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Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"
The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation." PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:
The U.S. has a staggering 2.3 million people behind bars, but even this number doesn't capture the true scale of our correctional system. For a complete picture of our criminal justice system, it's more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.
The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections). An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration. Only with recent high-profile cases (such as rapper Meek Mill's probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny. Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.
Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system. This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision. Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their "alternatives" to incarceration are working as intended.
For this report, we compiled data on each state's various systems of correctional control to help advocates and policymakers prioritize targets for reform. This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts. In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.
December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)
"Layers of Bias: A Unified Approach for Understanding Problems With Risk Assessment"
The title of this post is the title of this article recently published by the journal Criminal Justice and Behavior and authored by Laurel Eckhouse, Kristian Lum, Cynthia Conti-Cook and Julie Ciccolini. Here is the article's abstract:
Scholars in several fields, including quantitative methodologists, legal scholars, and theoretically oriented criminologists, have launched robust debates about the fairness of quantitative risk assessment. As the Supreme Court considers addressing constitutional questions on the issue, we propose a framework for understanding the relationships among these debates: layers of bias.
In the top layer, we identify challenges to fairness within the risk-assessment models themselves. We explain types of statistical fairness and the tradeoffs between them. The second layer covers biases embedded in data. Using data from a racially biased criminal justice system can lead to unmeasurable biases in both risk scores and outcome measures. The final layer engages conceptual problems with risk models: Is it fair to make criminal justice decisions about individuals based on groups? We show that each layer depends on the layers below it: Without assurances about the foundational layers, the fairness of the top layers is irrelevant.
November 26, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)
"Women's Mass Incarceration: The Whole Pie 2018"
The Prison Policy Initiative has today posted an updated version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how women are incarcerated in the United States. Here is part of the report's introductory text and subsequent discussion:
With growing public attention to the problem of mass incarceration, people want to know about women's experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? How is their experience different from men's? While these are important questions, finding those answers requires not only disentangling the country's decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.
This report provides a detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even broader picture of correctional control. This 2018 update to our inaugural Women's Whole Pie report pulls together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense. The report, produced in collaboration with the ACLU's Campaign for Smart Justice, answers the questions of why and where women are locked up:
In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are much more evenly split between state prisons and local jails. This has serious consequences for incarcerated women and their families.
Women's incarceration has grown at twice the pace of men's incarceration in recent decades, and has disproportionately been located in local jails. The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger scale of men's incarceration....
Looking at the big picture shows that a staggering number of women who are incarcerated are not even convicted: a quarter of women who are behind bars have not yet had a trial. Moreover, 60% of women under local control have not been convicted of a crime and are awaiting trial....
Avoiding pre-trial incarceration is uniquely challenging for women. The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk. The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail. When the typical bail amounts to a full year's income for women, it's no wonder that women are stuck in jail awaiting trial....
So what does it mean that large numbers of women are held in jail — for them, and for their families? While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do. Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted — some jails don't even allow real letters, limiting mail to postcards. This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children. Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women....
Too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses. While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses — including the violent offenses that account for roughly a quarter of all incarcerated women — must be considered in the effort to reduce the number of incarcerated women in this country. This new data on women underlines the need for reform discussions to focus not just on the easier choices but on the policy changes that will have the most impact....
Even the "Whole Pie" of incarceration above represents just one small portion (17%) of the women under correctional supervision, which includes over a million women on probation and parole. Again, this is in stark contrast to the general incarcerated population (mostly men), where a third of all people under correctional control are in prisons and jails.
November 13, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)
Pew reports on persons on probation or parole in US
The folks at Pew have this new posting titled in full "1 in 55 U.S. Adults Is on Probation or Parole: Better strategies can cut that rate while protecting public safety, decreasing drug misuse, and reducing incarceration." Here is how the posting gets started:
More than a decade ago, policymakers around the country seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Because of their high costs and visibility, prisons garnered substantial public attention on criminal justice, while relatively little was paid to the largest part of the correctional system: community supervision.
Probation and parole populations grew 239 percent from 1980 to 2016, and with that came a dramatic rise in the per capita rate of community supervision, which was 1 in 55 U.S. adults — nearly 2 percent — in 2016. Although the community corrections population declined 11 percent since its all-time peak in 2007, it is still twice the size of the population incarcerated in state and federal prisons and local jails, combined. Notably, supervision rates vary considerably by state, from 1 in 18 in Georgia to 1 in 168 in New Hampshire, reflecting the difference in practices and policies across the nation.
This massive scale has too often prevented the community supervision system from effectively delivering on its mission to promote public safety through behavioral change and accountability. Although about half of the roughly 2.3 million people who complete their probation and parole terms each year do so successfully, nearly a third fail for a range of reasons, and almost 350,000 of those individuals return to jail or prison, often for violating the rules rather than committing new crimes.
November 1, 2018 in Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Reentry and community supervision | Permalink | Comments (0)
US Sentencing Commission releases FY 2018 third quarter (repackaged) sentencing data
US Sentencing Commission has now released here its "3rd Quarter ... Preliminary Fiscal Year 2018 Data." As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has altered how it accounts and reports sentencing data. This new data run explains "the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances." As I see it, this means within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances are broken out distinctly.
As I have said before, nothwithstanding this repackaging aside, we can still look at the "within-guideline" number on Tables 8 and 8A for direct comparisons on this front between the first three quarters of of FY 2018 and all federal sentencing data from the last full year of the Obama Administration (in this FY 2016 data report). Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50.5% in the first three-quarters of FY 2018. Without a more intricate and sophisticated analysis controlling for caseloads and other factors, this upward movement in within-guideline sentences does not alone provide conclusive evidence that "Trump era" changes in prosecutorial policies and practices is having a direct impact on federal sentencing outcomes. But these new data continue to be suggestive of trends to watch as more cases more through the pipeline and as new federal prosecutors and judges are impacted by new commands and advocacy from Main Justice.
Prior related post:
US Sentencing Commission releases mid-FY 2018 sentencing data with re-engineered accounting of departures and variances
October 30, 2018 in Booker in district courts, Criminal justice in the Trump Administration, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
"Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell"
The title of this post is the title of this big new report now available here via SSRN. Here is its abstract:
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is "restrictive housing," often termed "solitary confinement," and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.
The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of the U.S. prison population. They reported that 49,197 individuals — 4.5% of the people in their custody — were in restrictive housing. Extrapolating, we estimate that some 61,000 individuals were in isolation in U.S. prisons. This number does not include people in most jails or juvenile, military, or immigration facilities.
Two areas of special concern are the impact of mental illness and the length of time individuals spend in restrictive housing. Correctional systems use a variety of definitions for serious mental illness. Using their own descriptions, jurisdictions counted more than 4,000 prisoners identified as seriously mentally ill and in restrictive housing. Within the 36 jurisdictions that reported on the length of time people had been in segregation, most people were held for a year or less. Twenty-five jurisdictions counted more than 3,500 individuals held more than three years.
Reforming Restrictive Housing details policy changes tracking the impact of the 2016 American Correctional Association's (ACA) Restrictive Housing Performance Based Standards. The ACA Standards call for limiting the use of isolation for pregnant women, juveniles, and seriously mentally ill individuals.
This monograph also compares the responses of the 40 prison systems that answered the ASCA-Liman surveys in both 2015 and 2017. See ASCA-Liman, Aiming to Reduce Time-in-Cell (Nov. 2016), SSRN No. 2874492. The number in restrictive housing was reported to have decreased from 56,000 in 2015 to 47,000 in 2017. Looking at specific states, in more than two dozen systems, the numbers in segregation decreased. In 11 systems, the numbers went up.
A related monograph, Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes, details the work of four correctional administrations to limit — and in one state abolish — holding people in cells 22 hours a day for 15 days or more.
October 21, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)
"Evidence-Informed Criminal Justice"
The title of this post is the title of this notable new paper by Brandon Garrett now available via SSRN. Here is its abstract:
The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President's Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along the lines of the National Institutes of Health. Following the report, police agencies continued to base their practices on conventional wisdom or "tried-and-true" methods. Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials. Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control. Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors. Very little data existed to test what worked for police or prosecutors, or to protect individual defendants' rights.
Today, criminal justice actors are embracing more data-driven approaches. This raises new opportunities and challenges. A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community. Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice. This Article explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.
October 17, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)
"How Statistics Doomed Washington State's Death Penalty"
The title of this post is the title of this new commentary at The Atlantic by Garrett Epps. Here is an excerpt (with links from the original):
Last week, the Washington Supreme Court, in a fairly pointed opinion, declared that, at least in its jurisdiction, numbers have real meaning. And to those who have eyes to see, numbers make clear the truth about death-sentencing: It is arbitrary and racist in its application.
The court's decision was based on two studies commissioned by lawyers defending Allen Gregory, who was convicted of rape and murder in Tacoma, Washington, in 2001 and sentenced to death by a jury there. The court appointed a special commissioner to evaluate the reports, hear the state's response, and file a detailed evaluation. The evidence, the court said, showed that Washington counties with larger black populations had higher rates of death sentences—and that in Washington, "black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants." Thus, the state court concluded, "Washington's death penalty is administered in an arbitrary and racially biased manner" — and violated the Washington State Constitution's prohibition on "cruel punishment."
The court's opinion is painstaking — almost sarcastic — on one point: "Let there be no doubt — we adhere to our duty to resolve constitutional questions under our own [state] constitution, and accordingly, we resolve this case on adequate and independent state constitutional principles." "Adequate and independent" are magic words in U.S. constitutional law; they mean that the state court's opinion is not based on the U.S. Constitution, and its rule will not change if the nine justices in Washington change their view of the federal Eighth Amendment. Whatever the federal constitutionality of the death penalty, Washington state is now out of its misery.
Last spring, a conservative federal judge, Jeffrey Sutton of the Sixth Circuit, published 51 Imperfect Solutions: States and the Making of American Constitutional Law, a book urging lawyers and judges to focus less on federal constitutional doctrine and look instead to state constitutions for help with legal puzzles. That's an idea that originated in the Northwest half-a-century ago, with the jurisprudence of former Oregon Supreme Court Justice Hans Linde. It was a good idea then and it's a good idea now. State courts can never overrule federal decisions protecting federal constitutional rights; they can, however, interpret their own state constitutions to give more protection than does the federal Constitution. There's something bracing about this kind of judicial declaration of independence, when it is done properly.
Prior related posts:
Washington Supreme Court strikes down state's death penalty based on its arbitrary administration
Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)
October 15, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Noting the latest data on use of solitary confinement in the US
This recent post at Reason, titled "U.S. Prisons Held At Lest 61,000 Inmates in Solitary Confinement Last Year," by C.J. Ciaramella reports on the latest accounting of extreme version of incarceration in the US. I recommend the full post, which starts this way:
The number of U.S. prison inmates held in solitary confinement has dropped over the past five years, according to a new report, but an estimated 61,000 people last year still faced imprisonment in tiny cells for up to 22 hours a day in conditions that many former inmates, mental health professionals, and at least one sitting U.S. Supreme Court justice say amount to torture.
A longitudinal survey co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center for Public Interest Law at Yale Law School found that, in the federal prison system and 43 state prison systems that provided data, 49,000 inmates in the fall of 2017 were confined to what is commonly known as "solitary." Extrapolating for the remaining states, the study estimates the total number to be 61,000.
The census asked jurisdictions to report, as of the fall of 2017, both their total prison populations and the number of prisoners held in restrictive housing. It includes federal and state inmates placed in any form of "restricted housing" for at least 22 hours a day for more than 15 consecutive days. In 2011, the United Nations Special Rapporteur on torture concluded that solitary confinement beyond 15 days constituted cruel and inhumane punishment.
Nationally, the use of solitary confinement appears to be dropping. In 2016, there were at least 67,000 inmates in solitary, according to the survey, and in 2014, there were 80,000 to 100,000. Those numbers are all self-reported by jails and prisons—there are no mandatory nationwide reporting requirements on solitary—and are very likely an undercount.
The study's authors attribute the reduction to stricter state requirements for when inmates can be sent to solitary and how long they may be kept there. Colorado, for instance, has almost completely eliminated its use of solitary confinement. The Obama administration also banned the use of solitary confinement for juveniles in the federal prison system and limited the amount of time adults can spend in solitary. "But the picture is not uniform," the ASCA warned in a press release. "In more than two dozen states, the numbers of prisoners in restrictive housing decreased from 2016 to 2018, but in eleven states, the numbers went up."
"Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina's Outsized Death Row"
The title of this post is the title of a new report from the Center for Death Penalty Litigation. Here is a summary of the report from this page at the CDPL website:
The death penalty is all but extinct in North Carolina. Juries have recommended only a single new death sentence in the past four years. The state hasn't carried out an execution since 2006. Yet, North Carolina has the sixth largest death row in the nation, with more than 140 men and women. It is a relic of another era.
More than 100 of N.C.'s death row prisoners — about three-quarters — were sentenced in the 1990s, under wildly different laws. During those years, North Carolina juries sent dozens of people a year to death row, more than Texas. The state's courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.
Beginning in 2001, after investigations and DNA testing began to reveal innocent people on death row, a wave of reforms transformed the landscape. New laws guaranteed capital defendants such basic rights as trained defense attorneys and the right to see all the evidence in their cases. A court mandate requiring prosecutors to seek death for virtually every first-degree murder — the only such requirement in the nation — was ended.
Today, the death penalty is seen as a tool to be used sparingly, instead of a bludgeon to be wielded in virtually every first-degree murder case. Yet, new laws and shifting public opinion have had little impact on prisoners sentenced in another era. The bulk of North Carolina's death row is now made up of people who were tried 15, 20, even 25 years ago. They are prisoners of a state that has moved on, but has refused to reckon with its past.
CDPL's report, Unequal Justice, finds that out of 142 death row prisoners in North Carolina:
92% (131) were tried before a 2008 package of reforms intended to prevent false confessions and mistaken eyewitness identifications, which have been leading causes of wrongful convictions across the country. The new laws require interrogations and confessions to be recorded in homicide cases and set strict guidelines for eyewitness line-up procedures.
84% (119) were tried before a law granting defendants the right to see all the evidence in the prosecutor's file — including information that might help reduce their sentence or prove their innocence.
73% (104) were sentenced before laws barring the execution of people with intellectual disabilities. Despite a promise of relief for these less culpable defendants, disabled prisoners remain on death row.
73% (103) were sentenced before the creation of a statewide indigent defense agency that drastically improved the quality of representation for poor people facing the death penalty, and a law ending an unprecedented requirement that prosecutors pursue the death penalty in every aggravated first-degree murder. Before these changes, prosecutors did not have the ability to seek life sentences in these cases and poor people often received a sub-standard defense.
October 10, 2018 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)
Attorney General Jeff Sessions boasts about federal prosecutors now "running up the score against the criminals"
As of September 27, 2018, the federal prison population was reported at 181,726, the lowest level in more than a dozen years. But this new speech that Attorney General Jeff Sessions delivered today in Utah suggests it may be only a matter of time before this population is heading up again. Here is an excerpt that leads me to this view:
Forging new relationships with local prosecutors and building on existing relationships will ensure that the most violent offenders are prosecuted in the most appropriate jurisdiction. Our goal is not to fill up the courts or fill up the prisons. Our goal is to reduce crime, just as President Trump directed us to do. Our goal is to make every community safer — especially the most vulnerable....
Our prosecutors in Utah are running up the score against the criminals. They charged 29 percent more defendants in 2017 than they did in 2014. That includes 64 percent more drug trafficking defendants, 44 percent more violent crime defendants, and 40 percent more illegal re-entries....
In 2018, the Department of Justice prosecuted more violent criminals than in any year on record. At the same time, we charged the highest number of federal firearm defendants in history. Fully 41 percent more gun defendants were prosecuted in fiscal year 2017 than they were just five years before.
This past year we broke our own record — and it wasn't even close. Over the last fiscal year — October 1 of 2017 up to September 30, 2018 — the Department of Justice brought charges against 15 percent more violent crime defendants than we did in the previous, record-breaking year. That's 20 percent more violent crime defendants than we charged in fiscal 2016.
We also charged nearly 20 percent more firearm defendants than we did in 2017 and 30 percent more than we charged in 2016. We've been so tough on illegal guns that we're actually getting attacked in the press for it — if you can believe that.
Here's what the critics don't understand: we are going after violent felons. We are targeting the most dangerous people in the most violent areas who have guns....
Law enforcement pays dividends — because when we have safer streets, businesses are more likely to invest and create jobs, property values go up, and the people we serve are more likely to flourish. And so we are going to keep up this pace. We are going to keep supporting Utah's state and local police. We're going to keep arming them with the tools, resources, and expertise that they need to protect the people of this city and this state.
October 3, 2018 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)
Interesting look at data collection and use in prosecutorial decision-making
The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors' Offices." Here is how it starts and concludes:
Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers. How much data are prosecutors collecting? How are they using data (if at all), and how has that helped decisionmaking? What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data? In early 2018, the Urban Institute surveyed prosecutors' offices across the country to seek answers to these questions. Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....
Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes. The findings presented here demonstrate that many prosecutors' offices collect and use data throughout the case decisionmaking process, from screening to sentencing. And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices. Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data. A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so. Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.
The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics. By increasing data collection efforts, and later using that data in decisionmaking, prosecutors' offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.
September 26, 2018 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)
New Pew issue brief reviews probation and parole in the US
The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":
Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s. Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states. Yet this movement has largely overlooked the largest part of the correctional system: community supervision.
Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails. The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability. Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.
As part of a collaborative effort to improve the nation's community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions. The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision. Among the findings:
Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....
Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....
Policy changes can reduce correctional control and improve public safety.
These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public. They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.
September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)
US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses
Via email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions. This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage. Here are excepts from the summary:
This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....
Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.
Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....
The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....
Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.
In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....
In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....
The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....
The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.
Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....
Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group. In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).
Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).
Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.
September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)
Spotlighting ever-increasing overdose casualties amidst the last four decades of the war on drugs
A new article in Science presents some notable data and observations about drug overdoses over the last 40 years in the US. This article by six public health researchers is titled "Changing dynamics of the drug overdose epidemic in the United States from 1979 through 2016." Here is its full abstract:
The epidemic of substance use disorders and drug overdose deaths is a growing public health crisis in the United States. Every day, 174 people die from drug overdoses. Currently, opioids (including prescription opioids, heroin, and synthetic opioids such as fentanyl and its chemical analogs) are the leading cause of overdose deaths. The overdose mortality data can reveal the complex and evolving dynamics of drug use in the United States.
Reports on the U.S. drug overdose epidemic tend to focus on changes in yearly statistics. Improved understanding of the long-term dynamics of the overdose epidemic may aid in the development of more effective epidemic prevention and control strategies. At present, there are no reliable methods to forecast the likely future course of the epidemic. We focused on deaths from overdoses as a relatively reliable metric of the epidemic because all deaths are required to be reported in all U.S. states and territories using the standardized International Classification of Diseases. In an effort to understand the epidemic dynamics and perhaps predict its future course, we analyzed records of 599,255 deaths from 1979 through 2016 from the National Vital Statistics System where unintentional drug poisoning was identified as the main cause of death. We examined the time course of the overall number of deaths; the contributions of individual drugs (prescription opioids, heroin, synthetic opioids like fentanyl, methadone, cocaine, methamphetamine) to the overall curve; changes in the populations most affected by each drug as measured by demographic factors of age, sex, race, and urbanicity; and changes in the geographic distribution of deaths due to each drug as measured by the county of residence of each decedent.
The overall mortality rate for unintentional drug poisonings in the United States grew exponentially from 1979 through 2016. This exponentially increasing mortality rate has tracked along a remarkably smooth trajectory (log linear R2 = 0.99) for at least 38 years (left panel). By contrast, the trajectories of mortality rates from individual drugs have not tracked along exponential trajectories. Cocaine was a leading cause in 2005–2006, which was overtaken successively by prescription opioids, then heroin, and then synthetic opioids such as fentanyl. The demographic patterns of deaths due to each drug have also shown substantial variability over time. Until 2010, most deaths were in 40- to 50-year-old persons, from cocaine and increasingly from prescription drugs. Deaths from heroin and then fentanyl have subsequently predominated, affecting younger persons, ages 20 to 40 (middle panel). Mortality rates for males have exceeded those for females for all drugs. Rates for whites exceeded those for blacks for all opioids, but rates were much greater among blacks for cocaine. Death rates for prescription drugs were greater for rural than urban populations. The geographic patterns of deaths also vary by drug. Prescription opioid deaths are widespread across the United States (right panel), whereas heroin and fentanyl deaths are predominantly located in the northeastern United States and methamphetamine deaths in the southwestern United States. Cocaine deaths tend to be associated with urban centers. The online manuscript provides many details of the patterns of mortality in these data.
The U.S. drug overdose epidemic has been inexorably tracking along an exponential growth curve since at least 1979. Although there have been transient periods of minor acceleration or deceleration, the overall drug overdose mortality rate has regularly returned to the exponential growth curve. This historical pattern of predictable growth for at least 38 years suggests that the current opioid epidemic may be a more recent manifestation of an ongoing longer-term process. This process may continue along this path for several more years into the future. Paradoxically, there has been substantial variability with which specific drugs have become dominant in varying populations and geographic locales. This variability all but negates the possibility of confident predictions about the future role of specific drugs. Indeed, it is possible that a future overdose epidemic may be driven by a new or obscure drug that is not among the leading causes of drug overdose death today. Understanding the forces that are holding multiple subepidemics together onto a smooth exponential trajectory may be important in revealing, and effectively dealing with, the root causes of the epidemic.
Critically, this article makes no effort to suggest any link between overdose data and modern criminal law enforcement efforts described as the "war on drugs." But I still find remarkable that these data in the article start with a relatively low overdose rate right before the Reagan Administration kicked the war on drugs into high gear. If preventing or reducing deaths from drug overdoses is one goal of the the drug war, this article spotlights just how poorly we have been doing on this particular front of the war over the last four decades.
Recent prior related post:
The latest argument for "overhauling the [DEA], or even getting rid of it entirely."
September 21, 2018 in Data on sentencing, Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing | Permalink | Comments (1)
Brennan Center reports on encouraging 2018 crime data based on preliminary data from largest 30 US cities
The folks at the Brennan Center for Justice have this notable new report, titled "Crime and Murder in 2018: A Preliminary Analysis," which finds that "across the cities where data is available, the overall murder and crime rates are projected to decline in 2018." Here is more from the start of the short and heartening report:
This report analyzes available crime data from police departments in the 30 largest U.S. cities. It finds that across the cities where data is available, the overall murder and crime rates are projected to decline in 2018, continuing similar decreases from the previous year. This report is based on preliminary data and is intended to provide an early snapshot of crime in 2018 in the 30 largest cities. This data will be updated in later reports.
Declines in homicide rates appear especially pronounced in cities that saw the most significant spikes during 2015 and 2016. These findings directly undercut claims that American cities are experiencing a crime wave. Instead, they suggest that increases in the murder rate in 2015 and 2016 were temporary, rather than signaling a reversal in the long-term downward trend....
Murder: The 2018 murder rate in these cities is projected to be 7.6 percent lower than last year. This estimate is based on data from 29 of the nation's 30 largest cities. This murder rate is expected to be approximately equal to 2015's rate, near the bottom of the historic post-1990 decline....
Overall Crime: At the time of publication, full crime data — covering all Part I index crimes tracked by the FBI — were only available from 19 of the 30 largest cities. (Past Brennan Center reports included, on average, 21 cities.) In these cities, the overall crime rate for 2018 is projected to decrease by 2.9 percent, essentially holding stable. If this estimate holds, this group of cities will experience the lowest crime rate this year since at least 1990. These findings will be updated with new data when available.
This report does not present violent crime data because the authors could not collect sufficient data by the time of publication.
September 20, 2018 in Data on sentencing, National and State Crime Data | Permalink | Comments (0)
Reviewing the continued ugly realities of the application of the Armed Career Criminal Act
Running this week at The Appeal is this notable piece with stories and data on the application of the federal Armed Career Criminal Act. The piece is headlined in full "Man Sentenced As 'Career Criminal' Gets His First Chance At Freedom In 48 Years: Despite a 2015 Supreme Court ruling limiting the mandatory minimum law, few people are seeing relief." I recommend the piece in full, and found this data discussion especially interesting:
A run of Supreme Court decisions capped by the 2015 ruling brought relief to some prisoners who were sentenced under ACCA. The ruling found part of the act to be unconstitutionally vague — it wasn't clear what qualified a defendant as a "career criminal." The decision made hundreds of prisoners serving ACCA-enhanced sentences eligible for resentencing.
The Supreme Court limited the prior convictions that qualified a person for sentencing under the act. It did not eliminate prosecutors' ability to seek ACCA-enhanced sentences, and U.S. attorney's offices in a handful of jurisdictions continue to regularly use the enhancement against defendants with prior convictions for drug dealing and qualifying violent crimes....
Three years after the Supreme Court decision, prosecutors continue to use ACCA mandatory sentences in patterns that vary significantly from state to state. Whether a defendant faces an ACCA sentence depends on who is prosecuting. Prosecutors in California won just one ACCA sentence in 2016, while New York had only two prosecutions. Florida had 61; Missouri had 29 and Tennessee had 26. Washington state had one ACCA prosecution in 2016.
"It is incredibly arbitrary," said Molly Gill, vice president for policy at FAMM, an advocacy organization opposed to mandatory sentences. "One of the ideas behind mandatory minimums … is that they increase the certainty of punishment," Gill told The Appeal. "When you look at how the law's applied, that's really not true."
Black defendants are far more likely to receive ACCA-enhanced sentences. According to U.S. Sentencing Commission statistics, 70 percent of defendants sentenced under the act in 2016 were Black. Whites, who outnumbered Black defendants that year, accounted for 24 percent of ACCA-enhanced sentences.
Severe sentences and mandatory minimums have long been faulted as unnecessary; the U.S. Sentencing Commission found them onerous and inconsistently applied. They also deliver a compelling advantage to prosecutors during negotiations.
Questioning the government during oral arguments in Johnson v. United States, the case that resulted in the 2015 ruling, Chief Justice John Roberts commented that defendants facing a 15-year minimum will take a deal. "You said … because there are so many years involved, people will litigate hard," Roberts remarked to Deputy Solicitor General Michael Dreeben during the April 2015 hearing. "I think because there are so many years involved, people won't litigate at all. … It gives so much more power to the prosecutor in the plea negotiations."
About 97 percent of defendants convicted in federal court plead guilty prior to trial. Though ACCA sentences have been declining in recent years, 304 people were sentenced under the act in 2016.
September 15, 2018 in Data on sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3)
"Can We Downsize Our Prisons and Jails Without Compromising Public Safety? Findings from California's Prop 47"
The title of this post is the title of this new article in Criminology & Public Policy authored by Bradley Bartos and Charis Kubrin. Here is its abstract:
Our study represents the first effort to evaluate systematically Proposition 47's (Prop 47's) impact on California's crime rates. With a state‐level panel containing violent and property offenses from 1970 through 2015, we employ a synthetic control group design to approximate California's crime rates had Prop 47 not been enacted. Our findings suggest that Prop 47 had no effect on homicide, rape, aggravated assault, robbery, or burglary. Larceny and motor vehicle thefts, however, seem to have increased moderately after Prop 47, but these results were both sensitive to alternative specifications of our synthetic control group and small enough that placebo testing cannot rule out spuriousness.
Policy Implications
As the United States engages in renewed debates regarding the scale and cost of its incarcerated population, California stands at the forefront of criminal justice reform. Although California reduced its prison population by 13,000 through Prop 47, critics argue anecdotally that the measure is responsible for recent crime upticks across the state. We find little empirical support for these claims. Thus, our findings suggest that California can downsize its prisons and jails without compromising public safety.
The authored of this research also have this new commentary in Governing headlined "The Myth That Crime Rises as Prisons Shrink: California's dramatic reduction in its prison populations hasn't compromised public safety." Here is an excerpt:
Approved by the voters in 2014, Prop 47 was controversial from the start. It downgraded the lowest-level non-violent drug and petty-theft crimes from felonies to misdemeanors. Critics warned that the measure would embolden would-be criminals as felony arrests throughout the state plummeted. After Prop 47 went into effect in 2014, lowering prison populations by 13,000, that controversy only escalated. Soon law-enforcement officials were calling for the measure to be repealed. They blamed rising crime rates on Prop 47.
But the science doesn't support the assertion that Prop 47 is to blame. We recently published a study that was the first effort to systematically evaluate Prop 47's impact on crime in California. Our research found that the proposition had no appreciable impact on crime in the year following its enactment.
September 13, 2018 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Scope of Imprisonment | Permalink | Comments (2)
Noting the uptick in federal gun prosecutions
This Courthouse News Service piece, headlined "Trump Administration Steps Up Prosecution of Gun Crimes," reports on and contextualizes this recent TRAC data report titled "Weapons Prosecutions Continue to Climb in 2018." Here are excerpts from the press piece:
Though Donald Trump ran on a pro-gun, Second Amendment platform, a recent study from Syracuse University shows the administration has stepped up prosecutions of weapons offenses, bringing 8,403 such cases in the first 10 months of fiscal year 2018, a 22.5 percent increase from the previous year.
TRAC Reports, a data-gathering organization at Syracuse University, also reported last week that that nation's 94 U.S. Attorney's Offices have prosecuted 41.3 percent more weapons cases than they did 5 years ago, under the Obama Administration.
Attorney General Jeff Sessions told the National District Attorneys Association in July 2017: "I want to see a substantial increase in gun crime prosecutions. I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime."
The Bureau of Alcohol, Tobacco and Firearms handles the lion's share of prosecutions, the TRAC study said: 64 percent of the prosecutions were recommended by BATF....
In addition to prosecuting people who use guns during crimes, Sessions said prosecutors also are targeting people who are prohibited from owning firearms, such as felons, and guns that are illegal in themselves, such as those with serial numbers scratched off....
However, David Kennedy, director of the National Network for Safe Communities at John Jay College, said the focus on prosecuting federal firearms offenses to too simplistic, because U.S. Attorney's Offices do too little on their own to deter crime. Most gun crimes are first handled by state and federal law enforcement, Kennedy said, and federal attorneys prosecute the cases they choose to adopt, which is a fraction of the larger pool of gun-related offenses.
"What goes to federal and what doesn't is effectively completely unpredictable on the street," Kennedy told Courthouse News. "So if you're somebody walking around in the community and you're thinking whether or not to carry a gun or whether to commit a gun crime, you may not even know that the federal policy has changed. If you're not aware that the U.S. attorney is taking more of these cases, it's not going to affect your behavior."
By the time charges are leveled and the accused is standing in a federal courtroom, it's too late for them to change their behavior, Kennedy said. He said one unintended consequence of focusing on firearm prosecutions is that young, urban black men are overwhelmingly targeted by prosecutors, which makes the communities in which they live more distrustful of police and law enforcement.
Instead of focusing on gun prosecution, Kennedy said, it would be more effective if law enforcement seeks to identify the people most likely to commit violent crime and engage in outreach. He cited Oakland, California's Operation Ceasefire, which identified the less-than 1 percent of Oakland residents who were associated with two-thirds of the city's gun violence and provided them with coaching, social services, jobs and other assistance.
September 6, 2018 in Data on sentencing, Gun policy and sentencing, Who Sentences | Permalink | Comments (0)
"Decarceration Strategies: How 5 States Achieved Substantial Prison Population Reductions"
The title of this post is the title of this new 50-page report by The Sentencing Project. Here is the start of its executive summary:
From 1980 until its peak in 2009, the total federal and state prison population of the United States climbed from about 330,000 to more than 1.6 million — a nearly 400% increase — while the total general population of the country grew by only 36%, and the crime rate fell by 42%. The catalyst of this prison expansion was policy changes that prioritized "getting tough" on crime.
The national prison population began a gradual descent after 2009, lessening by nearly 113,000 (6%) from 2009 through 2016. Several factors contributed to this decline: ongoing decreases in crime rates leading to fewer felony convictions; scaling back "war on drugs" policies; increased interest in evidence-based approaches to sentencing and reentry; and growing concerns about the fiscal cost of corrections and its impact on other state priorities. The state of California alone was responsible for 36% of the overall population decline, a function of a 2011 U.S. Supreme Court ruling declaring its overcrowded prison system to be unconstitutional and subsequent legislative responses to reduce the use of state incarceration.
Despite the decline, the overall pace of change is quite modest. A recent analysis documents that at the rate of change from 2009 to 2016 it will take 75 years to reduce the prison population by half. And while 42 states have experienced declines from their peak prison populations, 20 of these declines are less than 5%, while 8 states are still experiencing rising populations.
To aid policymakers and criminal justice officials in achieving substantial prison population reductions, this report examines the experience of five states – Connecticut, Michigan, Mississippi, Rhode Island, and South Carolina — that have achieved prison population reductions of 14-25%. This produced a cumulative total of 23,646 fewer people in prison with no adverse effects on public safety. (While a handful of other states have also experienced significant population reductions — including California, New York, and New Jersey — these have been examined in other publications, and so are not addressed here.
The five states highlighted in this report are geographically and politically diverse and have all enacted a range of shifts in policy and practice to produce these outcomes. All five were engaged in the Justice Reinvestment Initiative process, spearheaded by the Pew Charitable Trusts and the Council on State Governments, which was designed to work with stakeholders to respond to the driving forces of prison expansion in each state and to develop strategies for change in policy and practice.
This report seeks to inform stakeholders in other states of the range of policy options available to them for significantly reducing their prison population. While we provide some assessment of the political environment which contributed to these changes, we do not go into great detail in this area since stakeholders will need to make their own determinations of strategy based on the particularities of their state. We note, though, that the leaders of reform varied among states, and emerged among governors, legislators, criminal justice officials, and advocacy organizations, often benefiting from media coverage and editorial support.
The prison population reductions in these five states were achieved through data-driven policy reforms that pursued bipartisan consensus. Changes were advanced in the areas of risk and needs assessment, community supervision, alternatives to incarceration, sentencing and sanctions, prison release mechanisms, prisoner reentry and community reintegration.
Five key strategies and practices that were employed in these states are summarized below, followed by extensive reviews for each of the five states.
September 5, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)
Noticing latest USSC data on retroactive impact of "drugs -2" guideline amendment
Just before the long weekend, I saw that the US Sentencing Commission's website has this new data document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated August 2018, provides updated "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782. The data in this report reflects all motions decided through July 31, 2018, and for which court documentation was received, coded,and edited at the Commission by August 23, 2018."
The official data in the report indicate that, thanks to the USSC's decision to make Amendment 782 (the so-called "drugs -2" guideline amendment) fully retroactive, now 31,381 federal prisoners have had their federal drug prison sentences reduced by an average of 25 month. (Notably, this federal register document reports that the "average cost of incarceration for Federal inmates was $34,704.12 ($94.82 per day) in FY 2016 and $36,299.25 ($99.45 per day) in FY 2017." This "average cost" number is a very imperfect proxy for the actual prison cost savings from reduced sentences resulting from the retroactive drugs-2 guideline amendment, but it suggests federal taxpayers have saved billions in prison costs thanks to drugs -2 retroactivity.)
Among other impacts, the the drugs -2 amendment and its retroactivity are likely key contributors to a continued decline in the federal prison population. The amendment was in 2014, and its retroactivity became effective in November 2015. In Fiscal Year 2014, the federal prison population clocked in at 214,1495, and in Fiscal Year 2015 the federal prison population was down to 205,723. By Fiscal Year 2016, the federal prison population dropped all the way down to 192,170; by Fiscal Year 2017, the federal prison population was down further to 185,617. As as of August 30, 2018, the federal prison population was at 182,797. (All theses data come from this Bureau of Prisons webpage.) I keep expecting and waiting for the policies and practices of Attorney General Jeff Sessions to turn around this recent steady decline in the federal prison population, but is seems the "drugs -2" guideline amendment, its retroactivity and other forces have keep a downward pressure on the federal prison population for the time being.
September 3, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (2)
"Prosecuting in the Shadow of the Jury"
The title of this post is the title of this new paper authored by Anna Offit available via SSRN. Here is its abstract:
This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors' decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants.
By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors. Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States. Part II describes the ethnographic research method deployed in this case study, noting its unique capacity to document off the record decision-making practices. Part III presents the empirical findings of this study with attention to how hypothetical jurors inform prosecutors' evaluations of their cases, evidence, investigations, and plea agreement discussions. Part IV considers several explanations for hypothetical jurors' perceived relevance to prosecutors' work beyond their instrumental and strategic value. Part V concludes that the U.S. Attorney's Office that is the subject of this study models the democratizing potential of lay decision-makers, even in hypothetical form. This finding contributes a novel rationale for fortifying the U.S. jury system and a novel perspective to the study of prosecutorial ethics.
September 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)
"More Cops, Fewer Prisoners?"
The title of this post is the title of this notable new paper authored by Jacob Kaplan and Aaron Chalfin now available via SSRN. Here is the abstract:
A large literature establishes that hiring police officers leads to reductions in crime and that investments in police are a relatively efficient means of crime control compared to investments in prisons. One concern, however, is that because police officers make arrests in the course of their duties, police hiring, while relatively efficient, is an inevitable driver of "mass incarceration." This research considers the dynamics through which police hiring affects downstream incarceration rates.
Using state-level panel data as well county-level data from California, we uncover novel evidence in favor of a potentially unexpected and yet entirely intuitive result — that investments in law enforcement are unlikely to markedly increase state prison populations and may even lead to a modest decrease in the number of state prisoners. As such, investments in police may, in fact, yield a "double dividend" to society, by reducing incarceration rates as well as crime rates.
August 29, 2018 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (4)
"America's Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"
The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN. Here is its abstract:
Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse. Despite the advent of a supposed "public health" approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow. Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.
This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities. By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis. Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects. Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as "dealers."
Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events. This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America's history.
UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called 'Bad Justice Policy'."
August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)
New research finds racial bias infects sex-offender classification system under SORNA
A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:
The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review. African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.
Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals. "Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period," the study found, adding that 15 percent of "Tier 1" offenders were under-classified, meaning their threat-level was underestimated.
The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act. The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to "dangerousness." Tier designation is determined by prior offenses and the severity of the charge and conviction....
The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that "black defendants are less likely to accept a plea deal due to mistrust in the system…" Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.
The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:
Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders. This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.
Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system. Implications for communities and the continued use of the SORNA are presented.
August 17, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)
"Nowhere to Go: Homelessness among formerly incarcerated people"
The title of this post is the title of this notable new Prison Policy Initiative report which gets started this way:
It's hard to imagine building a successful life without a place to call home, but this basic necessity is often out of reach for formerly incarcerated people. Barriers to employment, combined with explicit discrimination, have created a little-discussed housing crisis.
In this report, we provide the first estimate of homelessness among the 5 million formerly incarcerated people living in the United States, finding that formerly incarcerated people are almost 10 times more likely to be homeless than the general public. We break down this data by race, gender, age and other demographics; we also show how many formerly incarcerated people are forced to live in places like hotels or motels, just one step from homelessness itself.
August 15, 2018 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)
Highlighting how many states have the death penalty in the books without an active execution chamber
John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven't used it in more than a decade." Here are excerpts (with a few facts highlighted):
Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997. The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.
Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment. But 11 of the states that allow executions — along with the federal government and the U.S. military — haven't had one in at least a decade.
Nebraska, in fact, is among seven states that have the death penalty but haven't carried out an execution in at least 15 years. New Hampshire hasn't executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999). Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).
The last federal execution also took place more than 15 years ago, in March 2003. While the U.S. military retains its own authority to carry out executions, it hasn't done so since 1961.
All 11 states that have the death penalty but haven't used it in at least a decade have inmates on death row, as do the federal government and U.S. military. The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.
California's death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states. The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....
The federal government's death row has also grown substantially since the last federal execution. There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government's most recent execution).
I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again. But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out. As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades. Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed. But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.
August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (4)
"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"
The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:
At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk. In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.
Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary "black-box" algorithms, not transparent at all. For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age. We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender's age plays in the risk calculation. Failing to reveal that a stigmatic label such as "high risk of violent crime" is due primarily to a defendant's young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.
August 13, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)
Rounding up a few notable recent commentaries
Will I was on the road last week, I saw a lot of interesting commentaries that I might have blogged had I had regular internet access. Instead, now that I am back on-line, I will be content with this round-up of commentary headlines and links:
David Eads, "Too Many Politicians Misuse and Abuse Crime Data"
Craig DeRoche, "The Church Should Push Federal Criminal Justice Reform Bill to the Finish Line"
Tim Head, "FIRST STEP Act is smart legislation — perfect for prison reform"
Glenn Harlan Reynolds, "The next step in criminal justice reform is fewer laws"
Bruce Western, "Violent offenders, often victims themselves, need more compassion and less punishment"
August 12, 2018 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)
"Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons"
The title of this post is the title of this new report from The Sentencing Project. Here is part of its "Overview" and "Key Findings":
From 2000 to 2016 the number of people housed in private prisons increased five times faster than the total prison population. Over a similar timeframe, the proportion of people detained in private immigration facilities increased by 442 percent.
The federal government and 27 states utilized private prisons operated by for-profit and non-profit entities during 2016. New Mexico and Montana led the nation in their reliance on private prisons with 43 percent and 39 percent of their prison populations, respectively, housed within them (See Table 2). Between 2000 and 2016, eight states – Arkansas, Kentucky, Maine, Michigan, Nevada, North Dakota, Utah and Wisconsin -- eliminated their use of private prisons due to concerns about safety and cost cutting. In 2016, Louisiana changed the classification of its contracted beds and reported its private prison population as zero for the first time during this period. Alternatively, five states -- Alabama, Connecticut, Pennsylvania, South Carolina and Vermont -- began contracting with private prisons between 2000 and 2016.
The federal government is the single largest user of private prisons in the United States but has reduced its population in private prisons in recent years. However, in 2017 Attorney General Jeff Sessions withdrew an Obama-era directive to phase out private prison contracting because of concern for the federal correctional system's ability "to meet future needs."
This report provides a portrait of private prisons as a component of the American corrections landscape and assesses its impact on mass incarceration. Among its most striking features is the broad variation found across jurisdictions in reliance on private prisons. As outlined in the state case studies examining the history of prison privatization in Florida, New Mexico, New York, North Carolina and Texas (available in the appendix), those corrections systems most committed to the industry have faced controversy, including riots, deaths, and allegations of improper financial influence from for-profit prison companies....
• Of the total U.S. prison population, one in 12 people (128,063) was incarcerated in private prisons in 2016; an increase of 47 percent since 2000.
• 26,249 people were also confined in privately-run immigration detention facilities in fiscal year 2017; a 442 percent increase since 2002.
• Federal prisons incarcerated the largest number of people in private prisons, 34,159, marking a 120 percent increase since 2000.
• The largest private prison corporations, Core Civic and GEO Group, collectively manage over half of the private prison contracts in the United States with combined revenues of $3.5 billion as of 2015.
• Companies often trim prison budgets by employing mostly non-union and lowskilled workers at lower salaries and offer limited benefits compared to staff at publicly run institutions.
• Cost savings claims associated with prison privatization are unfounded according to decades of research.
August 2, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)
Interesting early information from the Safe Streets & Second Chances effort to take an evidence-driven approach to recidivism
In this post from January, I spotlighted the Safe Streets & Second Chances initiative which describes itself as an "an innovative program that takes an evidence-driven approach to the chronic issues of repeat offenders and recidivism, using academic research to craft individualized reentry plans that shift the ultimate measure of success from whether individuals are punished to whether these individuals are improved, rehabilitated, and capable of redemption." This new Washington Post piece, headlined "Koch network project gears up to help inmates reenter society after prison," provides an interesting update on the project:
A new project funded by the network aligned with billionaire industrialist Charles Koch is tracking and monitoring 1,100 inmates in four states after they are released from prison starting Aug. 1 to help them successfully reintegrate into society.
Through the project, called Safe Streets and Second Chances, a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to their rearrest. The project is in its $4 million pilot phase, as researchers prepare to test the effectiveness of a new reentry model that focuses on individualized plans to help inmates find healthy coping and thinking patterns, the right employment opportunities, and positive social engagement.
For the past six months, the researchers have been interviewing the men and women in the program, who are currently housed in 48 prisons in rural and urban areas in Texas, Florida, Pennsylvania and Kentucky. They will present the early findings today in Colorado, at the twice-annual meeting of the network's largest donors....
The network is advocating a shift in the criminal justice system toward prioritizing rehabilitation and reducing recidivism, rather than focusing on punishment. For years, the network has pushed for bipartisan support for overhauling the criminal justice system, and has teamed up with Van Jones, a former Obama administration official and CNN political commentator, for the cause....
With the research conducted through Safe Streets and Second Chances, network officials say they want to transform the way reentry programs are run in communities across the country. "What we're trying to do is to prepare prisoners to reenter society and become productive members and taxpaying citizens, hopefully living productive lives and taking care of their families," said Doug Deason, a Dallas businessman and Koch network donor who is on the advisory council of Safe Streets and Second Chances.
After interviewing the inmates preparing for release, researchers found these prisoners overwhelmingly felt optimistic about their chances of rehabilitation in life outside prison but generally had high levels of trauma. Nearly 70 percent of people in the program reported seeing someone seriously injured or killed. Half the inmates had seen or handled dead bodies — more than a dozen times for some male prisoners. The majority of them reported having a close friend or family member who was murdered, and 58 percent reported having a drug use disorder.
People with untreated trauma symptoms are more likely to become impulsive and incorrectly perceive threats to themselves and others, which could lead to an act of crime and recidivism, according to Carrie Pettus-Davis, a Florida State University professor and the lead researcher. It also could affect their ability to navigate the laws restricting felons from employment, housing and education opportunities, she said.
"Despite all of the positive orientations and aspirations, this population also is really dealing with some very challenging circumstances," Pettus-Davis said. "There's an enormous amount of trauma represented for both men and women. ... Once people become incarcerated, we need to make sure we're appropriately responding to experiences of psychological trauma."
Lots of information and data about and from this project can be found in this new release from Safe Streets & Second Chances under the title "New Research Shows Incarcerated Individuals Want to Be Rehabilitated and Are Hungry for Second Chances as They Reenter Society." Here are excerpts (with links from the original):
Incarcerated individuals want to be rehabilitated, are eager for a second chance, and are emotionally capable of successfully reentering society, new independent data shows.
According to statistics compiled by Florida State University (FSU) researchers, both male and female participants said they want to work more, learn more, and spend more time on personal relationships, improving their health, and practicing their faith than they currently do while incarcerated. They also reported fairly high levels of emotional well-being, suggesting that they are primed to successfully rejoin society upon their release....
According to the data, inmates want to rehabilitate themselves through work, education, and faith, and spend more time on personal relationships.
Respondents expressed a desire to work or improve their work situation.
Men reported working about two hours a day but said they would like to work almost four times that amount.
Women reported working almost 1.5 hours per day but said they'd like to work over three times that amount.
Overall, respondents said they'd like to spend twice the amount of time they currently spend on school activities.
Both men and women said they want to devote more time to community involvement and spend twice as much time working on personal relationships.
Both groups said they'd like to spend more time each week on spiritual or religious activities.
Next, while individuals said they had experienced a generally high level of trauma in life, they also reported a fairly high level of emotional well-being.
Nearly 70 percent of participants said they had seen someone seriously injured or killed.
50 percent said they had seen dead bodies (other than at a funeral) or had to handle dead bodies. Male respondents reported experiencing this an average of over 17 times.
Over 40 percent said they had been attacked with a gun, knife, or some other weapon by someone, including a family member or friend.
About 57 percent said that a close friend or family member had been murdered.
Over 32 percent of female respondents said they had been forced to have intercourse or another form of sex against their will.
On average, females reported having experienced sexual abuse as a child 8.88 times.
58 percent reported having a drug use disorder, while 35 percent reported having an alcohol use disorder.
While both men and women reported similar levels of childhood emotional abuse, they also reported fairly high levels of current emotional well-being, suggesting that they are emotionally resilient and fit to contribute to society in a positive way.
July 28, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)
"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla's Dangerous Data"
The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:
This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.
The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger. It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age. Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders
July 19, 2018 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)
US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement
The United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements). A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication. Here are highlights from the web account:
This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.
Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing. The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.
Cases in which an 851 enhancement applied are rare.
The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief. There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.
The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.
In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn. Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.
The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.
In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).
While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.
Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.
The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.
July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)
Lots more great new Quick Facts publications from US Sentencing Commission
In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format"). In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data. Here are just a few of these publications I have been checking out:
Drug Trafficking (July 2018)
Methamphetamine Trafficking (July 2018)
Heroin Trafficking (July 2018)
Marijuana Trafficking (July 2018)
Section 924(c) Offenders (July 2018)
Felon in Possession of a Firearm (July 2018)
Robbery Offenses (July 2018)
Theft, Property Destruction, & Fraud (June 2018)
There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.
July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)
Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"
I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications. Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."
This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:
Females make up a small percentage of federal offenders. The proportion of federal offenders who were women decreased slightly from 13.3% in fiscal year 2013 to 13.1% in fiscal year 2017.
More than two-thirds of female offenders (68.0%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).
Weapons were involved less frequently (6.1%) in cases involving women than in cases involving men (10.1%).
More than three-quarters (76.9%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2017 (93.8%).
For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (40.2% in fiscal year 2013 and 36.6% in fiscal year 2017), compared to 49.8% and 49.2% for male offenders.
The average sentence imposed slightly increased over the last five years, from 27 months in fiscal year 2013 to 28 months in fiscal year 2017.
July 5, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)
"Police, Race, and the Production of Capital Homicides"
The title of this post is the title of this new paper now available via SSRN and authored by Jeffrey Fagan and Amanda Geller. Here is the abstract:
Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines.
This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police. It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI's Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be "cleared" by the arrest of a suspect than are homicides with minority victims. We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place. Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities. Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.
July 5, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)
US Sentencing Commission has now released here its latest quarterly data report, and this one "contains preliminary quarterly data on cases in which the offender was sentenced during the first half of fiscal year 2018" (which is the period from October 1, 2017, through March 31, 2018). I do not believe the USSC released first quarter FY 2018 data, so this new report seems to be the first big data report of the "post-Sessions Memo era" -- i.e., since AG Jeff Sessions issued his May 2017 charging and sentencing memorandum directing federal prosecutors to pursue those offenses that carry the most substantial guidelines sentence, including mandatory minimum sentences, and to more regularly seek within-guideline sentences.
From a quick glance and comparing this data from the last full year of sentencing data from the Obama Administration (in this FY 2016 data report), there does seem to be a noticeable uptick in mean sentences in some big crime categories. For example (drawing from Table 6 in both data runs): the mean drug trafficking sentence was 75 months in the first half of FY 2018, the mean in FY 2016 was only 66 months; the mean fraud sentence was 27 months in the first half of FY 2018, the mean in FY 2016 was only 25 months. But, interestingly, in other big crime categories there was a downtick in mean sentences: the mean firearm sentence was 70 months in the first half of FY 2018, the mean in FY 2016 was 75 months; the mean immigration sentence was 11 months in the first half of FY 2018, the mean in FY 2016 was 13 months. Putt this all together with other less common offenses, and it turns out the cumulative mean federal sentence for the first half of FY 2018 was 45 months, the exact same mean for all federal sentences in FY 2016.
I would report some similar comparable data on departures and variances, but the USSC in this data run has significant altered how it accounts and reports this data. Here is part of the USSC's explanation of its new accounting:
Beginning with this report, the Commission is again updating the way it presents quarterly data. In this report, all analyses that involve a comparison of the position of the sentence imposed to the guideline range that applied in the case are presented in a new way. Sentences are now grouped into two broad categories: Sentences Under the Guidelines Manual and Variances. The former category comprises all cases in which the sentence imposed was within the applicable guideline range or, if outside the range, where the court indicated that one or more of the departure reasons in the Commission's Guidelines Manual was a basis for the sentence. Variance cases are those where the sentence was outside the guideline range (either above or below) and where the court did not cite any guideline reason for the sentence. Data for important subgroups within these two categories are also reported.
In other words, within-guideline and "traditional departure" sentences are grouped together, while all Booker-allowed variances broken out distinctly. It seems that all the key data previously reported on Table 8 of past USSC's data reports still appears in Table 8A of the new report. But, fascinatingly, the new organization showcases now that roughly 3/4 of all sentences (74.7% to be exact) are "Sentences under the Guidelines Manual" with "variances" now accounting for only 25.3% of the sentences (with 2% being upward variances, 5.5% being "government motion" variances and 17.7% being "non-government" variances).
Repackaging aside, we can still look at the "within-guideline" number on Table 8 and 8A for direct comparisons on this front between the first half of FY 2018 and all federal sentences in FY 2016. Doing so shows that the within-guideline sentencing rate has increased from 48.6% in FY 2016 up to 50% in the first half of FY 2018. Without a more intricate and sophisticated analysis controlling for caseloads and other factors, it is too hard to say there is conclusive evidence that the Sessions Memo is having a real impact on federal sentencing outcome. But these data are suggestive of trends that seem likely to continue as move cases more through the pipeline and as a new set of federal prosecutors give effect to commands from Main Justice.
July 2, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)
Two new documents from Center for American Progress on "Ending the War on Drugs"
The Center for American Progress released this week two notable new short papers, titled "Ending the War on Drugs" and "Ending the War on Drugs: By the Numbers." Here are links to both documents and their introductions:
"Ending the War on Drugs":
Nationwide, communities face an unprecedented rise in substance misuse fatalities. A record 63,600 overdose deaths were recorded in 2016, two-thirds of which involved opioids. To stem the tide of this crisis, some communities are doubling down on the war on drugs, despite clear evidence that increasing arrests and incarceration does not lower drug use. But an increasing number of cities are bucking the trend and adopting models that treat substance misuse as a disease, not a crime. Instead of criminalizing substance use disorders, communities are focusing on saving lives and reducing the harmful effects of drug use.
The idea of "harm reduction" may seem like common sense today, but it signifies a radical departure from traditional U.S. responses to drug use, which relied heavily on the criminal justice system. More and more cities are expanding access to clean syringes, launching safe-injection facilities, and decriminalizing possession of controlled substances. Public acceptance of these approaches was unthinkable just a few years ago. Today, however, they are filtering into the mainstream. In fact, support for harm reduction spans the ideological spectrum. These strategies are underway in red and blue states alike, representing promising steps toward dismantling the country's failed drug policy agenda.
"Ending the War on Drugs: By the Numbers"
President Richard Nixon called for a war on drugs in 1971, setting in motion a tough-on-crime policy agenda that continues to produce disastrous results today. Policymakers at all levels of government passed harsher sentencing laws and increased enforcement actions, especially for low-level drug offenses. The consequences of these actions are magnified for communities of color, which are disproportionately targeted for enforcement and face discriminatory practices across the justice system. Today, researchers and policymakers alike agree that the war on drugs is a failure. This fact sheet summarizes research findings that capture the need to replace the war on drugs with a fairer, more effective model that treats substance misuse as a public health issue — not a criminal justice issue.
June 29, 2018 in Data on sentencing, Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)
The Sentencing Project effectively reviews "Trends in U.S. Corrections"
The folks at The Sentencing Project late last week published this document, titled "Trends in U.S. Corrections," which serves as an effective fact sheet compiling major developments regarding the scope of imprisonment in the US criminal justice system over the past several decades. The short document has lots of effective graphs reporting on lots of demographic realities of prison populations, and here is a bit of its prose on two particular issues:
Sentencing policies of the War on Drugs era resulted in dramatic growth in incarceration for drug offenses. Since its official beginning in the 1980s, the number of Americans incarcerated for drug offenses has skyrocketed from 40,900 in 1980 to 450,345 in 2016. Furthermore, harsh sentencing laws such as mandatory minimums keep many people convicted of drug offenses in prison for longer periods of time: in 1986, people released after serving time for a federal drug offense had spent an average of 22 months in prison. By 2004, people convicted on federal drug offenses were expected to serve almost three times that length: 62 months in prison.
At the federal level, people incarcerated on a drug conviction make up just under half the prison population. At the state level, the number of people in prison for drug offenses has increased ninefold since 1980, although it has begun declining in recent years. Most of these people are not high-level actors in the drug trade, and most have no prior criminal record for a violent offense....
The number of people serving life sentences continues to grow even while serious, violent crime has been declining for the past 20 years and little public safety benefit has been demonstrated to correlate with increasingly lengthy sentences. The lifer population has nearly quintupled since 1984. One in nine people in prison is now serving a life sentence and nearly a third of lifers have been sentenced to life without parole.
June 27, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)
Seven years in development, Pennsylvania task force issues huge report on state's (dormant) capital punishment system
As reported in this local press article from Pennsylvania, a "long-awaited report reviewing the state's death penalty has been released that could affect the death penalty moratorium that Gov. Tom Wolf imposed shortly after taking office in 2015." Here is more:
The 270-page report, commissioned by a 2011 Senate resolution and compiled by the Pennsylvania Task Force and Advisory Committee on Capital Punishment along with the Justice Center for Research at The Pennsylvania State University and the Interbranch Commission on Gender, Racial and Ethnic Fairness, evaluates the pros and cons of the state's capital punishment law.
Specifically, it was charged with looking at the cost, bias, impact on and services for family members of death penalty inmates; mental illness, counseling, alternatives, and more. Work began on the study in 2012. It was to have been completed by the end of 2013. However, delays in appointing members and in information gathering as well as conflicting work schedules of task force members bogged down the process, according to Glenn Pasewicz, executive director of the Joint State Government Commission, which oversaw the task force and advisory committee's work.
Despite the report's completion, don't expect an immediate decision by Wolf on whether the moratorium will be lifted. He has indicated the moratorium will remain in place until the recommendations and concerns that the report raises are satisfactorily addressed, his spokesman J.J. Abbott said.
Wolf's Republican gubernatorial opponent Scott Wagner has said he supports the death penalty and indicated in February he would pursue a mandatory death penalty for any school shooter who kills someone although legal analyst say laws like that have been ruled unconstitutional.
Pennsylvania has a death penalty law on the books since 1978, but its death row has shrunk to 149 men and only three people have been executed since capital punishment was reinstated in the 1970s. All three had voluntarily relinquished their appeals. The most recent execution was in 1999 when Philadelphia torture killer Gary Heidnik was put to death. The last time an inmate was executed involuntarily in Pennsylvania was 1962.
Penn State's Justice Center for Research, which conducted a study that was incorporated into this report, concluded death sentences are more common when the victim is white and less common when the victim is black. Among other findings, that study indicated prosecution of death penalty cases varies widely by county and defendants represented by public defenders were more likely to get a death sentence than those with privately retained lawyers.
Marc Bookman, a longtime public defender and co-director of the Atlantic Center for Capital Representation, issued an immediate reaction to the study's findings. He said the study confirms his belief that life without parole is "fairer, quicker, and more cost-efficient than capital punishment."...
But the Pennsylvania District Attorneys Association President John Adams' initial reaction to the report suggested it was not an objective look at the issue and fails to give proper consideration of victims of the crimes that result in death sentences as well as supporting data that suggests capital punishment is not disproportionately targeted against minorities.
The full massive report is available at this link, and it would likely take me the rest of the day just to fully and fairly consume the reports executive summary (which itself runs 30+ pages). For students of the modern administration of the death penalty, I see a lot of interesting and important work within this report. But, as the quotes in the press article reveal, I doubt this massive undertaking is going to change many (or any) personal or political perspectives on the application of the ultimate punishment in Pennsylvania.
June 25, 2018 in Data on sentencing, Death Penalty Reforms, Who Sentences | Permalink | Comments (1)
Many hundreds of federal prisoners surely thrilled by Hughes, but thousands surely disappointed by Koons
As I mentioned in this post a few months ago around the time of SCOTUS oral argument, a lot of federal prisoners had a lot of interest in the two sentence modification cases on the SCOTUS docket. Now that we have decisions in the sentence modification cases of Hughes and Koons (basics here), a bit of (too) simple accounting seems in order.
Helpfully, Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines reports that 781 prisoners have been denied a sentence reduction "because of binding plea" (the issue in Hughes) and that 3070 prisoners have been denied a sentence reduction because "mandatory minimum controls sentence." Though these numbers are not the full universe of who might be impacted by these rulings, it does suggest that, speaking quantitatively, these rulings were a bigger win for federal prosecutors than for federal defendants.
Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons
June 4, 2018 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)
"Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in McCleskey v. Kemp — And Some Pathways for Change"
The title of this post is the title of this new paper by Reva Siegel recently posted to SSRN. Here is its abstract:
In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision's thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.
The lecture's aims are both critical and constructive. The historical reading I offer shows that portions of the opinion justify restrictions on evidence to protect prosecutorial discretion, while others limit proof of discrimination in ways that seem responsive to conservative claims of the era about race, rights, and courts. Scrutinizing the Court's reasons for restricting inferences from statistical evidence opens conversations about the principles on which McCleskey rests and the decision's prospective reach.
A close reading of the decision has led some courts to interpret McCleskey's restrictions on statistical evidence as a response to particular concerns raised by the record in that case, opening the door to statistical evidence of bias in other equal protection challenges in criminal cases. At the same time, revisiting McCleskey and its progeny raises questions about the capacity of courts to redress bias in the criminal justice system. Three decades of living with McCleskey teaches that it is important to design remedies for bias in the criminal justice system that do not depend solely on judges for their implementation.
May 30, 2018 in Data on sentencing, Death Penalty Reforms, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
Another helpful review of analysis of huge set of federal sentencing outcomes
In this post last week I discussed this amazing new working paper by Alma Cohen and Crystal Yang titled "Judicial Politics and Sentencing Decisions." I am now pleased to giving attention to this research in the New York Times through this latest "Sidebar" column. His piece is headlined "Black Defendants Get Longer Sentences From Republican-Appointed Judges, Study Finds," and here are excerpts:
Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants. "Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges," the study found, adding, "These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion."...
It has long been known that there is an overall racial sentencing gap, with judges of all political affiliations meting out longer sentences to black offenders. The new study confirmed this, finding that black defendants are sentenced to 4.8 months more than similar offenders of other races. It was also well known, and perhaps not terribly surprising, that Republican appointees are tougher on crime over all, imposing sentences an average of 2.4 months longer than Democratic appointees.
But the study's findings on how judges' partisan affiliations affected the racial and gender gaps were new and startling. "The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap," the authors wrote. "We also find that Republican-appointed judges give female defendants two months less in prison than similar male defendants compared to Democratic-appointed judges, 17 percent of the baseline gender sentence gap."
The two kinds of gaps appear to have slightly different explanations. "We find evidence that gender disparities by political affiliation are largely driven by violent offenses and drug offenses," the study said. "We also find that racial disparities by political affiliation are largely driven by drug offenses."
The authors of the study sounded a note of caution. "The precise reasons why these disparities by political affiliation exist remain unknown and we caution that our results cannot speak to whether the sentences imposed by Republican- or Democratic-appointed judges are warranted or 'right,'" the authors wrote. "Our results, however, do suggest that Republican- and Democratic-appointed judges treat defendants differently on the basis of their race and gender given that we observe robust disparities despite the random assignment of cases to judges within the same court."
The study is studded with fascinating tidbits. Black judges treat male and female offenders more equally than white judges do. Black judges appointed by Republicans treat black offenders more leniently than do other Republican appointees. More experienced judges are less apt to treat black and female defendants differently. Judges in states with higher levels of racism, as measured by popular support for laws against interracial marriage, are more likely to treat black defendants more harshly than white ones.
Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background
May 28, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)
This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:
This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively. These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for. In other words, just the scope and methods of this research is fascinating.
Moreover and more importantly, there is great richness in the findings of the full paper. For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation." In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range. Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds." Here are excerpts:
Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School. That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....
They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones. They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.
Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants. Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.
Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage. These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.
Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women. "Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system," Cohen and Yang conclude.
Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.
If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.
UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.
May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)
Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics
The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005. This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:
Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.
About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.
This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned. The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states. This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology). In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.
There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.
As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.
May 23, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (8)
Interesting report touts the potential economicy benefits of restoring felon voting rights in Florida
As regular readers know, I think there are an array of strong moral, social and political arguments for ending felon disenfranchisement. But this local article from Florida, headlined "Price tag for restricting felons' rights after prison put at $385 million a year," reports on an interesting effort to make an economic argument for a ballot initiative in the state to expand the franchise. Here are the details:
Seven years after Gov. Rick Scott and the Florida Cabinet voted to end the state policy that automatically restored the civil rights of nonviolent offenders after they complete their sentences, a price tag has emerged. Florida lost an estimated $385 million a year in economic impact, spent millions on court and prison costs, had 3,500 more offenders return to prison, and lost the opportunity to create about 3,800 new jobs.
Those are just some of the conclusions of a new economic research report prepared by the Republican-leaning Washington Economics Group of Coral Gables for proponents of Amendment 4, the proposal on the November ballot that asks voters to allow the automatic restoration of civil rights for eligible felons who have served their sentences. The report was commissioned by the Alliance for Safety and Justice, a national criminal justice reform organization that works with crime survivors, to show the economic impact of approving the amendment.
But the findings show more than the economic impact of what could happen if voters approve it. They also estimate the cost of the policy that was fast-tracked into law by the governor and Cabinet a month after taking office in 2011, its impact on crime and its cost to taxpayers. Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam, and then-Chief Financial Officer Jeff Atwater repealed the automatic restoration of rights that had been in place for four years and replaced it with a plan requiring a minimum five-year waiting period before offenders could start the application process to have their voting and civil rights restored.
The action reversed the policy approved by the Cabinet in 2007 at the urging of then-Gov. Charlie Crist. Now, the only way a convicted felon can regain his or her civil rights is to wait five years and apply for a review at the state Office of Executive Clemency, which has limited resources and can take years....
The proposed amendment would restore rights automatically, except for those convicted of murder or a felony sexual offense. To come up with a price tag for the policy, economists looked at the data from 2007 to 2011 and compared it with current data. They focused on the recidivism rate, the number of released felons who returned to prison after being released and projected the costs and the impact those felons would have on the economy if they went to work instead.... By contrast, research shows that felons who have their voting rights restored, "have a greater ability to become full members of Florida's society and economy, leading to a reduced rate of recidivism,'' the report said.
Before 2007, the recidivism rate for all felons was 33 percent, according to a 2011 report by the Florida Clemency Board. After Crist's policy, the average two-year recidivism rate for felons who had their rights restored was 12.4 percent, lower than the three-year average recidivism rate of all felons, which was 26.3 percent.
Under Crist, 155,315 offenders who were released got their rights restored. Under Scott, just 4,352 offenders have had their rights restored. Of those felons who have had their rights restored, less than 1 percent of them returned to crime and the average three-year recidivism rate for all felons in Florida in 2013 — the last year available — was 25.4 percent.
The governor's office disputes the claim that recividism rates dropped when more felons had rights restored. It argues the recidivism rate has been dropping in recent years in spite of the restrictive approach to rights restoration. Scott's office notes that the three-year recidivism rate has decreased from 30.5 percent for inmates released in 2007, the first year of Crist's policy, to 25.2 percent for inmates released in 2013, which is the latest data available and includes the last year of Crist's policy....
The report calculated the impact on the prison system and the courts using existing data on offenders and recidivism rates. It calculated the economic impact of their labor patterns on Florida using a model that considers the link between the demand one industry has on other industries. The report cites research that shows that felons earn less than average wages, and felons who do not have their voting rights restored earn 12 percent less than that.
"With higher incomes, eligible felons would be able to afford living in less-disadvantaged areas, which is associated with better employment outcomes after release and less recidivism,'' the report states. It estimates that employed eligible felons who had their rights restored would see an $88 million direct increase in income. That will ripple through the rest of the Florida economy, the economists said, "ultimately benefiting employment in many industries and Household Income for Florida residents, not just for the eligible ex-felon population."
The full research report referenced in this article is available at this link.
May 22, 2018 in Collateral consequences, Data on sentencing, Reentry and community supervision | Permalink | Comments (1)
Vera Institute of Justice reports on "People in Prison 2017"
Via this web page and this document, the Vera institute of Justice has now providing a valuable new "up-to-date view of the number of people in state and federal prisons." Here is the summary of their efforts from the print document:
Effective advocacy and policy making require up-to-date information. Vera Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2017 to provide timely information on how prison incarceration is changing in the United States. This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in late 2018 or early 2019 — which will include additional data, such as population breakdowns by race and sex.
At the end of 2017, there were an estimated 1,489,600 people in state and federal prisons, down 15,800 from yearend 2016 (1 percent decline).
There were 1,306,300 people under state prison jurisdiction, 9,900 fewer than in 2016 (0.7 percent decline); and 183,300 in the federal prison system, 5,900 fewer than in 2016 (3.1 percent decline). The prison incarceration rate in the United States was 457 people in prison per 100,000 residents, down from 465 per 100,000 in the previous year, representing a 1.8 percent drop. (See Figure 1.) This brings the rate of prison incarceration down 14 percent since its peak in 2007.
The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in several states with large prison populations, such as Illinois, Louisiana, and Maryland. However, the declines were not universal. Mass incarceration is still on the rise in some states, such as Kentucky and Tennessee. (See Table 1 for a summary of the jurisdictions with the highest and lowest prison population counts, rates, and percent changes from 2016.)
In addition to this summery, this document has a bunch of clear and informative charts with total prison populations and rates and changes for every state and region from 2007 to 2017.
May 20, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)
US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"
As reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:
The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.
While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender's criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.
Key findings of the Commission's study are as follows:
Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.
Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.
A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.
The nature of offenders' criminal histories varied considerably by their federal instant offense. The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders. Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction. Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).
Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines. Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.
A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.
May 17, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (1)
Texas completes its sixth execution of 2018
As reported in this local article, in Texas "Juan Castillo was put to death Wednesday evening, ending his death sentence on his fourth execution date within the year." Here is more:
The 37-year-old was executed for the 2003 robbery and murder of Tommy Garcia Jr. in San Antonio. The execution had been postponed three times since last May, including a rescheduling because of Hurricane Harvey.
Castillo's advocates and attorneys had insisted on his innocence in Garcia's murder, pleading unsuccessfully for a last-minute 30-day stay of execution from Republican Gov. Greg Abbott after all of his appeals were rejected in the courts. The Texas Defender Service, a capital defense group who had recently picked up Castillo's case, asked Abbott for the delay to let its lawyers fully investigate claims they said discredited the prosecution's evidence against Castillo — including recanted statements and video of police interrogations that contradict testimony at trial.
But with no action from the governor, Castillo was taken into the death chamber in Huntsville, and at 6:21 p.m., injected with a lethal dose of pentobarbital, according to the Texas Department of Justice. Twenty-three minutes later, he was pronounced dead.... [H]e became the sixth person executed in Texas this year and the 11th in the country.
Texas appears to be on pace to return to its modern historical pattern of 10 or more execution per year. As this Death Penalty Information Center chart reveals, from 1992 through 2015, the Lone Start State had 10 or more executions every single year save one year. Over this 24-year period, Texas averaged more than 20 executions per year, including a single year high of 40 executions in 2000. But in 2016 and 2017, Texas only executed 7 condemned inmates each year. With six more executions scheduled in Texas before the end of September, it seems Texas is poised to regress toward its historical execution mean in 2018.
UPDATE: I just saw this new AP piece reporting on two new Texas execution dates set for October "bringing to eight the number of inmates set for lethal injection in the coming months."
May 16, 2018 in Data on sentencing, Death Penalty Reforms | Permalink | Comments (9)
Encouraging findings from big study of 16 prosecutor-led diversion programs in 11 jurisdictions
I saw today a big report from a big National Institute of Justice study on the topic of diversion programs. This big report has this full title: "NIJ's Multisite Evaluation of Prosecutor-Led Diversion Programs Strategies, Impacts, and Cost-Effectiveness." And here is part of its executive summary:
In recent years, a growing number of prosecutors have established pretrial diversion programs, either pre-filing—before charges are filed with the court—or post-filing—after the court process begins but before a disposition. Participating defendants must complete assigned treatment, services, or other diversion requirements. If they do, the charges are typically dismissed. With funding from the National Institute of Justice, the current study examined 16 prosecutor-led diversion programs in 11 jurisdictions across the country and conducted impact evaluations of five programs and cost evaluations of four programs....
Case Outcomes, Recidivism, and Cost
Case Outcomes: All five programs participating in impact evaluations (two in Cook County, two in Milwaukee, and one in Chittenden County, VT) reduced the likelihood of conviction — often by a sizable magnitude. All five programs also reduced the likelihood of a jail sentence (significant in four and approaching significance in the fifth program).
Re-Arrest: Four of five programs reduced the likelihood of re-arrest at two years from program enrollment (with at least one statistically significant finding for three programs and at least one finding approaching significance in the fourth). The fifth site did not change re-arrest outcomes.
Cost: All four programs whose investment costs were examined (two in Cook County and one each in Chittenden and San Francisco) produced sizable cost and resource savings. Not surprisingly, savings were greatest in the two pre-filing programs examined, which do not entail any court processing for program completers. All three programs whose output costs were examined (i.e., omitting the San Francisco site) also produced output savings, mainly stemming from less use of probation and jail sentences.
There were a number of important study limitations, including a focus on 16 high-volume diversion programs mainly located in large jurisdictions, a smaller number of study sites for the impact and cost evaluations, and limitations in the scope and quality of quantitative data available in some of the impact sites. Understanding these limitations, we generally found that today's prosecutor-led diversion programs pursue a wide range of goals, not limited to rehabilitation and recidivism reduction. We also found that these programs serve a mix of target populations — including felonies as well as misdemeanors and, in virtually all programs we examined, including defendants with a prior criminal record. Although it bears noting that we evaluated program impacts in a limited number of sites, meaning that our findings may not be generalizable to other sites and programs that we did not study, our research yielded positive results. Across five programs in three sites, diversion participants benefited from a reduced likelihood of conviction and incarceration; and in four of the five programs, pretrial diversion participation led to reduced re-arrest rates. In addition, in all four programs where a cost evaluation was conducted, diversion cases involved a lesser resource investment than similar comparison cases.
May 16, 2018 in Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)