Sentencing Law and Policy

Notable new sentencing reform recommendations from New Jersey commission

As reported in this local article, New Jersey's Criminal Sentencing and Disposition Commission this week issued its annual report that makes four notable sentencing recommendations. Here are details and context:

The group, which is made up of representatives from every facet of New Jersey’s criminal justice system along with designees from all three of New Jersey’s branches of government, is chaired by Chris Porrino of Lowenstein Sandler, and the former attorney general for the state of New Jersey.

Tasked with making recommendations to Gov. Phil Murphy and the Legislature on a yearly basis to promote a “rational, just, and proportionate sentencing scheme,” the group also offered [these] recommendations: ...

1. Eliminate some mandatory minimums....

2. Allow sentencing judges to consider the fact that a person was abused by the victim of their crime....

3. Allow those who have served long sentences and have aged past 60 (or 62 in some cases) to apply for a reduced sentence....

4. Permit judges to reduce or waive fines and other fees assessed against those convicted of crimes

This additional local article, headlined "Ending mandatory sentences for non-violent drug crimes back in play in N.J.," provides some additional details and context.

UPDATE:  I just found this online version of the letter that was sent to Gov Murphy with the reform recommendations.  Notably, it seems none of thise years recommendations are new, but they are all reiterations of recommendations previously made in prior reports from New Jersey's Criminal Sentencing and Disposition Commission.

Noting some interesting data around Colorado's Proposition 128 to restrict parole eligibility

Though California’s Proposition 36, the "Drug and Theft Crime Penalties and Treatment-Mandated Felonies Initiative," is arguably the biggest 2024 sentencing-related ballot initiative (discussed here), voters in Colorado also have a notable sentencing-related initiative to consider this fall.  Proposition 128 in Colorado, "Concerning Eligibility for Parole," is described by Ballotpedia this way:

A "yes" vote supports requiring offenders convicted of certain violent crimes on or after January 1, 2025, to serve at least 85% of their sentence before parole eligibility, and offenders with two prior violent crime convictions to serve their full sentence before beginning parole.

A "no" vote opposes making changes to parole eligibility, thereby maintaining current law providing parole eligibility to individuals convicted of certain violent crimes after completing 75% of their imposed sentence minus any time earned off of the sentence for good behavior.

This lengthy Denver Post piece discusses this initiative along with another focused on police funding under the headline "Should Colorado spend $350 million on police and require more prison time for some criminals? Voters will decide." Here is an excerpt discussing Prop 128:

People sentenced to prison in Colorado typically serve less than half of their total sentences before they are released on parole, state data shows. State law requires prisoners to serve at least 75% of their sentences, but that time can be reduced further if prisoners maintain good behavior while incarcerated — a reduction known as “earned time” or “good time.”

People convicted of Class 2 felonies — the second-most serious felony in Colorado — on average were sentenced to 28 years in prison and served 13 years before they were released, according to Colorado Department of Corrections data for the 2022 fiscal year. That’s about 46% of their sentences.

For certain crimes, Proposition 128 would change state law by increasing the amount of time a person must serve in prison to 85% of their sentence before the person could be eligible for earned-time reductions or parole.

The change would apply only to a handful of convictions beginning Jan. 1: second-degree murder, first- or -second-degree sexual assault, aggravated robbery, first-degree assault, kidnapping, first-degree arson and first-degree burglary.  Additionally, people convicted of a third crime of violence — a wider swath of crimes — would be ineligible for any type of early release and would be required to serve an entire sentence on their third conviction....

[P]roponents of the ballot measure say the extra prison time would improve public safety by keeping what Fields called the “worst of the worst” offenders in prison longer.  But opponents say that position is not supported by evidence, and they say earned time is a powerful incentive for prisoners to participate in rehabilitation while incarcerated.

Prisoners who can’t earn good time will feel more despair and be more likely to participate in violent and dangerous behaviors, said Dana Mueller, a Colorado Department of Corrections release case manager.  She spoke on behalf of her union, Colorado Workers for Innovative and New Solutions, which has come out against Proposition 128. “This would not reduce recidivism or crime, and it wouldn’t fix what is wrong in corrections,” she said. “Instead, it would make things worse, making conditions more dangerous both for workers and the inmate population.”...

If Proposition 128 passed, it would affect roughly 220 prison sentences annually.  The financial impact would come in about 20 years, when the longer time served by some inmates would add to the prison population — increasing state spending on prisons by an estimated $12 million to $28 million, state analysts found.

Notable resource provides "State Constitution Tool"

I just saw this week this (new?) website, called "State Constitution Tool."  In a brief foray, I have found this resource pretty easy to navigate as a means to find state constitutional provisions related to a particular topic, such as "punishments" or "Due Process & Court Access."  The About page describing the resource starts this way:

The State Constitution Tool was developed by lawyers and scholars with expertise in constitutional law. They share a desire to equip other lawyers and the general public with the ability to identify, analyze, and compare different constitutions by topic.

Other research tools and commentaries categorize constitutions according to the author’s interests and opinions. The State Constitution Tool is unique because it allows users to draw their own comparisons directly from the source – the text of constitutions.

"An Act of Regression: Louisiana takes a giant step backward in parole and sentencing reform"

The title of this post is the title of this new briefing from Prison Policy Initiative authored by Emmett Sanders. The subtitle of the discussion highlights its main themes: "Louisiana lawmakers are eliminating discretionary parole and implementing regressive truth-in-sentencing laws. These billion-dollar 'zombie policies' are set to double the prison population in a state that is already a world leader in incarceration and will harm public safety." Here is how the briefing gets started (with links from the original):

With the passage of HB 9, Louisiana recently became the 17th state since 1976 — and the first in nearly a quarter of a century — to eliminate discretionary parole as a pathway for releasing people from its prisons.  Simultaneously, the state began implementing HB 10, one of the harshest truth-in-sentencing laws in the country.  These were among a host of other so-called “tough on crime” bills that were signed by Louisiana’s new governor, and will affect nearly everyone sentenced in the state after August 1, 2024.  Together, this package of regressive bills will set prison and sentencing reform back decades in the state: although lawmakers have framed them as “public safety” measures, these laws will have the opposite effect, doubling the prison population, compelling billions of dollars in new prison construction, and drastically escalating violence and trauma for incarcerated people and prison staff in the state.

"Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida"

The title of this post is the title of this article recently posted to SSRN authored by Utsav Bahl, Chad M. Topaz and others. Here is its abstract:

Judicial and carceral systems increasingly use criminal risk assessment algorithms to make decisions that affect individual freedoms.  While the accuracy, fairness, and legality of these algorithms have come under scrutiny, their tangible impact on the American justice system remains almost completely unexplored.  To fill this gap, we investigate the effect of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) algorithm on judges’ decisions to mandate confinement as part of criminal sentences in Broward County, Florida.

Our study compiles a novel dataset of over ten thousand court records from periods before and after the implementation of COMPAS in Broward County and uses it to build a Directed Acyclic Graph (DAG) model of the confinement decision-making process.  Our approach aims to reveal potential associations between the use of COMPAS and incarceration.  We find that the many individuals deemed low risk by COMPAS are much less likely to be confined than were comparable individuals before COMPAS was in use, and similarly, individuals deemed high risk are much more likely to be confined than before.  Overall, the impact of COMPAS scores on sentencing decisions is a reduced rate of confinement for both Black and white individuals.  However, a racial bias exists within the COMPAS scores, as they are based on historical data that mirrors pre-existing racial inequities.  While the overall rate of incarceration decreases, the difference in scores exacerbates the difference in confinement between racial groups, thereby deepening racial disparity.  Insofar as criminal risk algorithms can aid decarceration, policymakers and judges alike should be mindful of the potential for increased racial inequity.

New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US

Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States."  Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."  

The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery.  I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing.  The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:

A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery.  Some have refused to comply at all.

This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP.  An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes.  It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.

Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.

Notable criminal justice counter-initiative looking likely to come before California voters

As reported in this local article, headlined "Backers say they have enough signatures to qualify Prop 47 rollback initiative," an interesting criminal justice ballot measure looks likely to come before California voters this fall.  Here are some of the details:

Critics who blame California’s 2014 Proposition 47 for runaway drug addiction, retail theft and urban squalor said Thursday they have collected enough signatures to qualify a November ballot measure that would restore penalties for serial thieves and treatment requirements for addicts.

Backers including owners of small businesses, social justice leaders and drug victim families gathered in San Francisco and Los Angeles to announce they have collected about 900,000 voter signatures, significantly more than the 546,651 required by April 23, and are turning them in to the Attorney General’s Office.

“Prop 47 achieved notable success in making California’s criminal justice system more equitable,” supporters of the proposed Homelessness, Drug Addiction and Theft Reduction Act. "However, it led to unintended consequences over the past decade — repeat and often organized retail theft, inner-city store closings, and difficulty convincing people to seek drug and mental health treatment — that can only be corrected by the voters at the ballot box with modest amendments to Prop 47.”

Prop 47 was among a series of laws and initiatives over the last 15 years aimed at depopulating overcrowded California prisons and addressing social justice concerns that have since been blamed for spurring brazen retail thefts, store closures and unchecked drug addiction. Promoted to voters as the “Safe Neighborhood and Schools Act,” Prop 47 reduced most drug possession and property crimes valued at $950 or less to misdemeanors and allowed for resentencing of those convicted of felonies for those offenses....

Prop 47 passed with nearly 60% voter approval.  An earlier effort to toughen up some of the penalties reduced by Prop 47 — Proposition 20 in 2020 — failed.  The impact on crime of Prop 47 continues to be furiously debated....  But supporters of the proposed November initiative say there’s no way to fix the state’s theft and drug problems without walking back parts of Prop 47....

Supporters stress that the proposed initiative would amend but not repeal Prop 47. It would make a third conviction for retail theft a felony, regardless of the amount stolen.  Before Prop 47, a second conviction would become a felony, but the 2014 initiative eliminated consequences for repeat offenses.  The proposed measure also would add penalties for dealing fentanyl, a cheap and deadly synthetic opioid, and provide incentives for convicted addicts to seek treatment.

"State Sentencing Reforms Had Little Impact on Racial Disparities in Imprisonment, Analysis Finds"

The title of this post is the the title of this new press release from the Council on Criminal Justice (CCJ) discussing the latest findings of research it has been conducting looking at incarceration disparities.  Here is part of the press release, with lnks from the original providing access to the underlying research:

The Black-White disparity in imprisonment has narrowed substantially over the past 20 years but very little of the progress can be attributed to state sentencing reforms, according to a series of reports released today by the Council on Criminal Justice (CCJ).

Following on previous analyses that documented a 40% drop in the Black-White imprisonment disparity between 2000 and 2020, researchers at CCJ, Georgia State University, and the Crime and Justice Institute examined more than 700 statutes adopted in 12 states between 2010 and 2020, seeking to understand how sentencing reforms might have influenced the reduction.  Laws included for study related to violent, property, and drug crimes, as well as parole release and technical violation practices.  The study states (Arizona, California, Colorado, Florida, Georgia, Illinois, New York, North Dakota, Pennsylvania, South Carolina, Texas, and Utah) varied by region, demographic composition, sentencing structure, and the political party in power.

With minor exceptions, the analysis found that the sentencing reforms had negligible impacts on reducing racial disparities, and instead largely codified changes to enforcement, policing, charging, and sentencing practices that had occurred before the laws were enacted. In addition, many sentencing law changes that took effect during the study period addressed fairly infrequent crimes and therefore had a minimal effect on disparity. 

The findings suggest that factors beyond sentencing laws were mostly responsible for the Black-White imprisonment disparity declining from 8.2-to-1 in 2000 to 4.9-to-1 in 2020. Though the study did not statistically assess alternative explanations, the authors offered several other possible reasons for the shrinking disparity, including changes in policing practices, drug use (from cocaine to opioids), how drugs are sold (from open-air markets to the use of GPS-equipped smartphones), and the types of crimes people commit (from burglary to cybercrime, for example)....

The 12-state analysis is part of a sweeping package on racial disparities released by CCJ’s Pushing Toward Parity project. It includes an in-depth look at the legislative changes in each of the 12 study states as well as two reports examining disparities in imprisonment through other lenses.

One analysis examined state imprisonment disparities between Hispanic and non-Hispanic White people.  It found that disparity in imprisonment rates declined during the first two decades of the century, but that the precise size of the drop is unclear because of a conflict between data sources. In 2020, data collected from state corrections departments showed a Hispanic-White disparity ratio of 1.5-to-1; data from a federal prison survey, however, produced a ratio that was 2.7-to-1, or 80% larger. 

The gap in disparity ratios derived from each source has increased over time.  In 2000, the two disparity ratios were roughly equivalent, but by 2020 the federal data disparity ratio was 80% larger.  The measurement gap stems from how race and ethnicity are recorded and classified in each source.  The choice of measurement method makes a large difference in the projected achievement of parity: if current trends continue, the Hispanic-White disparity measure drawn from state data would reach parity by about 2026, while the measure from federal data would reach parity about 30 years later.

Another analysis focused on disparities in female prison populations. It found that state imprisonment disparity between Black and White women fell by 71% between 2000 and 2020, decreasing from 6.3-to-1 to 1.8-to-1 and exceeding the drop for men.  The decline was driven by a 56% decline in the imprisonment rate for Black women and a 57% increase for White women.  Hispanic-White female imprisonment rate disparity also fell (by 56%) over the two-decade period, data from state corrections departments showed; it has been at or below parity since 2010 and reached 0.7-to-1 in 2020, meaning that White women were more likely to be imprisoned than Hispanic women.

Female imprisonment disparity fell across violent, property, and drug offense categories, with the largest drop recorded for drug crimes.  From 2000 to 2020, Black-White drug offense imprisonment disparity among women dropped from 8 to 0.6, reaching parity in 2016.  Hispanic-White drug offense imprisonment disparity fell from 2.4 in 2000 to 0.5 in 2020. Changes in the demographic composition of prison admissions drove the trends.  From 2000 to 2019, admissions decreased 47% for Black females, increased 15% for Hispanic females, and rose 138% for White females. 

Parents of Michigan school shooter both sentenced to 10 to 15 years in state prison

As reported in this New York Times piece, "Jennifer and James Crumbley, who were convicted of involuntary manslaughter for failing to prevent their teenage son from killing four fellow students in the deadliest school shooting in Michigan’s history, were each sentenced on Tuesday to 10 to 15 years in prison." Here is more:

Their separate jury trials ended in guilty verdicts in February and March, making them the first parents in the country to be convicted over the deaths caused by their child in a mass shooting.

Involuntary manslaughter charges carry a penalty in Michigan of up to 15 years in prison, and prosecutors asked in sentencing memos filed to the court last week that the Crumbleys each serve at least 10 years. Both have been in jail for more than two years while awaiting trial and will receive credit for time served.

“Parents are not expected to be psychic,” Judge Cheryl Matthews of the Oakland County Circuit Court in Pontiac, Mich., said before issuing the sentence. “But these convictions are not about poor parenting. These convictions confirm repeated acts or lack of acts that could have halted an oncoming runaway train — repeatedly ignoring things that would make a reasonable person feel the hair on the back of her neck stand up.”

Before the hearing, prosecutors said that Ms. Crumbley, 46, was asking to be sentenced to house arrest on her defense lawyer’s property, rather than serving prison time. And Mr. Crumbley, 47, said that he had been wrongly convicted and his sentence should amount to the time he had already served in prison, adding that he felt “absolutely horrible” about what had happened....

The Crumbleys’ son, Ethan, was 15 when he carried out the shooting that killed Justin and Hana, as well as Madisyn Baldwin, 17, and Tate Myre, 16. Seven others were injured. Ethan Crumbley pleaded guilty to 24 charges, including first-degree murder, and was sentenced last year to life in prison without parole. He is still eligible to appeal that decision. His parents may appeal, too.

In the trials of both parents, prosecutors focused in part on their failure to remove their son from school after he made a violent drawing on the morning of the shooting. It included a written plea for help. They also emphasized Ethan’s access to a handgun that Mr. Crumbley had purchased. And they said that Ms. Crumbley had missed signs that her son was struggling with his mental health, adding that she took him to a gun range just days before the shooting.

Defense lawyers for both parents said they could not have foreseen the unspeakable violence their son would commit.

Their trials became a lightning rod for issues of parental responsibility at a time of high-profile gun violence by minors. In recent months, parents in other states have pleaded guilty to charges of reckless conduct or neglect after their children injured or killed others with guns. But the manslaughter charges against the Crumbleys were unique, and legal experts aid their trials could serve as a playbook for other prosecutors who seek to hold parents accountable in the future.

I am not familiar with Michigan's parole processes, but I sense this sentencing determination will ensure that the Crumbley parents will be serving a considerable amount of prison time.

"Assessing the Early Influence of the Model Penal Code’s Revised Sentencing Provisions"

The title of this post is the title of this book chapter just posted to SSRN and authored by Cecelia Klingele. Here is its abstract:

In 2017, the American Law Institute completed a 15-year revision of the sentencing provisions of the Model Penal Code. This chapter examines early indicators of the revision’s influence in the five years following its adoption.  It examines ways in which the provisions of the Model Penal Code: Sentencing (MPCS) appear to be influencing changes in law, both directly and indirectly, and concludes that the areas in which the MPCS has had the most immediate influence are those in which the Code leads, rather than follows, existing law.  This suggests that, much like the original Code, the MPCS’s most helpful contribution may be the ways in which it is able to offer new ways of approaching sentencing and correctional challenges that do not require states to dramatically alter already-existing state legislation.

Notable data on the huge number of LWOP sentences in Louisiana

Death penalty practices in general, and individual death sentences in particular, garner a lot of attention in the US.  I understand how a wide array of salient capital issues and cases keeps these matters "evergreen" in legal and political discourse, even though I have long worried about capital cases and concerns problematically crowding out other matters of broader consequence.  (Many years ago, I wrote up some of these worries with a Supreme Court focus in an article titled "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'."  Notably, for a host of reasons, the SCOTUS capital docket has shrunk considerably since I penned that piece in 2008.)

These concerns came to mind for me upon seeing this new Sentencing Project fact sheet titled "Life in Prison Without Parole in Louisiana."  The LWOP data in this document struck me in part because of how much attention was given in 2023 to possible clemency hearings for the 57 persons on Louisiana's death row after outgoing Gov John Bel Edwards said he opposed capital punishment (see some prior posts here and here.)  Gov Edwards got some attention, as detailed here, for commuting over 100 LWOP sentences, though seemingly the bulk of national advocacy and attention was given to a few dozen capital murders rather than the few thousand serving LWOP often for lesser crimes.  The start of the data brief documents the Pelican State's massive LWOP population:  

Louisiana’s share of people serving life without parole (LWOP) ranks highest per capita nationally and in the world. More than 4,000 Louisianans are serving sentences of life without the possibility of parole, amounting to 15% of this state’s prison population.  Between 1995 and 2020, the state added an average of 110 people each year to its total count of life-sentenced individuals.

A major driver behind the large share of people serving LWOP is the state’s automatic imposition of this sentence after conviction for second degree murder, making it one of only two states to impose LWOP in such instances.  Louisiana’s second degree murder statute includes felony murder and drug induced homicide offenses; these cases often include instances where the charged individual was not the direct perpetrator of the killing, nor intended to commit it, though they participated in an underlying felony related to the victim’s death.  It is important to note that felony murder laws such as that in Louisiana are not associated with a significant reduction in felonies nor have they lowered the number of felonies that become deadly.  These crime types are infrequently subject to LWOP sentences elsewhere, much less mandatorily imposed.  But in Louisiana, LWOP in response to second degree murder is both authorized and mandatory.

To provide a bit more perspective on these numbers, there are roughly twice as many persons serving LWOP sentences just in Louisiana than there are persons on death row throughout the United States.  (The Sentencing Project has calculated in prior reports that there are, roughly speaking, about 100 persons serving some form of a life sentence in the US for every person on death row.)

The Sentencing Project releases review of "Top Trends in Criminal Justice Reform, 2023"

The folks at The Sentencing Project todat released this new report that reviews a number of state criminal justice reform developments in this past year. I recommend the short report in full for all the reviewed details, and here is its opening "overview":

The United States is the world leader in incarceration.  This year marked 50 years of the mass incarceration crisis, with the prison population having grown nearly 500% since 1973.  Today, nearly two million people – disproportionately Black – are incarcerated in prisons and jails.

However, stakeholders, including formerly incarcerated activists and lawmakers, have worked to scale back mass incarceration.  Advocacy organizers and officials in at least 10 states advanced reforms in 2023 that may contribute to decarceration and address the collateral impact of mass incarceration, while also supporting community-based public safety solutions.

This brief highlights 2023 policy reforms in decarceration, collateral consequences and youth justice.

"Courtroom workgroup dynamics and implementation of Three Strikes reform"

The title of this post is the title of this new article published online through the journal Law & Policy and authored by Elsa Y. Chen, Emily Chung and Emily Sands.  Here is its abstract:

In 2012, California's voters passed a ballot initiative that scaled back the state's “Three Strikes” sentencing law and permitted certain individuals who were serving 25-to-life prison terms to petition for resentencing and potentially release.  Using analysis of original qualitative interview data supplemented with court administrative records, this study examines how characteristics of courtroom workgroup members; their intergroup dynamics; political, professional, and administrative considerations; and allocated resources were perceived by court officials to facilitate or impede the implementation of this reform in county courts.

Availability of staff and budget was associated with a higher proportion of completed case dispositions in the first 2 years of implementation, but resources were not the only factor associated with timely case processing.  Courtroom actors' seniority, experience, and professional security facilitated agreement on processes, schedules, and other details.  Small, stable, close-knit groups established routine procedures and developed expertise more quickly, but could not always avoid bottlenecks or delays.  Less stable workgroups had higher rates of denial of petitions for resentencing.  Positions toward Proposition 36 shaped by political, professional, or other priorities were perceived to influence some elected DAs' positions and line prosecutors' behavior, manifesting in cooperation, opposition, or mixed messages.

A mid-holiday weekend round-up of various sentencing opinions

I am taking much of the holiday weekend off from blogging (which may make many thankful).  And that provides an excuse to keep up a bit by rounding-up here some opinion pieces that have caught my eye recently:

From Forbes, "Bureau Of Prisons Backtracking On First Step Act Law"

From Governing, "No, Criminal Justice Reform Isn’t Driving Rising Crime"

From the New Republic, "The Turkey Pardon Is a Perfect Emblem of Our Very Dumb Politics"

From the New York Post, "Thank NY’s criminal justice ‘reforms’ for this double murder"

From Rolling Stone, "I’m Serving Life in Prison. It’s a Slow-Motion Death Sentence"

From the Times Union, "Parole reform saved New York money. Invest it in helping people stay out of the criminal justice system."

From the Wall Street Journal, "Tech Can Keep Ex-Offenders Out of Jail"

 

And a notable pair of commentaries from a notable pair of commentators at Reason:

From Josh Blackman, "A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit"

From Will Baude, "It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi

Robina Institute completes huge project on states' prison-release frameworks

I was pleased this morning to receive an email titled "The Robina Institute Has Completed a Three-Year Effort to Produce Individual Reports on the Prison-Release Frameworks of All 50 States and D.C." This news is worthy of celebration as the text of the email explains (with links from the original):

We're excited to share that the Robina Institute has completed a monumental three-year research project on prison-release mechanisms across all 50 states and the District of Columbia, providing unprecedented insights into the determinants of actual-time-served in prison. This effort was led by Kevin Reitz as part of the Prison Release: Degrees of Indeterminacy Project.

What's in the Reports?

Each report delves into the intricacies of the respective state's prison release frameworks, including the decision-makers and varied mechanisms impacting prison populations.  These reports average 20 pages and are a comprehensive resource for those seeking to understand the causes of mass incarceration and its potential remedies.

Understanding Prison Release Mechanisms 

Each state has its unique blend of mechanisms, such as parole boards, sentence discounts for good or earned time, executive clemency, compassionate release, and emergency release protocols.  These reports provide models and measurements illustrating the distribution of release discretion power among officials, and the interactions between different forms of release discretion.

Insights Into Decision-Making Power 

The reports critically assess which official actors have the power to determine prison population size in each jurisdiction, whether through front-end sentencing discretion by judges and prosecutors or through back-end agencies, including parole boards and departments of corrections.

Why Is This Important? 

Understanding prison-release discretion is crucial in unraveling the complexities of mass incarceration in America. States exhibit substantial diversity in structuring the laws, policies, institutions, and practices of prison-release discretion.  Until now, there wasn't a resource that comprehensively compared the American state-level frameworks, making this series invaluable for those involved in policymaking and criminal justice reform.

We extend our thanks to Arnold Ventures for their support in this project.

Read the Reports

"Mandatory Minimum Sentencing, Crime, and Mass Incarceration: The Case of Mississippi"

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

The high rates of incarceration and the substantial financial and societal burdens associated with them have prompted state lawmakers to undertake measures to reduce prison populations.  Mississippi, however, has taken a somewhat different approach compared to other states.  In 2014 it passed House Bill 585, which introduced "true minimums" that require both nonviolent and violent offenders to serve a minimum of 25 and 50 percent of their sentence, respectively. This distinction makes the case of Mississippi particularly interesting, providing an opportunity to examine the impact of mandatory minimum sentencing on crime and incarceration rates.  Toward this end, this study employed both difference-in-differences and synthetic control methodologies to evaluate the effectiveness of House Bill 585.  According to the findings, the initial decline in the imprisonment rate resulting from the reforms was not sustained over time.  Moreover, House Bill 585 not only failed to effectively reduce violent crimes but was also found to be associated with an increase in property crimes in Mississippi.

Ohio Supreme Court rejects myriad challenges to state's new indefinite sentencing system for most serous offenses

As reported via this official court press release, an Ohio "state law allowing prison officials to retain beyond their minimum terms offenders who violate laws or rules while incarcerated does not violate the constitutional rights of inmates, the Supreme Court of Ohio ruled today."  Here is more of the basics of the ruling:

In a 5-2 decision, the Supreme Court affirmed two appellate court decisions finding the “Reagan Tokes Law” to be constitutional. The Reagan Tokes law, which took effect in 2019, imposes an indefinite prison term on those who commit serious felonies. Under the law, the offender is expected to be released once the minimum sentence is served, but the Ohio Department of Rehabilitation and Correction (DRC) can maintain an inmate’s incarceration up to the maximum sentence imposed by the court for committing crimes or breaking rules.

The Reagan Tokes Law is named for a 21-year-old student who was abducted, raped, and murdered in 2017 by a man on parole. The Court consolidated the cases of two men, Christopher Hacker and Danan Simmons Jr., who were both sentenced under the new law in December 2019. The men were not involved in Reagan Tokes’ case.

Writing for the Court majority, Justice Joseph T. Deters stated the two men raised a “facial” challenge to the Reagan Tokes law and so had to prove that under no circumstances could the law be fairly applied. The pair failed to prove that was the case, raising only hypothetical situations in which an inmate might serve more than the minimum term for a minor prison rule infraction, the opinion noted.

Justice Deters wrote that at some point an inmate could possibly raise a claim that the DRC applied the law in an unconstitutional manner “should the facts of a specific case so warrant.” Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Melody Stewart joined Justice Deters’ opinion.

In a dissenting opinion, Justice Jennifer Brunner argued that the process for denying the inmates their release is constitutionally flawed. The law does not give inmates the appropriate means of challenging the DRC’s accusations that they have misbehaved, and the DRC under the law is both the prosecutor and the arbiter or judge of prison conduct, giving the DRC sole discretion to extend inmates’ time in prison, she wrote. Justice Michael P. Donnelly joined Justice Brunner’s dissent.

The full 53-page opinion in Ohio v. Hacker, No. 2023-Ohio-2535 (Ohio July 26, 2023), is available at this link.  Here is how the opinion for the court begins:

The “Reagan Tokes Law,” which became effective in March 2019, requires that for certain first- and second-degree felony offenses, a sentencing court impose on the offender an indefinite sentence consisting of a minimum and a maximum prison term.  There is a presumption that the offender will be released from incarceration after serving the minimum prison term.  But if that presumption is rebutted, the Ohio Department of Rehabilitation and Correction (“DRC”) may maintain the offender’s incarceration up to the maximum prison term set by the trial court.  In these appeals, which we have consolidated for decision, appellants, Christopher P. Hacker (case No. 2020-1496) and Danan Simmons Jr. (case No. 2021-0532), maintain that indefinite sentencing under the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers doctrine, the offender’s right to a jury trial, and procedural due process.  We disagree and therefore affirm the judgments of the Third and Eighth District Courts of Appeals.

The dissenting opinion by Justice Brunner begins this way:

In both of these cases, we were asked to consider the facial constitutionality of the Reagan Tokes Law (“RTL”).  I agree with several of the majority’s determinations in its analysis.  Because the RTL is, in my view, akin to Ohio’s former indefinite-sentencing scheme, I agree that the law does not violate the separation-of-powers doctrine.  I also agree that appellants, Christopher P. Hacker and Danan Simmons Jr., lack standing to challenge the Adult Parole Authority’s (“APA”) exercise of its discretion to recommend a person’s release from prison before the presumptive minimum sentence has been served, because they are not aggrieved by that provision of the RTL.  I share the majority’s view that the RTL does not violate the right to a jury trial, because nothing about the law permits a fact-finder other than a jury to find facts that increase the range of sentencing exposure of the defendant.  With respect to the majority’s overall due-process analysis, I agree that appellants do have a protectable interest in their freedom after their presumptive minimum sentence has expired, and thus, I disagree with the contrary argument of appellee, the state of Ohio.  Similarly, I agree with the majority that a facial constitutional analysis involves a review of the law that is challenged, not the policies that may be adopted to enforce the law.

But I part ways with the majority in that I do not agree with its conclusions about procedural due process.  The procedures created by the RTL are insufficient in light of the gravity of the decision being made — whether to release a person from prison on his or her presumptive release date.  This imbalance facially violates offenders’ right to due process and is unconstitutional.  And because the unconstitutional portions of the RTL cannot be severed from the law without thwarting the intent of the legislature, I would invalidate as unconstitutional the entire RTL.

Notable data on Washington state trends impacted by the pandemic and a felony drug possession law declared unconstitutional

Given robust debates over the impacts of the "war on drugs" on incarceration rates and other aspects of criminal justice systems, I found fascinating this recent press piece titled "WA felony prison and jail sentences fell by 47% in 5 years. Here’s why."  I encourage folks to check out the full article which includes and array of graphics that report on an array of data developments in The Evergreen State.  Here are some excerpts:

With the number of Washington residents headed to jail or prison at a modern low, one might expect Christie Hedman to be declaring victory.  As executive director of the Washington Defender Association, Hedman’s organization has been at the forefront of a justice reform effort keenly interested in slashing incarceration rates in the state.  Instead of celebrating the drop as a sign that reform is succeeding, though, Hedman sees it as more evidence that the system remains highly dysfunctional....

By the time the pandemic began, efforts were well underway to move Washington away from incarceration as the primary response to crime.  The calls for changes following George Floyd’s 2020 murder by a Minneapolis police officer and a 2021 state Supreme Court decision invalidating laws against drug possession fueled that shift....

The number of adults Washington courts sentenced to prison and jail on felony charges has nearly halved in the past five years.  State Caseload Forecast Council records on felony sentences provide insight into how that reduction has played out.

The drop in sentences involving incarceration stems directly from a state Supreme Court ruling that Washington’s felony drug possession law was unconstitutional.  Legislation passed earlier this year recriminalized drug possession as misdemeanor rather than a felony, but it’s unclear whether local governments, including Seattle’s, will enforce the new law.  In 2022, about 800 people were sentenced for felony drug crimes — a 66% drop compared with the previous year, and an 86% drop compared with 2020....

Nearly 95% of these sentences were for dealing, compared with 2018, before the Supreme Court decision, when 84% were for non-dealing offenses.  Last year also saw a drop in jail and prison sentences for felony property, assault and sex crimes.  Experts attribute the overall decline in incarceration to the strains on the system since the pandemic.

During the pandemic, local jails and Department of Corrections-run prisons limited their populations by restricting who was taken into custody, said Russell Brown, executive director of the Washington Association of Prosecuting Attorneys....

The average daily population of incarcerated people in Washington prisons was down 30% in 2022 compared with 2018, according to Department of Corrections data.  “So much of what you’ve seen has been a response to the system itself constricting and shutting down during this period of time,” said Hedman of the Washington Defender Association. “There are huge shortages of people wanting to be police officers, correctional officers, lawyers, whether it’s prosecutors or defense attorneys.”

The lingering effects of the pandemic will be evident across all criminal justice data for the next few years, said Lauren Peterson-Knoth, a senior researcher at the Washington Institute for Public Policy.  These constraints led prosecutors and courts to prioritize certain cases.  “The types of cases that were most likely to be processed were the crimes that were serious enough or repetitive enough that they finally had to put someone in custody,” said Brown of the prosecutor’s association.

In 2022, sentences for crimes that involved a deadly weapon, specifically firearms, increased the most in five years. This tracks with the reported increase in crimes involving firearms, said Brown, citing a King County report for 2022 showing reported shootings more than doubled compared with 2018.

Sentencing scheduled for morning after jury convicts Alex Murdaugh of murdering his wife and son ... UPDATE: Life sentences imposed

For whatever reasons, I have not been enthralled by the Murdaugh saga and trial in South Carolina.  But, after a swift set of guilty verdicts from the jury tonight, I am intrigued to see the sentencing unfold.  But, this AP article details, it seems that sentencing will unfold Friday morning:

Disgraced South Carolina attorney Alex Murdaugh was convicted of murder Thursday in the shooting deaths of his wife and son in a case that chronicled the unraveling of a powerful Southern family with tales of privilege, greed and addiction.

The jury deliberated for less than three hours before finding Murdaugh guilty of two counts of murder at the end of a six-week trial that pulled back the curtain on the once-prominent lawyer’s fall from grace.

Murdaugh, 54, faces 30 years to life in prison without parole for each murder charge when court is scheduled to reconvene for sentencing at 9:30 a.m. Friday.

I saw another press piece indicating that prosecutors will be seeking LWOP sentences. Given that Murdaugh is 54 years old, the 30-year minimum that is applicable is almost a functional life term.

Any predictions?

UPDATE:  As reported in this local article, headlined "Judge sentences Alex Murdaugh to 2 consecutive life sentences for the murders of his wife and son," apparently Murdaugh will not get out of prison even if he comes back to life after he dies while serving the first of his life sentence.  I am not quite sure how to otherwise understand the concept of "consecutive" life sentences, but maybe there is something notable in South Carolina sentencing law that makes it sensible to impose multiple life sentences consecutively.

DC Council overrides DC mayor's veto of significant criminal justice reform bill

As reported in this new Washington Post piece, the "D.C. Council on Tuesday voted to override Mayor Muriel E. Bowser’s (D) veto of a major overhaul of the city’s criminal code, which city lawmakers had unanimously approved in November despite concerns from court and law enforcement leaders." Here is more from the press report:

Lawmakers voted 12-1 to override Bowser’s veto of the bill, with Trayon White Sr. (D-Ward 8) breaking from the rest of the council.  Council member Charles Allen (D-Ward 6), who chaired the public safety committee when the legislation passed, said lawmakers “stand at the finish line of a 16-year process that would make significant improvements and modernize an outdated criminal code from another era.”...

The bill would, among other things, eliminate most mandatory minimum sentences, allow for jury trials in almost all misdemeanor cases, and reduce the maximum penalties for offenses such as burglaries, carjackings and robberies.  Law enforcement leaders had expressed concern that it could burden an already stretched court system and would send the wrong message to residents at a time when the city is struggling with gun violence.

“This bill does not make us safer,” Bowser wrote in a letter to Council Chairman Phil Mendelson (D), announcing her veto. Lawmakers shot back Tuesday that the bill was a necessary reform of the city’s outdated criminal code, and they took direct aim at the mayor’s criticism, which they said could be used as fodder for members of Congress who can block city legislation.  Republicans in the House have already threatened to target the measure. But resolutions disapproving D.C. legislation must pass both chambers and be signed by the president.  Democrats have a narrow majority in the Senate....

Allen, who chaired the public safety committee when the bill was passed, and Brooke Pinto (D-Ward 2), the new public safety chair, said in a joint statement beforehand that the criminal code was “more equitable and just” but that they were open to consideration of further amendments before it was fully implemented.  Officials who support the code revisions have stressed the law would not take effect for three years to give police, courts and other groups time to prepare.  “There is simply too much good in this bill to abandon all of that work, and without any backup plan from the mayor,” Pinto said Tuesday.

Council member Brianne K. Nadeau (D- Ward 1) called the mayor’s veto a “distraction,” given that the council would override it.  “This is political theater to create a perpetual scapegoat whenever there are issues in the future,” Nadeau said. “Do not believe the hype.  The council is not tying the hands of our law enforcement officials or making crime worse.”...

Bowser wrote in her letter to Mendelson that while there was “consensus agreement” on 95 percent of the bill, she opposed particular provisions lowering maximum sentences and allowing for more jury trials.  She said the bill would weaken “already lenient sentencing for gun possession” by reducing the maximum penalties for carrying a pistol without a license and being a felon in possession of a gun.

Gregg Pemberton, chairman of the D.C. Police Union, said in a statement that the law, once enacted, would lead to “violent crime rates exploding more than they already have.” “Every resident should be outraged that the Council has weakened the criminal justice system in a way that makes every neighborhood less safe,” Pemberton said.  “Their actions today are shameful.”

Supporters of the bill have countered the reduction in maximum penalties are in line with what judges are actually imposing.  “This isn’t some huge, mass decarceration measure,” said Patrice Sulton, founder and executive director of the D.C. Justice Lab. “It’s making the code clear, consistent, and constitutionally sound.”

"The Truth About Truth in Sentencing: Tennessee’s Experience"

The title of this post is the title of this terrific new article in the Tennessee Bar Journal authored by David Raybin.  I recommend the very readable piece in full, and here are excerpts from the introduction and conclusion:

The truth is that the crime rate does not drive a state’s prison population — policy choices do. Last year the Tennessee legislature enacted a “Truth in Sentencing” scheme where most penitentiary-bound prisoners will now serve between 85% to 100% of their time with no parole. The increases are staggering: a burglary conviction can now net nine years in prison where under prior law parole could occur in about three years.

Gov. Bill Lee reluctantly allowed this legislation to become law without his signature, saying, “Widespread evidence suggests that this policy will result in more victims, higher recidivism, increased crime and prison overcrowding, all with an increased cost to taxpayers.” At an eventual cost of $25 million a year, the proponent of the legislation, Speaker of the House Cameron Sexton replied, “If we need to build more prisons, we can.”

Recent, horrid homicides in Memphis prompted the legislature to propose even more amendments to our criminal statutes. These would abolish probation for many crimes and remove parole for other offenses. Soon virtually all offenses will be punished by mandatory incarceration with little or no alternative sentencing.5 Over the last 200 years, Tennessee has experimented with several sentencing systems which have met with varying degrees of success and failure. This state’s problems are not unique to this decade or even this century....

When viewed from the perspective of 200 years, the most obvious conclusion is that our sentencing structure has been dramatically altered with increasing frequency in recent years.  The original penitentiary law of 1829 remained substantially unchanged for 84 years until the enactment of the indeterminate sentence law in 1913.

It was another 60 years before there were any major modifications.  These changes, which occurred in 1973, were themselves altered less than six years later by the enactment of the Class X Felony Law.  Three years later the legislature passed the 1982 Sentencing Reform Act.  In another three years the legislature created the “safety valve.”  Four years later, in 1989, a new sentencing law was enacted.  In less than five years the legislature was considering yet another revision under the label of “truth in sentencing.” And then began 25 years of ever-increasing sentences for dozens of criminal offenses.  The 2022 Truth in Sentencing law was the final — and perhaps fatal — conclusion to this process.

Since 1970, the total jail population has increased 681%. The cost of the penitentiary and jail system is staggering: a billion dollars a year. Counting those in our county jails, Tennessee now incarcerates approximately the same number of people as does the entire continent of Australia, which has four times the population.  In Tennessee, African American people constitute 18% of state residents, but 36% of people in jail and 42% of people in prison....

Although our sentencing structures have been often altered, the statutory length of sentences, as set forth by current law, is not that different from those statutes first enacted in 1829.  In 1829, involuntary manslaughter was punished from one to five years. Today it is a very similar at one to six years. In 1829, the punishment for burglary of a dwelling was three to 10 years; today, for one with no record, it is three to six years.  The 1829 law was enacted to replace the previous practice of corporal punishment consisting of branding and whipping people. What may have been a valid term of imprisonment in 1829 may no longer be appropriate in 2022.  Perhaps we should revisit the length of our sentences.

We have commissioners of education and commissioners of roads, but the commissioner of correction only houses prisoners and has no impact on who goes into his or her penitentiary system.  I suggest that we do what other states and the federal government have done.  I suggest that we do what we did in Tennessee between 1986 and 1995.  We should have a full-time sentencing commission made up of professionals in the criminal justice system with judges, defense lawyers, prosecutors and citizens such as we had before.  Perhaps we should add an ex-offender or two to give us some perspective. We need that.

A sentencing commission is also a tool for discovering problems before they get out of hand.  A full-time sentencing commission is the only solution to making meaningful progress.  We cannot have committees or commissions who come together every 20 years to fix the system.  We advocate routine maintenance on our cars, so why not our criminal justice system?

Notable new research on modern operation and impact of Three Strikes law in California

I just came across this notable new report from the California Policy Lab released a couple of months ago titled simply "Three Strikes in California." Here is the 45-page report's listing of "Key Findings" (with bolding in the original):

• Three-Strikes enhancements affect a large share of the currently incarcerated prison population, but a smaller share of admissions to prison.  Less than one-third of prison admissions since 2015 involve a strike enhancement, with most receiving a doubled-sentence enhancement and a smaller percentage receiving a third-strike enhancement. At a given point in time however, individuals with strike enhancements constitute a larger proportion of the incarcerated population because they serve longer sentences

• Nearly 65% of admissions to prison with a doubled-sentence enhancement are for a non-violent, non-serious offense.

• Given the longer sentences imposed for serious or violent offenses, the reverse is true for people currently incarcerated: approximately 71% of those with doubled-sentence enhancements were convicted of a serious or violent offense.

• Black individuals are heavily over-represented among people serving sentences with third-strike enhancements, and to a lesser degree, with doubled-sentence enhancements. Overrepresentation exists relative to the racial/ ethnic composition of the prison population, and overwhelmingly relative to the racial/ethnic composition of the resident population of California.

• Judicial and prosecutorial discretion can mitigate the severity of strike enhancements.  The data suggests that judges and prosecutors may mitigate the severity of doubled-sentence enhancements by choosing (or accepting) lower sentence length options, but the effect of discretion on overall sentence length is modest.

• The use of strike enhancements varies widely across counties.  While third-strike sentences are considerably more rare today than in past years and the ordering across counties has changed over time, high-use and low-use counties documented in the early 2000s are largely similar in terms of rank today.

• The implementation of Three Strikes does not explain statewide declines in crime over time.  Early evaluations claiming large impacts on crime fail to account for national crime trends and also suffer from methodological flaws. More recent research suggests that Three Strikes may have a modest deterrent effect on relatively less serious crime, but likely does not account for the declines in California’s crime rates beginning in the mid-1990s.  Crime fell contemporaneously throughout the nation, and comparisons of crime trends in California to states that did not pass Three-Strikes laws reveal very similar trends over the subsequent two decades.

Oklahoma criminal justice reform include expanding parole eligibility to reach nearly 15% more of its prison population

The Sooner State might have some current prisoners securing release from incarceration a bit sooner after today's signing of a notable state criminal justice reform bill.  This local piece, headlined "Gov. Kevin Stitt signs bill aimed at tackling criminal justice reform," provides some of the details:

Gov. Kevin Stitt on Wednesday signed a criminal justice reform bill to help inmates qualify for parole. "I firmly believe we should be locking up people that we’re afraid of, not that we’re mad at," Stitt said. "And that’s something that we’re pushing in our state."

House Bill 4369 gives those convicted of non-violent crimes more opportunities for parole. "What it does is it reduces the time on parole, but it also saves taxpayer dollars," state Rep. Brian Hill said.

Lawmakers introduced the Sarah Stitt Act along with House Bill 4369. A key part of the bill is making sure people can re-enter society successfully. "Like obtaining an ID, Social Security card, even a resume," Stitt said. "Isn’t that what we want? We want them back reunited with their children and involved in society, paying taxes and contributing."

The bill also helps connect people to jobs. "Through this initiative, you’ll now be able to work with the DOC to do the interview before someone comes out of incarceration so on day one you’re coming out with a job," Hill said....

About 3,600 inmates will be eligible once the law goes into effect, according to lawmakers.

This tracker indicates that there were just over 21,000 persons in Oklahoma prisons as of June.  So, if the new law makes 3600 eligible for earlier parole, perhaps as much as 15% of the Oklahoma prison population should benefit from these reforms.  And many more should benefit from other aspects of these seemingly "smart-on-crime" measure.  (I hope folks who know more about Oklahoma law will let me know if I have any of these details wrong.) 

Intriguing report on intriguing "equitable criminal sentencing technology" being formally adopted in Florida county

This local article out of Florida, headlined "Alachua County makes history with approval of equitable criminal sentencing technology," report on an interesting new development with some interesting sentencing technology. Here are the developments:

With the finalization of its budget Tuesday evening, Alachua County made the joint-effort of state attorney Brian Kramer and public defender Stacy Scott a historic reality: Florida’s Eighth Judicial Circuit will become Florida’s first judicial circuit to integrate equitable sentencing software as an official part of its case management system and plea-bargaining process. Roughly 95% of cases are settled in plea negotiations.

“We feel like this is an important step forward in trying to create more parity in our criminal justice system so that there aren’t these disparate sentences that exist today,” Scott said when she and Kramer presented the system to county commissioners Aug. 2.

Known as the Equity in Sentencing Analysis System (ESAS), this fairly new software provides legal practitioners with a searchable database of statewide sentencing data from the Florida Department of Corrections going back to 1998. It enables them to analyze past sentences that people with similar criminal backgrounds have received for similar crimes.

“That dataset is going to provide the lawyer things like the mean, the mode, the median,” Kramer told WUFT. “So that’s giving the lawyer data upon which to say, ‘OK, is this situation that I’m looking at, is it less serious than the average? Is it more serious than the average? And it gives them a starting point from which to develop a sentence that hopefully eliminates some of the inequities in the criminal justice system.”

Scott further reiterated this, adding that the sentencing data would allow for more honesty and consistency in plea negotiations, “instead of the way we’ve always done it, which is just sort of somebody’s gut feeling about what should happen.”

Its initial integration into the current system will cost Alachua County $73,000, followed by an annual subscription cost of roughly $23,000 for each office. But the software’s owner, Al Barlow, said he didn’t create it to make money. An attorney with 37 years of legal experience, Barlow was motivated by unfair sentencing he had encountered first-hand and presented the concept behind the sentencing analysis system to the Senate Judiciary Committee in 2017. He was looking to give the software to the state of Florida if the committee set him up with a programmer, but he didn’t receive the response he had hoped for. “They thought I was an alien. They kind of blew me off,” Barlow said. “I came back to Jacksonville, and I got with this programmer and another guy, and we built the software ourselves.”

And so his company, Technologies for Justice, was born along with his sentencing database. Barlow’s ensuing analysis, powered by this new software, showed him that the sentencing guideline system established by the Criminal Punishment Code in 1998 fails to ensure equitable sentencing across Florida. And he said ESAS could serve as a means to audit it....

Some attorneys, Scott and Kramer included, said ESAS is not the end-all-be-all. To them, it’s one of many factors worth considering when determining fair sentences. Still, Kramer saw something in Barlow’s software that other state attorneys haven’t acted on: the potential to combat intrinsic bias. “Does it eliminate bias? No, not at all, because you can’t eliminate bias,” Kramer said. “But what it would do is give us an unbiased starting point. And then we could work from there to try and make those adjustments upward or downward as appropriate.”

Until now, Florida prosecutors have almost entirely avoided this sentencing analysis system: Barlow said there was one other state attorney’s office that contacted him, piloted ESAS but ultimately never used it. Defense attorneys are generally the ones who use it to reduce sentences, according to a spokesperson for the Eighth Judicial Circuit.

Even among all Florida attorneys, the software isn’t well-known. Only 150 are currently registered to use it, with some others occasionally performing one-time searches, Barlow said. (Note that over 100,000 people are currently registered to practice law in Florida, according to the Florida Bar.) And he estimated two-thirds aren’t even aware of it.

Barlow also said software like ESAS doesn’t seem to exist outside of Florida. He said he receives calls from lawyers in Washington, New York, Seattle and all over the nation who are shocked to hear about such technology. “Florida is on the cusp of doing something very, very special,” Barlow said. “If it works half as good as we know it can, Gainesville will set a precedent for equitable sentences that the whole nation can follow.”

I have never previously heard of Equity in Sentencing Analysis System (ESAS) or Technologies for Justice, no doubt because it seems ESAS is a propriety technology that has not been widely used (or even widely known) in Florida. 

Two different criminal justice reforms now effective in two southern states

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

"Florida criminal justice reform laws go into effect Friday"

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

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

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

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

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

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

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

New report claims many successes attributable to Proposition 47's sentencing reductions in California

The Center for Juvenile and Criminal Justice has this notable new report on developments in California titled "Proposition 47: A $600 Million Lifeline to California Communities." Here is the 10-page report's introduction (with cites preserved):

Proposition 47 (Prop 47), one of the most significant criminal justice reforms in California history, has now been in effect for more than seven years.  The initiative, which passed with nearly 60 percent of the vote in 2014, sought to interrupt cycles of frequent incarceration and redress decades of overly punitive sentencing by reclassifying several low-level drug and property offenses from potential felonies to misdemeanors (SOS, 2014; 2014a).  The result has been a marked decline in California’s incarcerated population (Bird et al., 2016; 2018; Graves, 2020).

A key provision of Prop 47 was the reinvestment of state dollars from prisons into community-based prevention programs.  This year, as part of his Fiscal Year (FY) 2022-23 budget proposal, Governor Gavin Newsom announced an additional $150 million in prison savings attributed to Prop 47 (DOF, 2022).  This latest investment would increase total funding to nearly $600 million.

Proposition 47 has been a lifeline to vulnerable Californians. This support has proved critical as California now faces an unprecedented set of challenges.  These include significant disruption and loss of life due to COVID-19, a reckoning over police violence against people of color, sharp increases in the cost of living, and rising rates of homelessness and drug overdose.  Most recently, there are changing public narratives around crime and the impacts of justice reform.  To date, Prop 47 has:

1. Coincided with a period of record-low crime in California (CJCJ, 2020; 2020a; 2021; 2021a).

2. Reduced unconstitutional overcrowding in state prisons (Graves, 2020).

3. Offered resentencing, release, and/or record change opportunities to thousands of Californians.

4. Lessened racial disparities in California’s criminal justice system (Lofstrom et al., 2020).

5. Reinvested more than half a billion dollars into local programs that address the root causes of incarceration for as many as 40,000 people by reducing homelessness and boosting employment.

Right on Crime highlights "Second Look for conservative justice and cost-savings"

The folks at Right on Crime has this interesting new coverage of "Second Look in Texas."  This one-pager, produced by Nikki Pressley, carries the title that is quoted in this title of this post, and here is the main text (along with the interesting graphic I have reprinted):

Texas has the harshest parole eligibility guidelines for juvenile offenders of any state, allowing some to be imprisoned without the possibility of parole for 40 years. Even worse, many of these youth are convicted through the Law of Parties, meaning they were merely an accessory to the actual crime and never pulled the trigger.  Science proves that continued brain development allows a healthy brain to mature and make more logical decisions far before someone completes a 40-year sentence, and recidivism rates for these offenders is extremely low.

Second Look legislation would lower the time until parole eligibility for juvenile offenders from 40 years to 20 years.  This change should also be retroactive, allowing adults currently serving time in prison for a crime committed as a juvenile to also have the opportunity for earlier parole.  Proving to be little or no threat to public safety and simultaneously saving hundred of thousands of taxpayer dollars, Second Look legislation is a win-win reform.

And here are "key points" stressed:

• It costs $25,000 a year to house each inmate.
• As of 2020, over 1,400 individuals were serving life or a sentence of at least 40 years in Texas for a crime they committed while under the age of 18.
• In states that have passed Second Look legislation, recidivism has been extremely low.

Minnesota judge, finding mitigating circumstances, imposes below-guideline sentence of 2 years on former officer Kim Potter convicted of manslaughter for killing Daunte Wright

As reported in this AP piece, "Kim Potter, the former suburban Minneapolis police officer who said she confused her handgun for her Taser when she fatally shot Daunte Wright, was sentenced Friday to two years in prison, a penalty below state guidelines after the judge found mitigating factors warranted a lesser sentence." Here is more:

Judge Regina Chu said the lesser sentence was warranted because Potter was “in the line of duty and doing her job in attempting to lawfully arrest Daunte Wright” when she said she mistook her gun for her Taser.  And, Chu said, Potter was trying to protect another officer who could have been dragged and seriously injured if Wright drove away.  “This is this is one of the saddest cases I’ve had on my 20 years on the bench,” said Chu, who also said she received “hundred and hundreds” of letters supporting Potter. “On the one hand, a young man was killed and on the other a respected 26-year veteran police officer, made a tragic error by pulling her hand gun instead of her Taser.”

Wright’s mother, Katie Wright, said after the sentencing that Potter “murdered my son,” adding: “Today the justice system murdered him all over again.” Speaking before the sentence was imposed, the tearful mother said she could never forgive Potter and would only refer to her as “the defendant” because Potter only referred to her 20-year-old son as “the driver” at trial....

Wright family attorney Ben Crump said they don’t understand why such consideration was given to a white officer in the killing of a young Black man when a Black officer, Mohamed Noor, got a longer sentence for the killing of a white woman, Justine Ruszczyk Damond. “What we see today is the legal system in Black and white.”

But the judge said the cases are not the same as other high-profile killings by police. “This is not a cop found guilty of murder for using his knee to pin down a person for 9 1/2 minutes as he gasped for air. This is not a cop found guilty of manslaughter for intentionally drawing his firearm and shooting across his partner and killing an unarmed woman who approached approached his squad,” Chu said. “This is a cop who made a tragic mistake.”

For someone with no criminal history, such as Potter, the state guidelines on first-degree manslaughter range from slightly more than six years to about 8 1/2 years in prison, with the presumptive sentence being just over seven years. Prosecutors said the presumptive sentence was proper, but defense attorneys asked for a sentence below the guidelines, including a sentence of probation only.

I have not previously blogged about the sentencing advocacy in this high-profile case, but this Hill piece usefully links to the written submissions. Here is an excerpt with links:

Prosecutors in a sentencing memo asked the judge to give Potter 86 months, a little more than seven years. First-degree manslaughter has a sentencing of 15 years in Minnesota, but judges can lower the sentence if a person, like Potter, has no criminal history....

Defendants argued in their filing the sentence should be lower due to Potter having no criminal record and her remorsefulness at the situation.  “To impose a prison term here sends the message that if an officer makes a mistake, the Attorney General will be quick to charge (the Complaint was filed within days), and that officer will immediately be ruined by the publicity alone. And a few in the community will try to kill you,” Potter’s lawyers wrote, noting the threats Potter has received. The lawyers believed her house would have been burned down without protection.

My understanding of Minnesota law is that Potter will serve 2/3 of her sentence in prison, so she will be released on parole after serving 16 months.

Prior related post:

• Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

"How 4 States Cut Their Criminal Justice Budgets Without Sacrificing Safety"

The title of this post is the title of this notable new article from the  Winter 2022  edition of State Legislatures magazine produced by the National Conference of State Legislatures.   I recommend this piece in full, and here is how it begins and a few highlights:

About 5% of states’ general fund budgets go to criminal justice — just over $45 billion in fiscal year 2019 — so many lawmakers are determined to make every dollar count.  But that’s not as easy as it might sound.

“The challenge for legislators is to reduce the use of high-cost, low-return policies and shift the savings into programs that have been shown to reduce crime,” says Jake Horowitz, director of The Pew Charitable Trusts’ Public Safety Performance Project.

Lawmakers have a variety of policy options at their disposal, but what actually works? Programs in Louisiana, Michigan, Oregon and Missouri provide some answers.

Louisiana: Reducing Prison Admissions...

Michigan: Shortening Jail Stays...

Oregon: Shoring Up Short-Term Transitional Leave...

Missouri: Reducing Revocations of Community Supervision...

“When people have access to high quality behavioral health services, interactions with law enforcement go down and, in the long term, we see reductions in the number of people in the criminal justice system,” says Alison Lawrence, associate director of NCSL’s Criminal Justice Program.

Corrections research departments are another valuable resource.  Lawmakers looking for effective ways to reduce their criminal justice budgets are finding that public safety and researched-backed corrections policy go hand in hand.  Cutting a research department, Horowitz says, “You might save a fully loaded salary, but then you’re flying blind, and you don’t know what is driving your costs.”

Two of three defendants convicted of murdering Ahmaud Arbery given LWOP, other gets life with parole

This lengthy USA Today piece reports on a high-profile state sentencing that took place down in Georgia.  Here are the basics:

A judge sentenced three men to life in prison Friday for the murder of Ahmaud Arbery and denied the possibility of parole for two of the defendants, father and son Gregory and Travis McMichael.  However Judge Timothy Walmsley granted the possibility of parole to William "Roddie" Bryan, the McMichaels' neighbor who joined the chase and took video of the killing. Bryan must serve at least 30 years in prison before becoming eligible....

Before the sentencing was read, Walmsley held a minute of silence to represent a fraction of the time Arbery was running before he was shot.  He called the image of Travis McMichael aiming a shotgun at Arbery "absolutely chilling." The judge also quoted the defendant's statements, saying their words gave context to the video and guided his sentencing decision. The minimum penalty required by law for the murder charges is a life sentence; Walmsley had to determine whether each defendant would have the possibility of parole....

The three men chased the Arbery, 25, in trucks while he was running through the Satilla Shores neighborhood in Brunswick, Georgia, on Feb. 23, 2020.  The men weren't arrested for more than two months when Bryan's video was released, which fueled nationwide racial justice protests and later became a key piece of evidence in the murder trial. The nearly-all white jury deliberated for almost two days before finding the men guilty.  They were taken to Glynn County jail after the verdict was reached and are expected to appeal....

Walmsley said that while sentencing may not provide closure for the family, the community or the nation, it would hold the defendants accountable for their actions.  Arbery's parents, Marcus Arbery and Wanda Cooper-Jones, cried as the sentence was read.  Earlier Friday, the family asked for all three defendants to get the harshest penalty as they shared memories of him and the toll his death has taken....

The defendants all had the opportunity to speak before sentencing, a time when judges typically expect to hear remorse, but did not....

After being sentenced on the state charges, the three men will face a federal hate crimes trial for killing Arbery.  The three men are white; Arbery was Black. All three are charged with interfering with Arbery's rights and attempted kidnapping.  The McMichaels are also charged with using, carrying and brandishing — and in Travis McMichael’s case, firing — a gun during and in relation to a crime of violence.

The federal charges are punishable by death, life in prison or a shorter prison sentence and a fine, according to the Federal Bureau of Investigations.  There is no parole in the federal system. Attorneys will begin selecting a jury from a wide pool of 43 counties across the Southern District of Georgia for that trial Feb. 7. The proceedings are set to take place in Glynn County.

The McMichaels and Bryan are also facing a civil lawsuit filed by Arbery’s mother. The wrongful death suit seeks $1 million in damages and also names former Brunswick Judicial Circuit District Attorney Jackie Johnson, former Glynn County Police Chief John Powell, Waycross Judicial Circuit District Attorney George Barnhill, and several Glynn County police officers.

Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

This extended AP article provide a helpful accounting of what we might now expect in sentencing of former Minneapolis police officer Kim Potter after a jury convicted her yesterday on two counts of manslaughter.  Here are excerpts:

The former suburban Minneapolis police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced in February after a jury convicted her Thursday on two counts of manslaughter.  The most serious charge against Kim Potter — first-degree manslaughter — carries a maximum penalty of 15 years in prison....

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious charge of first-degree manslaughter.  That’s because both of the charges against her stem from one act, with one victim.

The max for that charge is 15 years.  But state sentencing guidelines call for much less.  For someone with no criminal history, like Potter, the guidelines range from just more than six years to about 8 1/2 years, with the presumptive sentence being slightly over seven years.

Prosecutors have said they'd seek a sentence above the guideline range, while the defense said they would seek no prison time.  In order for Judge Regina Chu to issue a sentence that's outside the guideline range, she would first have to find either mitigating or aggravating factors.  Both sides are expected to file written arguments.

Prosecutors say aggravating factors in Potter's case include that she caused a greater-than-normal danger to the safety of other people when she fired into the car, including danger to her fellow officers, to Wright’s passenger and to the couple whose car was struck by Wright’s after the shooting.... Prosecutors also say Potter abused her authority as a police officer.

Defense attorney Paul Engh said the defense would be seeking a “dispositional departure” from sentencing guidelines. Under state statutes, a mitigated dispositional departure occurs when guidelines recommend a prison sentence, but a judge allows the sentence to be “stayed" — meaning the defendant doesn't go to prison....

In arguing that Potter should remain free on bail until she is sentenced, Engh said: "She is amenable to probation. Her remorse and regret for the incident is overwhelming.  She’s not a danger to the public whatsoever.  She’s made all her court appearances.” Chu was unmoved, and Potter was taken into custody after the verdicts were read....

The defense can also make the argument that as a police officer, Potter's confinement would likely be harsher than most because of the need to keep her safe.  The former Minneapolis police officer convicted in George Floyd's death, Derek Chauvin, has been in solitary confinement for that reason....

In determining a final sentence, Chu will consider the arguments made by both sides, as well as victim impact statements.  She has also ordered a pre-sentence investigation of Potter.  And Potter can make a statement at her sentencing hearing — a time when judges are typically looking to see if a person takes responsibility for the crime or shows remorse....

No matter what sentence Potter gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.  That means if Potter is sentenced to the presumptive seven years, she would likely serve about four years and nine months behind bars, and the rest on supervised release.  Once on supervised release, she could be sent back to prison if she violates conditions of his parole.  If she gets the maximum 15 years, she could be behind bars for 10 before being placed on parole.

A deep dive into extreme sentences in the Pelican State

The Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

Another crazy long sentence resulting from crazy crude mandatory minimums after deadly accident in Colorado

A very sad case turned into a very extreme sentence for a truck driver in Colorado earlier this week.  This lengthy local story, headlined "Driver gets 110 years in fiery I-70 crash that killed 4," provides lots of the details and videos from the sentencing.  Here are the basics:

The man convicted after a crash on Interstate 70 that left four people dead was sentenced to 110 years in prison Monday afternoon.

Rogel Aguilera-Mederos was 23 when his semi-truck slammed into stopped traffic on the interstate near Denver West Parkway on April 25, 2019.  Four people died instantly from the impact: Doyle Harrison, William Bailey, Miguel Angel Lamas Arellano and Stanley Politano. It is believed they all died from injuries and not the resulting fire.

Aguilera-Mederos was found guilty by a jury on 27 counts in total.  The most serious charges were four counts of vehicular manslaughter.  Other counts he was found guilty of included first-degree assault, first-degree attempt to commit assault, vehicular assault, reckless driving and careless driving. He was found not guilty on 15 counts of first-degree attempt to commit assault.

Judge A. Bruce Jones sentenced Aguilera-Mederos to the required 10-year minimum for each of the six counts of first-degree assault with extreme indifference, to be served consecutively.  He was also sentenced to the required minimum of five years for 10 additional counts of attempted first-degree assault with extreme indifference.  Those will be served consecutively as well.

The judge said the legislature required him to order those sentences be served consecutively, which was why, he said, he issued the minimum sentence for those charges.  However, he did say he may have sentenced Aguilera-Mederos to more than the minimum, if not required to issue the sentences consecutively.

"In all victim impact statements I read, I did not glean from them someone saying, 'He should be in prison for the rest of his life, and he should never, ever get out," Jones said.  "Far from it. There was forgiveness reflected in those statements, but also a desire that he be punished and serve time in prison, and I share those sentiments."

In addition to the 110 years stemming from those charges, Aguilera-Mederos was sentenced to 30 years for 11 other charges that will be served concurrently.

Aguilera-Mederos was extremely emotional as he asked for forgiveness before Jones announced the sentence. "I know it has been hard and heartbreaking for everyone involved," he said though tears. "I can't sleep, I think all the time about the victims. A part of me will be missing forever, as well." Aguilera-Mederos said he took responsibility for the crash, and said it was not intentional. "I have never thought about hurting anyone in my entire life," he said....

The judge said his hands were tied when it came to sentencing, because Colorado's violent crime statute is specific. 9NEWS Legal Expert Scott Robinson said certain violent crimes require a minimum sentence for each victim, and they have to run consecutively. But he said there is one way for violent crime sentences to be reduced.

"Colorado's violent crimes statute gives judges some discretion after 180 days have passed," Robinson said. "Here, the sentencing judge, Bruce Jones, will have an opportunity to determine whether there were unusual and extenuating circumstances which would justify a reduction in the sentences imposed." The judge said he could not assure the courtroom this would be the end of this process, giving an indication that he may consider a motion like that.

The jury had to decide whether the crash resulted from a series of bad choices by the driver or a mechanical failure that the driver had no control over. Aguilera-Mederos faced 42 counts in all. He testified for hours and tearfully recounted publicly for the first time his version of what happened on that day.

Both sides agreed that his truck lost brakes at some point, but they disagreed on how or why that happened.... After the brakes were out, prosecutors argued that Aguilera-Mederos made a series of bad choices that resulted in the crash. One of them being his failure to use a runaway truck ramp on the highway.

I do not know the particulars of Colorado sentencing law, but I sure hope there is a mechanism for the reconsideration of this crazy extreme sentence before too long. But the very possibility that an awful accident can lead to an initial mandated sentence of 100+ years suggest to me that some reform of Colorado sentencing law is still needed.

Here is some other notable recent coverage of this case:

"Trucker’s 110-year sentence in fatal I-70 crash spotlights Colorado sentencing laws, prosecutors’ charging decisions"

"He Was Sentenced To 110 Years in Prison for Causing a Fatal Traffic Accident. The Judge Isn't Happy About It."

"Truck Driver Sentenced 110 Years For Deadly Crash Stemming From Brake Failure Even Though Everyone Agrees It's Unreasonable"

Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?

Today seemed to be the day for high-profile convictions of TV stars (or maybe not-quite stars).  Not long after the federal conviction of Josh Duggar in Arkansas (basics here), a state jury in Chicago returned a guilty verdict on 5 of 6 counts brought against Jussie Smollett.  This AP piece provides the basics, as well as a sentencing forecast:

Former “Empire” actor Jussie Smollett was convicted Thursday on charges he staged an anti-gay, racist attack on himself nearly three years ago and then lied to Chicago police about it....

The jury found the 39-year-old guilty on five counts of disorderly conduct — for each separate time he was charged with lying to police in the days immediately after the alleged attack. He was acquitted on a sixth count, of lying to a detective in mid-February, weeks after Smollett said he was attacked.

Outside court, special prosecutor Dan Webb called the verdict “a resounding message by the jury that Mr. Smollett did exactly what we said he did.” Smollett “wreaked havoc here in the city for weeks on end for no reason whatsoever," then compounded the problem by lying under oath to the jury, Webb said....

Judge James Linn set a post-trial hearing for Jan. 27, and said he would schedule Smollett's sentencing at a later date. Disorderly conduct is a class 4 felony that carries a prison sentence of up to three years, but experts have said if convicted, Smollett would likely be placed on probation and ordered to perform community service.

The damage to his personal and professional life may be more severe. Smollett lost his role on the TV program “Empire” after prosecutors said the alleged attack was a hoax, and he told jurors earlier this week, “I’ve lost my livelihood.”

This local article, headlined "Here's what could happen during Jussie Smollett's sentencing after his guilty verdict," also suggests incarceration time is unlikely in this case:

A jury at the Leighton Criminal Court Building decided Smollett was guilty on five of six charges relating to false statements prosecutors said he made to Chicago police.

Those charges are listed as class 4 felonies, which are among the least serious felonies in Illinois, but can still carry potential prison time of up to three years. Experts have said Smollett will likely be placed on probation and ordered to perform community service due to his lack of criminal history.

"Because Mr. Smollett does not have a criminal history, there is a presumption that he would be given a form of probation," said Attorney Anthony Burch. "So I don't suspect that he would be taken into custody."

The Sentencing Project releases "Successes in Criminal Legal Reforms, 2021"

Nicole Porter at The Sentencing Project has authored a short report reviewing state-level legislative criminal justice reforms under the title "Successes in Criminal Legal Reforms, 2021." This webpage has a link to the full four-page document, and it sets up the report's coverage this way:

The United States continues to lead the world in incarceration given that over 6.3 million persons are under correctional control.  More than 2.1 million are in prison or jail, and 4.4 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 70-100 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.  This briefing paper highlights key reforms undertaken in 2021 prioritized by The Sentencing Project.

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison":

A New York man who pleaded guilty to rape and sexual abuse charges will not face prison time, and instead was sentenced to probation earlier this week. Christopher Belter, 20, in 2019 pleaded guilty to felony charges including third-degree rape and attempted first-degree sexual abuse. He also pleaded guilty to two misdemeanor sexual abuse charges, according to multiple reports.

The crimes against four victims occurred when he was 16 and 17 years old. Three of the victims were 16 years old at the time, and one was 15. Belter was facing a maximum sentence of up to eight years in prison. But Niagara County Court Judge Matthew J. Murphy III on Tuesday gave the man eight years probation. The judge said a prison sentence would be "inappropriate.”

“I’m not ashamed to say that I actually prayed over what is the appropriate sentence in this case because there was great pain. There was great harm. There were multiple crimes committed in the case,” Murphy said, according to WKBW. “It seems to me that a sentence that involves incarceration or partial incarceration isn’t appropriate, so I am going to sentence you to probation,” he added.

Belter will have to register as a sex offender under his sentence, according to multiple reports.

Steven Cohen, an attorney representing one of the victims, said in a statement to USA TODAY that his client is “deeply disappointed in the sentencing.” He added that his client “threw up in the ladies room following the sentencing."

“I have been practicing law for over 30 years. If Chris Belter was not a white defendant from a rich and influential family, it is my belief he wouldn’t have received the original plea deal, and he would surely have been sentenced to prison,” Cohen said. “The greater harm, however, is that the sentencing in this matter would seem to perpetuate the insane belief that rape is not a serious crime and that its occurrence results in little consequence to the perpetrator. Our society needs to do much better,” he added.

Barry Covert, Belter's attorney, said the man “is tremendously remorseful for what he's done.” "There are clients who are never able to empathize with their victims no matter how much counseling they receive. Chris isn't one of them," he said, The Buffalo News reported....

The crimes occurred in 2017 and 2018 at Belter’s parents' home in Lewiston, New York. In 2019, judge Sara Sheldon, who has since retired, put Belter on two years’ interim probation. She said he could apply for youthful offender status, which would have lowered his maximum sentence and allowed him not to register as a sex offender.

Belter confirmed in court last month that he violated the agreement by installing software on a computer to view pornography. Murphy later denied Belter the youthful offender status, ruling that he would be sentenced as an adult.

Niagara County District Attorney Brian Seaman said in a statement obtained by USA TODAY: "Based on the seriousness of these crimes, the very powerful and emotional statements of the victims and the fact that Christopher Belter was already given a shot at interim probation and failed, my office has been very clear that we believed a prison sentence was entirely appropriate in this case.”

Here is just a sampling of some of the other national press coverage that this case is now receiving:

From ABC News, "Judge sentences admitted rapist to probation, no prison time"

From CBS News, "A judge sentenced a rapist to probation. One of his victims warns "he will offend again"

From NBC News, "Judge says prison 'inappropriate' for New York man who sexually assaulted 4 teens"

"Time For Justice The Urgent Need For Second Chances In Pennsylvania’s Sentencing System"

The title of this post is the title of this notable new report written by Emily Bloomenthal, Director of Research at FAMM.  Here is part of how the report's executive summary gets started:

Too many people in Pennsylvania are serving long prison terms that don’t make communities safer.  People who do not pose a risk to public safety languish in prison for decades because Pennsylvania’s laws don’t give them a second chance.  This report, which focuses on people serving minimum sentences of 20 years or longer, looks at the harms and injustices of extreme sentences in Pennsylvania, as well as opportunities for reform.

Key findings:

Pennsylvania’s prison population has been shaped by some of the harshest sentencing policies in the country.

• In 2019, Pennsylvania imprisoned more than seven times the number of people that it did in 1970.  That growth was driven by punitive policy choices, not increases in crime, and it did not make Pennsylvanians safer.

• Pennsylvania is a national leader in imposing extreme sentences.  This ranking is largely driven by two laws: the mandatory minimum sentence of life imprisonment required for first- and second-degree murder, and the denial of parole eligibility to anyone serving a life sentence. In Pennsylvania prisons, 13.4% of people are serving life without parole (LWOP), compared to only 3.6% nationally.

• The population serving extreme sentences in Pennsylvania has surged over the last few decades. There were more than nine times as many people serving extreme sentences in 2019 than there were in 1980.

• Pennsylvania’s extreme sentencing practices have overwhelmingly impacted people of color, especially Black people, who make up less than 11% of Pennsylvania’s population but 65% of people serving life sentences and 58% of those serving non-life sentences of 20 years or longer.

• Pennsylvania’s extreme sentencing practices have created a large (and growing) elderly prison population, which increased thirtyfold from 1979 to 2019.

Pennsylvania’s extreme sentences are a high-cost, low-value proposition for taxpayers.

• Researchers have found no evidence that severe sentencing policies discourage people from choosing to engage in crime.

• Extreme sentences are not necessary for preventing recidivism, because the vast majority of people who commit crimes — even very serious crimes — naturally grow out of criminal behavior as they age and mature.  For example, of the 174 Philadelphia juvenile lifers — all originally convicted of homicide — who were resentenced and released following landmark U.S. Supreme Court decisions, only two (1.1%) had been reconvicted of any offense as of 2020.

• Based on average incarceration costs, the Pennsylvania Department of Corrections (DOC) is spending $220 million per year to incarcerate 3,892 people who have already served at least 20 years.  The true cost is undoubtedly higher, because incarceration costs increase dramatically as people age and need more medical care.

• The average cost for incarcerated individuals in skilled or personal care units is $500 per day (or $182,625 per year), more than three times the cost for the general population.

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

Checking in with Oregon's drug decriminalization effort one year in

Stateline has this effective piece, headlined "Oregon’s Drug Decriminalization May Spread, Despite Unclear Results," providing an update of sorts on Oregon's experience one year after a ballot initiative enacted statewide drug decriminalization.  I recommend the full piece, and here are excerpts:

Progressive lawmakers and civil rights groups want more states to follow Oregon’s recent example and drop criminal penalties for carrying small amounts of heroin, cocaine or other drugs, and to spend more money on addiction recovery services.  They say substance use disorder should be treated as a disease, rather than as a crime.

Democratic lawmakers in Maine, Massachusetts, Rhode Island and Vermont all proposed decriminalization bills this year.  Advocacy groups hope to get a decriminalization measure on the ballot in Washington in 2022 and in California in 2024, said Matt Sutton, director of public relations for the Drug Policy Alliance, a New York-based nonprofit.  The Drug Policy Alliance helped fund the ballot initiative that resulted in Oregon’s new law, which took effect in February.

But Oregon’s experience shows that it’s easier to eliminate criminal penalties than to ramp up behavioral health services and get more people to use them.  In fact, critics of decriminalization say such policies could decrease access to treatment, because fewer low-level offenders will be pushed into court-ordered programs....

The law will use marijuana tax revenue — plus any criminal justice money saved through decriminalization — to fund organizations that help people seek and maintain sobriety. Those services could include peer support groups and transitional housing programs. Such organizations will get about $300 million over the next two years [which is estimated to be] about five times the amount Oregon is currently spending on services that aren’t provided through Medicaid, the public health insurance program for people who have low incomes or disabilities. About $30 million already has been disbursed....

Drug arrests and convictions have plummeted in Oregon since February.  The ballot measure made possessing small amounts of drugs — such as less than a gram of heroin, or less than two grams of cocaine — a civil citation punishable by a $100 fine rather than a crime.  It also downgraded felony charges to misdemeanors for possessing slightly larger amounts.

The measure established a hotline that people whom police ticket for possession can call to undergo a health assessment.  If they complete the assessment, they can get their citations waived, even without further treatment or other services.  The law also requires the state to establish addiction recovery centers to connect people who use drugs with treatment or other assistance, such as housing or overdose prevention education.

Before decriminalization, in 2019, Oregon law enforcement officers made more than 6,700 arrests and courts issued more than 4,000 convictions for drug possession in cases where possession was the most serious potential charge, according to the Oregon Criminal Justice Commission....  Between February and August this year, law enforcement made 1,800 arrests for such possession crimes and courts issued 364 convictions.  Defendants most likely were arrested for carrying large amounts of drugs or for drug dealing offenses, said Ken Sanchagrin, executive director of the commission. 

Decriminalization doesn’t appear to be leading to a rise in drug-related crime, such as property crime.  Property crimes in the state actually decreased this year, according to data provided by the criminal justice commission and the judicial department.

It’s less clear whether decriminalization has led more people to seek help for substance use disorders.  Defendants failed to show up in court to make their case against about half of 1,300 citations issued through September for possession of small amounts of drugs, according to the Oregon Judicial Department.  In only seven cases did defendants submit a health assessment to get their fines waived.  To critics of the new law, the seldom-used hotline proves that decriminalization isn’t working....

Policymakers nationwide likely will be watching Oregon for policy insights, said Beau Kilmer, director of the RAND Drug Policy Research Center at the RAND Corporation, a California-based research group.  But the Oregon law is so new — and is being implemented at such an unusual time, during a global pandemic — that it’s hard to tell whether it’s working as intended, he said.  “I suspect voters in other states will be considering this before we have hard evidence on it.”

Notable (re)sentencing of another former Minnesota police officer for another notable homicide

Though not anywhere as high-profile as the conviction and sentencing of Derek Chauvin, another Minnesota police officer was just subject to state sentencing (actually a resentencing) for homicide. This local article, headlined "Judge resentences ex-officer Mohamed Noor to almost 5 years on manslaughter count," reports on an interesting sentencing process and outcome. Here are excerpts:

Former Minneapolis police officer Mohamed Noor received a new sentence of 4 3/4 years on Thursday for his manslaughter conviction after the state's high court overturned the more serious murder conviction for the 2017 shooting of an Australian woman who had called to report a possible crime.

Noor, who turned 36 Wednesday, was resentenced by Judge Kathryn Quaintance on second-degree manslaughter because the Minnesota Supreme Court set aside his third-degree murder conviction last month.  The decision vacated a prison term of 12 1/2 years Noor was already serving on the murder count for shooting Justine Ruszczyk Damond.

Quaintance, in sentencing Noor to the high end as suggested by state sentencing guidelines, said she wasn't surprised Noor has been a model prisoner, but he had fired his gun across the nose of his partner, endangering a bicyclist and others in the neighborhood on a summer evening.  "These factors of endangering the public make your crime of manslaughter appropriate for a high end sentence," she said.

Noor has served 29 1/12 months since he entered prison in May 2019.  With credit for time served, Noor would be scheduled for release after serving 2/3 of his sentence, meaning he must serve another 8 1/2 months. He is likely to be released next May.

Assistant Hennepin County Attorney Amy Sweasy read a statement from Maryan Heffernan, the victim's mother, who was watching from Australia.  The family sought the maximum for Noor. "We should expect complete accountability from our public institutions and their staff," Heffernan's statement said.  The longest sentence would send a message to police "that we require respect for their badges," Heffernan's statement said.  "We will be outraged if the court is unwilling to respect the will of the people and demand that justice be heard, be seen and be done."

The victim's fiance Don Damond appeared via Zoom and took a different tact, saying the Supreme Court's decision, "Does not diminish the truth which was uncovered during the trial.  The truth is that Justine should be alive." Damond said his comments should not be construed that he wasn't still grieving, but his departed wife "lived a life of love, she modeled a life of joy for all and she stood for forgiveness."

"Given her example, I want you to know that I forgive you Mohamed," he said. "All I ask is that you use this experience to do good for other people.  Be the example of how to transform beyond adversity.  Be an example of honesty and contrition. This is what Justine would want."

Second-degree manslaughter is punishable by up to 10 years in prison, but state sentencing guidelines recommend a term between about 3 1/3 and 4 3/4 years in prison for defendants with no criminal history, such as Noor.  The presumptive term is four years, according to the guidelines.

In her comments, Sweasy asked for the maximum, noting this will be the only time a police officer will be sentenced for this offense.  "By every measure ... this is worse-than-typical for a second-degree manslaughter case," Sweasy said, adding that Noor wore the badge of Minneapolis police officer, a social contract that provides privilege to use deadly force to protect other civilians.

Noor's attorney, Thomas Plunkett, said Noor was young and had overreacted. "He was operating with the mistaken belief that he needed to protect his partner," Plunkett said, adding that Noor had wanted to make the world better and chose a career as a police officer to bridge the gap between the police, the justice system and the Somali-immigrant community.

In prison, he was an award-winning inmate for his commitment and respect to others.  Plunkett requested a sentence at the low end of the guidelines, 3 1/3 years.  There is little doubt that Mr. Noor's time in prison was "more punitive" than anyone could have imagined before the pandemic, Plunkett said.  In Noor's brief comments, he said he was "deeply grateful" for Damond's forgiveness and "deeply sorry" for the family's loss. Of Damond, Noor said, "I will take his advice and be a unifier."

Plunkett had asked the judge to give Noor credit for time he's already served in prison and to place him on supervised release, which typically requires regular check-ins with the Minnesota Department of Corrections (DOC), regular drug and alcohol testing, and restrictions on certain activities.  It can also include electronic home monitoring.  Violations of such terms can result in a defendant being sent back to prison.

Defendants in Minnesota must serve 2/3 of their prison term before becoming eligible for supervised release.  Noor entered prison on May 2, 2019 and was first sentenced in June 2019.  He originally served his time in administrative segregation at Oak Park Heights prison in Minnesota, but was transferred on July 11, 2019 to facility in North Dakota for his own safety.

California enacts new laws to reduce certain sentencing enhancements

As reported in this Los Angeles Times article, headlined "Newsom signs bills restricting sentencing enhancements for many crimes," California has now enacted another round of notable sentencing reforms.  Here are the details:

Gov. Gavin Newsom on Friday signed laws aimed at reducing prison sentences for people convicted of drug- and gang-related crimes, despite concerns from prosecutors that the measures will hinder their effort to protect

Legislation signed by the governor includes Senate Bill 81, which seeks to reduce the number of sentence enhancements in criminal cases that can double prison terms. More than 150 enhancements exist for aggravating factors that include prior criminal records, use of a gun in the commission of a crime and offenses involving minors.

The law by state Sen. Nancy Skinner (D-Berkeley) would have judges dismiss enhancements in certain cases, including when they would result in “discriminatory racial impact” or a sentence of more than 20 years, or when the offense is connected to mental illness, prior victimization or childhood trauma. Skinner said enhancements disproportionately affect people of color.

“If sentence enhancements were applied fairly, this wouldn’t be an issue,” she said. “However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public.”

The California State Sheriffs’ Assn. opposes SB 81 “because it will likely result in many otherwise appropriate sentence enhancements being dismissed,” said Cory Salzillo, the group’s legislative director.

A companion measure signed by Newsom, SB 483, allows the retroactive repeal of sentence enhancements for prior prison or county jail felony terms. The governor also signed Assembly Bill 333, which restricts the use of sentence enhancements for alleged gang crimes.

Sen. Sydney Kamlager (D-Los Angeles) said her measure aims to reduce the list of crimes allowing gang enhancements to be charged, prohibit the use of the current charge as proof of a pattern of criminal gang activity, and separate gang allegations from underlying charges at trial. The senator said that current gang enhancements have weak definitions and that 92% of people with gang enhancements in the state are people of color....

The measure was opposed by the California District Attorneys Assn., which said it shows a misunderstanding of the way street gangs operate by requiring prosecutors to show a crime was committed to advance a gang as an organization.

“Street gangs don’t operate that way,” said El Dorado County Dist. Atty. Vern Pierson, president of the association. “We are seeing crimes throughout the state of California up dramatically directly related to gangs,” Pierson said. “Unquestionably [the new law] will hamper our ability to go after criminal street gangs.”

Justice Counts officially unveils its new 50-State scan of all sorts of criminal justice data

I have previously blogged about the need for better national criminal justice data, and also about a new effort to fill data gaps by the Council of State Governments (CSG) Justice Center through a project called "Justice Counts."  (Some of many posts on these topics can be found below.)  I was pleased this morning to get a new email about the CSG effort under the heading "Justice Counts Unveils a New 50-State Scan of Criminal Justice Data."  This email is available at this link, and here is some of its texts and links:

Policymakers are often forced to make critical decisions using limited or stale criminal justice data.  Over the past year, every trend from crime to revocations has shifted quickly and dramatically.  Facing significant challenges, state leaders need up-to-date information from across the justice system, presented in a digestible way.

As part of the Bureau of Justice Assistance’s Justice Counts initiative, researchers from Recidiviz and The Council of State Governments Justice Center conducted a 50-state scan of publicly available, aggregate-level corrections and jails data.

The national dashboard demonstrates that while policymakers in several states have access to up-to-date information, data collection still has a long way to go. 

View the national dashboard

Each state’s data dashboard provides a central, practical resource for stakeholders to identify gaps and inconsistencies in data reporting.
 

View your state’s dashboard

 

The scan looked at the availability of eight core corrections indicators scattered across hundreds of agency reports, as well as a review of statewide and county jail confinement rates across all 50 states.  The scan shows how much — and how little — state policymakers have to work with.

Recent related posts:

• DEPC and NASC present "Justice Counts: Using Data to Inform Policy and Bolster Public Safety" 
• New report highlights need for improved criminal justice data and means thereto 
• Making a great case for greater data to improve sentencing decision-making and sentencing systems
• More details on "Justice Counts," a notable (and needed) criminal justice data collection effort 

Updating the Buckeye State's progress creating a needed felony sentencing database

In a few posts at the start and end of last year, I flagged the work of some Ohio jurists in advocating for the development of a statewide sentencing database. See :A notable judicial pitch for better sentencing data in the Buckeye State" (from Jan. 2020) and "Making a great case for greater data to improve sentencing decision-making and sentencing systems" (from Dec. 2020).  Since then, work on, and debates over, such a database have picked up steam and also garnered some press attention:

From the Columbus Dispatch, "Can a spreadsheet improve fairness and justice in sentencing in Ohio courts? Some judges say yes"

From the Court News Ohio, "Justice, Judges Stand By Value Of Sentencing Database"

Also from the Court News Ohio, "New Platform Provides Path to Accessible Sentencing Data"

From Governing, "Ohio Courts Consider Uniform Sentencing to Root Out Bias"

From The Plain Dealer editorial board: "Should Cuyahoga County run a pilot to show a criminal sentencing database can work?"

Here are excerpts from the the Dispatch article, which appears in today's papers, providing an update on the efforts:

Ohio Supreme Court Justice Michael Donnelly is spearheading a project to collect criminal sentencing data in a uniform way across courts.  And Chief Justice Maureen O'Connor is backing it as well.  "I've become convinced that this isn't just a good idea, it's an absolute necessity to deal with the problem of disparate treatment and implicit bias that permeates our sentencing laws," Donnelly said....

The goal is to be able see how similar cases compare county to county, court to court.  It isn't as simple as it sounds.  The courts operate with antiquated information technology systems. There isn't a uniform way that courts collect information.  Ohio has 723 elected judges across 88 counties — some of whom may be worried about what trends the data may show, Donnelly said....

Ohio is making some progress.  The Ohio Sentencing Data Platform project now has a template so courts can collect the same information in the same fields — a crucial early step for building a common database.  

Courts in Allen and Lawrence counties are testing the project and courts in Highland, Lake and Summit counties are scheduled to join in the coming months.  Courts in 11 other counties including Hamilton, Warren, Franklin and Stark are holding meetings about joining.

 The April 2021 issue of the Federal Sentencing Reporter, which is available online here, includes discussions of efforts to build out the Ohio Sentencing Data Platform.

Derek Chauvin gets 22.5 years for killing George Floyd

I am on the road, so will not have a chance to comment until probably tomorrow.  Readers should feel free to share their reactions and thoughts.

UPDATE:  Here are links to a few press pieces regarding the Chauvin sentencing:

From Law360, "Chauvin Sentenced To 22.5 Years In Prison For Floyd Murder"

From the Minneapolis Star Tribune, "Derek Chauvin's sentencing sparks relief but also resolve to keep fighting injustice"

From NBC News, "Chauvin sentence wasn't the max, but it provided some closure"

From NPR, "George Floyd's Family Says Chauvin's Sentencing Is One Step Closer To Healing"

ANOTHER UPDATE:  I just recently saw this reprinted version of the full sentencing order from Hennepin County District Judge Peter Cahill when he sentenced Derek Chauvin. Here is the short conclusion to the lengthy discussion:

Part of the mission of the Minneapolis Police Department is to give citizens “voice and respect.”  Here, Mr. Chauvin, rather than pursuing the MPD mission, treated Mr. Floyd without respect and denied him the dignity owed to all human beings and which he certainly would have extended to a friend or neighbor.  In the Court’s view, 270 months, which amounts to an additional ten years over the presumptive 150-month sentence, is the appropriate sentence.

"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.

"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.

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.

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).

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:

• New Jersey commission releases big report recommending numerous big sentencing reforms