Pooled event history models and mediation analyses support three primary conclusions: (1) states adopted new sentencing policies as a nonlinear response to minority group size, (2) sentencing policies were adopted in response to white public, but not black public, support for punitive crime policy, and (3) minority group size and race-specific homicide victimization both indirectly affect sentencing policy by increasing white public punitive policy support.  These findings support key theoretical propositions for the threat explanation of legal change and identify white public policy opinion as a mechanism linking minority group size to variation in criminal law.

April 1, 2021 in Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, March 17, 2021

Reviewing all the notable criminal justice work of the Washington Supreme Court in recent times

Regular readers have likely noticed pretty regular posts about pretty notable criminal justice rulings coming from the Supreme Court of Washington. In this Slate piece, Mark Joseph Stern tells the story of this court's recent personnel changes and reviews some of these rulings. The piece, which is fully headlined "Washington State Shows How a Truly Progressive Court Changes Everything: Joe Biden should look to the state’s diverse and courageous Supreme Court when making nominations to the federal bench," starts this way (with links from the original):

The Washington Supreme Court is on a roll.  On March 11, it took the unprecedented step of outlawing mandatory sentences of life without parole for people under the age of 21 — making Washington the first state in the nation to extend such protections to defendants who, while technically adults at the time of their crime, have greater potential for rehabilitation because of their youth. The previous month, a majority of the court struck down Washington’s drug possession law, effectively legalizing possession of controlled substances while overturning thousands of convictions going back decades.  And, in January, the court made it easier for victims of police misconduct to sue law enforcement officers who violate their rights.

This extraordinary series of decisions shows how a diverse and progressive judiciary can make the country a more just and equitable place. The Washington Supreme Court’s members exemplify the kind of judges whom Joe Biden should be looking for as he prepares to announce his first slate of judicial nominees. To counter the current dominance of conservative ideology in the federal judiciary, liberals can’t rely on moderates committed to minimalism; they need a distinct vision of the law as a force of justice that guarantees equal rights and dignity to those who are impoverished, unpopular, and powerless. To find one, they need only look to Washington state.

Because it interprets its own state constitution, the Washington Supreme Court has much more leeway than a federal court to depart from SCOTUS jurisprudence.  States’ high courts have final say over the meaning of their own state constitutions, which gives justices room to expand rights that SCOTUS has constricted under the federal Constitution. Many state constitutions, including Washington’s, provide greater protections than the federal Constitution.  That’s why, in 2018, the Washington Supreme Court has permanently banned the death penalty and prohibited sentences of life without parole for juveniles—two steps SCOTUS has refused to take.

Those decisions were a preview of things to come. In 2019 and 2020, Democratic Gov. Jay Inslee appointed two new justices to the court: Raquel Montoya-Lewis, a Jewish Native American woman, and Grace Helen Whitener, a disabled Black lesbian immigrant.  (In November, the state voted overwhelmingly to keep both women on the bench.)  There, they joined Justice Mary Yu, an Asian American Latina lesbian, as well as Steven González, the current chief justice, who is Hispanic, and one of just two men on the nine-member court.  Inslee’s appointees created the most diverse high court in American history.

March 17, 2021 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, March 08, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, March 02, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

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

Thursday, February 18, 2021

DEPC event on "Criminal Justice Reform in Ohio" and original resources on "Drug Sentencing Reform in Ohio"

SB3-Panel_for-socialI am very excited that next week the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law is hosting a virtual panel discussion, titled "Where Do We Go From Here?: Criminal Justice Reform in Ohio" at 2pm on February 24, 2021.  Here is the description and run down of the exciting event:

Ohio has a long history of criminal justice reform and drug sentencing reform, and yet few can be pleased that Ohio still has the 12th highest incarceration rate in the country and one of the highest rates of overdose deaths. With the passage of HB1 and the failure of SB3 at the end of 2020, many are left wondering what can and cannot be achieved through legislative reforms in Ohio.  Please join us for a discussion of Ohio’s recent reform history, what we might expect in the near future, and how research and experience in other states can inform reform efforts in the Buckeye State.

Panelists

Speakers:
Sara Andrews, executive director of the Ohio Criminal Sentencing Commission
Gary Daniels, chief lobbyist at the ACLU of Ohio
Micah Derry, state director for the Ohio chapter of Americans for Prosperity
Andrew Geisler, legal fellow at The Buckeye Institute
Kyle Strickland, deputy director of race and democracy at the Roosevelt Institute and senior legal analyst at Kirwan Institute for the Study of Race and Ethnicity

Moderator:
Douglas A. Berman, executive director of the Drug Enforcement and Policy Center

I am also quite pleased to note that the link in the above description takes folks to this original resource page titled "Drug Sentencing Reform in Ohio."  Here is some of the discussion and resources to be found at that page:

Since 2014, seven states have enacted reforms that have defelonized low-level drug offenses: Alaska, California, Colorado, Connecticut Oklahoma, Oregon, and Utah.  In late 2020, the Ohio House of Representatives opted not to join this growing list by declining a vote on Senate Bill 3 which sought to reclassify some low-level drug offenses from felonies to misdemeanors.  Its origins can be traced back to the ambitious, but ultimately failed, 2018 Issue 1 ballot initiative.  The constitutional amendment initiative included language aimed at reclassifying as misdemeanors those offenses related to drug possession and use, prohibiting courts from sending people back to prison for non-criminal probation violation, and reallocating savings created from lowering prison populations toward drug treatment services.  Like SB3, Issue 1 was vehemently opposed by judges and prosecutors around the state.

Though SB3 stalled, an array of other criminal justice reforms were enacted in the last General Assembly of 2020, including House Bill 1.  HB1 allows more wrongdoers to potentially benefit from alternative dispositions and record sealing. Some argued that the passage of HB1 addressed sufficiently some of the concerns driving support for SB3....

In addition to organizing [the Feb 24 panel] event, DEPC has gathered a variety of other resources to aid in understanding the complex evolution of criminal justice and drug sentencing reforms in Ohio, including a visualization of Ohio incarceration rates and a timeline of Ohio reforms since 2010.  Please see below for commentaries and writings on current and past drug sentencing reform efforts in Ohio, DEPC’s prior events focused on Ohio’s criminal justice reforms, and research aimed at answering some of the most important questions raised by proponents and opponents alike.

February 18, 2021 in Drug Offense Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Sunday, February 07, 2021

Reviewing notable criminal justice reform developments in (red) Ohio

I have long talked up criminal justice developments in Ohio because the state has long been a considered a bellwether for national developments.  But thanks to gerrymandering of state legislative district and other recent developments, Ohio is perhaps now more properly viewed as a red state.  Stiil, the political reality that Ohio's General Assembly is now GOP-heavy arguably make recent progessive criminal justice reforms in the Buckeye state even more noteworthy.  This new local article, headlined "Ohio makes big leaps forward on criminal justice changes," effectively reports on recent significant legislative action in this area, and here are excerpts:

Advocates for criminal justice reforms scored multiple wins in the closing weeks of 2020 that they say will give thousands of Ohioans a second chance.  Gov. Mike DeWine signed half a dozen bills into laws that will take effect later this year. The potential impacts are sweeping.

Incarcerated pregnant women will no longer be shackled to hospital beds as they deliver their babies.  Poor people will be able to perform community service as a way to get their driver’s licenses back instead of paying huge fees.  Ohioans who made mistakes will have an easier time getting professional licenses to advance their careers.  People suffering from serious mental illnesses at the time of the crime will not be executed. Teens who commit terrible crimes will serve their time but will still have the hope of making parole someday. 

And House Bill 1 will allow Ohioans in the throes of addiction to get drug treatment instead of a criminal record.  DeWine called House Bill 1 the most significant among the recent criminal justice reforms.  “There is a broad consensus in this country that people who commit crimes — non-violent offenses — because of the fact that they’re an addict, we all want to see them succeed.  We want them to get clean, stay clean and be good members of society,” said DeWine, a former Greene County prosecutor and state attorney general.  “There is a broad consensus that if they can get clean and on a pathway, we don’t want to tag them with a felony conviction. So this makes sense.”...

Support for HB1 came from the right and left — Ohio Supreme Court Chief Justice Maureen O’Connor, ACLU of Ohio, the conservative Buckeye Institute, public defenders and prosecutors.  Other bills signed into law by DeWine will reduce the “collateral sanctions” — additional punishments that were popular with tough-on-crime lawmakers over the past several decades.  Such sanctions made it more difficult to get professional licensing, housing, student financial aid, driver’s licenses and more.  “Again, we have a broad consensus that we shouldn’t be having those.  Once a person has served their time or served their probation, probably they should be able to move on with their lives,” DeWine said....

Additional reform efforts in 2021 will likely focus on Ohio’s cash bail system, the death penalty, knocking down the number of collateral sanctions people face when they’re convicted, holding the Ohio Parole Board accountable and pushing for criminal drug sentencing changes, said [Kevin] Werner of the Ohio Justice and Policy Center.

Also, while several criminal justice bills made it across the finish line, a comprehensive package of changes in Senate Bill 3 failed to win final approval.  SB3 called for reducing certain felony drug offenses to misdemeanors.  Shakyra Diaz, state director of the Alliance for Safety and Justice, which lobbied for SB3, said Ohio families still need solutions to the addiction crisis and the alliance will continue to work with lawmakers.  “Giving felony convictions to Ohioans with addictions only makes the problem worse, and inaction is not an option as more families lose loved ones to addiction and overdoses because they needlessly cycle through the criminal justice system without getting treatment,” Diaz said.

February 7, 2021 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, January 15, 2021

"Top Trends in State Criminal Justice Reform, 2020"

The title of this post is the title of this short paper from Nicole Porter at The Sentencing Project. Here is how it gets started and its concluding paragraph:

The United States is the world leader in incarceration and keeps nearly 7 million persons under correctional control.  More than 2 million are in prison or jail, and 4.6 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 100 million have a criminal record.  The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.  Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences.  This briefing paper highlights key reforms undertaken in 2020 prioritized by The Sentencing Project....

Lawmakers advanced policy reforms to address mass incarceration and scale back collateral consequences.  Too few policy changes were adopted to address COVID-19 and its impact on the incarcerated in overcrowded congregate lock ups.  While reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take substantial changes to significantly reduce the nation’s rate of incarceration.  Given the limited impact of incarceration on crime, there continues to be potential for substantial reductions in state prison populations.  Lawmakers and advocates must explore key changes that limit the use of incarceration by retroactively ending mandatory minimum sentencing, adopting universal sentencing review policies, challenging racial disparities through structural reforms, and addressing collateral consequences.

January 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, January 09, 2021

SCOTUS grants cert on four new criminal cases, including one on FIRST STEP Act retroactivity of reduced crack sentences

The Supreme Court last night issued this order list which grants review in 14 new cases that will be heard later this SCOTUS Term.  Four of the cases involve criminal issues, and one is a sentencing case concerning the reach and application of the FIRST STEP Act's provisions making the reduced crack sentences of the Fair Sentencing Act retroactive.  This SCOTUSblog post has a lot more about the sentencing case and a brief review of the others:

In Terry v. United States, the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. The Fair Sentencing Act reduced (but did not eliminate) the disparity in sentences for convictions involving crack and powder cocaine, and the First Step Act made the Fair Sentencing Act retroactive.  The specific question that the court agreed to decide is whether the changes made by the First Step Act extend to inmates convicted of the most minor crack-cocaine offenses.

In a “friend of the court” brief urging the justices to grant review in another case presenting the same question, the National Association of Criminal Defense Lawyers explained that the lower courts are divided on this question; as a result, NACDL wrote, Supreme Court review is necessary “to prevent thousands of predominately Black defendants from being forced to spend years longer in prison than identically situated defendants” elsewhere in the country “and to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized.”

Other grants on Friday are:

  • Greer v. United States: Whether, when applying plain-error review based on an intervening decision of the Supreme Court, a court of appeals can look at matters outside the trial record to determine whether the error affected a defendant’s substantial rights or affected the trial’s fairness, integrity or public reputation....
  • United States v. Palomar-Santiago: Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on the misclassification of a prior conviction....
  • United States v. Gary: Whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

January 9, 2021 in Drug Offense Sentencing, FIRST STEP Act and its implementation, New crack statute and the FSA's impact, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, January 04, 2021

Group of Virginia prosecutors urge state lawmakers to enact major criminal justice reforms

As detiled in this local article, headlined "‘Progressive prosecutors’ want Virginia to end the death penalty, cash bail and mandatory minimums," a group of elected prosecutors in the Commonwealth of Virginia are urging their state legislature to enact an array of criminal justice reforms.  Here are the basics:

A handful of self-described “progressive” Virginia prosecutors — including four from Hampton Roads — called Monday for state lawmakers to make dramatic changes to the state’s criminal justice system, including ending the death penalty, cash bail and mandatory minimum sentences and changing the “three strikes” law.

In a letter Monday to state leaders, the Virginia Progressive Prosecutors for Justice group said the changes would “help keep our communities safe while producing more equitable outcomes in our courts.”

The group of 12 prosecutors includes the elected commonwealth’s attorneys from Hampton, Newport News, Norfolk and Portsmouth.  The prosecutors come from cities and counties that make up more than 40% of the state’s population, according to the group.

The changes are likely to meet resistance from other prosecutors and from at least some Republicans in the legislature. Though Democrats now control both chambers of the General Assembly for the first time in a generation, some legislation backed by liberals has met resistance from more moderate members of the party.

The prosecutors want legislation that would allow certain criminal records to be expunged automatically — and for free — after people keep a clean record for a certain amount of time....

The prosecutors are also asking for:

  • Ending mandatory minimum sentences, which the prosecutors said lead to “irrationally lengthy” sentences that “fuel mass incarceration while exacerbating … racial and socioeconomic inequities.”
  • Eliminating cash bail. The prosecutors said cash bail creates a two-tiered justice system, “one for the rich and one for everyone else,” and the impacts of not being able to post bail disproportionately affect people of color.
  • Abolishing the death penalty.
  • Changing an aspect of the “three strikes” law that increases a misdemeanor larceny charge to a felony if a person has a prior misdemeanor larceny conviction.

The full letter from the prosecutors can be found at this link.

January 4, 2021 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, January 03, 2021

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

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

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

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

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

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

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

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

Monday, December 28, 2020

Reviewing remarkable recent criminal justice reforms in the state of Michigan

Ohio and Michigan have a long-standing rivalry on a number of fronts, but this local article highlights why I do not think any state could rival the state of up north with regard to its recent achievements in criminal justice reform.  This piece, headlined "Michigan lawmakers made big inroads on criminal justice reform, but advocates say there’s more to be done," merits a full read, and here is how it gets started:

In a legislative session dominated by disagreements over how best to handle the COVID-19 pandemic, there was one policy arena that united conservatives and progressives alike — criminal justice reform.  Over the course of two years, lawmakers were able to see through several criminal justice policy changes that have eluded previous legislatures for years, as well as several new recommendations made by a task force that had buy-in from experts, advocates, law enforcement, business groups, Gov. Gretchen Whitmer’s administration and Michigan Supreme Court Chief Justice Bridget Mary McCormack.

Those who worked closely on the reforms are quick to say the work isn’t over.  But soon, thousands of people with old criminal convictions on their records will be able to apply to seal those records from public view — and in a couple of years, some of those records will be expunged automatically if they don’t commit any new crimes.  Others who might otherwise have served a stint in county jail may not have to in the future due to legislation decriminalizing many traffic offenses and providing alternatives to jail time for low-level crimes.

“There will be effects that we don’t see right now...we will only see decades later,” outgoing House Speaker Lee Chatfield — who has credited his father’s work in jail ministry to his longstanding interest in making changes to the criminal justice system — said in his farewell speech on the House floor.  “We gave people a second chance,” he continued. “We gave people a fresh start, we gave people the opportunity to now be contributing members of society.”

Some of the major criminal justice legislation passed by both chambers with bipartisan support this session include:

  • Civil asset forfeiture bills requiring a person be convicted of a crime prior to permanent property seizure by law enforcement in most cases. The concept was introduced as a top priority in both legislative chambers in early 2019, and Whitmer signed the legislation in May of that year.

  • Legislation to raise the age of people automatically charged as adults in Michigan’s criminal justice system from 17 to 18. Michigan was one of the few remaining states where 17-year-olds are automatically tried, sentenced and incarcerated as adults if they’re charged with or convicted of a crime.  Whitmer signed the bills in October 2019, and they take effect in October 2021.

  • “Clean Slate” legislation designed to simplify and expand expungement options for people who have gone several years without committing another offense.  The package, signed by Whitmer in October, opens up the expungement process to low-level marijuana convictions and many traffic offenses, increases the overall number of expungements a person can receive and allows consolidations of multiple convictions that occurred in the same 24-hour time period.  Lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.

  • Additional expungement-related bills passed in the legislature’s “lame duck” session, including adding first-time drunken-driving convictions and certain crimes committed by minors to the list of what could be wiped from criminal records.  Another bill sent to the governor’s desk this month directs $24 million from the Marihuana Registry Fund to the Michigan Set Aside Fund.

  • A House package redefining the term “good moral character” in state law to remove barriers to obtaining many occupational licenses for people with a prior criminal conviction. Under existing law, any criminal conviction can be taken into consideration by a licensing board when determining a person’s fitness for a profession — under the bill package, only serious crimes that posed a threat to public safety or were directly related to the occupation in question could be taken into consideration.

  • House legislation reducing penalties for a number of low-level offenses from misdemeanors to civil infractions, including driving on a suspended license.  Other related bills would limit driver’s license suspensions to offenses related specifically to dangerous driving and eliminate mandatory sentencing for a variety of offenses.

  • Senate legislation expanding law enforcement discretion to issue citations for most misdemeanors in lieu of arrest and creating a presumption of a sentence other than jail for most misdemeanors and certain felonies.  Other bills would ensure summonses are used for most first-time failure to appear in court and reforms the state’s probation and parole policies, capping jail sanctions for technical probation violations and allowing more discretion to assess risks and needs.

  • A Senate bill lifting a ban on food assistance for people with more than one drug-related felony on their record.

December 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, December 18, 2020

"How States Transformed Criminal Justice in 2020, and How They Fell Short"

The title of this post is the title of this big retrospective put together masterfully by Daniel Nichanian at The Appeal: Political Report.  I highly recommend review of the whole piece, so that you can fully understand its subhealine: "This year of crises, revisited. Nearly 90 state-level bills and initiatives. 17 themes. 7 maps." And here is the lengthy piece's preamble to the issue-by-issue review of reforms:

Throughout 2020’s unprecedented challenges, criminal justice reform advocates called for sweeping changes.  But state officials and legislatures largely ducked the COVID-19 pandemic that is raging inside prisons and jails, and the protests against police brutality and racial justice that followed Breonna Taylor and George Floyd’s murders.  With some exceptions, they forgoed the sort of reforms that would have significantly emptied prisons amid the public health crisis or confronted police brutality and racial injustice in law enforcement.

Still, on other issues there was headway, and states — whose laws and policies control a lot about incarceration and criminal legal systems—set new milestones: They decriminalized drug possession, expanded and automated expungement availability, repealed life without parole for minors and the death penalty, and ended prison gerrymandering, among other measures.

Throughout the year, The Appeal: Political Report tracked bills, initiatives, and reforms relevant to mass incarceration.  Just as in 2019, here’s a review of major changes states adopted in 2020.

Jump to the sections on: the death penaltydrug policyearly release and paroleyouth justicepolicingfines and feespretrial detentiontrials and sentencingvoting rightsexpungement and re-entryprison gerrymandering — and then there’s more.

December 18, 2020 in Elections and sentencing issues in political debates, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Bipartisan drug sentencing reform in Ohio thwarted by opposition from prosecutors (and former prosecutors)

As well reported in this local article, headlined "Ohio lawmakers pass one criminal justice measure, but a second, broader bill appears to be dead," a long-running effort to reform drug sentencing in Ohio failed to get completely to the finish line in the state General Assembly.  Here are the details:

The Ohio Senate passed a bill Thursday evening that urges more drug treatment and makes it easier for people to have their criminal records sealed.

But a broader criminal justice reform measure that reclassifies many smaller-level drug possession felonies to misdemeanors and requires addicts get treatment looks like it will die in these final days of the 133rd Ohio General Assembly....

“Barring a miracle, I believe it’s dead,” said the Buckeye Institute’s Greg Lawson. “Everything I’ve heard is it’s not coming to the floor.”

A large coalition that includes dozens of organizations across the ideological spectrum — from the conservative Buckeye Institute and the Ohio chapter of Americans for Prosperity to the progressive American Civil Liberties Union of Ohio and Faith in Public Life — was pushing for both bills to pass. Advocates are disappointed that SB 3 appears to have failed....

SB 3 had powerful detractors in prosecutors and judges — including Ohio Chief Justice Maureen O’Connor — who felt the bill would strip judges of discretion, would neutralize the tools that drug courts can use to nudge people through rehabilitation, and would remove an incentive to overcome addiction if there was no threat of a felony conviction.

Gov. Mike DeWine, a former Ohio attorney general and county prosecutor, has said he opposed the bill.

What that ignores, argued Micah Derry, AFP Ohio director, is that felonies follow people for the rest of their lives, even when someone does recover from addiction.  These days, with the power of data mining on the Internet, sealing a record may not shut the books on one’s past.  Many companies that specialize in employment background checks can still find past crimes, thanks to capturing and saving data over time.  “There’s not a single county prosecutor who is a person of color,” Derry said. “Not to get too racial about it, but there’s a reason why people of color have the books thrown at them more than other people.”

Earlier on Thursday, Harm Reduction Ohio, the largest distributor of naloxone in the state, reported drug overdose deaths were high in 2020, with many counties reporting records for the year — especially in Central Ohio and the Appalachian part of the state.  Final data for the year isn’t expected until mid-2021 from the Ohio Department of Health.

The crux of SB 3, mandatory treatment for addicts and reclassification of many felonies to misdemeanors, will unlikely be resurrected next year, said ACLU of Ohio’s Chief Lobbyist Gary Daniels. DeWine will still be in office.  So will Ohio House Speaker Bob Cupp, a former Ohio Supreme Court justice who hasn’t brought it to a floor vote.

Especially because I know many folks who have worked so very hard for years to advance SB3, it is really disappointing that House Speaker Cupp (a former local prosecutor) would not allow a floor vote even after the bll earned committee approval.  I sense that SB3 would have passed in the Ohio House if given a floor vote, and I suspect Gov DeWine (a former local prosecutor) might have ultimately been convinced to sign the bill or allow it to become law.  Especially because House Speaker Cupp perviously served on the Ohio Supreme Court, I wonder if the consistent SB3 opposition of Chief Justice O'Conner (a former local prosecutor) contributed to his unwillingness to even allow this bill to get a vote.

Among other stories, this sad legislative tale serves as yet another reminder of how hard it will be to even slightly revamp the war on drugs no matter how clear its failures are (as well documented by Harm Reduction Ohio).  SB3 did not decriminalize anything (and I believe it increased sentences for hgh-level trafficking); the bill simply sought to reclassify the lowest level drug-possession offenses from felonies to misdemeanors.  But after two years of very hard work by effective advocates on both sides of the aisle, prosecutors and former prosecutors were able to keep this modest reform from even getting a full and fair vote in the Ohio General Assembly.  Sigh.

December 18, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, November 04, 2020

California voters reject ballot initiatives to roll back sentencing reforms and to eliminate cash bail among other notable votes

As reported in this AP piece, there were some notable mixed results on a number of California criminal justice ballot initiatives.  Here is the AP accounting of the two biggest items:

California has upheld several criminal justice changes, endorsing recent efforts to ease mass incarceration by reducing penalties and allowing for earlier releases. Voters also appeared likely to maintain the state’s current cash bail system as a majority opted for the status quo on both criminal justice ballot measures.

Voters on Tuesday defeated Proposition 20, rejecting supporters’ pleas to address what they called the “unintended consequences” of two previously approved ballot measures. One lowered penalties for drug and property crimes in 2014, while the second two years later allowed the earlier parole of most felons.

Voters by a 63% to 37% margin rejected proposals that would have barred criminals convicted of certain serious offenses from earlier release, increased penalties for repeated retail thefts, toughened parole standards and allowed for broader DNA collections.  Opponents said the measure would have set back reforms just as the nation focuses on a criminal justice system that has treated people of color inequitably.

Jay Jordan, executive director of Californians for Safety and Justice that backed the reforms, called the proposition’s defeat “a significant milestone in California’s ongoing effort to make its criminal justice system more effective” and said it would advance national reform efforts. Former governor Jerry Brown championed the 2016 ballot measure that allowed most felons to seek earlier parole and put $1 million of his remaining campaign funds into contesting Proposition 20....

Voters were also leaning toward keeping the state’s current cash bail system, with 55% rejecting a law passed in 2018 that would substitute risk assessments to decide who should remain in jail awaiting trial. The law stalled when the bail industry went to the ballot box.

Even some prominent civil rights groups agreed the system is broken but said the proposed fix might be even worse because it relies on risk assessments that The Bail Project says “codify systemic racism and could lead to higher rates of incarceration in some jurisdictions.”

State Sen. Bob Hertzberg, a Democrat from Los Angeles who wrote the law, said before Election Day that ending cash bail would put California “on the path to a more fair and more safe justice system that treats everyone equally under the law.” While most states recently have altered their pretrial release laws or policies, voters’ approval of Proposition 25 would make California “the only state with a complete prohibition on fiscal conditions of release,” according to National Conference of State Legislatures criminal justice expert Amber Widgery.

Under the new system, no one would pay bail and most misdemeanor suspects would remain free. Those charged with felonies or misdemeanor domestic violence, sex offenses or driving while intoxicated would be evaluated for their perceived risk of committing another crime or not appearing in court. Most would eventually be released, unless they are accused of certain crimes like murder or arson, or if a judge finds there are no conditions like electronic monitoring that could ensure their appearance at future hearings.

All the results of the California propositions can be found on in this article, which notes that another notable criminal justice reform passes:

Proposition 17 –  Allow Felon Parolees to Vote (Yes = 59.0%, No = 41.0%)

The passage of Proposition 17 grants the right to vote to parolees with felony convictions. Imprisoned convicted felons remain disqualified from voting.

And this Los Angeles Times piece, headlined "From George Gascón to jail diversion, criminal justice reform got a big boost in California," highlights the criminal-justice-reform-minded votes in Los Angeles bringing in a new DA and a local measure requiring "that 10% of locally generated, unrestricted county money — estimated between $360 million and $900 million — be spent on a variety of social services, including housing, mental health treatment and investments in communities disproportionally harmed by racism [while] the county would be prohibited from using the money on prisons, jails or law enforcement agencies."

November 4, 2020 in Campaign 2020 and sentencing issues, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, October 30, 2020

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

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

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

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

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

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

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

Prior related posts:

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

Saturday, October 17, 2020

Understanding Proposition 20, the latest chapter of California's experiments with sentencing reform via initiative

I have noticed more than a few recent media pieces about the notable sentencing reform measure on the ballot in California this year, Proposition 20, and here is a sample:

The start of the LA Times piece seems to provide a pretty clear account of the range of complicated state reform realities connected to Prop 20:

As much of the country weighs changes to the criminal justice system, California has had a head start, adopting a series of laws in the last decade that, among other things, helped reduce the state’s prison population by more than one-third, or 50,000 people.

Now a group of prosecutors and law enforcement leaders has placed Proposition 20 on the November statewide ballot, which would expand the list of felonies for which the convicted are ineligible for early parole; increase penalties for repeat shoplifters; and collect DNA samples from adults convicted of some misdemeanors.

Proponents argue that it is needed to fix flaws in past measures that they say are putting the public’s safety at risk, including the early release of potentially violent criminals. But opponents of the measure, who include civil rights leaders, Gov. Gavin Newsom and former Gov. Jerry Brown, say it wrongly rolls back necessary criminal justice reforms as crime has declined in recent years. “California is ahead of the game — we’ve done so many great reforms,” said Assemblyman Jim Cooper (D-Elk Grove), a retired sheriff’s captain and proponent of Proposition 20. “But there have been unintended consequences with these reforms.”

Brown, who led past reform efforts, called the initiative “very inhuman.” He said it takes away hope and incentives for prison inmates to pursue educational opportunities and demonstrate good behavior to improve their chances of getting out early. “Proposition 20 is supported by a very narrow group of people who don’t accept even the modest prison reforms that I was able to achieve,” Brown said. “It’s driven by ideology and, in some cases, by a total lack of understanding of human nature and no sense of redemption or allowing people to put their lives on track. It’s vindictive.”

Brown was governor when the U.S. Supreme Court ruled in 2011 that California’s prisons were overcrowded in violation of constitutional protections.  That year, he signed Assembly Bill 109 into law to reduce the state prison population by requiring that many people convicted of felonies not involving violence or sex offenses serve their sentences in county jails instead of state prison.

In 2014, California voters approved Proposition 47, which reclassified many lower-level drug and property crimes from felonies to misdemeanors.  Before then, thefts could be considered a felony if stolen merchandise was valued at $450 or more, but Proposition 47 raised the threshold to $950.

Proposition 57, which Brown developed and was approved by California voters in 2016, increased parole and good behavior opportunities for those convicted of nonviolent felonies.

The new initiative to be voted on Nov. 3 makes key changes in the previous three laws.

The measure would broaden the list of crimes that make inmates ineligible for early release from state prison through the parole program in Proposition 57, adding 22 offenses, including trafficking a child for sex and felony domestic violence.

The measure also would increase penalties for people who commit multiple thefts, including serial shoplifting, to address a spate of such crimes, and would mandate the collection of DNA samples from adults convicted of crimes newly classified as misdemeanors under AB 109, including forging checks and certain domestic violence crimes.

In addition, Proposition 20 would require the state Board of Parole Hearings to weigh an inmate’s entire criminal history when deciding parole, not just the most recent offense, which was the standard set by AB 109.

The nonprofit, nonpartisan group CalMatters has this helpful page about Prop 20 which includes a two-minute video seeking to summarize the initiative.  This Ballotpedia page on Prop 20 reveals a lot of money has been donated to both the proponents and opponents of this reform, but it does not report on any polling on the topic.  I have seen other reports on polling calling this ballot issue a "coin toss" because of so many undecideds.  In other words, as always seems to be the case, California in Nov 2020 is yet again a state to watch for those interested in the state of criminal justice reform efforts.

October 17, 2020 in Campaign 2020 and sentencing issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, October 01, 2020

Lots and lots of notable (and very consequential?) new criminal justice reforms now law in California

CaliforniaflagCalifornia has long been a very big and very interesting and very complicated state when it comes to criminal justice and sentencing reform. This fascinating state story continued with a lot of new bills being signed yesterday by Gov Gavin Newsom. This local article (which somewhat tracks this official document from the Governors office) provides some of the details and provides especially helpful links to the underlying legislation.  Here are excerpts focused on criminal justice reforms with my bolding added for follow-up comments:

Gov. Gavin Newsom signed landmark bills into law on Wednesday, the last day available for the governor to sign legislation.  The docket included racial justice, criminal justice, and policing reform, as well as legislation related to cannabis, rental housing, and banning hazardous chemicals and ingredients in cosmetics. 

This long list of signed bills has my head spinning, and the title of this post highlights that I am particularly curious and particularly uncertain about how consequential all these bills are likely to be.  I have bolded the two bills that, as a sentencing fan, strike me as particularly intriguing and potentially very consequential. 

AB 1950, which caps the duration of probation terms, has been described by REFORM Alliance as the "most transformative probation reform bill in the country."  This new Fox News article, headlined "Jay-Z, Meek Mill's REFORM Alliance celebrate 'major victory' with Calif. Gov. Newsom passing probation bill," talks about this new bill and the efforts and people behind making it law.  Here is a snippet:

On Wednesday, REFORM announced on Instagram it was celebrating a "MAJOR REFORM VICTORY." Through its verified Instagram account, the alliance thanked California Gov. Gavin Newsom for signing AB 1950 into law.  "This bill will help put hundreds of thousands of Californians on probation in positions to succeed and exit the criminal justice system for good.  Thank you @GavinNewsom!" the Instagram post reads.  In a follow-up post, the organization wrote, "This is just the beginning. This is how we #fightdifferent."...

REFORM's CEO Van Jones explained in a video statement that the law will essentially "make people be on probation for much less time" and will "give people a much better shot at getting out of that system, getting what they need and getting on their way."  The premise is to reduce the number of probation violations.

AB 2542, which provides for a California Racial Justice Act, seems to be the biggest and broadest racial justice act ever passed by any state because it seems to apply to all convictions and sentences and not just death sentences as did comparable Racial Justice Act passed in Kentucky and North Carolina years ago.  Notably, Michelle Alexander wrote this op-ed last week endorsing this bill and explaining its reach this way (with my emphasis added):

The new law will make it possible for a person charged or convicted of a crime to challenge racial, ethnic, and national-origin bias in their case through relevant evidence, including: 

▪ Explicit racial bias by an attorney, judge, law enforcement officer, expert witness, or juror involved in the case.

▪ Use of racially discriminatory language in court and during the criminal proceedings, whether or not intentional.

▪ Racial bias in jury selection, such as removing all or nearly all Black, brown, Native, Indigenous and people of color from the jury.

▪ Statistical disparities in charging and convictions — that is, evidence that people of one race are disproportionately charged or convicted of a specific crime or enhancement.

▪ Statistical disparities in sentencing — that is, evidence that people of one race receive longer or more severe sentences, including the death penalty or life without parole.

I believe that the new California Racial Justice Act only applies prospectively, and so we will not see extensive litigation over past sentences as we did in North Carolina (and which led to the repeal of that state's Racial Justice Act). But even as just a prospective measure, I am inclined to predict that this new statute could prove highly consequential in all sorts of ways.

I am hopeful that smart folks who focus on the California criminal justice system might soon blog about to these bills and their potential impacts. And, of course, another wave of reform in California might not be far away: as this article highlights under the headline "Three ballot measures test attitudes on crime in California," a set of criminal justice initiatives being put to California voters next month will add to this remarkable 2020 reform chapter in the Golden State.

October 1, 2020 in Criminal Sentences Alternatives, Race, Class, and Gender, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, September 26, 2020

"The Perils of 'Old' and 'New' in Sentencing Reform"

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

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states.  While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy.  This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea.  It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond.  It then examines debates about two conceptual issues — selective incapacitation and equality — to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting.

Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration.  It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states.  It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

September 26, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (0)

Wednesday, August 26, 2020

"Criminal Law Update: A Survey of State Law Changes in 2019"

The title of this post is the title of this notable publication from The Federal Society authored by Robert Alt.  Here is how it gets started:

In 2019, state legislatures across the country modified rules and procedures related to every part of the criminal justice system, from pretrial detention to post-sentence re-entry.  States passed new legislation and amended their criminal codes addressing a range of criminal justice concerns.  A review of the legal landscape shows that states were most willing to adjust their criminal laws related to sentencing, record expungement and offender registries, marijuana legalization, and felon reenfranchisement.  This paper is not intended to serve as an exhaustive list of new criminal justice legislation in 2019, but rather highlights the most common reforms that fall generally among those categories.

As in 2018, criminal justice laws enacted in 2019 did not take a singular approach.  Some states, for example, significantly enhanced penalties for certain offenses, while others reduced sentences and repealed mandatory minimums.  Alaska adopted comprehensive criminal justice legislation that included repealing “catch and release” pretrial protocols, even as New York all but ended its pretrial detention and cash bail system.  Three states revised rules for offender release and re-entry, and two states continued the national trend of restricting civil asset forfeiture and making the process more transparent.  A handful of states amended their treatment of juvenile offenders, and several more stopped suspending driver’s licenses for unpaid fines and court costs.

Support for and opposition to criminal laws and punishments do not tend to break along traditional partisan lines. Although some legislative reforms proved to be politically contentious, including New York’s bail reform and Florida’s new re-enfranchisement requirements, others were largely bipartisan efforts wherein legislatures and governors from both ends of the political spectrum reached tenable compromises. Some legislatures even passed measures unanimously.

August 26, 2020 in Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, July 30, 2020

Fascinating Oklahoma initiative seeking to block non-violent prior convictions from enhancing statutory range of punishment qualifies for ballot

The COVID pandemic has derailed various ballot initiatives in various jurisdictions, but I am very pleased to see this news about the success of one criminal justice reform effort in at least making it to the ballot in Oklahoma.  Here are the details and some background:

The Oklahoma Supreme Court ruled Wednesday that enough voter signatures were collected to put a question regarding sentence enhancements for nonviolent offenders on the ballot on November 3.

More than 248,000 Oklahomans signed an initiative petition to get State Question 805 on the ballot.

Sentence enhancements allow courts to widen the range of years they can sentence a person to prison if that person has been convicted of another felony in the past.  The state question will ask voters to take that power away from courts when they’re sentencing people who have never been convicted of a violent felony.

A recent analysis from the Oklahoma Council for Public Affairs suggests ending enhancements for nonviolent offenders could cut the state’s prison population more than eight percent in 10 years and save the state up to $186 million.

The Oklahoma Department of Corrections questions some of the study’s findings.

A 2017 report from a task force established by former Governor Mary Fallin found that sentence enhancements were a large contributor to Oklahoma’s disproportionately high prison population.

Because I am not an expert on Oklahoma's current politics around sentencing reforms, I do not have a keen sense of whether this initiative has a real chance of passage.  But I do sense this initiative could and should engender an important national conversation about often out-sized impact of (even minor) criminal history at sentencing.  And in light of this OCPA report stressing the fiscal savings of this reform, it will be quite interesting to see how debates over public safety and state spending play out in a very red state circa fall 2020.  The OCPA report has this summary and concluding thoughts providing its accounting of what State Question 805 might achieve:

Oklahoma criminal statutes typically provide a sentencing range for each offense. A separate law allows even longer sentences—sometimes including life in prison—for persons with prior felony convictions. People convicted of non-violent property and drug offenses are the most likely to receive enhanced penalties under this law and also receive the harshest sentence increases.

State Question 805 would limit this sentence enhancement to crimes that the legislature considers violent.  This should reduce Oklahoma’s prison population by 8.5% over the next 10 years. That would reduce state expenses between $45 million and $186 million, with expected savings of at least $142 million. Taxpayer savings of up to $27 million per year would continue indefinitely into the future.  These funds could be directed to substance abuse and mental health services, victim’s services, reentry programs, or other public safety priorities....

With all of these changes, however, SQ 805 would still only reduce Oklahoma to the fourth-most incarcerated state in the nation.  Rather than the radical reductions opponents claim, this is a common-sense, limited adjustment to drug and property sentence lengths that will make Oklahoma’s failing criminal justice system more efficient and more fair.

Prior related post:

July 30, 2020 in Offender Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, July 26, 2020

A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform

81p9ffvBF7LA kind reader pointed out for me that exactly 100 years ago today, the late great Marvin Frankel was born.  Though he served in many roles through his career, I think of this historic figure as Judge Frankel because of his service on the US District Court and especially because he was a judge when he wrote his most famous book, Criminal Sentences: Law Without Order.  This book's criticisms of "lawless" sentencing practices played a huge role in the emergence of structured sentencing systems, and Judge Frankel has been frequently and widely described as the "father of sentencing reform."

Though there are many reasons not to love the form of certain reforms (like the federal sentencing guidelines) that Judge Frankel helped engender, there are no reasons not to love Criminal Sentences: Law Without Order.  The book is less than 125 pages, and seemingly every page is full of shrewd insights and rhetorical flourishes.  In addition to being among the most influential books of legal scholarship, Criminal Sentences: Law Without Order is simply a great (and still timely) read.  Though it is hard to put together a fitting tribute to Judge Frankel, it is easy to find quotes from his book to provide a flavor of his contributions a century after his birth. So, a taste:

at page 5: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

at pages 17-18: "Conditioned in the direction of authoritarianism by his daily life in court, long habituated as a lawyer to the stance of the aggressive contestant, and exercising sentencing powers frequently without practical limits, the trial judge is not discouraged from venting any tendencies toward righteous arrogance. The books and the reliable folklore are filled with the resulting horror stories — of fierce sentences and denunciatory attacks upon defendants."

at page 21: "[S]weeping penalty statutes allow sentences to be 'individualized' not so much in terms of defendants but mainly in terms of the wide spectrums of character, bias, neurosis, and daily vagary encountered among occupants of the trial bench."

at page 39: "The question “Why?” states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical."

at page 103: "The arbitrary cruelties perpetrated daily under our existing sentencing practices are not easy to reconcile with the cardinal principles of our Constitution.  The largely unbridled powers of judges and prison officials stir questions under the clauses promising that life and liberty will not be denied except by 'due process of law.'  The crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the 'equal protections of the laws' is being fulfilled."  

Final paragraphs concluding with a call for the creation of a "Commission on Sentencing":

The uses of a commission, if one is created, will warrant volumes of debate and analysis.  For this moment and for this writer, the main thing is to plead for an instrumentality, whatever its name or detailed form, to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....

Lawyers and judges, tending to be human, are not likely to greet with rampant enthusiasm demands for change in their settled ways.... So to any reader who has come to this concluding paragraph — but perhaps somewhat especially to the lay reader — I would urge that you not close the topic along with the book.  The topic has to do with monstrous evils perpetrated daily for all of us, and with our implicit or express acquiescence.  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.

July 26, 2020 in Federal Sentencing Guidelines, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, July 14, 2020

"The United States of Risk Assessment: The Machines Influencing Criminal Justice Decisions"

The title of this post is the title of this very useful Law.com/Legaltech News article and related research project by Rhys Dipshan, Victoria Hudgins and Frank Ready. The subtitle of the piece provides an overview: "In every state, assessment tools help courts decide certain cases or correctional officers determine the supervision and programming an offender receives. But the tools each state uses varies widely, and how they're put into practice varies even more."  This companion piece, titled "The Most Widely Used Risk Assessment Tool in Each U.S State," provides this introduction:

There are dozens of risk assessment tools in use in local criminal justice systems around the country.  Not all have a far reaching impact, such as those specialized to a specific risk like domestic violence or those assessing risk for a certain demographic like juvenile offenders.  Tools that have the broadest impact and deployment, however, are ones that look at recidivism pretrial risk in adult populations.

Below, we highlight these specific tools in use in each state, and the criminal justice decisions point they influence.  These findings are part of a broader research project examining how jurisdictions implement risk assessment tools, and how they determine they accurately work and are implemented as intended.  The project also dives into how risk assessment tools generate their scores and the debate around whether these instrument exacerbate or mitigate bias in criminal justice decision making.

July 14, 2020 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (2)

Sunday, June 21, 2020

"Investing in Failure: 2020 Ballot Initiative to Repeal Justice Reform Would Come at a High Cost to Californians"

The title of this post is the title of this recent report from the Center on Juvenile and Criminal Justice making the case against a ballot initiative before California voters this year.  Here is the report's introduction:

In November 2020, Californians will vote on a ballot initiative titled Restricts Parole for Non-Violent Offenders.  Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors.  Initiative Statute (“the initiative”), which would roll back key elements of the state’s recent justice reforms, including Public Safety Realignment, Proposition 47, and Proposition 57 (AB 109, 2011; Prop 47, 2014; Prop 57; 2016; SOS, 2018).  In recent years, the Center on Juvenile and Criminal Justice (CJCJ) has analyzed the effects of other major reform initiatives, including the “Three Strikes” law reform, Proposition 47, and Proposition 57 (CJCJ, 2008; 2011; 2014; 2014a; 2014b; Ridolfi et al., 2016; 2016a).  This report considers the current initiative’s effects on budgets, jail and prison populations, and crime rates.  Our analysis suggests that the initiative’s passage could siphon scarce state resources and increase populations in jails and prisons to critical levels.

June 21, 2020 in Campaign 2020 and sentencing issues, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, June 06, 2020

New (and free) Federal Sentencing Reporter issue on "State Prosecutors: Their Impact on Mass Incarceration and Criminal Justice Reform"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, as it allows me to flag the latest FSR issue and some of the articles therein. This new issue was put together by FSR editor/Prof Nora Demleitner and the title and coverage in her opening article provides an an overview:

State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora Demleitner:

In this Issue of the Federal Sentencing Reporter we turn to the role of state prosecutors in sentencing.  In recent years, both the scholarly discourse and the advocacy community have increasingly focused on the impact prosecutors have had on mass imprisonment and the expansion of the supervision regime.  A new cohort of ‘‘progressive prosecutors’’ have campaigned on the promise of less imprisonment and greater racial equality.  Some have captured the head prosecutor positions in large U.S. jurisdictions, including Chicago, Brooklyn, Boston, Philadelphia, and San Francisco.  They have instituted a host of often dramatic changes. To date, smaller jurisdictions and less urban areas of the country have been little impacted by this prosecutorially driven move toward criminal justice reform.

This Issue highlights the different levels of decision making that are in the hands of prosecutors throughout the criminal justice process.  From the allocation of resources and charging policies to the explicit refusal to ever ask for a death sentence, prosecutorial choices impact the sentences the criminal justice system imposes.  With the ever-growing expansion of the prosecutorial toolbox and impact, increasingly the decisions of district attorneys have repercussions for other aspects of communities, such as the mental health system.  Prosecutor elections can have a vast impact on communities, but Carissa Hessick’s study on prosecutor elections in this Issue highlights how they can be undemocratic and how their importance can be underestimated.

The ongoing crisis surrounding COVID-19, the novel coronavirus that has brought countries, including our own, virtually to a standstill, vividly displays the role prosecutors play in our communities and the impact their decisions have on the welfare and life of those involved in the criminal justice system.  There may be no more powerful indicator of prosecutors’ influence than their ability to prioritize public health concerns during this crisis in order to help thin out jail populations and thereby create greater means to ‘‘social distance’’ behind bars.  Even though local prosecutors play an active role in populating state prisons, their role in decreasing the prison population is more limited, especially when prisons preclude front-end entry through jail transfers.

Here are some of the original articles from the issue:

Reimagining a Prosecutor’s Role in Sentencing by Lauren-Brooke Eisen and Courtney M. Oliva

Local Prosecutor Elections: Results of a National Study by Carissa Byrne Hessick

Prosecutor-Driven “Second-Look” Policies Are Encouraging, but Not a Panacea by Rory Fleming

Bettering Prosecutorial Engagement to Reduce Crime, Prosecutions, and the Criminal Justice Footprint by Assistant District Attorney Sabrina Margret Bierer

A Qualitative Perspective on Alternative Sentencing Practices in Virginia by Anne Metz

June 6, 2020 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, May 09, 2020

Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?

The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:

Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform.  Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.

Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died.  The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity.  Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.

The prison system has long been scrutinized by the left for its overcrowding problem.  Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....

Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....

Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....

Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...

The Buckeye Institute has long lobbied for fiscally conservative policies.  Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....

Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”

For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.

“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs.  Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”

I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order.  But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer.  And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law.  I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.

May 9, 2020 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Thursday, April 23, 2020

Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"

The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue."  Here are the lengthy pieces under this heading with their full headlines:

Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.

A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.

How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.

New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.

April 23, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 23, 2020

"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"

Fentanylgraphic_map_0The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:

The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl.  Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.”  However, despite a change in discourse, draconian policies have persisted and in many cases been expanded.  This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.

Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation.  At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act.  In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.

Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more.  These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use.  Indeed, such proposals risk compounding the overdose crisis.

Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use.  There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison.  Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars.  A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.

The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels.  The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration.  To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.

In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences.  This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.

January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, January 17, 2020

The Sentencing Project reports briefly on "Top Trends in State Criminal Justice Reform, 2019"

The folks at The Sentencing Project have this helpful new short brief reviewing "Top Trends in State Criminal Justice Reform, 2019." The four-page document starts and ends this way:

The United States is a world leader in incarceration and keeps nearly 7 million persons under criminal justice supervision.  More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. More punitive sentencing laws and policies, not increases in crime rates, have produced this high rate of incarceration.  Ending mass incarceration will require changing sentencing policies and practices, scaling back the collateral consequences of conviction, and addressing racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences of a felony conviction.  This briefing paper describes key reforms undertaken in 2019 prioritized by The Sentencing Project....

During 2019, lawmakers in several states enacted legislative changes to address high levels of imprisonment. While the reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take more far-reaching measures to markedly reduce the nation’s rate of incarceration, which is far above that of other western nations. Given the limited impact of incarceration on crime, there is potential for significant reductions in state prison populations.  Lawmakers and advocates should explore key changes that limit the use of incarceration, challenge racial disparity, address collateral consequences, and improve outcomes for justice-involved youth.

January 17, 2020 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, December 26, 2019

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:

Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago.  That's the major conclusion from Governor Bill Lee's criminal justice investment task force....

Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety.  In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.

Among the task force's key findings:

  • Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
  • Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
  • Over half of prisoners released from custody are back in jail within three years
  • Half of local county jails are overcrowded
  • An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration

With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:

  • Expanding access to sentencing alternatives, like probation and treatment programs
  • Help more inmates transition successfully back into society
  • Increase educational opportunities
  • Improve community supervision programs
  • Reduce probation terms
  • Streamline the parole process
  • Rewrite the sentencing code (replacing the current one from 1989)

This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety."  Other states might also find these proposed avenues quite useful

December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, December 11, 2019

"The Missing Link: Jail and Prison Conditions in Criminal Justice Reform"

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

At any given moment in the United States, approximately 2.3 million people are behind bars, at least a quarter of whom have not been convicted of a crime.  Louisiana was second in the nation — and the world — in incarceration rates in 2018, but it is last nationwide in other relevant rankings: health care, infant mortality, economy, education, and infrastructure.  Louisiana only lost its title of “Incarceration Capital of the World” to Oklahoma following bipartisan state legislation enacted in 2017, which lowered our per capita incarceration rate.  Louisiana still far outpaces the nation, incarcerating 712 people per 100,000, compared to a national average of 450 people per 100,000.

The goal of this article is simple: to connect the dots between conditions in jails and prisons and broader criminal justice reform efforts.  This Article looks at conditions in Louisiana jails and prisons, examines recent reforms, and draws from other states and national data to establish broader trends.  It discusses recent criminal justice reform efforts, summarizes some of the key features of prison and jail conditions, with particular attention to how these conditions impact both the people incarcerated and their broader communities, and recommends several strategies to improve prisons and jails based on the relationships between their conditions and existing criminal justice reforms.

December 11, 2019 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Friday, November 15, 2019

New Jersey commission releases big report recommending numerous big sentencing reforms

As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:

The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.

The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.

Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.”  State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...

The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”

The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.

Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.

This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.

The NJ commission's full report is available at this link, and it is a worthwhile read in full.  Here is the report's "Summary of Recommendations":

1. Eliminate mandatory minimum sentences for non-violent drug crimes.

2. Eliminate mandatory minimum sentences for non-violent property crimes.

3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.

4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.

5. Create a new mitigating sentencing factor for youth.

6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.

7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.

8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.

9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.

November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, November 03, 2019

Giving Oklahoma its criminal justice reform due

Regular readers will not be surprised to hear more about red-state Oklahoma's interesting and important criminal justice reform efforts, as I have tried to highlight here repeatedly the more-than-okay news from the OK state.  But with record-setting clemency developments (first noted here), the mainstream media is catching up as evidence by these recent pieces:

From the Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"

From US News, "Oklahoma Focuses on Criminal Justice Reform"

From the Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"

UPDATE: Here are a few more new pieces from the national media:

From CNN, "462 Oklahoma inmates will be released today in the largest commutation in US history"

From USA Today, "Hundreds of Oklahoma inmates to be freed, the largest mass release in US history"

November 3, 2019 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, July 16, 2019

New Pew report spotlights state changes in community supervision and revocations

The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":

Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016.  Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.

People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration.  A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.

Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity.  Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.

This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy.  JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism.  These state efforts have not been without challenges, and more can be done to improve supervision outcomes.  Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.

July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, July 08, 2019

A critical perspective on the Lone Star State's experiences with criminal justice reform

A few months ago, as noted in this post, Marie Gottschalk had published a critical review of the achievements of the federal FIRST STEP Act.  Now, in this notable new commentary in The Baffler about the Texas experience with criminal justice reform, she provides a critical perspective on how little has changed in a big state that seems to get a lot of reform credit.  The extended piece is headlined "The Prisoner Dilemma: Texas fails to confront mass incarceration," and here are some excerpts:

The origin story of the latter-day turnaround in Texas’s criminal justice system dates back to 2007, when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional seventeen thousand prison beds by 2012.  Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment.  The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem.  And yet, even though Texas was required to face up to certain realities — first by the Ruiz case and later by budget constraints — the Texas penal system, after all these years, has not really changed its stripes.

For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas.  Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.

Texas today incarcerates nearly one-quarter of a million people in its jails and prisons — more than the total number of prisoners in Germany, France, and the United Kingdom combined.  If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states.  Texas still operates some of the meanest and leanest prisons and jails in the country. Two meals a day on weekends during budget shortfalls.  Cellblocks without air-conditioning, fans, or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lock-ups in isolated rural areas.

All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country.  If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state.  That’s enough to fill a city the size of El Paso.

Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat — by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow.  The state’s female incarceration rate ranks fifteenth nationwide.

Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails.  Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes.  Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary.

July 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, June 01, 2019

NYU Center, reviewing historical state clemency grants, spotlights Massachusetts' ugly recent history

As noted in this prior post and as detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has a new project focused on state clemency histories with reports on particular state experiences.  The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and is available at this link.  Now the second report, titled "Willie Horton’s
Shadow: Clemency in Massachusetts," has been released and is available at this link.  Here is how it gets started:

A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation.  Clemency advances both goals.  This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997.  Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts — 13 percent of the state’s prison population—are condemned to die behind bars.

June 1, 2019 in Clemency and Pardons, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Saturday, May 04, 2019

Florida legislature passes it own first (very baby) step act on criminal justice reform

This local article out of Florida, headlined "Legislature OKs criminal justice reforms but no change to mandatory-minimum sentencing," reports on how the Sunshine State is starting to move forward on reform inspired clearly by the federal FIRST STEP Act. But, as the article explains, political challenges have resulted in Florida's first step being even more limited that what has been achieved at the federal level:

The Florida Legislature passed a 296-page criminal justice reform package bill Friday, the last full day of the session, addressing the issue of a bulging prison population that has long eluded resolution....

Reshaping Florida’s tough-on-crime policies and reducing the state’s nearly 100,000-person prison population is a rare issue that has united Trump populists and progressive civil rights groups, yet often results in open and closed-door fights among Republicans over how far to go.

This year, compromise was reached. The House passed the bill unanimously Friday, following the Senate’s near-unanimous passage on Thursday. The bill now heads to Gov. Ron DeSantis’ desk. Despite the victory for Republican Sen. Jeff Brandes of St. Petersburg, who’s long been a leading voice in the Legislature for the need for criminal justice reform, the bill’s passage was bittersweet.

“I am incredibly disappointed,” he said Thursday, referring to several big-ticket reform pieces that were taken out of the bill at the behest of the House. “I’m not surprised we didn’t get there, but I think what we did was advance the conversation.”

House Bill 7125 is the result of private negotiations between the two chambers over the past week and contains many changes proposed by those seeking to reshape Florida’s tough-on-crime laws from the 1990s. That includes making it easier for felons to get professional licenses and allowing state attorneys to decide whether juvenile cases should be transferred to adult court. Currently, that happens automatically if the crime is severe or the child has certain prior convictions.

It also would raise the “threshold” dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750. That’s not as high as the House’s original proposal, which was to raise it to $1,000, but it brings Florida’s law closer to the national average. It also eliminates or reduces driver’s license suspensions as a criminal penalty, which lawmakers have said unfairly hampered people’s ability to get to their jobs and continue to make an honest living.

The bill has been dubbed the “Florida First Step Act” after the federal reform law with the same name. Shortly after the bill passed the House, Kara Gross, the legislative director for the American Civil Liberties Union of Florida, said the bill amounted to “a baby step, at best.”...

What didn’t make the cut of the final bill:

▪ Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called “mandatory minimum” sentences.

▪ Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).

▪ Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.

Email messages between House and Senate staff obtained by the Herald/Times show that the House had, at one point last week, been “comfortable” with modified language related to giving judges more discretion over sentences for nonviolent drug crimes, reducing the length of some sentences. But that didn’t make it into the final bill....

Despite some lukewarm support for giving judges more sentencing discretion, Gov. Ron DeSantis poured cold water on the idea of letting inmates out after serving 65 percent of their sentence, likely one of the reasons that piece was scrapped....

The bill passed with only one “no” vote in the Senate, which came from Sen. Randolph Bracy, D-Orlando, who praised Brandes’ efforts but said that he, too, was frustrated with the compromise. “Honestly, I’m tired of submitting to the will of the House on these types of issues,” he said.

Still, the willingness of the House, traditionally the more tough-on-crime chamber, to cobble together a criminal justice reform package of this size shows a shift of tone, however subtle, toward reducing Florida’s burgeoning prison population.

Friday’s bill also creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime. House Speaker José Oliva said that this bill is the result of several years of discussion on this issue. Lawmakers in both the House and Senate have said they intend on taking up some of the issues that failed next year. “Sometimes ideas take time for people to understand and to have a chance to really let set in. For a lot of years the idea was being tough on crime,” Oliva said recently. He added, though, that data showing the harms of these policies “started a conversation. I think that conversation is now maturing.”

I am sorry to see that Florida is not moving forward on bolder reforms, but there is still good reason to celebrate reform efforts finding expression in this historically tough state.  Given that it took a full 40 years to ramp up incarceration level to historical levels, nobody should expect changes in the forces and laws developed in the tough era to happen quickly or without lots of fits and starts.

May 4, 2019 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Sunday, April 28, 2019

NYU Center reviewing historical state clemency grants ... starting with Pennsylvania

As detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has long been engaged with clemency reform, and its latest project is focused on important state stories:

The Center has launched a project studying historical state clemency grants and the role that local prosecutors played in the grant process.  As part of the project, Center Fellow Ben Notterman '14 has undertaken a review of historical state clemency grants in a number of states, both to understand the types of crimes for which clemency used to be granted, as well as the role that prosecutors played in recommending or opposing specific grants and advising government decision-makers.  We anticipate publishing reports on individual state practices as we complete them.

The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and it is available at this link.  Here is hoe it gets started:

Pennsylvania law automatically imposes life imprisonment for first- and second-degree murder, including felony murder, which requires no intent to kill.  It is also one of only five states that categorically excludes lifers from parole consideration; the only way for a lifer to be released is by clemency.  For a time, the State’s harsh sentencing policies were tempered by a practice of commuting several dozen life sentences each year.  That changed around 1980, when commutations in Pennsylvania fell off dramatically.  With few exceptions, clemency in the Keystone State remains in a state of a disuse.

April 28, 2019 in Clemency and Pardons, Data on sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, March 29, 2019

New reform reports from Florida and Ohio with broader ideas and lessons

This week I came across two notable and reader-friendly reports that each focus on developments in one (swing) state and do so in ways that suggest broader ideas and lessons for reformers working in any jurisdiction. Here are links to these reports with some of their introductory text:

From the Urban Institute, "Smart Reforms to Prison Time Served Requirements in Florida":

Florida’s criminal justice policy decisions, including strict time served requirements, have resulted in an unsustainably large prison system.  The average length of time served in Florida prisons has risen dramatically in recent decades, far outpacing increases in other states and contributing to the state’s large prison population.  Adjusting the state’s inflexible time served requirement is one approach to reducing incarceration that could allow Florida policymakers to save money and invest instead in preventing crime and helping people succeed after coming home from prison.  This brief describes the results of an analysis that shows thousands of people in Florida’s prisons could be released at lower time served requirements, and, for the time they would have been in prison, would not be arrested.

From Alliance for Safety and Justice, Americans for Prosperity-Ohio, and The Buckeye Institute, "Building on Ohio’s sentencing changes to keep prison populations in check":

Bipartisan support for criminal justice reforms such as 2011’s Justice Reinvestment Initiative (HB 86), Targeted Community Alternatives to Prison (T-CAP) and probation reforms in the last biannual budget (HB 49), and SB 66 from the last general assembly allowed the state to minimally reduce the prison population and take steps to increase the use of local sentencing options to reduce recidivism and connect people to treatment.  These efforts, and reducing the use of confinement for juveniles, have garnered well-earned national attention, helped the state avoid or end costly litigation, and saved hundreds of millions of dollars on new prison construction.   

As lawmakers turn their attention to the new legislative session, the General Assembly has an opportunity to build on the success of their recent reforms to ensure Ohioans suffering from addiction have the tools necessary to become contributing members of society while potentially saving the state hundreds of millions of dollars every year.

Right now, Ohio spends $1.8 billion on corrections every year and, despite promises of decreased budgets because of reforms, corrections costs have risen.  There are numerous reasons for increased spending including inflation, healthcare costs for an aging prison population, and the Department of Rehabilitation and Correction granting tens of millions of dollars back to local governments. But one of the main reasons is that recent changes in the law have not led to the big reductions in prison populations that were projected because not as many people convicted of low-level felonies are being served locally as intended. 

March 29, 2019 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 26, 2019

"The Effects of Voluntary and Presumptive Sentencing Guidelines"

The title of this post is the title of this notable new empirical article authored by Griffin Sims Edwards, Stephen Rushin and Joseph Colquitt.  Here is its abstract:

This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.

For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges.  But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences.  Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.

In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015.  This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history.  Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines.  Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.

Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months.  When the same guidelines became presumptive, the average sentence length dropped by almost two years.  Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders.  Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations.

March 26, 2019 in Advisory Sentencing Guidelines, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, March 07, 2019

"All Talk and No Action: Arizona’s Mandatory Drug Sentencing"

The title of this post post is the title of this notable new "Policy Perspective" document authored by Greg Glod of the Texas Public Policy Foundation's Right on Crime initiative. The piece includes research, insights and lessons that extend well beyond Arizona, and here is the introduction and part of the conclusion:

Drug use affects millions of people, with more than 23 million people over the age of 12 in the U.S. addicted to drugs or alcohol.  Arizona has some of the strictest drug laws in the country, including mandatory prison sentencing.  Politicians and tough-on-crime state prosecutors claim that mandatory prison sentencing for certain drug offenses helps to reduce crime and drug use.  But are they really working?  Research shows that sentencing drug offenders to mandatory prison time does not reduce crime or drug use — it can actually make both worse. Prisons continue to become overpopulated with drug offenders who are better served with treatment than incarceration.

This paper will provide a brief overview of Arizona’s often confusing drug sentencing laws, discussing threshold amounts that trigger mandatory prison sentencing for drug offenses in Arizona, reasons why they are not working, and will overview what other states are doing instead.  It will conclude by recommending actions for state lawmakers to begin to reverse the negative social and fiscal impact of Arizona’s prison sentencing for drug offenses....

Arizona lawmakers have options for how to deal with the future of Arizona’s mandatory drug sentencing.  To avoid exacerbating the problems that mandatory drug sentencing schemes have created, lawmakers must stop advocating for new mandatory drug sentencing laws.  Nor should they support laws increasing or expanding existing mandatory sentencing schemes.  While every option available in other states is not necessarily appropriate for Arizona, some are, including “safety valve” and de-felonizing marijuana possession.

March 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, January 16, 2019

"Top Trends in State Criminal Justice Reform, 2018"

The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:

The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.

Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.

January 16, 2019 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, December 27, 2018

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Monday, December 24, 2018

"Fifty Years of American Sentencing Reform — Nine Lessons"

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

Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice.  Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending.  Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up.  Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime.  Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines.  Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes.  Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.

December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, December 20, 2018

"California transformed its justice system. But now crime is up, and critics want rollbacks"

La-1545291924-l4bgfb9fvx-snap-imageThe title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:

Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.

But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.

An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.

After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.

There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?

There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.

La-1545291841-6s9kam0io9-snap-image

To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.

California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.

Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.

The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.

“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.

A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.

Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.

Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.

Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.

In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.

Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.

After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.

In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.

UPDATE The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right."  The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.

December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Sunday, December 16, 2018

Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing

A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing.  The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:

Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018).  In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing.  Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.

Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read  because of the Justice Appel's extended opinion "concurring specially." This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:

Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts....  The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.

Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context....

We do not know whether the IRR was normed with an appropriate Iowa population.  We do not know whether the tool has been renormed and monitored.  We do not know anything, really, about the database, assuming there is a database, behind the IRR.

I am also concerned about process issues lurking behind this case.  Ordinarily, the PSI report is made available to the defendant only a few days before sentencing.... But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert.  Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information....

In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process.  I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing.  See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011).  I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature.  See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition).  Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender.  Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.

A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process.  In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion.  In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.

December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (1)

Monday, December 10, 2018

After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence

As indicated in this brief AP report headlined "Jury to recommend sentence for white nationalist," a high-profile jury sentencing gets started today:

A man convicted of first-degree murder for driving his car into counterprotesters at a white nationalist rally in Virginia faces 20 years to life in prison as jurors reconvene to consider his punishment.

The panel that convicted James Alex Fields Jr. will hear more evidence Monday before recommending a sentence for Judge Richard Moore.

Fields was convicted Friday of killing Heather Heyer during last year's "Unite the Right" rally in Charlottesville, organized to protest the planned removal of a statue of Confederal Gen. Robert E. Lee. The 21-year-old Fields, of Maumee, Ohio, also was found guilty of injuring dozens of others by driving into a crowd of people who were marching peacefully after the rally.

I know very little about Virginia's sentencing process, and I am now very curious about what they are allowed to hear at this stage.  I do know that Virginia jurors are not told about sentencing guidelines that would be applicable and considered at a judicial sentencing.  And I wonder if they can be told about the fact that the defendant here is also facing dozens of federal charges.  Here is a little about recent history of jury sentencing from the Virginia Sentencing Commission's 2018 Annual Report (from pages 25-27):

There are three methods by which Virginia’s criminal cases are adjudicated: guilty pleas, bench trials, and jury trials.  Felony cases in circuit courts are overwhelmingly resolved through guilty pleas from defendants, or plea agreements between defendants and the Commonwealth.  During the last fiscal year, 91% of guideline cases were sentenced following guilty pleas.  Adjudication by a judge in a bench trial accounted for 8% of all felony guidelines cases sentenced.  During FY2018 1.2% of cases involved jury trials. In a small number of cases, some of the charges were adjudicated by a judge, while others were adjudicated by a jury, after which the charges were combined into a single sentencing hearing....

In FY2018, the Commission received 270 cases adjudicated by juries.  While the concurrence rate for cases adjudicated by a judge or resolved by a guilty plea was at 82% during the fiscal year, sentences handed down by juries concurred with the guidelines only 39% of the time.  In fact, jury sentences were more likely to fall above the guidelines than within the recommended range.  This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995. By law, however, juries are not allowed to receive any information regarding the sentencing guidelines....

In cases of adults adjudicated by a jury, judges are permitted by law to lower a jury sentence.  Typically, however, judges have chosen not to amend sanctions imposed by juries. In FY2018, judges modified 16% of jury sentences.

December 10, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Monday, November 19, 2018

Wondering about plea deals and departure authority in Washington after sentencing in awful rape and manslaughter case

Debates about federal sentencing and judicial discretion have long included district judges lamenting having to impose unduly severe sentences under federal statutory mandatory minimums (or under the federal sentencing guidelines before Booker made them advisory).  But this stunning story out of Washington, headlined "Man who raped dying Everett teen gets less than 3 years," reports on a state sentencing judge lamenting having to impose what seems like an unduly lenient sentence under state sentencing guidelines. Here are the details:

Alyssa Noceda was still growing up when she died. The young man who watched her overdose, Brian Varela, will serve less than three years in prison for giving her drugs, raping her and joking about her lifeless body over texts with friends.

Superior Court Judge Linda Krese said Thursday she was bound by law to sentence Varela to 2 years and 10 months.  It’s the most time allowed under state guidelines for second-degree manslaughter, third-degree rape and unlawful disposal of human remains, for someone with no prior record.

Krese was “surprised, even outraged,” by the inadequacy of the sentence. She has seen auto theft cases with more serious penalties.  “I’m not sure the Legislature really contemplated something like this,” Krese said.

Noceda had just turned 18.... Varela, 20, told detectives Noceda came to a party in February at a mobile home near Martha Lake. In Varela’s room, she snorted crushed pills and he offered her a dab of concentrated THC.  She collapsed within a minute of mixing the two, according to Varela’s story. He told police the pills were Percocet.  Tests later showed she’d taken a fatal mix of fentanyl and alprazolam, a generic name for Xanax.  Varela did not call for help.  Instead he texted pictures of Noceda’s partly nude body to coworkers, with comments like, “LOL.”

“Bro you killed her,” one friend said. “But not joking she od bruh,” Varela wrote.  He didn’t care, he added, because he was sexually assaulting her “to pass the time.”...

Varela played an online game until he fell asleep, according to charging papers. He woke up the next morning, he told police, to find Noceda’s lips blue.  She was cold to the touch.  Again, he didn’t call for help.

He went to work at Dairy Queen.  Once he returned, he stuffed the body in a plastic crate. He kept her hidden for days.  He used the thumbprint of Noceda’s hand to hack into her iPhone, to make a post on Snapchat suggesting that she ran away.  He washed her body to try to destroy evidence.  He told friends he planned to bury her near Marysville, then flee to Mexico.  One coworker called police....

Deputy prosecutor Toni Montgomery reached a plea agreement in September. “His complete disregard for the value in her life, and the way he treated her body and what he did with it — 34 months is really the only sentence that would be appropriate, given the current sentencing structure,” Montgomery said in court.

Noceda’s mother [Gina Pierson] and aunt cried when they learned the likely sentence....  In a packed courtroom Thursday, friends and family wore matching black hoodies with Justice-4-Alyssa printed across the back.  The front showed Noceda, with angel wings sprouting from her shoulders.  One by one for about a half-hour, Noceda’s loved ones stood in front of the judge and called Varela a monster and a murderer.

When it was Varela’s turn in court, he spoke two sentences. “I’m sorry for my foolish actions,” he said. “Whatever I get is what I deserve.”

In an interview before the hearing, Pierson said state laws need to change so other families don’t suffer like hers.  She struggled to explain her feelings toward the defendant. She has tried to forgive him, she said.

I can fully understand why the mother of the victim here thinks "state laws need to change," but I do not understand why existing Washington law could not have allowed for a more serious sanction in this horrible case.  For starters, the facts as presented here would arguably fit a charge of Rape in the Second Degree under Washington law ("victim is incapable of consent by reason of being physically helpless"), which is a much more serious offense likely to carry a much more serious sanction. 

Even without a conviction of a higher charge, the manslaughter and rape charges here carry statutory maximum sentences of 10 and 5 years.  For a first offender, it seems, the applicable sentencing guidelines provide for a much lower maximum sentence, but Washington law provides a lengthy list of aggravating circumstances that can allow for a departure above the standard sentencing range.  Any number of possible aggravating circumstances seem readily provable here: e.g., the first two listed are "defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim" and "defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance" and other potential aggravators include the "offense involved an invasion of the victim's privacy" and the "defendant demonstrated or displayed an egregious lack of remorse."

Because a number of aggravating circumstances seem to fir this case, I am not sure the sentencing judge here was correct when saying "I’m not sure the Legislature really contemplated something like this."  Rather, as I see it, the Washington legislature expressly provided a means for judges to go above the applicable sentencing range if and when prosecutors pursue and prove one of these aggravating factors  Perhaps someone who know the work-a-day realities of Washington sentencing law and practice can help me better understand what seems to have gone wrong here.

November 19, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, November 09, 2018

Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms

I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled.  But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:

After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.

Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.

Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.

The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.

Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.

DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.

For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.

Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.

And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.

November 9, 2018 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)