Sunday, June 21, 2020
"Investing in Failure: 2020 Ballot Initiative to Repeal Justice Reform Would Come at a High Cost to Californians"
The title of this post is the title of this recent report from the Center on Juvenile and Criminal Justice making the case against a ballot initiative before California voters this year. Here is the report's introduction:
In November 2020, Californians will vote on a ballot initiative titled Restricts Parole for Non-Violent Offenders. Authorizes Felony Sentences for Certain Offenses Currently Treated Only as Misdemeanors. Initiative Statute (“the initiative”), which would roll back key elements of the state’s recent justice reforms, including Public Safety Realignment, Proposition 47, and Proposition 57 (AB 109, 2011; Prop 47, 2014; Prop 57; 2016; SOS, 2018). In recent years, the Center on Juvenile and Criminal Justice (CJCJ) has analyzed the effects of other major reform initiatives, including the “Three Strikes” law reform, Proposition 47, and Proposition 57 (CJCJ, 2008; 2011; 2014; 2014a; 2014b; Ridolfi et al., 2016; 2016a). This report considers the current initiative’s effects on budgets, jail and prison populations, and crime rates. Our analysis suggests that the initiative’s passage could siphon scarce state resources and increase populations in jails and prisons to critical levels.
June 21, 2020 in Campaign 2020 and sentencing issues, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Saturday, June 06, 2020
New (and free) Federal Sentencing Reporter issue on "State Prosecutors: Their Impact on Mass Incarceration and Criminal Justice Reform"
As mentioned in this prior post, the academic publisher of the Federal Sentencing Reporter, University of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020. I continue to be grateful to UC Press for this move, as it allows me to flag the latest FSR issue and some of the articles therein. This new issue was put together by FSR editor/Prof Nora Demleitner and the title and coverage in her opening article provides an an overview:
State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform by Nora Demleitner:
In this Issue of the Federal Sentencing Reporter we turn to the role of state prosecutors in sentencing. In recent years, both the scholarly discourse and the advocacy community have increasingly focused on the impact prosecutors have had on mass imprisonment and the expansion of the supervision regime. A new cohort of ‘‘progressive prosecutors’’ have campaigned on the promise of less imprisonment and greater racial equality. Some have captured the head prosecutor positions in large U.S. jurisdictions, including Chicago, Brooklyn, Boston, Philadelphia, and San Francisco. They have instituted a host of often dramatic changes. To date, smaller jurisdictions and less urban areas of the country have been little impacted by this prosecutorially driven move toward criminal justice reform.
This Issue highlights the different levels of decision making that are in the hands of prosecutors throughout the criminal justice process. From the allocation of resources and charging policies to the explicit refusal to ever ask for a death sentence, prosecutorial choices impact the sentences the criminal justice system imposes. With the ever-growing expansion of the prosecutorial toolbox and impact, increasingly the decisions of district attorneys have repercussions for other aspects of communities, such as the mental health system. Prosecutor elections can have a vast impact on communities, but Carissa Hessick’s study on prosecutor elections in this Issue highlights how they can be undemocratic and how their importance can be underestimated.
The ongoing crisis surrounding COVID-19, the novel coronavirus that has brought countries, including our own, virtually to a standstill, vividly displays the role prosecutors play in our communities and the impact their decisions have on the welfare and life of those involved in the criminal justice system. There may be no more powerful indicator of prosecutors’ influence than their ability to prioritize public health concerns during this crisis in order to help thin out jail populations and thereby create greater means to ‘‘social distance’’ behind bars. Even though local prosecutors play an active role in populating state prisons, their role in decreasing the prison population is more limited, especially when prisons preclude front-end entry through jail transfers.
Here are some of the original articles from the issue:
Reimagining a Prosecutor’s Role in Sentencing by Lauren-Brooke Eisen and Courtney M. Oliva
Local Prosecutor Elections: Results of a National Study by Carissa Byrne Hessick
Prosecutor-Driven “Second-Look” Policies Are Encouraging, but Not a Panacea by Rory Fleming
Bettering Prosecutorial Engagement to Reduce Crime, Prosecutions, and the Criminal Justice Footprint by Assistant District Attorney Sabrina Margret Bierer
A Qualitative Perspective on Alternative Sentencing Practices in Virginia by Anne Metz
June 6, 2020 in State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Saturday, May 09, 2020
Can the coronoavirus finally get Ohio's bipartsan criminal justice reforms over the finish line?
The question in the title of this post is prompted by this new Fox News piece headlined "Ohio lawmakers hope for bipartisan reform of prison system stressed by COVID-19." Here are excerpts from a long piece:
Ohio lawmakers, lobbyists and researchers of various political stripes are finding a common cause in prison reform. Bipartisan efforts to reform the troubled system have preceded the outbreak of COVID-19, but the virus has thrown the need for change into stark relief.
Across Ohio’s prison system, more than 4,300 people have tested positive for COVID-19 and at least 40 inmates and two staff members have died. The Ohio Department of Rehabilitation and Correction (ODRC) has a current inmate population of nearly 50,000, about 10,000 above capacity. Already cramped living conditions have been exacerbated and stressed by a virus that has forced 39,000 inmates into quarantine, according to ODRC data.
The prison system has long been scrutinized by the left for its overcrowding problem. Now, with the system wracked by a deadly virus, conservative lawmakers are turning a critical eye to the status quo. “When you have organizations across the political and ideological spectrum saying, oftentimes, identical things about mass incarceration – it makes people take notice,” said Gary Daniels, a lobbyist with the ACLU of Ohio....
Two such displays are House Bill 1 and Senate Bill 3, which would allow for intervention in lieu of conviction and reform drug sentencing laws, respectively, The bills contain changes widely agreed upon as common-sense reforms to Ohio's criminal justice system. Both would put fewer people behind bars for minor criminal infractions, allowing for rehabilitation and community monitoring for crimes that don’t merit incarceration....
Still, bipartisan acknowledgment of a problem doesn’t always prompt bipartisan legislative action. Solutions can languish in the statehouse for months while lawmakers debate the finer points. Sometimes party lines won’t be moved....
Cooperation between think tanks and policy advocacy organizations can be a prelude to lawmakers taking up a cause in committee. Rep. Diane Grendell, a Republican lawmaker from northern Ohio and former Court of Appeals judge, sits on the Ohio House Criminal Justice committee and anticipates seeing prison reform enacted reasonably soon. “We have failed in our prison system,” Grendell said. “We have more prisoners than we have jails for, we keep passing more and more laws, we have to really clean it up. And I think all sides agree on that. We just have too many people in prisons.”...
The Buckeye Institute has long lobbied for fiscally conservative policies. Recently, those policies have included criminal justice reform like S.B. 3. Lawson said prisons are the state’s third-largest budget item behind Medicaid and education. The Buckeye Institute has backed prison reform bills alongside liberal groups like Policy Matters Ohio and the libertarian Americans for Prosperity....
Ohio Rep. Erica Crawley, a Democrat from southeastern Columbus, isn’t as hopeful about a new era of bipartisanship in Ohio, though she does recognize the likelihood of criminal justice reform. “The pandemic has really brought those concerns and conversations to the forefront,” she said. “… We are having a really substantive conversation about rehabilitation. Obviously, we can’t lock inmates up and get out of this drug problem.”
For years, Ohio has been at the center of the nation’s opioid epidemic, with the state prison and county jail systems bearing the brunt of the resulting increase in incarceration.... Crawley said current reform efforts are good, but don’t go far enough. She said the bills under consideration wouldn’t do enough to mitigate the prison population enough to matter if the state were struck with a future pandemic.
“Right now, we have over 15,000 inmates who are considered low-level, nonviolent offenders,” Crawley said. “A lot of those are drug convictions. S.B. 3 would still allow people to be incarcerated for small amounts of drugs. Until we have consensus and local court policy guidelines, we’re going to continue to see the same problems. If we have another pandemic, we’re going to be in the same position.”
I want to be optimistic that Ohio's General Assembly might get both House Bill 1 and Senate Bill 3 to the desk of the Governor in short order. But these bills have been "stuck" in the Ohio GA for quite some time, and Ohio's prison population has been way over capacity for even longer. And despite a lot of public policy groups on both sides of the aisle supporting reform, many of the anti-reform usual suspects (e.g., prosecutors and police) have so far kept these relatively modest proposed reforms from becoming law. I sure want to believe that the COVID crisis will get the Ohio GA to finally get these reforms enacted, but I never count any sentencing reform chickens before they are fully hatched.
May 9, 2020 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Thursday, April 23, 2020
Great new Politico Magazine feature on "Justice Reform: The Decarceration Issue"
The Politico Magazine has a bunch of great new articles on criminal justice reform issued collected here under the heading "Justice Reform: The Decarceration Issue." Here are the lengthy pieces under this heading with their full headlines:
Biden vs. Trump: Who’s the Actual Criminal Justice Reformer?: Suddenly, both the Republican and Democrat promise big changes. We matched their policies head-to-head, and asked experts for a reality check.
A Republican Crusader Takes on Oklahoma’s Prison Machine: In the state that locks up more of its citizens than any other, a former politician is using the ballot box—and some surprising alliances—to nudge his own party toward change.
How Oklahoma Popped Its Prison Bubble, In Charts: In 2016, Oklahoma incarcerated more people per capita than any other state. Then it began to bring those numbers down.
New York Tried to Get Rid of Bail. Then the Backlash Came. A national movement stalled by backlash politics gets some new wind at its back.
April 23, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Thursday, January 23, 2020
"Criminal Justice Reform in the Fentanyl Era: One Step Forward, Two Steps Back"
The title of this post is the title of this notable new report from the Drug Policy Alliance. Here is part of its executive summary:
The U.S. is in the throes of a deadly overdose crisis that claimed almost 70,000 lives in 2018. Of those, around 30,000 deaths involved synthetic opioids like fentanyl. Policymakers have responded to the overdose crisis with a rhetorical emphasis on “treatment instead of incarceration,” leading journalists to comment that we are in the midst of a “gentler war on drugs.” However, despite a change in discourse, draconian policies have persisted and in many cases been expanded. This is exemplified by many lawmakers’ reaction to fentanyl and other analog drugs, both on the state and federal level.
Since 2011, 45 states have proposed legislation to increase penalties for fentanyl while 39 states and Washington DC have passed or enacted such legislation. At this moment, some members of Congress are working to codify harsher penalties by placing fentanyl analogs permanently into Schedule 1 in both the Senate and the House with proposed legislation like the Stopping Overdoses of Fentanyl Analogues Act of 2019 (SOFA) and the FIGHT Act. In his annual State of the State 2020 address this month, New York’s Governor Cuomo proposed banning fentanyl analogs and expanding access to medication assisted treatment in the very same sentence.
Legislators have dusted off the drug war playbook and proposed a variety of new punitive measures including new mandatory minimum sentences, homicide charges, involuntary commitment, expanded powers for prosecutors and more. These efforts repeat the mistakes that epitomize the failed war on drugs, while undermining efforts to reform our criminal justice system and pursue a public health approach to drug use. Indeed, such proposals risk compounding the overdose crisis.
Punitive approaches to fentanyl are particularly disturbing because they run counter to recent policy shifts that have been largely bipartisan in nature. One recent policy shift is a growing promotion of public health approaches to drug use. There is mounting support for a number of policies and interventions -- such as increasing access to voluntary, medication-assisted treatment and naloxoneb -- as more effective responses to the current overdose crisis than the revolving door of jail or prison. Another notable policy shift is the long-overdue recognition that decades of harsh and racially-biased drug enforcement have had devastating consequences on individuals and communities, while wasting billions of taxpayer dollars. A recent analysis of federal fentanyl sentencing revealed that 75% of all individuals sentenced for fentanyl trafficking were people of color, suggesting that fentanyl enforcement already mirrors other disparate drug enforcement.
The criminal justice reform movement has made tremendous progress on reducing drug sentences at the local, state and federal levels. The trend toward tougher penalties for fentanyl presents a threat to the reform movement, undercutting initiatives to reduce mass criminalization and incarceration. To date, none of the states that enacted harsher penalties for fentanyl, nor the federal government, have demonstrated a reduction in fentanyl-involved deaths because of these new laws.
In this context, the criminal justice reform movement must do more to combat punitive proposals, putting as much energy into challenging the exceptionalism around fentanyl as other efforts to reduce sentences. This paper aims to shine a light on the danger that harsh fentanyl penalties present to the criminal justice reform movement and efforts to end the war on drugs.
January 23, 2020 in Drug Offense Sentencing, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Friday, January 17, 2020
The Sentencing Project reports briefly on "Top Trends in State Criminal Justice Reform, 2019"
The folks at The Sentencing Project have this helpful new short brief reviewing "Top Trends in State Criminal Justice Reform, 2019." The four-page document starts and ends this way:
The United States is a world leader in incarceration and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. More punitive sentencing laws and policies, not increases in crime rates, have produced this high rate of incarceration. Ending mass incarceration will require changing sentencing policies and practices, scaling back the collateral consequences of conviction, and addressing racial disparities in the criminal justice system. In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2019 prioritized by The Sentencing Project....
During 2019, lawmakers in several states enacted legislative changes to address high levels of imprisonment. While the reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration. It will take more far-reaching measures to markedly reduce the nation’s rate of incarceration, which is far above that of other western nations. Given the limited impact of incarceration on crime, there is potential for significant reductions in state prison populations. Lawmakers and advocates should explore key changes that limit the use of incarceration, challenge racial disparity, address collateral consequences, and improve outcomes for justice-involved youth.
January 17, 2020 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)
Thursday, December 26, 2019
Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State
As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:
Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago. That's the major conclusion from Governor Bill Lee's criminal justice investment task force....
Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety. In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.
Among the task force's key findings:
- Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
- Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
- Over half of prisoners released from custody are back in jail within three years
- Half of local county jails are overcrowded
- An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration
With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:
- Expanding access to sentencing alternatives, like probation and treatment programs
- Help more inmates transition successfully back into society
- Increase educational opportunities
- Improve community supervision programs
- Reduce probation terms
- Streamline the parole process
- Rewrite the sentencing code (replacing the current one from 1989)
This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety." Other states might also find these proposed avenues quite useful
December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Wednesday, December 11, 2019
"The Missing Link: Jail and Prison Conditions in Criminal Justice Reform"
The title of this post is the title of this new article authored by Andrea Armstrong now available via SSRN. Here is its abstract:
At any given moment in the United States, approximately 2.3 million people are behind bars, at least a quarter of whom have not been convicted of a crime. Louisiana was second in the nation — and the world — in incarceration rates in 2018, but it is last nationwide in other relevant rankings: health care, infant mortality, economy, education, and infrastructure. Louisiana only lost its title of “Incarceration Capital of the World” to Oklahoma following bipartisan state legislation enacted in 2017, which lowered our per capita incarceration rate. Louisiana still far outpaces the nation, incarcerating 712 people per 100,000, compared to a national average of 450 people per 100,000.
The goal of this article is simple: to connect the dots between conditions in jails and prisons and broader criminal justice reform efforts. This Article looks at conditions in Louisiana jails and prisons, examines recent reforms, and draws from other states and national data to establish broader trends. It discusses recent criminal justice reform efforts, summarizes some of the key features of prison and jail conditions, with particular attention to how these conditions impact both the people incarcerated and their broader communities, and recommends several strategies to improve prisons and jails based on the relationships between their conditions and existing criminal justice reforms.
December 11, 2019 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)
Friday, November 15, 2019
New Jersey commission releases big report recommending numerous big sentencing reforms
As reported in this local article from New Jersey, an "advisory panel that was reinvigorated by Gov. Phil Murphy to study racial and ethnic disparities in the state criminal justice system issued its report Thursday, calling for the elimination of mandatory sentences for those convicted of nonviolent drug and property crimes." Here is more:
The 13-member New Jersey Criminal Sentencing and Disposition Commission — chaired by retired state Supreme Court Justice Deborah Poritz — also recommended that those still incarcerated under such sentences be allowed to apply for early release. In addition, the group is urging lawmakers to adopt a new mitigating sentencing factor for young offenders, as well as a “compassionate release” program for those sentenced to terms of 30 years or more as juveniles.
The commission, which includes designees of senior lawmakers on both political parties, reached its conclusions unanimously, according to the report. “The Commission’s recommendations … reflect a consensus-driven, policy making process that incorporates a wide range of perspectives, including those of judges, prosecutors, defense attorneys, community stakeholders, corrections officials, faith organizations, and victims’ rights advocates,” the report reads.
Murphy on Thursday hailed the work of the commission, and urged the Legislature to put the reforms into bills during the current lame duck session, noting that he will sign them. “This is a comprehensive set of reforms. They will ensure the criminal justice system not only works, but works better and for all communities,” he said. “They meet the call of justice but also our broader goal of fairness.” State Senate President Steve Sweeney called the recommendations in the report “a long-time overdue.”...
The commission was initially created by Gov. Jon Corzine a decade ago, but his successor, Chris Christie, never made any appointments and the group did not meet. Murphy jump-started the effort in February of last year, a month after he took office, noting that New Jersey “has the nation’s worst disparity in the rates of incarceration between black and white offenders” and that, “We can and must do better.”
The report also recommends a loosening of sentencing restrictions for two more serious crimes, second-degree robbery and second-degree burglary, which currently fall in a classification alongside offenses like murder, carjacking and aggravated arson. According to the report, both offenses are frequently charged even though they incorporate a broad range of conduct, including that which results in no physical injury to the victim.
Under the commission’s recommendation, the period of parole ineligibility for those convicted of such crimes would be reduced to half the sentence, down from the current 85%. The commission said it hoped its recommendations would “replicate the success” of the state’s recent bail reform initiative, in which monetary bail was largely replaced by an assessment of whether someone charged with a crime was likely to show up in court or be a danger to the community if released.
This press release from the Office of Gov Murphy includes supportive quotes from all sorts of state political and criminal justice leaders. I am eager to believe that the widespread support for the work of this state commission increases greatly the likelihood that some or all of its recommendations will become law.
The NJ commission's full report is available at this link, and it is a worthwhile read in full. Here is the report's "Summary of Recommendations":
1. Eliminate mandatory minimum sentences for non-violent drug crimes.
2. Eliminate mandatory minimum sentences for non-violent property crimes.
3. Reduce the mandatory minimum sentence for two crimes – second degree robbery and second degree burglary – that previously have been subject to penalties associated with far more serious offenses.
4. Apply Recommendations #1, #2 and #3 retroactively so that current inmates may seek early release.
5. Create a new mitigating sentencing factor for youth.
6. Create an opportunity for resentencing or release for offenders who were juveniles at the time of their offense and were sentenced as adults to long prison terms.
7. Create a program, called “Compassionate Release,” that replaces the existing medical parole statute for end-of-life inmates.
8. Reinvest cost-savings from reductions in the prison population arising from these reforms into recidivism reduction and, to the extent available, other crime prevention programs.
9. Provide funding to upgrade the Department of Corrections’ existing data infrastructure to better track inmate trends and to develop partnerships with academic institutions to analyze this data.
November 15, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Sunday, November 03, 2019
Giving Oklahoma its criminal justice reform due
Regular readers will not be surprised to hear more about red-state Oklahoma's interesting and important criminal justice reform efforts, as I have tried to highlight here repeatedly the more-than-okay news from the OK state. But with record-setting clemency developments (first noted here), the mainstream media is catching up as evidence by these recent pieces:
From the Boston Globe, "What a conservative state can teach us about progressive criminal justice reform"
From US News, "Oklahoma Focuses on Criminal Justice Reform"
From the Washington Post, "Oklahoma approves largest single-day commutation in U.S. history"
UPDATE: Here are a few more new pieces from the national media:
From CNN, "462 Oklahoma inmates will be released today in the largest commutation in US history"
From USA Today, "Hundreds of Oklahoma inmates to be freed, the largest mass release in US history"
November 3, 2019 in Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Tuesday, July 16, 2019
New Pew report spotlights state changes in community supervision and revocations
The folks from Pew have this notable new report fully titled "To Safely Cut Incarceration, States Rethink Responses to Supervision Violations: Evidence-based policies lead to higher rates of parole and probation success." Here is the document's "Overview":
Recent research from The Pew Charitable Trusts found that about 4.5 million people in the United States are on community supervision as of 2016. Probation and parole provide a measure of accountability while allowing those who would otherwise have been incarcerated or have already served a term behind bars to meet their obligations to their families, communities, and victims.
People under supervision are expected to follow a set of rules, such as keeping appointments with probation or parole officers, maintaining employment, not using alcohol or other drugs, and paying required fees. Failure to follow the rules — referred to as technical violations—may result in revocation of the supervision and in some cases a term of incarceration. A 2019 report by the Council of State Governments showed that technical violations account for almost 1 in 4 admissions to state prison and $2.8 billion in annual incarceration costs.
Such technical revocations are costly, and failure to comply with supervision conditions does not necessarily indicate that a person presents a public safety threat or will engage in new criminal activity. Further, although studies have not demonstrated that incarcerating people for breaking the rules of supervision reduces recidivism, they have found that long periods of incarceration can make re-entry more difficult, causing people to lose their jobs, homes, and even custody of their children.
This brief examines policies that states implemented through the Justice Reinvestment Initiative (JRI) that have reduced technical revocations, highlights some of the results of those changes, and provides sample legislation for each policy. JRI is a public-private partnership among Pew, the U.S. Department of Justice’s Bureau of Justice Assistance, state governments, and technical assistance providers; it seeks to improve public safety and control costs by prioritizing prison space for people sentenced for the most serious offenses and investing in evidence-based alternatives to incarceration and other programs shown to reduce recidivism. These state efforts have not been without challenges, and more can be done to improve supervision outcomes. Nevertheless, the examples provided show that states can take meaningful steps to reduce prison populations and protect public safety while strengthening systems of supervision and services in the community.
July 16, 2019 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Monday, July 08, 2019
A critical perspective on the Lone Star State's experiences with criminal justice reform
A few months ago, as noted in this post, Marie Gottschalk had published a critical review of the achievements of the federal FIRST STEP Act. Now, in this notable new commentary in The Baffler about the Texas experience with criminal justice reform, she provides a critical perspective on how little has changed in a big state that seems to get a lot of reform credit. The extended piece is headlined "The Prisoner Dilemma: Texas fails to confront mass incarceration," and here are some excerpts:
The origin story of the latter-day turnaround in Texas’s criminal justice system dates back to 2007, when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional seventeen thousand prison beds by 2012. Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment. The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem. And yet, even though Texas was required to face up to certain realities — first by the Ruiz case and later by budget constraints — the Texas penal system, after all these years, has not really changed its stripes.
For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas. Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.
Texas today incarcerates nearly one-quarter of a million people in its jails and prisons — more than the total number of prisoners in Germany, France, and the United Kingdom combined. If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states. Texas still operates some of the meanest and leanest prisons and jails in the country. Two meals a day on weekends during budget shortfalls. Cellblocks without air-conditioning, fans, or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lock-ups in isolated rural areas.
All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country. If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state. That’s enough to fill a city the size of El Paso.
Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat — by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow. The state’s female incarceration rate ranks fifteenth nationwide.
Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails. Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes. Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary.
July 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)
Saturday, June 01, 2019
NYU Center, reviewing historical state clemency grants, spotlights Massachusetts' ugly recent history
As noted in this prior post and as detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has a new project focused on state clemency histories with reports on particular state experiences. The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and is available at this link. Now the second report, titled "Willie Horton’s
Shadow: Clemency in Massachusetts," has been released and is available at this link. Here is how it gets started:
A healthy criminal justice system punishes no more than is necessary and creates opportunities for rehabilitation. Clemency advances both goals. This Report of the Center’s State Clemency Project focuses on Massachusetts, where just one sentence has been commuted since 1997. Without a realistic opportunity for clemency, more than 1,000 individuals serving life-without-parole sentences in Massachusetts — 13 percent of the state’s prison population—are condemned to die behind bars.
June 1, 2019 in Clemency and Pardons, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Saturday, May 11, 2019
New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"
I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):
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"Fifty Years of American Sentencing Reform: Nine Lessons" by Michael Tonry
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"The Wild West of Sentencing Reform: Lessons from California" by Robert Weisberg
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"Forty Years of American Sentencing Guidelines: What Have We Learned?" by Richard S. Frase
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"Federal Sentencing after Booker" by Paul J. Hofer
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"The Evolution of Sentencing Guidelines in Minnesota and England and Wales" by Julian V. Roberts
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"Model Penal Code: Sentencing — Workable Limits on Mass Punishment" by Kevin R. Reitz and Cecelia M. Klingele
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"Trials and Tribulations: The Trial Tax and the Process of Punishment" by Brian D. Johnson
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"Have Racial and Ethnic Disparities in Sentencing Declined?" by Ryan D. King and Michael T. Light
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"Predictions of Dangerousness in Sentencing: Déjà Vu All Over Again" by Michael Tonry
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"Criminal Courts as Inhabited Institutions: Making Sense of Difference and Similarity in Sentencing" by Jeffery T. Ulmer
May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)
Saturday, May 04, 2019
Florida legislature passes it own first (very baby) step act on criminal justice reform
This local article out of Florida, headlined "Legislature OKs criminal justice reforms but no change to mandatory-minimum sentencing," reports on how the Sunshine State is starting to move forward on reform inspired clearly by the federal FIRST STEP Act. But, as the article explains, political challenges have resulted in Florida's first step being even more limited that what has been achieved at the federal level:
The Florida Legislature passed a 296-page criminal justice reform package bill Friday, the last full day of the session, addressing the issue of a bulging prison population that has long eluded resolution....
Reshaping Florida’s tough-on-crime policies and reducing the state’s nearly 100,000-person prison population is a rare issue that has united Trump populists and progressive civil rights groups, yet often results in open and closed-door fights among Republicans over how far to go.
This year, compromise was reached. The House passed the bill unanimously Friday, following the Senate’s near-unanimous passage on Thursday. The bill now heads to Gov. Ron DeSantis’ desk. Despite the victory for Republican Sen. Jeff Brandes of St. Petersburg, who’s long been a leading voice in the Legislature for the need for criminal justice reform, the bill’s passage was bittersweet.
“I am incredibly disappointed,” he said Thursday, referring to several big-ticket reform pieces that were taken out of the bill at the behest of the House. “I’m not surprised we didn’t get there, but I think what we did was advance the conversation.”
House Bill 7125 is the result of private negotiations between the two chambers over the past week and contains many changes proposed by those seeking to reshape Florida’s tough-on-crime laws from the 1990s. That includes making it easier for felons to get professional licenses and allowing state attorneys to decide whether juvenile cases should be transferred to adult court. Currently, that happens automatically if the crime is severe or the child has certain prior convictions.
It also would raise the “threshold” dollar amount at which theft charges go from a misdemeanor to a felony, from $300 to $750. That’s not as high as the House’s original proposal, which was to raise it to $1,000, but it brings Florida’s law closer to the national average. It also eliminates or reduces driver’s license suspensions as a criminal penalty, which lawmakers have said unfairly hampered people’s ability to get to their jobs and continue to make an honest living.
The bill has been dubbed the “Florida First Step Act” after the federal reform law with the same name. Shortly after the bill passed the House, Kara Gross, the legislative director for the American Civil Liberties Union of Florida, said the bill amounted to “a baby step, at best.”...
What didn’t make the cut of the final bill:
▪ Allowing judges discretion over sentences for certain drug crimes that currently have required amounts of time that defendants must serve, called “mandatory minimum” sentences.
▪ Permitting prison inmates convicted of nonviolent felonies to be released after serving a minimum 65 percent of their sentence if they have good behavior and participate in educational and rehabilitative programs (current law is 85 percent).
▪ Retroactive re-sentencing for people who were convicted of aggravated assault back when the state’s punishment for that crime was harsher than it is now.
Email messages between House and Senate staff obtained by the Herald/Times show that the House had, at one point last week, been “comfortable” with modified language related to giving judges more discretion over sentences for nonviolent drug crimes, reducing the length of some sentences. But that didn’t make it into the final bill....
Despite some lukewarm support for giving judges more sentencing discretion, Gov. Ron DeSantis poured cold water on the idea of letting inmates out after serving 65 percent of their sentence, likely one of the reasons that piece was scrapped....
The bill passed with only one “no” vote in the Senate, which came from Sen. Randolph Bracy, D-Orlando, who praised Brandes’ efforts but said that he, too, was frustrated with the compromise. “Honestly, I’m tired of submitting to the will of the House on these types of issues,” he said.
Still, the willingness of the House, traditionally the more tough-on-crime chamber, to cobble together a criminal justice reform package of this size shows a shift of tone, however subtle, toward reducing Florida’s burgeoning prison population.
Friday’s bill also creates a task force to reevaluate Florida’s entire criminal punishment code, and whether the set punishments fit the crime. House Speaker José Oliva said that this bill is the result of several years of discussion on this issue. Lawmakers in both the House and Senate have said they intend on taking up some of the issues that failed next year. “Sometimes ideas take time for people to understand and to have a chance to really let set in. For a lot of years the idea was being tough on crime,” Oliva said recently. He added, though, that data showing the harms of these policies “started a conversation. I think that conversation is now maturing.”
I am sorry to see that Florida is not moving forward on bolder reforms, but there is still good reason to celebrate reform efforts finding expression in this historically tough state. Given that it took a full 40 years to ramp up incarceration level to historical levels, nobody should expect changes in the forces and laws developed in the tough era to happen quickly or without lots of fits and starts.
May 4, 2019 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Sunday, April 28, 2019
NYU Center reviewing historical state clemency grants ... starting with Pennsylvania
As detailed at this link, the NYU School of Law's Center on the Administration of Criminal Law has long been engaged with clemency reform, and its latest project is focused on important state stories:
The Center has launched a project studying historical state clemency grants and the role that local prosecutors played in the grant process. As part of the project, Center Fellow Ben Notterman '14 has undertaken a review of historical state clemency grants in a number of states, both to understand the types of crimes for which clemency used to be granted, as well as the role that prosecutors played in recommending or opposing specific grants and advising government decision-makers. We anticipate publishing reports on individual state practices as we complete them.
The first of these reports is titled "The Demise of Clemency for Lifers in Pennsylvania," and it is available at this link. Here is hoe it gets started:
Pennsylvania law automatically imposes life imprisonment for first- and second-degree murder, including felony murder, which requires no intent to kill. It is also one of only five states that categorically excludes lifers from parole consideration; the only way for a lifer to be released is by clemency. For a time, the State’s harsh sentencing policies were tempered by a practice of commuting several dozen life sentences each year. That changed around 1980, when commutations in Pennsylvania fell off dramatically. With few exceptions, clemency in the Keystone State remains in a state of a disuse.
April 28, 2019 in Clemency and Pardons, Data on sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Friday, March 29, 2019
New reform reports from Florida and Ohio with broader ideas and lessons
This week I came across two notable and reader-friendly reports that each focus on developments in one (swing) state and do so in ways that suggest broader ideas and lessons for reformers working in any jurisdiction. Here are links to these reports with some of their introductory text:
From the Urban Institute, "Smart Reforms to Prison Time Served Requirements in Florida":
Florida’s criminal justice policy decisions, including strict time served requirements, have resulted in an unsustainably large prison system. The average length of time served in Florida prisons has risen dramatically in recent decades, far outpacing increases in other states and contributing to the state’s large prison population. Adjusting the state’s inflexible time served requirement is one approach to reducing incarceration that could allow Florida policymakers to save money and invest instead in preventing crime and helping people succeed after coming home from prison. This brief describes the results of an analysis that shows thousands of people in Florida’s prisons could be released at lower time served requirements, and, for the time they would have been in prison, would not be arrested.
From Alliance for Safety and Justice, Americans for Prosperity-Ohio, and The Buckeye Institute, "Building on Ohio’s sentencing changes to keep prison populations in check":
Bipartisan support for criminal justice reforms such as 2011’s Justice Reinvestment Initiative (HB 86), Targeted Community Alternatives to Prison (T-CAP) and probation reforms in the last biannual budget (HB 49), and SB 66 from the last general assembly allowed the state to minimally reduce the prison population and take steps to increase the use of local sentencing options to reduce recidivism and connect people to treatment. These efforts, and reducing the use of confinement for juveniles, have garnered well-earned national attention, helped the state avoid or end costly litigation, and saved hundreds of millions of dollars on new prison construction.
As lawmakers turn their attention to the new legislative session, the General Assembly has an opportunity to build on the success of their recent reforms to ensure Ohioans suffering from addiction have the tools necessary to become contributing members of society while potentially saving the state hundreds of millions of dollars every year.
Right now, Ohio spends $1.8 billion on corrections every year and, despite promises of decreased budgets because of reforms, corrections costs have risen. There are numerous reasons for increased spending including inflation, healthcare costs for an aging prison population, and the Department of Rehabilitation and Correction granting tens of millions of dollars back to local governments. But one of the main reasons is that recent changes in the law have not led to the big reductions in prison populations that were projected because not as many people convicted of low-level felonies are being served locally as intended.
March 29, 2019 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Tuesday, March 26, 2019
"The Effects of Voluntary and Presumptive Sentencing Guidelines"
The title of this post is the title of this notable new empirical article authored by Griffin Sims Edwards, Stephen Rushin and Joseph Colquitt. Here is its abstract:
This Article empirically illustrates that the introduction of voluntary and presumptive sentencing guidelines at the state-level can contribute to statistically significant reductions in sentence length, inter-judge disparities, and racial disparities.
For much of American history, judges had largely unguided discretion to select criminal sentences within statutorily authorized ranges. But in the mid-to-late twentieth century, states and the federal government began experimenting with sentencing guidelines designed to reign in judicial discretion to ensure that similarly situated offenders received comparable sentences. Some states have made their guidelines voluntary, while others have made their guidelines presumptive or mandatory, meaning that judges must generally adhere to them unless they can justify a departure.
In order to explore the effects of both voluntary and presumptive sentencing guidelines on judicial behavior, this Article relies on a comprehensive dataset of 221,934 criminal sentences handed down by 355 different judges in Alabama between 2002 and 2015. This dataset provides a unique opportunity to address this empirical question, in part because of Alabama’s legislative history. Between 2002 and 2006, Alabama had no sentencing guidelines. In 2006, the state introduced voluntary sentencing guidelines. Then in 2013, the state made these sentencing guidelines presumptive for some non-violent offenses.
Using a difference-in-difference framework, we find that the introduction of voluntary sentencing guidelines in Alabama coincided with a decrease in average sentence length of around seven months. When the same guidelines became presumptive, the average sentence length dropped by almost two years. Further, using a triple difference framework, we show that the adoption of these sentencing guidelines coincided with around eight to twelve-month reductions in race-based sentencing disparities and substantial reductions in inter-judge sentencing disparities across all classes of offenders. Combined, this data suggests that voluntary and presumptive sentencing guidelines can help states combat inequality in their criminal justice systems while controlling the sizes of their prison populations.
March 26, 2019 in Advisory Sentencing Guidelines, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)
Thursday, March 07, 2019
"All Talk and No Action: Arizona’s Mandatory Drug Sentencing"
The title of this post post is the title of this notable new "Policy Perspective" document authored by Greg Glod of the Texas Public Policy Foundation's Right on Crime initiative. The piece includes research, insights and lessons that extend well beyond Arizona, and here is the introduction and part of the conclusion:
Drug use affects millions of people, with more than 23 million people over the age of 12 in the U.S. addicted to drugs or alcohol. Arizona has some of the strictest drug laws in the country, including mandatory prison sentencing. Politicians and tough-on-crime state prosecutors claim that mandatory prison sentencing for certain drug offenses helps to reduce crime and drug use. But are they really working? Research shows that sentencing drug offenders to mandatory prison time does not reduce crime or drug use — it can actually make both worse. Prisons continue to become overpopulated with drug offenders who are better served with treatment than incarceration.
This paper will provide a brief overview of Arizona’s often confusing drug sentencing laws, discussing threshold amounts that trigger mandatory prison sentencing for drug offenses in Arizona, reasons why they are not working, and will overview what other states are doing instead. It will conclude by recommending actions for state lawmakers to begin to reverse the negative social and fiscal impact of Arizona’s prison sentencing for drug offenses....
Arizona lawmakers have options for how to deal with the future of Arizona’s mandatory drug sentencing. To avoid exacerbating the problems that mandatory drug sentencing schemes have created, lawmakers must stop advocating for new mandatory drug sentencing laws. Nor should they support laws increasing or expanding existing mandatory sentencing schemes. While every option available in other states is not necessarily appropriate for Arizona, some are, including “safety valve” and de-felonizing marijuana possession.
March 7, 2019 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (0)
Wednesday, January 16, 2019
"Top Trends in State Criminal Justice Reform, 2018"
The title of this post is the title of this two-page briefing paper authored by Nicole Porter for The Sentencing Project which highlights significant criminal justice policy changes at the state level in 2018. Here is how the document gets started:
The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, intentionally address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2018.
Notably, this short document makes no mention of state level marijuana reforms, even though many are motivated, at least in part, by interest in addressing racial disparities and eliminating barriers to reentry. This reinforces my long-standing view that there is a tangible disconnect between criminal justice reform movements and marijuana reform movements.
January 16, 2019 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Thursday, December 27, 2018
"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"
The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:
With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.
But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking. And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.
Here are some highlights (and lowlights) of American criminal justice in 2018:
The FIRST STEP Act passed (finally)....
Marijuana legalization continued apace....
Civil Asset Forfeiture under the microscope....
Attorney General Jeff Sessions shown the door....
The war on sex trafficking leads to online censorship, not safety....
Treating opioid overdose deaths as murders....
Reducing dependence on cash bail....
This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.
I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.
December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Monday, December 24, 2018
"Fifty Years of American Sentencing Reform — Nine Lessons"
The title of this post is the title of this notable new paper authored by Michael Tonry now available via SSRN. Here is its abstract:
Efforts to standardize sentences and eliminate disparities in a state or the federal system cannot succeed; distinctive practices and norms, diverse local cultures, and practical and political needs of officials and agencies assure major local differences in sentencing practice. Presumptive sentencing guidelines developed by sentencing commissions, however, are the most effective means to improve consistency, reduce disparity, and control corrections spending. Federal sentencing guidelines have been remarkably unsuccessful; they should be rebuilt from the ground up. Mandatory sentencing laws should be repealed, and no new ones enacted; they produce countless injustices, encourage cynical circumventions, and seldom achieve demonstrable reductions in crime. Black and Hispanic defendants are more likely than whites and Asians to be sentenced to imprisonment, and for longer; presumptive sentencing guidelines reduced racial disparities initially and over time, but most states do not have presumptive guidelines. Use of predictions of dangerousness to determine who is imprisoned and for how long is unjust; predictive accuracy has improved little in 50 years and current methods too often lengthen prison terms of people who would not have committed violent crimes. Except in the handful of states that have effective systems of presumptive sentencing guidelines, parole release is an essential component of a just and cost-effective sentencing system in the United States.
December 24, 2018 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, State Sentencing Guidelines | Permalink | Comments (0)
Thursday, December 20, 2018
"California transformed its justice system. But now crime is up, and critics want rollbacks"
The title of this post is the headline of this notable new Los Angeles Times article that merits a read in full. Here is the first part of the piece:
Over the last decade, California has led the nation in reducing its prison population. The state has shortened sentences and diverted some offenders to the counties for incarceration and supervision, transforming California’s criminal justice system into what supporters hope will become a humane model around the country.
But amid the changes, crime has increased in recent years, sparking debate about the causes and giving ammunition to those leading a new effort to roll back some of the reforms.
An analysis by the Marshall Project and the Los Angeles Times found that California’s crime rates remain near historic lows, but overall crime spiked in both 2012 and 2015, the years that immediately followed two major statewide measures aimed at decreasing the number of people in prison. Those jumps were mainly driven by increases in property crimes, particularly thefts from motor vehicles.
After decades of mirroring national downward trends in violent crime, California saw a 12% increase from 2014 to 2017, while the violent crime rate in the other 49 states together increased only 3%, the analysis showed. In 2014, California voters approved a ballot measure that reduced sentences for many low-level drug and property crimes. California’s property crime rate fell slightly in the last two years, but remains 2% higher than it was in 2014. By contrast, the rate of property crimes in the rest of the nation has dropped by 10% over the same period.
There is no simple explanation. Crime trends vary dramatically from county to county. Thirty-one of the state’s 58 counties saw an increase in violent crime last year, while 22 saw an increase in property crimes. The rest stayed flat or declined. What single factor can explain the fact that violent crime went up 6% last year in Los Angeles but fell 6% in Sacramento?
There also have been large differences in the way counties spent the billions in state money allocated to implement the new measures. Some focused on building jails, others on recruiting and deploying police, and still others experimented with collaborative courts and reentry programs.
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To complicate matters, specific crimes come with their own caveats. Reports of rape have increased nationally since 2013, for example, but sexual assaults have traditionally been underreported, and part of the increase stems from the FBI’s decision to broaden its definition of rape in 2013. (The Marshall Project and Times data analysis excluded rape.) Reports of aggravated assaults in California also have increased, but part of that increase is likely due to underreporting from 2005 to 2012 by the Los Angeles Police Department.
California’s criminal reform revolution began in earnest in 2011 after the U.S. Supreme Court approved a cap on the number of inmates in prison. Lawmakers responded by passing Assembly Bill 109, known as realignment, which lowered the prison population by shifting the burden to the counties to house and supervise thousands of inmates convicted of crimes that the law categorized as nonviolent and nonserious.
Three years later, California voters approved Proposition 47, which turned drug use and most theft convictions from felonies to misdemeanors. In 2016, voters overhauled the state parole system by backing Proposition 57, which gave thousands of inmates the chance to earn an earlier release from prison.
The undeniable result of all these measures is that people are on the street today who would have been locked up in previous years. Critics of the reforms argue that they have created a permissive climate that makes policing harder and weakens the deterrent effect of a possible prison sentence.
“There’s no accountability,” said Assemblyman Jim Cooper (D-Elk Grove). “People know they can get away with things. That’s contributed to it. That’s really been a big source of frustration. No one’s going to jail anymore.” Cooper, a retired Sacramento County sheriff’s captain, has been a leading voice in a coalition of prosecutors and law enforcement groups pushing back.
A statewide initiative that will appear on the 2020 ballot would reverse some provisions of Proposition 47, toughen supervision of parolees and disqualify some prisoners from early release.
Backers of the proposed rollback argue that the state’s drug courts, intended as an alternative to criminal courts, are seeing fewer people because prosecutors can no longer force someone into treatment with the threat of a felony. (Some counties, including San Diego, have reported decreases in drug court participation since Proposition 47, but no statewide figures are available.) Those who favor toughening the law also claim counties are struggling to supervise offenders with violent criminal records.
Supporters of the prison downsizing measures dispute any link between the new laws and an increase in crime. They argue that using 2014 as a baseline — the year with the fewest crimes reported in the state since the 1960s — unfairly skews any analysis. “To look at it from a year-to-year basis is very short-sighted,” said Michael Romano, the director of the Three Strikes Project at Stanford Law School who helped write Proposition 47. “We really have had a sustained downward trend over the past decade or two.” He said it’s unlikely any single factor led to an increase in crime, but rather a combination of issues, such as poverty and unemployment, in different counties throughout the state.
Californians for Safety and Justice, a group that co-authored Proposition 47, points out that several states saw larger increases in violent crime than California from 2016 to 2017. (An analysis by The Times and the Marshall Project found 20 states with larger increases in violent crime rates.) They note that none of the recent laws changed penalties for violent crimes.
In 2013, the nonpartisan Public Policy Institute of California found that the first major prison downsizing law, realignment, had no effect on violent crime, but did lead to an increase in auto thefts. In 2016, a prestigious social science journal reached a similar conclusion. Under realignment, people convicted of auto theft, a nonviolent felony, usually serve shorter sentences in their local jails and are released under local supervision.
Two studies published this summer — one by a UC Irvine criminologist and another by the Public Policy Institute of California —found no link between Proposition 47 and increases in violent crime. Both noted a possible link between the initiative and increases in larceny, particularly thefts from motor vehicles, although the Irvine study found those links too tenuous to conclude Proposition 47 was to blame.
After national crime data for 2017 released this fall showed California departed from the national trend — violent crime in California ticked up slightly while it fell slightly across the 49 other states taken together — researchers said they planned to revisit the question of a link between Proposition 47 and violent crime. California’s robbery rate jumped 14% from 2014 to 2017; the rest of the country saw a 7% drop. “It is troubling and deserves more attention,” said Magnus Lofstrom, policy director of corrections at the Public Policy Institute of California.
In addition to praising the work of this article, I wanted to flag the possibility that the stories of crime in California might get even more complicated and unclear if and when we get complete data for 2018. The recent Brennan Center report indicates crime is down in 2018 in some major California cities and that murder is down a lot in all big California cities. If these numbers hold true throughout the state reform advocates will have some important data to push back on the claim that reform rollbacks are needed to enhance public safety.
UPDATE: The day after running this general story about an uptick in California crime, the Los Angeles Times followed up with this more encouraging local tale under the headline "Crime once plagued San Joaquin County, but now its jail has empty beds. Here’s what it did right." The unsurprising take-away is that how and how well a jurisdiction implements criminal justice reform impacts how well criminal justice reform works.
December 20, 2018 in National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Sunday, December 16, 2018
Iowa Supreme Court dodges due process challenges to use of risk-assessment tools at sentencing
A helpful reader made sure I did not miss a trio of rulings handed down late last week by the Iowa Supreme Court which all raised issues concerning the permissibility of courts using risk-assessment tools at sentencing. The rulings came in Iowa v. Gordon, Iowa v. Guise and Iowa v. Buesing, and in each instance the court decided that a constitutional challenges to the use of Iowa Risk Revised risk assessment tool (IRR) at sentencing was not properly raised and preserved at sentencing. The Gordon case addresses this point most fully, and here is how the other cases describe the Gordon ruling:
Today, we filed an opinion in State v. Gordon, ____ N.W.2d ____ (Iowa 2018). In Gordon, we held a defendant could not raise this due process argument for the first time on appeal when the defendant did not bring the issue to the district court at the time of sentencing. Id. at ___. Furthermore, we held we could not address this due process issue under the rubric of ineffective assistance of counsel because the record is insufficient to reach this claim. Id.
Though the Gordon case has the fullest discussion of the merits in this trio of decisions, the Guise case is the best read because of the Justice Appel's extended opinion "concurring specially." This concurrence talks through various concerns about the use of risk-assessment instruments at sentencing (with lots of cites to lots of academic scholarship), and here are a few notable passages:
Guise’s argument that due process requires accurate information about risk assessments beyond a mere conclusion, as demonstrated by Malenchik and Loomis, is certainly not frivolous. Certainly the shiny legal penny of a new risk assessment tool should be carefully scrutinized by the courts.... The relentless and potentially corrosive drive for efficiency and certainty in a resource-scarce public sector should not drive courts to use risk assessments in an unjustified “off label” manner or in a fashion that otherwise lacks meaningful empirical support to drive sentencing.
Even if the emerging risk assessment tools are found to have a place in sentencing as a “relevant” factor, our law does not allow mere conclusions to be mounted on spikes and paraded around our courtrooms without statistical context....
We do not know whether the IRR was normed with an appropriate Iowa population. We do not know whether the tool has been renormed and monitored. We do not know anything, really, about the database, assuming there is a database, behind the IRR.
I am also concerned about process issues lurking behind this case. Ordinarily, the PSI report is made available to the defendant only a few days before sentencing.... But a few days’ notice is not enough time for a defendant to mount a serious challenge to the underlying reliability of the risk assessment evidence as being so unreliable as to be hocus pocus. A full-court press on the question of reliability of the risk assessment would likely require the hiring of a highly qualified expert. Even if the defendant does not wish to mount a full-blown attack on the statistical model and instead wishes to make a more limited point — say, for instance, the disproportionate impact of use of housing, employment, and level of educational attainment of people of color — the defense will not be able to develop the attack in a few days, particularly when the defendant is indigent and will require court approval prior to the hiring of an expert to challenge the statistical information....
In conclusion, I want to make clear that I do not categorically reject any use of risk assessment tools in the sentencing process. I recognize that the PEW Center on the States, the National Institute of Corrections, the National Center for State Courts, and the American Law Institute have all expressed interest in evidence-based sentencing. See J.C. Oleson, Risk in Sentencing: Constitutionally Suspect Variables and Evidence-Based Sentencing, 64 SMU L. Rev. 1329, 1343, 1394 (2011). I also recognize that sentencing based solely on “intuition” or “gut” runs the risk of allowing implied bias a free reign and can be lawless in nature. See Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 5 (2007) (urging the justice system to take steps to limit the impact of overreliance on intuition). Further, the “intuition” or “gut” of a judge who was a former prosecutor may well differ from the “intuition” or “gut” of a public defender. Undisciplined intuitive sentencing runs the risk of telling us more about the judge than the person being sentenced.
A fully-developed record may well show that risk and needs assessment tools that assemble variables in a statistically valid way may be of some assistance as a check on unregulated sentencing discretion and may promote deeper thinking by discretionary decision-makers into the sentencing process. In short, it is possible that when a full record is developed, properly designed and utilized risk assessment tools may enhance and inform the exercise of judicial discretion. In addition to the binary question of whether a risk assessment may or may not be used in sentencing, however, more nuanced additional questions must be asked regarding how any such tool may be used. In light of the procedural posture of this case and the companion cases, these questions must await further legal developments.
December 16, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (1)
Monday, December 10, 2018
After Virginia jury convicts James Fields of first-degree murder for killing in Charlottesville, same jury to begin considering sentence
As indicated in this brief AP report headlined "Jury to recommend sentence for white nationalist," a high-profile jury sentencing gets started today:
A man convicted of first-degree murder for driving his car into counterprotesters at a white nationalist rally in Virginia faces 20 years to life in prison as jurors reconvene to consider his punishment.
The panel that convicted James Alex Fields Jr. will hear more evidence Monday before recommending a sentence for Judge Richard Moore.
Fields was convicted Friday of killing Heather Heyer during last year's "Unite the Right" rally in Charlottesville, organized to protest the planned removal of a statue of Confederal Gen. Robert E. Lee. The 21-year-old Fields, of Maumee, Ohio, also was found guilty of injuring dozens of others by driving into a crowd of people who were marching peacefully after the rally.
I know very little about Virginia's sentencing process, and I am now very curious about what they are allowed to hear at this stage. I do know that Virginia jurors are not told about sentencing guidelines that would be applicable and considered at a judicial sentencing. And I wonder if they can be told about the fact that the defendant here is also facing dozens of federal charges. Here is a little about recent history of jury sentencing from the Virginia Sentencing Commission's 2018 Annual Report (from pages 25-27):
There are three methods by which Virginia’s criminal cases are adjudicated: guilty pleas, bench trials, and jury trials. Felony cases in circuit courts are overwhelmingly resolved through guilty pleas from defendants, or plea agreements between defendants and the Commonwealth. During the last fiscal year, 91% of guideline cases were sentenced following guilty pleas. Adjudication by a judge in a bench trial accounted for 8% of all felony guidelines cases sentenced. During FY2018 1.2% of cases involved jury trials. In a small number of cases, some of the charges were adjudicated by a judge, while others were adjudicated by a jury, after which the charges were combined into a single sentencing hearing....
In FY2018, the Commission received 270 cases adjudicated by juries. While the concurrence rate for cases adjudicated by a judge or resolved by a guilty plea was at 82% during the fiscal year, sentences handed down by juries concurred with the guidelines only 39% of the time. In fact, jury sentences were more likely to fall above the guidelines than within the recommended range. This pattern of jury sentencing vis-à-vis the guidelines has been consistent since the truth-in-sentencing guidelines became effective in 1995. By law, however, juries are not allowed to receive any information regarding the sentencing guidelines....
In cases of adults adjudicated by a jury, judges are permitted by law to lower a jury sentence. Typically, however, judges have chosen not to amend sanctions imposed by juries. In FY2018, judges modified 16% of jury sentences.
December 10, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Monday, November 19, 2018
Wondering about plea deals and departure authority in Washington after sentencing in awful rape and manslaughter case
Debates about federal sentencing and judicial discretion have long included district judges lamenting having to impose unduly severe sentences under federal statutory mandatory minimums (or under the federal sentencing guidelines before Booker made them advisory). But this stunning story out of Washington, headlined "Man who raped dying Everett teen gets less than 3 years," reports on a state sentencing judge lamenting having to impose what seems like an unduly lenient sentence under state sentencing guidelines. Here are the details:
Alyssa Noceda was still growing up when she died. The young man who watched her overdose, Brian Varela, will serve less than three years in prison for giving her drugs, raping her and joking about her lifeless body over texts with friends.
Superior Court Judge Linda Krese said Thursday she was bound by law to sentence Varela to 2 years and 10 months. It’s the most time allowed under state guidelines for second-degree manslaughter, third-degree rape and unlawful disposal of human remains, for someone with no prior record.
Krese was “surprised, even outraged,” by the inadequacy of the sentence. She has seen auto theft cases with more serious penalties. “I’m not sure the Legislature really contemplated something like this,” Krese said.
Noceda had just turned 18.... Varela, 20, told detectives Noceda came to a party in February at a mobile home near Martha Lake. In Varela’s room, she snorted crushed pills and he offered her a dab of concentrated THC. She collapsed within a minute of mixing the two, according to Varela’s story. He told police the pills were Percocet. Tests later showed she’d taken a fatal mix of fentanyl and alprazolam, a generic name for Xanax. Varela did not call for help. Instead he texted pictures of Noceda’s partly nude body to coworkers, with comments like, “LOL.”
“Bro you killed her,” one friend said. “But not joking she od bruh,” Varela wrote. He didn’t care, he added, because he was sexually assaulting her “to pass the time.”...
Varela played an online game until he fell asleep, according to charging papers. He woke up the next morning, he told police, to find Noceda’s lips blue. She was cold to the touch. Again, he didn’t call for help.
He went to work at Dairy Queen. Once he returned, he stuffed the body in a plastic crate. He kept her hidden for days. He used the thumbprint of Noceda’s hand to hack into her iPhone, to make a post on Snapchat suggesting that she ran away. He washed her body to try to destroy evidence. He told friends he planned to bury her near Marysville, then flee to Mexico. One coworker called police....
Deputy prosecutor Toni Montgomery reached a plea agreement in September. “His complete disregard for the value in her life, and the way he treated her body and what he did with it — 34 months is really the only sentence that would be appropriate, given the current sentencing structure,” Montgomery said in court.
Noceda’s mother [Gina Pierson] and aunt cried when they learned the likely sentence.... In a packed courtroom Thursday, friends and family wore matching black hoodies with Justice-4-Alyssa printed across the back. The front showed Noceda, with angel wings sprouting from her shoulders. One by one for about a half-hour, Noceda’s loved ones stood in front of the judge and called Varela a monster and a murderer.
When it was Varela’s turn in court, he spoke two sentences. “I’m sorry for my foolish actions,” he said. “Whatever I get is what I deserve.”
In an interview before the hearing, Pierson said state laws need to change so other families don’t suffer like hers. She struggled to explain her feelings toward the defendant. She has tried to forgive him, she said.
I can fully understand why the mother of the victim here thinks "state laws need to change," but I do not understand why existing Washington law could not have allowed for a more serious sanction in this horrible case. For starters, the facts as presented here would arguably fit a charge of Rape in the Second Degree under Washington law ("victim is incapable of consent by reason of being physically helpless"), which is a much more serious offense likely to carry a much more serious sanction.
Even without a conviction of a higher charge, the manslaughter and rape charges here carry statutory maximum sentences of 10 and 5 years. For a first offender, it seems, the applicable sentencing guidelines provide for a much lower maximum sentence, but Washington law provides a lengthy list of aggravating circumstances that can allow for a departure above the standard sentencing range. Any number of possible aggravating circumstances seem readily provable here: e.g., the first two listed are "defendant's conduct during the commission of the current offense manifested deliberate cruelty to the victim" and "defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance" and other potential aggravators include the "offense involved an invasion of the victim's privacy" and the "defendant demonstrated or displayed an egregious lack of remorse."
Because a number of aggravating circumstances seem to fir this case, I am not sure the sentencing judge here was correct when saying "I’m not sure the Legislature really contemplated something like this." Rather, as I see it, the Washington legislature expressly provided a means for judges to go above the applicable sentencing range if and when prosecutors pursue and prove one of these aggravating factors Perhaps someone who know the work-a-day realities of Washington sentencing law and practice can help me better understand what seems to have gone wrong here.
November 19, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Friday, November 09, 2018
Despite Issue 1's overwhelming defeat, Ohio leaders still talking optimistically about state criminal justice reforms
I have been worried that this week's overwhelming defeat of the interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot in Ohio, known as Issue 1, could mean that long-stalled major reform efforts in Ohio would remain stalled. But this local article, headlined "After Issue 1 fails, state leaders vow to take up criminal justice reform," provides an encouraging outlook on the prospects of reform in the Buckeye state through the usual legislative channels. Here are excerpts:
After voters statewide rejected Issue 1 this week, state lawmakers are ready to move forward on criminal justice reforms, legislative leaders said Thursday.
Ohio’s “big three” political leaders — Senate President Larry Obhof, House Speaker Ryan Smith, and Gov.-elect Mike DeWine — each applauded the failure of State Issue 1, a proposed constitutional amendment that would have changed criminal sentences. Voters rejected it 36.6 percent to 63.4 percent, according to unofficial results. Judges and elected Republicans largely opposed Issue 1, saying it was a flawed proposal that didn’t belong in the Ohio Constitution.
Obhof, R-Medina, said Thursday he will introduce a bill in the upcoming weeks that calls for reducing low-level drug felony offenses to misdemeanors; install a presumption for probation over prison if the offender agrees to drug treatment; allow people currently incarcerated for certain drug crimes to petition the court to be re-sentenced.
The bill will be based on a proposal developed by Franklin County Prosecutor Ron O’Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat. The two ran against one another in 2016.
Obhof wants to take quick action on the bill, before Gov. John Kasich leaves office and the current legislative session ends. However, if it doesn’t get through by the end of the year, he plans to bring it back next year.
DeWine said criminal justice reform would be a priority for his administration, which starts in January, but he did not provide details of how that might take shape.
For the past year, policy leaders have been doing a deep dive into Ohio’s interconnected criminal justice issues: prison overcrowding, the opiate crisis, mental health treatment, falling crime rates, rising murder and assault rates, recidivism rates and more. A final report will make recommendations for lawmakers to consider in 2019.
Nearly 60 percent of all felony sentences in Ohio are for drug and property crimes, according to the Council of State Governments analysis of Ohio Bureau of Criminal Investigation and Identification data.
And while Ohio’s recidivism rate — those returning to prison within three years of release — is lower than the national rate, it crept up 1.5 percentage points to 30.73 percent, according to the Ohio Department of Rehabilitation and Correction. “That concerns me but it’s good that we’re still substantially better than the national average. I still think that our prison population is too high,” Obhof said.
November 9, 2018 in Drug Offense Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Tuesday, October 23, 2018
Should a state judge be campaigning against a state criminal justice reform initiative when talking to potential jurors?!?!?
I have been more than a bit troubled by the fact that Ohio Supreme Court Chief Justice Maureen O'Connor has been serving for months as the campaigner-in-chief against an interesting and intricate drug sentencing and prison reform initiative on the November 2018 ballot here in Ohio. Originally called the "Neighborhood Safety, Drug Treatment and Rehabilitation Amendment," the initiative now is just known within Ohio as Issue 1 (and the Drug Enforcement and Policy Center at OSU has been hosting public panels about Issue 1 under the title Ballot Insights, and has created a Resources Page for Issue 1 and a Commentary Page on Issue 1). One of my concerns has been that her visible role has put her in lock-step with advocacy by Ohio's prosecutors, and also seemingly has made many Ohio state judges feel comfortable speaking out against Issue 1 while making it hard for other state judges to feel comfortable speaking out for Issue 1.
Whatever one thinking about a judge or justice discussing their views on a ballot initiative in public, I am especially troubled by this story out of Cleveland that prompts the question in the title of this post. The piece is headlined "Cuyahoga County judge politicks against Issue 1 to potential jurors inside courthouse," and here are the details:
A Cuyahoga County judge who is a vocal critic of a sentencing reform initiative on the ballot for the Nov. 6 election has taken his opposition to residents forced to show up for jury duty at the Justice Center.
Multiple times in recent weeks, Common Pleas Court Judge David Matia has used the time usually reserved for a judge to welcome the hundreds of potential jurors to their mandatory civic duty to instead deliver a spiel in which he explicitly urged them to vote against Issue 1.
Administrative and Presiding Judge John J. Russo does not object to Matia's actions, which Matia insisted in a Monday phone interview did not violate any judicial ethics rules. Judges are allowed to take public stances on issues that "directly affect the administration of justice," and it is up to a particular judge to determine when and where it is appropriate to make those comments, according to a 2002 advisory opinion by the Ohio Supreme Court's Board of Commissioners on Grievances and Discipline.
"Whether it's a group of jurors or a bingo hall, it doesn't matter," Matia said. "The opportunity to educate the public should not be ignored by members of the judiciary."
But Matia's choice to deliver the message as part of the regular duties of his seat on the bench -- to a group of people with no choice to leave -- raises serious ethical questions, a legal expert said. "He's got a right to announce his views," Charles Geyh, a law professor at Indiana University, told cleveland.com. "What I don't like is he is using his judicial office as a vehicle for addressing a captive audience. That's where he's abusing the prestige of his judicial office."...
Matia said he has spoken to potential jurors three times. He said he has done so in addition to the judge on the schedule twice, and spoke on Wednesday in place of the judge who was supposed to address the room when that judge did not show up. He said he hit the usual talking points he hits when he speaks in public about the issue, and urged a "no" vote. "It's not a political issue," he said. "This is a matter directly affecting the administration of justice, and frankly it's our duty to educate the public on this issue and how it will affect the administration of justice."
Russo said in a statement through a spokesman that he "was made aware that his colleague has been speaking to jurors" about the measure. "Judge Matia is an elected Cuyahoga County official and is speaking to constituents about an issue that impacts the administration of justice in the state," Russo said in the statement.
Rick Dove, director of the court's Board of Professional Conduct, said this situation is not explicitly spelled out in any judicial ethics rules, or addressed in any advisory opinions. Dove pointed to the 2002 opinion, which came in response to a complaint filed over a judge's public endorsement of a proposed constitutional amendment that dealt with expanding the use of drug treatment in sentencing....
The board wrote that judges could address certain legal issues that affect the administration of justice, and that it was not inappropriate for judges to do so in newspaper editorials, radio and TV ads, public forums and other mediums. "No rule within the Ohio Code of Judicial Conduct, provides a list of appropriate forums for judicial speech," the board wrote. "A judge must exercise his or her discretion regarding appropriate forums for speaking to the public regarding the law, the legal system, and the administration of justice."
But Matia's advocacy did not occur at a forum or a public meeting where people came voluntarily to hear thoughts about the issue. It came inside the courthouse, to a group of people who had been summoned to perform a mandatory government duty. Matia carried the authority of being a judge inside the courthouse and acted within the scope of his judicial office when he took the stance, all to an audience who was not free to leave, Geyh argued. "He seems to be exploiting his role as judge to create this opportunity to vent his ideological point of view with respect to this view of legislation," Geyh said.
Matia called his advocacy at the courthouse "a non-issue, ethics wise." He sent a copy of the 2002 opinion to cleveland.com Monday in a text message after the phone interview for this story. "Just remember to vote no on [Issue] 1," Matia wrote, adding a smiley-face emoticon.
I am squarely with Professor Geyh on this one, and I have concerns about Judge Matia's actions that go beyond the specifics of talking about Issue 1 to a captive audience inside a courthouse. At least some of these prospective jurors are going to be asked to participate in cases that might involve applications of the laws and policies that are the subject-matter of Issue 1, and I worry about how the judge's comments may be impacting the jury pool beyond how the judge has become a campaigner for a partisan position in the courthouse.
Prior related posts:
- Interesting and intricate Ohio drug sentencing initiative poised to qualify for November 2018 ballot
- Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative
- Events and resources covering Ohio sentencing and prison reform ballot initiative known now as Issue 1
- Excited to hear Shon Hopwood speak about earned prison credit as Ohio considers ballot initiative known now as Issue 1
- Despite fear-mongering opposition ads, drug sentencing and prison reform initiative polling strong in Ohio
October 23, 2018 in Drug Offense Sentencing, Elections and sentencing issues in political debates, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)
Sunday, October 07, 2018
You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?
Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald. This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct." And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:
Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014. But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.
After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder. But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.
First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable. But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable. That's the criteria for second-degree murder.
The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....
First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials. Such a sentence, at Van Dyke's age, could have amounted to life. The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.
Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.
Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously. So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.
Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said. That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.
For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke. "I would be shocked if he got a day over the four or six years," Greenberg said.
Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said. "It will be very hard time." That may have already started. At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.
I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum. But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.
October 7, 2018 in Gun policy and sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (9)
Wednesday, September 05, 2018
ACLU Campaign for Smart Justice launches "Smart Justice 50-State Blueprints"
As detailed in this ACLU press release, titled "Smart Justice Blueprints Launch With 24 State Reports And Interactive Web Tool, Remaining 27 To Be Rolled Out In Coming Months," the folks at the ACLU have an interesting new set of state-focused national resources advocating for criminal justice reform. Here are portions of the press release:
The American Civil Liberties Union’s Campaign for Smart Justice today unveiled the Smart Justice 50-State Blueprints, a comprehensive, state-by-state analysis of how states can transform their criminal justice system and cut incarceration in half.
The Smart Justice 50-State Blueprints are the first-ever analysis of their kind and will serve as tools for activists, advocates, and policymakers to push for transformational change to the criminal justice system. They are the result of a multi-year partnership between the ACLU, its state affiliates, and the Urban Institute to develop actionable policy options for each state that capture the nuance of local laws and sentencing practices.
The 51 reports — covering all 50 states and the District of Columbia — will be released in multiple phases, beginning with an initial rollout of 24 state reports. The reports are all viewable on an interactive website that allows users to visualize the reductions in jail and prison population that would result from the policy decisions that states pursue. The interactive feature is here.
Each blueprint includes an overview of the state’s incarcerated populations, including analysis on who is being sent to jail and prison and the racial disparities that are present, what drives people into the system, how long people spend behind bars, and why people are imprisoned for so long. The blueprints offer a calculation on the impact of certain reforms by 2025 on racial disparities in the prison population, fiscal costs, and overall prison population. They also show precisely how a 50 percent decarceration goal could be achieved.
While more than 2 million people are behind bars in the United States, only about 10 percent are in federal prisons. Approximately 90 percent of the people incarcerated in the United States are held in local jails and in state prisons. “Mass incarceration is a nationwide problem, but one that is rooted in the states and must be fixed by the states,” said Udi Ofer, director of the ACLU Campaign for Smart Justice. “We hope that the Smart Justice 50-State Blueprints provide necessary guideposts for activists and policymakers as they pursue local solutions that will address the stark racial disparities in our criminal justice system and dramatically reduce their jail and prison populations. Some of the reforms contained in the blueprints are readily achievable, while others are going to require audacious change. But all are needed to prioritize people over prisons.”
The state reports provide a snapshot of how reformers cannot take a one-size-fits-all approach to ending mass incarceration. For example, in Louisiana, because more than one in three people admitted to prison in 2016 were convicted of property offenses and 30 percent of all admissions were for drug offenses, one road that Louisianans could take for reducing their prison population would be reclassifying drug and many property offenses as misdemeanors rather than felonies.
In Pennsylvania, the number of people entering prison for parole violations grew by 56 percent between 2006 and 2016, suggesting that the state’s decarceration strategy should include the improvement of parole and release policies and the implementation of reforms that would drive down the number of people sent to prison due to supervision violations.
Finally, in Michigan, 16 percent of prison admissions are for drug offenses, and a majority of the people (74 percent) imprisoned in Michigan are serving time for offenses involving violence. Thus, to reduce significantly the prison population in Michigan, policymakers must focus more heavily on transforming the way the criminal justice system responds to offenses like robbery and assault, which lead to sentences that have become harsher and longer over the past decade.
The website and the reports were created by utilizing a forecasting tool developed by the Urban Institute, which can be viewed here.
September 5, 2018 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (6)
Friday, July 13, 2018
Detailing how recent reforms have helped Louisiana shrink its incarceration rate to no longer be nation's leader
Ranking have a way of capturing attention, and this new Pew article reporting on a notable change in state rankings caught my eye. The piece is headlined "Louisiana No Longer Leads Nation in Imprisonment Rate: New data show impact of 2017 criminal justice reforms," and here are excerpts:
Louisiana no longer leads the nation in imprisonment, one year after enacting a landmark package of 10 criminal justice reform laws. In June 2018, Oklahoma became the U.S. state with the highest imprisonment rate, replacing Louisiana, which had been the nation’s prison capital for nearly 20 years.
The numbers are based on calculations by The Pew Charitable Trusts, which analyzed data from the state corrections departments and population estimates from the U.S. Census Bureau. At the beginning of June, the imprisonment rate in Louisiana was 712 per 100,000 residents, compared with 719 per 100,000 residents in Oklahoma. Louisiana now ranks second in imprisonment. The numbers in both states far exceeded the national rate, including state and federal prisoners, which was 450 per 100,000 residents at the end of 2016.
The latest data reinforce a central lesson of criminal justice reform in the past decade: States’ policy choices can help control the size and cost of their prison systems and protect public safety. Although implementation of Louisiana’s reforms is still in the early stages, the Department of Public Safety and Corrections and the Commission on Law Enforcement released a report in June with some initial results that show quick and solid progress since the first pieces of legislation went into effect in August 2017....
After a year’s worth of data analysis and study by the task force, the Legislature in 2017 passed and the governor signed the most significant overhaul of criminal justice laws in state history. The package of 10 bills — sponsored by six Republicans, two Democrats, and one independent — steers people convicted of less serious crimes away from prison, strengthens incarceration alternatives, reduces prison terms for those who can be safely supervised in the community, removes barriers to re-entry into the community, and bolsters programs that support victims of crime.
Louisiana’s landmark reforms are perhaps the most dramatic example of a state taking greater control of its prison growth and spending, but many others have acted as well. More than 30 states have adopted reforms, spurring shifts in imprisonment rate rankings. In 2007, for example, Texas began investing hundreds of millions of dollars in various treatment and diversion programs. The state dropped from third place in 2008 to seventh by the end of 2016, the most recent year for which complete national data are available. In South Carolina, comprehensive reforms enacted in 2010 helped move the state from ninth to 20th.
Pew also this week released this Fact Sheet on state reform efforts under the heading "35 States Reform Criminal Justice Policies Through Justice Reinvestment."
July 13, 2018 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3)
Saturday, March 03, 2018
Jim DeMint explains how "core of conservatism" at core of South Carolina's leadership on criminal justice reform
Jim DeMint, a former US Senator from South Carolina, has recently become of significant conservative voice in support of various criminal justice reforms. His latest commentary, appearing here under the headline "How Jim DeMint wants SC lawmakers to redefine ‘tough on crime’," links conservative principles and recent reforms and proposals in the Palmetto State. Here are excerpts:
The core of conservatism is the dignity of every individual and the value of every life. That’s why we talk about individual freedom, self-reliance and personal responsibility. Conservatives fight for limited government to preserve these sacred goals. And that’s why we care about prison reform. The values conservatives hold dear are jeopardized when prisons fail to deliver results. We owe it to victims, law enforcement and the citizens of our communities to act.
In 2010, South Carolina showed the nation how a conservative state can lead on criminal justice reform. Back then, we stood squarely at a crossroads. Our prison population was growing at an unsustainable rate, and we were forecasting the need to burden our taxpayers by building more prisons. We had to take action. The Palmetto State could go to an old playbook of tough on crime: incarcerate more, spend more and break an already strained budget. Or we could redefine what it means to be “tough on crime” by adopting smart policies aimed at keeping people safer, reintegrating citizens into the community and taming expensive correctional spending.
Fortunately, state leaders chose a new direction. S.1154 addressed the enormous number of people churning in and out of our prisons for low-level nonviolent crimes and violations of supervision conditions. They also established the Sentencing Reform Oversight Committee, made up of legislators, stakeholders and policy experts, to track the law’s performance and make ongoing recommendations for reform in the future.
The results were transformative. Our violent and property crime decreased by 16 percent, and recidivism dropped by 10 percent. Our prison population dropped by 14 percent. As a result, we have shut down seven facilities and saved taxpayers nearly half a billion dollars. Today, based on this innovative approach and the tireless efforts of the men and women at the departments of Corrections and Parole and Probation Services trusted with its implementation, more people are returning to their families and communities and becoming productive, tax-paying citizens.
As reforms outperformed our expectations, skeptics became believers, and practitioners in courtrooms and the corrections system have built a culture of following evidence-based practices.
Still, our prisons are understaffed and struggle with a growing threat of violence within facilities. Therefore, we should pursue evidence based-reform that we know can deliver results. Prison resources should be spent on those who pose a threat to public safety and are not wasted denying liberty to those who can be safely supervised in the community....
Nearly 80 percent of the prison population is still incarcerated for non-violent offenses. Those convicted are staying in prison too long, nearly a third longer than in 2010. Our system drains $500 million from taxpayers and has a negative impact on families and communities. There are also gaps in supervision best-practices that don’t meet the high standard we should hold ourselves to.
March 3, 2018 in Elections and sentencing issues in political debates, State Sentencing Guidelines | Permalink | Comments (2)
Monday, February 05, 2018
Mass molester Larry Nassar gets another 40 to 125 years in his third and final sentencing
Though civil suits resulting from former sports doctor Larry Nassar's many crimes seem likely to go on for a very long time, today I believe all of the criminal cases against the bad doctor concluded with a final state sentencing. This local article, headlined "Nassar gets another 40-125 years," starts its account of this latest sentencing this way:
Former Michigan State University doctor Larry Nassar was sentenced to another 40-125 years in prison for sexually molesting hundreds of young girls. Eaton County Circuit Court Judge Janice Cunningham handed down the sentence Monday. "I am not convinced that you believe what you did was wrong," Cunningham said. "Clearly you are in denial ... I do not believe there is a likelihood that you can be reformed."
Before he was sentenced, the disgraced doctor said he was sorry for his crimes during his last sentencing hearing Monday. "It's impossible to convey the depth and breadth of how sorry I am to each and everyone involved," he said. "The visions of your testimony will forever be present in my thoughts."
Since last month, more than 200 women spoke over nine days in two county court rooms about the impact the sexual abuse inflicted by Nassar has had on their lives. "You are a doctor and you took an oath to do no harm, but you harmed more than 250 young women," Cunningham also said Monday. "You will spend the rest of your life in prison, left with the memories of destroying your family and so many others around you."
Larissa Boyce — the first to tell a Michigan State University official about Nassar 20 years ago but was not believed — said Friday in a public statement that this moment cannot be forgotten. “This is a life-changing time in our society, in our culture and in our world,” Boyce said.
Prior related posts:
- Does and should anyone care about just how and where child molester/gymnastics coach Larry Nassar rots in prison?
- Child molester/gymnastics coach Larry Nassar gets maxed-out, 60-year federal prison sentence for child porn offenses
- Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation
- Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar
- Still more notable commentary on judicial conduct in sentencing of mass molestor
February 5, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (7)
Wednesday, January 31, 2018
"Top Trends in State Criminal Justice Reform, 2017"
The title of this post is the title of this short "Policy Brief" from The Sentencing Project. Here is how it gets started:
The United States is a world leader in incarceration rates and keeps nearly 7 million persons under criminal justice supervision. More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. Changes in sentencing law and policy, not changes in crime rates, have produced the nation’s high rate of incarceration. Scaling back incarceration will require changing policy and practice to reduce prison populations, address racial disparity, and eliminate barriers to reentry. In recent years a number of states have enacted reforms designed to reduce the scale of incarceration and impact of the collateral consequences of a felony conviction. This briefing paper describes key reforms undertaken in 2017.
SENTENCING REFORMS
Lawmakers in several states enacted reforms to reduce the number of persons in prison and improve fairness in the criminal justice system. Most notably, Louisiana authorized legislation, Senate Bill 139, which expanded probation eligibility to people convicted of third-time nonviolent offenses and first-time low-level violent offenses. The bill also expanded eligibility for treatment alternatives and drug courts. The state amended parole practices, including lowering time served requirements before parole consideration, and authorized parole consideration for those sentenced to life at a time when their offense-type qualified for parole. Other states — Arkansas, Hawaii, Michigan, and Montana — adopted a range of reforms, including expanding probation eligibility, reclassifying low-level felonies to misdemeanors, streamlining parole review mechanisms, and limiting prison admissions for technical violations.
January 31, 2018 in Data on sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)
Tuesday, January 16, 2018
Effective state-by-state review of recent crime rate and imprisonment rate declines
The folks at The Pew Charitable Trusts' public safety performance project have this terrific new state-by-state accounting of recent crime and incarceration rates under the heading "National Prison Rate Continues to Decline Amid Sentencing, Re-Entry Reforms: More than two-thirds of states cut crime and imprisonment from 2008-16." The infographic alone merits a click-through, and her is the accompanying text:
After peaking in 2008, the nation’s imprisonment rate fell 11 percent over eight years, reaching its lowest level since 1997, according to an analysis of new federal statistics by The Pew Charitable Trusts. The decline from 2015-16 was 2 percent, much of which was due to a drop in the number of federal prisoners. The rate at which black adults are imprisoned fell 4 percent from 2015-16 and has declined 29 percent over the past decade. The ongoing decrease in imprisonment has occurred alongside long-term reductions in crime. Since 2008, the combined national violent and property crime rate dropped 23 percent, Pew’s analysis shows.
Also since that 2008 peak, 36 states reduced their imprisonment rates, including declines of 15 percent or more in 20 states from diverse regions of the country, such as Alaska, Mississippi, South Carolina, and Connecticut. During the same period, almost every state recorded a decrease in crime with no apparent correlation to imprisonment (see Figure 1). The latest data, released Jan. 9 by the federal Bureau of Justice Statistics, show that trends in crime and imprisonment continue to be unrelated:
• Across the 45 states with crime declines from 2008-16, imprisonment rate changes ranged from a 35 percent decrease to a 14 percent increase.
• 35 states cut crime and imprisonment rates simultaneously.
• 21 states posted double-digit declines in both rates.
• The average crime decline across the 10 states with the greatest declines in imprisonment was 19 percent, and across the 10 states with the largest imprisonment growth it was 11 percent.
The annual national violent crime rate increased in 2015 and 2016, but many cities are reporting reductions for 2017, and both violent and total crime rates remain near record lows. National, state, and local crime rates shift for complex and poorly understood reasons, and experts offer a wide range of possible explanations; overall, however, the rates of reported violent and property crime have declined by more than half since their 1991 peaks, falling to levels not seen since the late 1960s.
Starting with Texas in 2007, more than 30 states have adopted sentencing and corrections reforms designed to improve public safety and control taxpayer costs. The reforms vary from state to state, but typically they prioritize prison space for people who have committed serious offenses and invest some of the savings in effective alternatives to incarceration. Research shows that investment in evidence-based re-entry programs reduces recidivism, contributing to declines in crime and imprisonment. Several states have cut return-to-prison rates significantly, including Georgia (35 percent) and Michigan (43 percent) over the past decade.
The lack of a consistent relationship between the crime and imprisonment trends reinforces a growing body of research and expert consensus that imprisonment in many states and the nation as a whole has long since passed the point of diminishing returns. This indicates that local, state, and federal policymakers can adopt additional reforms to reduce imprisonment without jeopardizing public safety.
January 16, 2018 in National and State Crime Data, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)
Monday, November 27, 2017
Ohio getting started on Justice Reinvestment 2.0 to confront latest criminal justice challenges
For more than a decade, the Council of State Governments Justice Center and the Justice Department and the Pew Public Safety Performance Project have worked on "Justice Reinvestment" projects in numerous states. These projects generally involve careful study of state and local criminal case processing in order to identify inefficient use of limited prison space and efforts to reduce prison admission and reinvest resulting savings to services that would achieve better public safety outcomes at a lower cost. Now, as this local article from Ohio highlights, it at least one state a second generation of this project is underway:
Amid a glut of nonviolent drug offenders and probation violators serving time in state prisons, Ohio again is taking a look at criminal-justice reform. The effort seeks to tweak the system and criminal sentencing to account for the impact of violent crime and opioid-fueled offenses “while enhancing public safety.”
The 24-member “Justice Reinvestment” committee also hopes to reduce recidivism while pursuing schemes to better route offenders to the right place, whether prison or local community control programs. Emphasis will “explicitly focus on what is happening before prison, or in other words, the system’s ‘front end,’ where many decisions are made that impact both future judicial and corrections practices,” said Michael Buenger, administrative director of the Ohio Supreme Court.
The committee, which includes [State corrections Director Gary] Mohr, [Union County Prosecutor David] Phillips, [Franklin County Common Pleas Court Judge Charles] Schneider and other judges, prosecutors, lawmakers and state and local officials, is scheduled to submit a report and recommendations to the General Assembly in the fall of 2018.
The group began its work this month with a report from the Council of State Governments Justice Center that laid out the scope of its challenge:
‒ Reflecting the opioid addiction crisis, drug-abuse arrests increased 12 percent in Ohio to more than 32,000 annually between 2011 and 2016. Only North Dakota and South Dakota saw a higher increase. A total of 5,609 drug offenders were committed to state prisons last year alone.
‒ Property crime decreased 23 percent between 2011 and 2016 but violent crime ticked up 6 percent over 2015 and 2016, mostly because of increases in Cleveland, Dayton and Toledo. “Low-level crimes drive arrest activity and limit law enforcement’s capacity to respond to violent crime.”
‒ Ohio has the nation’s third-highest rate of people on probation and parole, nearly 244,000 at the end of 2015. Offenders released and then sent back to prison for probation violations account for 23 percent of annual commitments to state prisons. “Ohio still lacks a coherent strategy for recidivism reduction.”
‒ The number of offenders in the $1.8 billion-a-year prison system grew by 9 percent between 2000 and 2016, with the population generally holding steady since 2007 around 50,000 to 51,000. Offenders, in general, also are serving longer stretches in prison. “Prison crowding and costs remain high.”
‒ Ohio’s criminal sentencing scheme “has contributed to crowded prisons and large misdemeanor and felony probation populations. ... Ohio law shows a micromanaged approach to sentencing policy that is needlessly complex.”
State prisons housed 8,300 offenders when Mohr joined the Ohio Department of Rehabilitation and Correction as a teacher’s aide in 1974. By the middle of last year, that number had increased six-fold to 51,014 prisoners (just a tad off the all-time high), who cost an average of $72 a day to house. “Think about the budget, the amount of investment, the reason why we’re still on this path,” Mohr said. “I think there are too many Ohioans incarcerated. It’s a much better investment to place nonviolent offenders in community programs. All evidence shows it’s twice as effective at one-third the cost.”
Mohr is encouraged by a community-alternative program in which the state is spending up to $58 million over two years to divert low-level, nonviolent felony offenders, many convicted of drug possession, from state prisons to local programs. Since the middle of last year, the prison population has dropped nearly 5 percent to 48,799. Forty-eight participating counties are using work-release, substance-abuse treatment, intensive supervision and other programs. Franklin and other large counties still are deciding whether to participate.
Mohr said the state should invest in the lives of low-level offenders “earlier in their lives” in local corrections programs to help address employment, behavioral health and substance-abuse issues before they lead to more serious offenses and state prison time. “All of the counties that have tried it loved it. Ohio is, in my mind, safer than it was before.”
Part of the group’s discussions should center on taking some low-level felonies, such as simple drug possession, that are contributing to prison packing and making them misdemeanors to be handled locally, and improved probation services, Mohr said.
Judge Schneider said that judges are chafing under some criminal sentencing guidelines. “Mandatory sentencing makes sense for crimes like murder and rapes, but some of the drug charges where it is mandatory is frustrating,” he said. Judges should be free to tailor sentences for lower-level offenses to match the offender and his crime “if you can articulate specific facts” whether a prison sentence is appropriate or not, he said.
“If you want us to treat certain (felony) offenses as misdemeanors, then make them misdemeanors. Quite frankly, the legislature doesn’t have the will to do that,” Schneider said, adding, for example, that the current fifth-degree felony threshold of $500 in a theft offense should be raised. Lawmakers, he said, are too fond of creating new offenses and tinkering with prison sentences.
The state’s current scheme also is “schizophrenic” about drug addicts, the judge said. “We say it’s not his fault, it’s a disease. But when that person breaks into a house to fund that disease, it becomes a serious crime. It’s the same person, folks,” Schneider said.
Union County’s Phillips said that, from the perspective of prosecutors, “our primary interest is public safety, No. 1, and holding offenders accountable, No. 2.” He differed from Mohr’s assertion that prison is not appropriate for some. “You should talk to victims of crime and see if they think that is true. Community control sanctions do not work for some people and they need to go to prison.”
At the Ohio Criminal Sentencing Commission's website, one can now find these background documents with more information concerning the state's reinvestment in justice reinvestment:
Ohio Justice Reinvestment Ad Hoc Committee Kicks off Review of Criminal Justice System
Justice Reinvestment in Ohio: Overview
Justice Reinvestment 2.0 in Ohio: Launch Presentation
November 27, 2017 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (7)
Sunday, November 19, 2017
Notable advocacy for Georgia as "national model" for sentencing reform
Newt Gingrich and Kelly McCutchen have this notable new local commentary headlined "Criminal sentencing reform in Georgia has become national model." Here are excerpts:
Texas is celebrating 10 successful years of reform that has led to the lowest crime rates since 1967 and the lowest rate of incarceration in a generation. Meanwhile, the state of Georgia is following in the Lone Star State’s footsteps by increasing public safety and reforming the criminal justice system.
This is especially important to note because the FBI reported last month that while the national crime rate is down, violent crime has increased slightly for two years in a row, due in large part to an increase in homicides in cities such as Chicago and Baltimore.
In 2012, Gov. Nathan Deal recognized the breakthroughs Texas was making and began a justice reinvestment plan that tackled some of the biggest challenges facing Georgia’s criminal justice system.
Chief among these challenges was that Georgia sent many low-risk offenders to prison for lengthy sentences. For too long, the assumption was that the most appropriate form of punishment was long-term incarceration. However, research shows that low-risk, nonviolent offenders who serve long sentences tend to continue to commit crimes after being released.
Once Georgia’s sentencing challenge was identified, the state was able to restructure sentences for property and drug offenses. Lawmakers came up with alternatives that actually held offenders accountable -- rather than simply punishing them -- and reduced the likelihood that they would reoffend. Alternatives included substance abuse treatment and accountability courts, both of which more effectively address the causes of many offenders’ behavior. This low-level sentencing change allowed the state to focus on imprisoning serious offenders, which resulted in fewer victims of crime, increased safety outcomes and lowered costs.
Georgia also worked to improve the juvenile justice system, which was exceedingly expensive and not as effective as it could be. The state began to implement programs to help rehabilitate juvenile offenders outside of a detention setting. At the same time, the state shifted its focus toward helping juvenile offenders who had served time to return to society as productive citizens....
The results speak for themselves:
• Violent and property crime rates have been on a steady decline for over a decade, with property crime and total crime taking an even steeper decline since the reforms, compared to the years prior.
• Parole revocation is down 35 percent from 2007 to 2016, a sign that fewer released offenders are sent back to prison because they violated conditions of their supervision.
• The Georgia corrections system now includes 67 percent violent offenders, up 9 percent since 2009, which illustrates a renewed focus on violent crime over low-level drug crime.
Georgia’s story is an incredible one for many reasons. First, it disproves the widely held belief that incarcerating more offenders means less crime. The reforms in Texas and Georgia -- as well as South Carolina, Mississippi and other states -- show alternatives can be more effective.
Second, it shows that being “tough on crime” by incarcerating offenders for long sentences –-- and for every offense, large or small -- is more about playing politics than getting results. The research tells us that long sentences for low-level, nonviolent offenders can result in worse public safety outcomes. Housing lower-risk people with more dangerous offenders makes them more dangerous themselves. In this way, harsh sentences make our streets less safe.
These successes should drive our public policy discussions about crime and safety. We are disturbed by the FBI report on violent crime. Crime, particularly violent crime, is a complex issue that requires careful analysis to identify specific causes and remedies at the local level. Georgia has already been successful in doing that with nonviolent crimes. It will take a community-wide effort to determine the best ways to keep violent crime at bay.
Those of us on the side of reform vow to work with policymakers, political leaders, and law enforcement to continue on the path that has led to years of low crime rates. This nation cannot backslide into antiquated, tired and misinformed narratives for the sake of political capital and convenience.
November 19, 2017 in Elections and sentencing issues in political debates, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Thursday, November 16, 2017
"Justice reform is real and conservative governors are leading the way"
The title of this post is the headline of this recent Fox News commentary authored by Kentucky Governor Matt Bevin. Here are excerpts:
During the 2016 Republican National Convention in Cleveland, I participated in a national panel on criminal justice reform with like-minded, conservative governors Nathan Deal of Georgia and Mary Fallin of Oklahoma. It was an honor for me to discuss how best to create second chance opportunities with these two veterans of criminal justice reform.
When I was elected as governor in 2015, it was my intention that Kentucky would also be making significant changes to our criminal justice system. That is exactly what we have been doing. With a rising prison population, severely depleted workforce participation rates, and the highest percentage in the nation of children with at least one incarcerated parent, we unfortunately had plenty of room for improvement. For years Kentucky had maintained an outdated, “lock-em-up and throw away the key” approach. That was unsustainable from both a societal and financial cost and we were determined to shake up the status quo.
Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities—doing what is right for the people we represent is not a political statement. We began by making it easier for formerly incarcerated people to get back to work, passing a comprehensive felony expungement bill that allows certain former offenders, who have been crime-free for five years, to wipe their slates clean. We also passed a bold reentry initiative that provides for more job training and eliminates regulatory barriers to employment for people with criminal records.
Our administration implemented “ban the box” for state government agencies to give ex-offenders a fair shot at employment, and launched the “Justice to Journeyman” initiative, which paves a pathway for inmates and detained youth to earn nationally recognized credentials in a skilled trade. Kentucky’s success as the center for engineering and manufacturing excellence in America is only being enhanced as we pioneer changes in criminal justice policy....
I ... encourage ... all governors to tackle criminal justice reform policy with a sense of urgency and purpose. Some political advisors still speak passionately about being “tough on crime”, and caution that supporting criminal justice reform policy could be politically dangerous at election time.
This is a ridiculous notion. After all, more than 90 percent of those now incarcerated will eventually re-enter society. We either pave a path towards second opportunities or we settle for recidivism. Which is better for our communities?
If we want voters to continue electing conservatives, we must offer serious solutions. We can no longer afford to cling to the outdated idea that prison alone is the only way to hold people accountable for their crimes. Instead, we need to take a smarter, more measured approach to criminal justice. More than simply removing lawbreakers from society, we must also rehabilitate and re-assimilate them back into society.
In the midst of national division in many fronts, a community of conservative governors are uniting to build trust and offer real solutions to some of our country’s greatest problems. Transforming our justice systems, supporting policies that safely reduce our jail and prison populations, putting ex-offenders back to work, creating safer communities — doing what is right for the people we represent is not a political statement.
America has always been a land of opportunity and second chances. When we hold individuals fully accountable for their actions while treating them with respect in the process, all of society benefits.
November 16, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)
Tuesday, November 14, 2017
New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"
This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:
The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system. The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.
The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York. In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....
“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased? Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense? As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”
“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:
• Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.
• In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations. The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.
• Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.
• Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.
• Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.
• Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).
• Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.
The report’s authors conclude with six recommendations, with guidance from previous research:
• Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.
• Build a risk-based system of pretrial practices to replace the current money-based bail system.
• Keep youth out of confinement and the adult criminal justice system.
• Review and modernize sentencing practices and policies.
• Encourage local, community-driven solutions to crime through incentive funding.
• Measure criminal justice success with better data collection and reporting.
“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”
November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)
Wednesday, September 27, 2017
Should New Jersey be more regularly championed for its profound success in reducing prison populations and crime rates?
The question in the title of this post is prompted by this local article, headlined "Why is the N.J. prison population shrinking? (It's not just about less crime...)," which highlights how and how successful the Garden State has been in reducing its prison population. Here are excerpts from the article:
The big house is getting smaller. Fewer people are going to prison in New Jersey these days and the numbers continue to drop, according to an analysis of state Department of Corrections data over the past five years.
Those incarcerated in New Jersey — including men and women in prison, juveniles in detention, and detainees still in halfway houses — dropped this year to 19,619, from 21,123 in 2013. That marked a decline of more than 15 percent.
In fact, the state's inmate population has fallen more from its peak in the 1990s than any other state in the country, according to The Sentencing Project, a Washington-based criminal justice reform group. Since 1999 — when more than 31,000 people were behind bars in New Jersey — the number of inmates has plunged by more than a third. "New Jersey leads the nation in prison population reduction," said Todd Clear, a prison policy expert at the Rutgers School of Criminal Justice.
Crime has been going down in New Jersey in recent years. But that doesn’t really tell the story of what's happening in the state's prisons, according to Marc Mauer, executive director of The Sentencing Project. "It's not necessarily one shift that can produce a shift of this magnitude," he said, attributing much of it to the creation of the state's drug courts that focus on diverting people from prison, as well as changes in the parole system that make it less likely someone will be put back behind bars for minor technical violations of their parole.
The corrections department data underscores the impact on how the state treats drug crime. The percentage of those serving time for drug crime is down more significantly than for inmates convicted of any other offense.... According to corrections department officials, a five-year phase-in under Gov. Chris Christie of mandatory drug courts for non-violent offenders, which was expanded to all 21 counties across the state, redirected thousands from state prison and into drug treatment programs.
At the same time, they credited the so-called "ban the box" legislation prohibiting employers from discriminating against people with expunged criminal records, as well as accelerating some expungements, increasing the type of convictions that can be expunged and reducing the waiting period to expunge an entire juvenile record, have given some inmates a better opportunity of finding a job and staying out of prison....
Department of Corrections officials said with the decline in inmate population, they have consolidated facilities and closed some units, reducing overtime costs. "This practice allowed us to undertake much-needed renovations in our facilities," said spokesman Matthew Schuman. "In fact, as part of our consolidation program, we closed Mid-State Correctional Facility in June 2014."
Mid-State reopened in April 2017 as the first licensed, clinically driven drug treatment program provided by the NJDOC. At the same time, a similar substance use disorder program for female offenders became operational at Edna Mahan Correctional Facility for Women.
Unfortunately, this new article does not address what has become of crime rates and recidivism rates during this period in which New Jersey has been shrinking its prison population, but I think the data is also encouraging. Specifically, crime data for New Jersey here and here suggests crime has gone down as much if not more in NJ than elsewhere in the country and the state even seems to be largely avoiding the crime spikes that a number of other regions have seen in the last two years. And this local article from last years reports that the state's corrections "Chief of Staff Judith Lang ... said New Jersey’s recidivism rate has lowered from 48 percent to 32 percent" thanks in part to state investment in reentry services.
Though outgoing New Jersey Governor Chris Christie will be leaving office with very low approval ratings, the citizens of New Jersey and all those interested in criminal justice reform should praise his efforts in this arena and the broader achievements of all New Jersey policymakers and officials in recent years. Especially if New Jersey continues to keep crime rates and prison populations low, the state will continue to be an important success story for modern criminal justice reforms that other jurisdictions should aspire to emulate.
September 27, 2017 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)
Thursday, September 21, 2017
Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term
A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:
Defendant-Appellant [stole] from at least 12 different nursing homes and assisted living facilities in both Delaware and Franklin counties over the course of eight years. Detectives were unable to connect all of the property to its rightful owners. During part of appellant’s spree, she was employed as a nurse’s aide. After she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee....
At the change of plea hearing, appellant admitted that she had been stealing from nursing home residents since 2004, four years earlier than the earliest charge in the indictment. Some residents she knew and worked with, others she did not. She claimed a cocaine habit was to blame, and that she took cash as well as other items to sell to support her habit.
At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements. The state recommended 42 years incarceration. Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.
After considering all of the applicable sentencing statutes, and making all of the required findings, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property. The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate of 65 years incarceration....
Appellant was 55 years old at the time of her sentencing....
We do not minimize the seriousness of appellant's conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing.... A sentence of 65 is plainly excessive. It can be affirmatively stated that a 65 year sentence is a life sentence for appellant. Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.
The sentence is an emotional response to very serious and reprehensible conduct. However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing. The sentence imposed here does not do so. It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively. It runs the risk of lessening public respect for the judicial system. The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness. We therefore find by clear and convincing evidence that the record does not support the sentence.....
We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted. We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] an aggregate term of 15 years of incarceration. Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.
Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old. The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130! Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70. Wowsa.
September 21, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (10)
Friday, August 18, 2017
Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences
As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:
Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.
Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.
The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.
Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.
Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....
The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.
It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.
August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)
Thursday, August 17, 2017
Police groups supportive, but prosecutor objects, to new Oregon law shifting drug possession offenses down from felony to misdemeanor
This AP piece, headlined "Oregon makes drug possession a misdemeanor," reports on the notable criminal justice reform signed into law this week in the Beaver State. I found especially interesting the diverse views on the legal charge expressed by police groups and at least one prosecutor. Here are the particulars:
A bill signed by Oregon Gov. Kate Brown on Tuesday makes personal-use possession of cocaine, heroin, methamphetamine and other drugs a misdemeanor, not a felony. Oregon joined just a handful of other U.S. states in defelonizing drugs under the new law, which was supported by law enforcement groups and takes effect immediately.
Jo Meza, owner of Amazing Treatment, a rehab center in Salem, applauded the move. She has seen the damage caused by drug addiction in her 30 years in the field. “There’s a huge crisis out there, and locking people up is not going to work,” Meza said....
Among the bill’s supporters were the Oregon Association Chiefs of Police and the Oregon State Sheriffs’ Association, which said felony convictions include unintended consequences, including barriers to housing and employment. But the two groups, in a letter to a state senator who backed the bill, said the new law “will only produce positive results if additional drug treatment resources accompany this change in policy.”
“Reducing penalties without aggressively addressing underlying addiction is unlikely to help those who need it most,” the groups warned. Another measure appropriated $7 million that can be used to pay for drug treatment.
Linn County District Attorney Doug Marteeny had tried to convince lawmakers to dump the defelonization of dangerous drugs from the bill, which also targets police profiling. “To change the classification of this behavior from a felony to a misdemeanor is tantamount to telling our schoolchildren that tomorrow it will be less dangerous to use methamphetamine than it is today,” he wrote.
Those who have a prior felony conviction won’t be afforded misdemeanor consideration, nor will people who have two or more prior drug convictions or possess more than user amounts.
August 17, 2017 in Drug Offense Sentencing, Offense Characteristics, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)
Thursday, August 03, 2017
Mississippi opioid task force apparently calling for extreme sentences for heroin dealers
In this post yesterday, I noted that recent reports and activity emerging from the Trump Administration concerning the opioid epidemic did not include any calls for new or increased federal sentences as part of the criminal justice response. But this local article from Mississippi, headlined "Task force: Up to life sentences for heroin, fentanyl dealers," highlights that some state actors are talking about some remarkable sentencing reactions to the crisis. Here are the basic details:
The Governor’s Opioid and Heroin Study Task Force is recommending some of the toughest measures in the U.S. to fight an epidemic that is now killing more Americans in a single year than U.S. service members who died during the entire Vietnam War...
To battle the increased problem of heroin and fentanyl overdoses, the task force is recommending tough punishment for drug dealers who sell heroin or fentanyl — an enhanced sentence of 40 years to life.
I cannot yet find a copy of this state task force's full recommendations, so I am not sure that it is really calling for all dealers of heroin or fentanyl to receive sentences of at least 40 years in prison. But, whatever the particulars, I am sure that this task force is demonstrating how easy it is to advocate for increased sentences as one part of a response to our nation's latest drug epidemic.
UPDATE: A helpful comment below provides this link to the Mississippi Task Force recommendations. The first recommendation in the law enforcement section simply urges "increased punishment" for heroin dealers and an "enhanced sentence of 40 year to life" for all who sell or transfer any controlled substance "that result in death (or serious bodily injury)." So, intriguingly, the opioid epidemic has prompted a recommendation in Mississippi for a mandatory minimum 40-year prison term for any and every person who shares a drug that results in serious injury.
Though I am not sure how stringently Mississippi law approaches causation and serious bodily injury, I am sure this provision could be interpreted in expansive ways that could expose many drug-involved individuals to a mandatory minimum 40-year prison term. Indeed, were this recommendation to become law, I could imagine an aggressive prosecutor considering applying this provision to persons who passed around marijuana or ecstasy at a party if a partygoer thereafter badly crashed his car and broke some bones on the way home from the party.
August 3, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3)
Sunday, July 30, 2017
Reviewing the unique (and uniquely important?) Texas experience with criminal justice reform
This lengthy new Business Insider article, headlined "Texas is shedding its lock-'em-up image thanks to a 37-year-old tattooed lawyer and an unlikely political alliance," provides an extended account of how one significant state became a significant leader on criminal justice reform. Here is a small excerpt:
Until 2005, criminal-justice reform had been nearly impossible to pass in Texas, as was the case in many conservative states. Reformers were derided as "soft on crime" while even popular bills ran into vetoes from Republicans like Gov. Rick Perry, budget crises, and tough-on-crime district attorneys, many of whom view securing harsh sentences as a metric of success.
But with Texas's prisons bursting at the seams, legislators were faced with a choice: reduce incarceration with reforms or funnel billions into new prisons. At the same time, a new movement emerged among conservatives, led by Marc Levin, the director of the Right on Crime campaign created by the right-leaning Texas Public Policy Foundation. Levin, an Austin-based attorney and public-policy expert, and other conservatives like him understood ideas such as addressing substance abuse with treatment rather than incarceration, and promoting parole, probation, and reentry programs, as inherent to conservative ideology, not antithetical to it.
Meanwhile, fiscal conservatives in the state had grown appalled by the taxpayer burden of funding and maintaining new prisons, while libertarians were cynical of the broad government power required to funnel vast numbers of Texans through prisons each year. Social conservatives like Prison Fellowship, an evangelical Christian organization founded by Chuck Colson, a former Watergate-era felon, approached reform after witnessing through their prison-ministry programs how rarely inmates were given opportunities for redemption.
"You really had a point where the only thing that was standing against reform from the conservative perspective ... would just be the muscle memory of being 'tough on crime' for decades," Derek Cohen, the deputy director of Right on Crime, told Business Insider.
What propelled reform forward, however, was that those groups were able to join with liberals long clamoring for change in the Republican-controlled state. The movement formed the Texas Smart On Crime Coalition to push their agenda in the statehouse and, while the coalition is bipartisan, that doesn't mean they agree on everything. The movement can be thought of as a sort of Venn diagram. Liberals, conservatives, and religious groups each have their own reform plans, and they work together on issues where there is broad agreement, while still vehemently opposing one another where values diverge. "This shows that just because it's bipartisan doesn't mean that it's compromise," Cohen said. "We're retaining our perfect circles and just in the few places that they overlap, that’s where we're working together."
Common issues like bail reform, rehabilitation and treatment programs, and prosecuting youths through juvenile rather than adult courts are all fair game for collaboration. But issues like "mens rea reform," or requiring more proof of a defendant's culpable mental state, are more polarized. Similarly, en masse sentence reductions for drug crimes and "ban the box" initiatives — some of which impose civil or criminal penalties on employers that ask about applicants' criminal histories — remain partisan battlefields.
Cohen said the key to unlocking reforms in Texas has been that most Americans, whether conservative or liberal, just want a system that works. "They want a system that shows that that behavior is morally blameworthy ... but also that which rehabilitates," Cohen said. "There isn't this monolithic, punitive impulse in Texas or in conservatives or liberals or anywhere in the country."
July 30, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)
Monday, July 24, 2017
"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"
The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:
“Reform” is one of those ambiguous words that mean different things to different people. I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe. In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons. By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.
Every year about 650,000 of those prisoners are released back into the world. We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years. We have a corrections system that fails to correct.
Here are a few lessons Washington can learn from the states.
Lesson 1: It is possible to reduce incarceration and crime at the same time. ...
Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....
Lesson 4: While the front end is important, don’t neglect the back end....
Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...
Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...
Lesson 8: Many states are finding that incentives work better than mandates.
July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (4)
Tuesday, July 18, 2017
"How California Softened its 'Tough-on-Crime' Approach"
The title of this post is the title of this interesting and effective little "policy study" produced by the R Street Institute and authored by Steven Greenhut. Here is its introduction:
California has a long history of pioneering criminal-justice reforms. From the 1960s to the early 2000s, such reforms mostly toughened the state’s approach to handling criminals, with some of the most significant policy reforms implemented at the ballot box. California’s past approaches — especially its “three-strikes” law — have become models for other states, although such policies have led to some troubling results.
More recently, as overall crime rates have fallen to levels not seen since the 1960s, the state has led the way both to soften those earlier approaches and to implement innovative policies that reduce sentences for some offenders. This shift has been driven in part by a prison-overcrowding crisis, but public sentiment has also changed over the years.
Given the high costs — both financially and in terms of civil liberties — the state’s incarceration-heavy approach imposed, these changing policies and attitudes are a welcome development. Many of the tough-on-crime approaches of the past were driven by the state’s powerful law-enforcement lobby and “public safety” unions, who appeared at times more interested in protecting their budgets (and creating new “customers”) than promoting justice.
Not every new proposal is ideal, of course, and California has yet to embrace the kind of wide-ranging reforms in its corrections bureaucracy that have been implemented by Texas, for instance. The state also has failed to implement significant reforms to its public-employee pension system and has moved away from outsourcing — measures that could help stretch California’s budget, which is burdened by the highest cost in the nation (total and per capita) for running its prison system. Notwithstanding such costs, California still has an astoundingly high recidivism rate of approximately 65 percent.
This paper seeks to place these shifts in historical context. It examines a few of the most significant reform policies that have passed through the Legislature or been put to voters through the state’s robust initiative process. As California goes, so goes the nation. As such, it is worth seeing where the state is headed on this significant issue.
July 18, 2017 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (3)
Friday, July 07, 2017
Texas continues to demonstrate how state "smart on crime" reforms can lead to less imprisonment and less crime
This Dallas Morning News article, headlined "With crime, incarceration rates falling, Texas closes record number of lock-ups," highlights why the Lone Star state should be viewed as a shining star for anyone eager to see states find paths to having less crime and less incarceration. Here are excerpts:
Texas will shutter more prisons this year than it has in any single year in history, a response to the state's tight budget and shrinking inmate population. In the state's two-year budget, which lawmakers approved in May, the Texas Department of Criminal Justice was ordered to close four prison facilities by Sept. 1. When all four are closed, tough-on-crime Texas will have shuttered eight prisons in just six years.
Criminal justice reform advocates, agency officials and lawmakers say the closings are possible because of a combination of factors, including falling crime rates and legislative efforts to reduce the number of people who spend time behind bars. "This is something we have done incrementally over the last decade," said Derek Cohen, deputy director at the Center for Effective Justice at the right-leaning Texas Public Policy Foundation. "We're not any less safe publicly for that."
The drop in Texas' prison population began around 2007, when lawmakers were faced with an expensive decision. The state had spent decades and millions of dollars building hulking prison edifices across rural Texas. Tens of thousands of cells were quickly filling, and without changing the way Texas operated its criminal justice system, the state would soon be forced to spend millions more to house a burgeoning inmate population.
A state known for its lock-'em-up-and-throw-away-the-key approach to crime began to shift its approach. Instead of erecting more massive prisons, lawmakers invested in diversion programs to help troubled Texans get back on track and avoid incarceration. They spent more on initiatives to provide services to people whose mental illnesses landed them crosswise with the law. Lawmakers in 2015 updated a decades-old property crime punishment scheme that had resulted in felony punishments for thieves who had stolen penny-ante items. "What we saw was almost within 18 months, just an immediate decrease in the number of people sent to state jail on property offenses," said Doug Smith, a policy analyst with the Texas Criminal Justice Coalition.
At the same time, crime rates fell across the state. Texas Department of Public Safety data shows that crime rates have fallen each year since at least 2012. The overall crime rate in Texas fell nearly 6 percent from 2013 to 2014. And it dropped another 4.7 percent the following year.
Texas closed its first prison in 2011 after much hand-wringing. The Central Unit was a 79-year-old, sprawling behemoth on valuable land in the growing Houston suburb of Sugar Land. The prison population had begun to fall already, dropping 8 percent from 2004 to 2011. Legislators were facing a budget shortfall of up to $27 billion, and closing the Central Unit could save them about $50 million over two years. For the first time in Texas history, it made political and fiscal sense to close a prison. It turned out, lawmakers were just getting started.
Two years later, they shuttered the Jesse R. Dawson State Jail in Dallas and a pre-parole unit in Mineral Wells. Earlier this year, the criminal justice department closed a privately operated intermediate sanctions facility in Houston that was right next to Minute Maid Park. As the closings continued, inmate population continued to drop, from 156,000 in 2011 to about 146,000 today, according to department spokesman Jason Clark....
It's unclear, though, whether the shuttering trend will continue in Texas. Lawmakers this year did not approve any changes that criminal justice reform advocates said would keep the prison population on the decline. Among the measures lawmakers rejected were proposals to reduce drug offense penalties and to keep 17-year-olds in the juvenile justice system, as most states do, instead of sending them to adult prisons.
July 7, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (2)
Wednesday, June 21, 2017
Notable look at notably tough sentencing patterns in one rural county in Minnesota
Sentencing, like politics, is ultimately always a local story, and this lengthy new MinnPost article takes a deep dive into the notable local sentencing stories of Polk County, Minnesota. The lengthy article is headlined "Why tiny Polk County sends so many people to prison," and here are excerpts:
If you’re planning to commit a crime in Minnesota, you might want to steer clear of Polk County. This county of 32,000, which hugs the Red River on the North Dakota border, is sparsely populated and largely agricultural, save for East Grand Forks, Crookston and a handful of other small cities set between soybean, wheat and sugar beet fields.
Yet in 2014 it sent more people to prison, per capita, than any other county in Minnesota, a county-by-county analysis of National Corrections Reporting Program data by the New York Times and Fordham University found. That year, the most recent for which data are available, prison admission rates in northwestern Minnesota’s Polk County stick out across the upper Midwest, more closely resembling some of the counties that form a prison belt across the U.S., from Indiana to Kentucky, Missouri Arkansas, Oklahoma, Louisiana and Texas, than it does most of its neighbors.
For every 10,000 Polk County residents, 50 people were admitted to prison in 2014, an increase from 22 per 10,000 residents in 2006 and 39 per 10,000 residents in 2013, among the highest in Minnesota both years. The high prison admissions rate in Polk stands in sharp contrast to lower rates in nearby counties and the Twin Cities: In 2014, 12 per 10,000 residents in Hennepin County went to prison and 19 per 10,000 residents in Ramsey did. Neither rate increased by more than 3 per 10,000 people from 2006.
Why is Polk County sending so many people to prison? Ask Polk County officials what’s behind the high rate of imprisonment, and they’ll likely have an answer for you: drugs.
To some extent, the data bear that out. While for the most part crime and arrest rates were stable between 2006 and 2014 in Polk County, drug crimes are a big exception. Drug crimes went from a rate of 38.6 per 10,000 residents in 2006 to 61.9 per 10,000 residents in 2014. Drug-related arrest rates, likewise, more than doubled, from 25 per 10,000 residents in 2006 to 55 per 10,000 people in 2014....
In Minnesota, how felony offenders are punished depends on where they fall on the Sentencing Guideline Commission’s grid.... In theory, the sentencing guidelines bring uniformity to criminal sentencing in Minnesota’s 87 counties and 10 judicial districts. But there’s some room for discretion on the part of prosecutors and judges built into the system, too. While sentencing guidelines are followed in the vast majority of cases, courts are allowed to impose a softer or harsher sentences “when substantial and compelling aggravating or mitigating factors are present.” In some counties, departures are used more frequently than others.
In Polk County, 14 percent of felony drug offenders between 2006 and 2015 received “aggravated dispositional departures” — usually prison instead of the probation called for in the sentencing guidelines. In Beltrami County and Clay counties, 6 percent and 8 percent did, respectively. Statewide, less than 9 percent of felony drug offenders for whom the sentencing guidelines prescribe probation receive prison....
Kip Fontaine, assistant public defender ... noticed what seems to be a disproportionate number of third-degree charges for drug possession in a school zone or park. A person, say, found to be driving through one of these areas with drugs on them would, in most counties, be charged with this crime in the fifth-degree, a lesser charge, Fontaine said. Not necessarily in Polk. According to the Minnesota Sentencing Guidelines Commission, of 83 people with criminal history scores of zero through three sentenced with third-degree possession in a school zone or park in Minnesota between 2011 and 2015, 36 — nearly half — were in Polk County....
Andrew Larson, the executive director of Tri-County Community Corrections, the government agency that provides probation and detention services in Polk, Red Lake and Norman counties, said he senses a difference in philosophy in Polk County, too. “The Polk County Attorney’s Office is just more aggressive in their prosecution than perhaps what the other counties are, and it’s literally that simple. It’s not a matter of one being right or the other being wrong, it’s just a difference,” he said.
UPDATE: In the comments, federalist astutely suggests noting a similar article about case-processing toughness in a rural mid-west county. So: New York Times highlights modern rural incarceration realities
June 21, 2017 in Drug Offense Sentencing, State Sentencing Guidelines, Who Sentences | Permalink | Comments (6)
Friday, June 16, 2017
Historic criminal justice reform signed into law in Louisiana, which has historically been highest incarcerating state
As reported in this local article, "bills signed into law Thursday morning by Gov. John Bel Edwards aim to change Louisiana's reputation as the most imprisoned state in the country." Here are some the sentencing details from the press article (though the folks should be sure to check out this summary of the full package of bills which covers an array of other issues including victim services and reentry concerns):
"With this ambitious package, Louisiana is projected to reduce the prison population by 10 percent and save $262 million over the next decade," according to the bills' package summary [available here]. "Seventy percent of these savings — an estimated $184 million — will be reinvested into programs and policies proven to reduce recidivism and support victims of crime."
The legislation signed into law includes:
Senate Bill 139 [which provides] alternatives to incarceration like drug rehabilitation. Expands probation eligibility to third-time nonviolent offenders, as well as first-time, lower-level violent offenders. It also gives opportunities for release. Consolidates eligibility for parole consideration for prisoners convicted of nonviolent, non-sex offenses at 25 percent of sentence served....
Senate Bill 220 [which alters sentencing rules to make sure law] focuses prison space on serious and violent offenders. It does this by removing less serious crimes to the violent crimes list and merging redundant theft and burglary offenses.
Senate Bill 221 [which addresses] repeat offenders by lowering the mandatory minimum sentence for second and third offenses.
Senate Bill 16 [which provides that] most people sentenced to life as juveniles receive an opportunity for parole consideration after serving a minimum of 25 years in prison.
June 16, 2017 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)