Tuesday, September 1, 2015

Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress

ImagesAs regular readers know, September is the month that a (long-forecast) important new federal sentencing reform bill has become likely to emerge from the US Senate.  This new Daily Signal article, headlined "Bipartisan Group of Senators Set to Announce Deal to Reduce Prison Population," which reports that this bill is going to be unveiled a week from today, provides an account of what we can expect to see in this bill.  Here are excerpts:

Soon after lawmakers return to Washington, D.C., on Sept. 8, a bipartisan group of members on the Senate Judiciary Committee is expected to announce a deal meant to relieve the overcrowded federal prison population.

The bill, which is still being written and near completion — according to Beth Levine, a spokeswoman for Judiciary Committee Chairman Chuck Grassley — would give judges more discretion in sentencing offenders of certain nonviolent drug crimes and let well-behaved inmates earn time off their prison terms.

“They want to announce a deal as soon as they get back, but they just aren’t quite there yet,” says Conn Carroll, the communications director for Sen. Mike Lee, a committee member and leading reform advocate. “Let’s just say it’s first and goal on the one, everyone thinks we’ll score, we just don’t know when,” Carroll continued.

The legislation, the result of months of negotiations, will likely incorporate policies from previously introduced legislation in both houses of Congress.

The judiciary committee’s compromise bill is not expected to include reductions to mandatory minimums that are blamed for mass incarceration. Mandatory minimums require binding prison terms of a particular length and prevent judges from using their discretion to apply punishment. But the legislation is expected to give judges some leeway in sentencing drug offenders....

A new Pew study, using data from the Federal Bureau of Prisons, reveals that there are more than 207,000 inmates in federal prisons, and 95,000 of those inmates are incarcerated for drug-related offenses — up from fewer than 5,000 in 1980.

The jump in the number of inmates has cost a lot of money. From 1980 to 2013, federal prison spending increased 595 percent, from $970 million to more than $6.7 billion. According to the study, prison spending now represents one of every four dollars spent by the U.S. Justice Department. The report says growth of the prison population, and the longer drug sentences, can be pinned on a tough-on-crime mentality that dominated the 1980s.

Reform advocates say these policies — such as laws passed by Congress enacting mandatory minimum sentences of five, 10, or 20 years for drug offenders, and abolishing parole for federal offenders — have outlived their usefulness and need to be revised.

“The question really boils down to, has Sen. Grassley come to recognize mandatory minimums are a policy failure?” says Alison Holcomb, the director of the ACLU’s Campaign for Smart Justice. “Whether the bill is worth all the time and effort of the negotiations depends on a large part to the answer to that question.”

Grassley, as the judiciary committee chair, is the gatekeeper of the talks. Experts such as Holcomb say Grassley is opposed to across-the-board repeal of mandatory minimum sentences. “The real question of this bill is, how far can Grassley go?” says Molly Gill, the government affairs counsel for Families Against Mandatory Minimums, a nonprofit. “There’s a lot of pressure to do something significant. Is Grassley’s definition of significant close to everyone else’s? There becomes a certain point where you ask, is this real reform?”

Though Grassley’s office won’t share the exact details, the bill is expected to address a “safety valve” law that’s supposed to keep people from receiving unfair sentences.

Under the law, a federal drug offender can avoid a mandatory minimum sentence if he passes a five-part “safety valve” test. A convicted felon can be sentenced below a mandatory minimum if he was not a drug leader or “king pin,” he did not use or possess a gun during the offense, the offense is nonviolent, he was truthful with the government, and he has little or no other criminal activity on his record.

Reform advocates argue that even the most minor criminal history, such as being convicted for possessing a small amount of marijuana as a juvenile, can make an offender ineligible for the safety valve exception. The Senate Judiciary Committee bill may make the criminal record aspect of the safety valve more forgiving. It may also create a new loophole to get around mandatory minimums.

In addition, the legislation will include elements of a separate bill, the Corrections Act, authored by two senators of the judiciary committee: John Cornyn, R-Texas, and Sheldon Whitehouse, D-R.I.

That bill would allow certain well-behaved prisoners to earn time off their sentences by participating in recidivism reduction programs such as drug counseling and vocational training. The judiciary committee bill won’t be as comprehensive as the House’s SAFE Justice Act, sponsored by Reps. Jim Sensenbrenner, R-Wis., and Bobby Scott, D-Va., which would narrow the range of offenders that mandatory minimums apply to. Some members, like Grassley, think that reform plan is too far-reaching.

“Although there is clearly bipartisan support for a number of these proposals, [this] is a difficult issue,” says John Malcolm, the director of The Heritage Foundation’s Meese Center for Legal and Judicial Studies. “Some believe our current sentencing regime is unfair and the pendulum has swung too far in terms of imposing harsh sentences,” Malcolm continued. “Others believe increased incarceration and harsh sentences have taken some very dangerous people off of the streets. I remain cautiously optimistic there is some ‘sweet spot’ where both sides can compromise.”

Whatever the final product looks like, all sides are optimistic that Congress will give Obama a criminal justice reform bill to sign this year — because too many people are waiting. “The American criminal justice system has gotten has so far out of whack, with far too many people behind bars for too high a price,” Holcomb said. “The cold hard fact that people across the aisle can agree on is that America is better than this.”

I am pleased that some key details of the sentencing reform bill most likely to get to Prez Obama's desk are emerging, and I am not surprised that Senator Grassley is more interested in pursuing expanded exceptions to current federal mandatory minimums rather than across the board cuts to any current mandatory minimum. At the same time, I am concerned (but again not suprised) that advocates of federal sentencing reform are worried that this latest bill which has Senator Grassley's blessing is not going to be as far-reaching or impactful as other bills that have been making the rounds.

As a general matter, I favor a federal sentencing world without any crude and strict mandatory minimums terms for any non-violent crimes. But, especially now that we have had two-plus years of talk about statutory sentencing reform and nothing at all that has made it through Congress, I am hopeful all reform advocates will get on-board with whatever comes out of the Senate later this month. Especially with growing talk about violent crime increases in some cities and with sound-bite presidential campaigns now dominating the broader political conversation, I think the window for any meaningful federal sentencing reforms emerging from Congress is already starting to close. If visions of the "best" or even the "really good" prompt criticisms of any bill that has a real chance of passage, we could well end up with no bill making it through Congress at all.

Some prior related posts:

September 1, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Skin Color and the Criminal Justice System: Beyond Black‐White Disparities in Sentencing"

The title of this post is the title of this intriguing new article discussing empirical research on sentencing outcomes in Georgia authored by Traci Burch. Here is the abstract:

This article analyzes sentencing outcomes for black and white men in Georgia. The analysis uses sentencing data collected by the Georgia Department of Corrections (GDC). Among first‐time offenders, both the race‐only models and race and skin color models estimate that, on average, blacks receive sentences that are 4.25 percent higher than those of whites even after controlling for legally‐relevant factors such as the type of crime.

However, the skin color model also shows us that this figure hides important intraracial differences in sentence length: while medium‐ and dark‐skinned blacks receive sentences that are about 4.8 percent higher than those of whites, lighter‐skinned blacks receive sentences that are not statistically significantly different from those of whites.  After controlling for socioeconomic status in the race‐only and race and skin color models the remaining difference between whites and dark‐ and medium‐skinned blacks increases slightly, to 5.5 percent.  These findings are discussed with respect to the implications for public policy and for racial hierarchy in the United States.

September 1, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

"Charging on the Margin"

The title of this post is the title of this notable new paper discussing prosecutorial practices and collteral consequences autored by Paul Crane now available via SSRN. Here is the abstract:

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions.  In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses — penalties such as being required to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation.  While there is a wealth of scholarship studying the effect this development has had on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives.  This Article starts to remedy that gap by exploring the influence collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors.  As a result, prosecutors are now more likely to engage in a practice I term “strategic undercharging.” A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own aims — and not as an act of prosecutorial grace or leniency.  In other words, prosecutors can sometimes gain more by charging less.  By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant.  Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration.  Changing this approach could have several salutary effects on the administration of collateral consequences.  At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

September 1, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Guns, gangs, ganja, going after police ... are there obvious lessons from 2015 homicide spikes?

The question in the title of this post is prompted by this lengthy front-page New York Times article spotlighting the notable spike in homicides in many US cities so far in 2015.  The article is headlined "Murder Rates Rising Sharply in Many U.S. Cities," and here are excerpts:

Cities across the nation are seeing a startling rise in murders after years of declines, and few places have witnessed a shift as precipitous as this city.  With the summer not yet over, 104 people have been killed this year — after 86 homicides in all of 2014.

More than 30 other cities have also reported increases in violence from a year ago. In New Orleans, 120 people had been killed by late August, compared with 98 during the same period a year earlier.  In Baltimore, homicides had hit 215, up from 138 at the same point in 2014. In Washington, the toll was 105, compared with 73 people a year ago. And in St. Louis, 136 people had been killed this year, a 60 percent rise from the 85 murders the city had by the same time last year.

Law enforcement experts say disparate factors are at play in different cities, though no one is claiming to know for sure why murder rates are climbing.  Some officials say intense national scrutiny of the use of force by the police has made officers less aggressive and emboldened criminals, though many experts dispute that theory.

Rivalries among organized street gangs, often over drug turf, and the availability of guns are cited as major factors in some cities, including Chicago.  But more commonly, many top police officials say they are seeing a growing willingness among disenchanted young men in poor neighborhoods to use violence to settle ordinary disputes....

Urban bloodshed — as well as the overall violent crime rate — remains far below the peaks of the late 1980s and early ’90s, and criminologists say it is too early to draw broad conclusions from the recent numbers.  In some cities, including Cincinnati, Los Angeles and Newark, homicides remain at a relatively steady rate this year.

Yet with at least 35 of the nation’s cities reporting increases in murders, violent crimes or both, according to a recent survey, the spikes are raising alarm among urban police chiefs. The uptick prompted an urgent summit meeting in August of more than 70 officials from some of the nation’s largest cities.  A Justice Department initiative is scheduled to address the rising homicide rates as part of a conference in September....

The police superintendent in Chicago, Garry McCarthy, said he thought an abundance of guns was a major factor in his city’s homicide spike.  Even as officials in both parties are calling for reducing the prison population, he insisted that gun offenders should face stiffer penalties.  “Across the country, we’ve all found it’s not the individual who never committed a crime before suddenly killing somebody,” Mr. McCarthy said on Monday. “It’s the repeat offenders. It’s the same people over and over again.”

Among some experts and rank­and­file officers, the notion that less aggressive policing has emboldened criminals — known as the “Ferguson effect” in some circles — is a popular theory for the uptick in violence.  “The equilibrium has changed between police and offenders,” said Alfred Blumstein, a professor and a criminologist at Heinz College, Carnegie Mellon University.

Others doubt the theory or say data has not emerged to prove it.  Richard Rosenfeld, a criminologist from the University of Missouri­-St. Louis, said homicides in St. Louis, for instance, had already begun an arc upward in 2014 before a white police officer killed an unarmed teenager, Michael Brown, in nearby Ferguson.  That data, he said, suggests that other factors may be in play.

Less debated is the sense among police officials that more young people are settling their disputes, including one started on Facebook, with guns....

In New Orleans, Michael S. Harrison, the police superintendent, said the city’s rise in homicides did not appear to reflect any increase in gang violence or robberies of strangers, but rather involved killings inside homes and cars by people who know their victims — particularly difficult crimes to predict or prevent....

In New York, there have been a larger number of gang­-related killings, Stephen Davis, the department’s top spokesman, said.  But he also said many homicides remained unexplained, the result of disputes with murky origins.  “There are a lot of murders that happen in the spur of the moment,” Mr. Davis said.

Especially because 2014 was a year with record-low homicide rates in many jurisdictions, I am not too surprised (though I am much troubled) by these new homicide data. I share the view that it is too early to draw any firm conclusions as to what is causing or what should be done about this uptick in deadly urban violence.  But I also think it is not too early for researchers to be asking a lot of hard questions about what sets of legal and social factors which were previously successful in reducing homicide rates are now proving less effective.

Astute readers should see that I threw ganja into the alliterative mix of factors in the title of this post because changes in national marijuana policies and practices are among the legal and social factors that I have been watching closely lately in relation to crime rates.  This New York Times article does not discuss this factor — or many others crime and punishment factors like increases in opioid addiction, or reduced use of the death penalty — surely because there are so many different and hard-to-track factors which might play some role in any changing nationwide  crimes patterns.

September 1, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (0)

Monday, August 31, 2015

District Judge struggles with impact of reduced guidelines for (long-ago) kingpin crack dealer

NPR has this notable new story about a notable request by a notable federal crack offender seeking a reduced sentence based on the new reduced crack guidelines.  Ths piece is headlined "Notorious Cocaine Dealers' Release Requests Test New Sentencing Guidelines," and here are excerpts:

A longtime federal judge struggled Monday over what constitutes justice for members of one of Washington, D.C.'s most notorious drug rings. Senior U.S. District Judge Royce C. Lamberth pressed a public defender about the fate of Melvin Butler, a man who helped flood the city with cocaine that contributed to waves of violence in the late 1980s.

"You're saying that I can't consider the fact that he was one of the biggest drug dealers in the history of our city?" the judge asked. "Congress has tied my hands and I can't consider that?"

The issue arrived in a spotless second-floor room in the federal courthouse on a request from Butler, now 52, for a sentence reduction that would allow him to leave prison in November, after spending half of his life behind bars.

Butler landed in federal custody on April 28, 1989 — so long ago that most of his court records are lost somewhere in storage. Butler, based in California, was a top associate of Rayful Edmond III, Washington's most infamous drug kingpin. The two men allegedly connected at a heavyweight boxing match in Las Vegas in 1987. Two years later, their trial riveted the country. Officials outfitted the courtroom with bulletproof glass and flew Edmond in each day from a lockup in Quantico, Va.

Butler had initially been sentenced to life in prison, Judge Lamberth pointed out, as "one of the two top ringleaders" of a gang that made more than $1 million a week. But the judge who presided over the case, and died in 1997, later reduced the sentence. Now, Butler and his lawyer are trying to shave off more time using a process the U.S. Sentencing Commission approved last year for drug offenders to secure early release from prison.

"I recognize this man's stature and what happened in the '80s," said Assistant Federal Public Defender Dani Jahn. "He's now 52 years old. He's not the person that he was. This is a very lengthy sentence." Jahn said that if Butler were sentenced under laws in place now, he'd face far less time. And, she said, if the judge refuses to grant the request, Butler will still win release in 2017, having served his full term. She pointed out that Butler will remain under supervised release, subject to sanctions if he breaks the law again. "These guys have everything to lose by screwing up when they get out," Jahn said, adding that appearing before Judge Lamberth under those circumstances "would not be a good experience."...

Another member of the Edmond drug gang, lower down on the ladder, James Jones, also is seeking a sentence reduction. Now 58, Jones is scheduled to leave prison in February 2018. But he too wants to take advantage of a change in the sentencing guidelines that would allow him to go free in November with the judge's permission. Thousands of prison inmates across the country already have won the ability to leave prison early under that mechanism.

But in his courtroom, across from the U.S. Capitol, Judge Lamberth expressed reservations. "It still gives me pause what Congress is doing," the judge said. "I would have thought the top drug kingpins in the country wouldn't be the beneficiaries of what we're trying to do here."

The questions of crime and punishment are particularly timely now as the Obama administration has prioritized sentencing reform and clemency initiatives that would deliver shorter sentences and other relief to nonviolent drug criminals. Lawmakers from both political parties are preparing to advance their own proposals for overhauling the criminal justice system in September....

But the question before Judge Lamberth, and others deliberating notorious cases across the country, is what standards to consider for criminals involved at higher levels in violent drug gangs. The judge said he recalled Edmond testifying that many of his lieutenants wielded firearms. Lamberth also asked about an apparently unresolved murder allegation involving Jones dating to the 1980s. But the prosecutor, the public defender and the probation officer couldn't remember back that far, so they asked for time to research the question.

Prosecutor Barry Wiegand said he didn't want to opine about changes in criminal justice policy. But he said he lived several blocks away from what used to be a drug market under Edmond's control. "I wouldn't presume as an assistant United States attorney to be privy to the wisdom of Congress," he said. "I observe that 31- and 32-year sentences are long. I observe that a lot of places aren't what they used to be. What we did in the 1980s and 1990s was the right thing to do, and we did it well."

August 31, 2015 in Drug Offense Sentencing, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

SCOTUS lets convicted former Virginia Gov to remain free pending cert decision

As reported in this local article, headlined "U.S. Supreme Court lets McDonnell stay free for now," a high-profile white-collar federal defendant has gotten a kind of prison sentence reprieve while continuing to pursue his appeals. Here are the basics:

In a surprise to many observers Monday, the U.S. Supreme Court allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal....

Should the justices not take the case, the stay ordered this afternoon will end automatically. If the court takes the case the stay will continue, the court ordered.

"Wow," said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney's Office in Washington. "It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”

Henry Asbill, one of McDonnell’s lawyers, said “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing."

McDonnell’s lawyers made the request to Chief Justice John G. Roberts Jr., who referred the matter to the full court. McDonnell needed a majority vote for the stay - it is unclear if the full court voted - but only needs four votes for the court to agree to take up his appeal.

"I am surprised," said Carl Tobias, a professor at the University of Richmond School of law. "There's no explanation" provided by the justices, "so it's really hard to know what the vote might have been. But I think it may be a hopeful sign for McDonnell," he said.

"It certainly buys some time," perhaps four months or more while the court considers taking the case, he said. "I think it shows there is some interest on the court in this case," but not necessarily the ultimate outcome. "There's still a lot of steps to go," he said.

The government opposed continued bond for McDonnell and argued that he should begin serving his two-year term. A spokeswoman for the U.S. attorney had no comment on the order. McDonnell and his wife, Maureen, were convicted of corruption charges stemming from $177,000 in gifts and loans from Jonnie R. Williams Sr., the former CEO of Star Scientific, in exchange for helping with the promotion of a product.

I am a bit disinclined to assert that the former Gov is getting the benefit of celebrity justice, especially because there is good reason to believe McDonnell would have possibly served the majority of his two-year prison sentence before SCOTUS would be able to decide the case on the merits if it ultimately chooses to take up his appeal.  Still, many white-collar defendants (despite presumably not being a risk to public safet) do not often get the opportunity to remain free on bail pending an appeal of right to a circuit court, let alone a cert appeal to SCOTUS. 

Prior related posts:

August 31, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

India Law Commission urges nation to abolish death penalty for all common crimes

This new article reports on an interesting and notable international sentencing reform development coming from India, a large nation within a continent which has long embraced and preserved a commitment to capital punishemnt.  The piece's extended headline provides the basics: "Law Commission recommends abolishing death penalty except in terror cases: In its 272-page draft report, the commission favoured speedy abolition of the death penalty from the statute books, except in cases where the accused is convicted of involvement in a terror case or waging war against the nation."

The full text of this lengthy report from the Law Commission of India, which is titled simply "Report No. 262: The Death Penalty," can be accessed at this link.  Here is one of many key passages leading up to the report's final recommendations:

In sum, the death penalty operates in a system that is highly fragile, open to manipulation and mistake, and evidently fallible.  However objective the system becomes, since it is staffed by humans, and thus limited by human capacities and tendencies, the possibility of error always remains open, as has been acknowledged the world over, including by the most highly resourced legal systems.

As the instances cited above indicate, while the existence of appellate procedures may reduce the chances of error, these cannot be eliminated altogether.  Given the irreversibility of the death penalty, this punishment can only be justified where the entire system works in a fool proof manner, having regard to the highest standards of due process, the fairest of investigation and prosecution, the most robust defence, and the most impartial and astute judges.  However, experiences the world over, including in India suggest, that “all it takes is one dishonest police officer, one incompetent lawyer, one over-zealous prosecutor or one mistaken witness and the system fails.”  In a perfect criminal justice system, the death penalty may be imposed error free.  However, no such system has been devised so far.  The death penalty therefore remains an irreversible punishment in an imperfect, fragile and fallible system.

August 31, 2015 in Death Penalty Reforms, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (0)

"The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem"

The title of this post is the title of this interesting new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA).  Yet no such decline is evident in the nation’s most populous state, California, where prisoners’ rights litigation remains enormously influential and was the trigger to the criminal justice “Realignment” that is the subject of this symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement.

This article examines why California is different.  It argues California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers.  Working for both non-profits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit’s hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies.  In short, they learned how to — just barely — maintain a prisoners’ rights docket nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

August 31, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 30, 2015

Gearing up for the Ninth Circuit oral argument concerning California's (capricious?) capital cae review

As I have noted in a few recent posts (linked below), panel oral argument is scheduled for tomorrow, August 31, 2015, in the Ninth Circuit appeal of last year's ruling by US District Judge Cormac Carney in Jones v. Chappell (now Jones v. Davis) that California's administration of capital punishment was unconstitutional.  Unsurprisingly, media both old and new are giving significant attention to this appeal in a case that could possibly preclude any further executions in the state with the largest death row, and here are headlines/titles and links to a melange of recent media coverage I have come across recently:

As I have mentioned in prior posts, Jones was an interesting ruling from the federal district court for various reasons, and a lot of interconnected issues are in play on appeal.  As revealed via this Ninth Circuit webpage, various amici have submitted briefs to the Ninth Circuit urging reversal or affirmance of the Jones decision.  And I believe we can all watch the panel arguments live via this link from the Ninth Circuit tomorrow at 12noon EDT (9am PDT).  

Prior related posts:

UPDATE: Here are two more new (old media) pieces previewing today's oral argument in Jones v. Davis:

August 30, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Following the industries that follows incareration nation (with only limited concerns about sentencing reform)

Today's New York Times has this interesting article authored by David Segal about various corrections-oriented industries and their (limited) worries about the impact of sentencing reform on their bottom lines.  The article is headlined "Prison Vendors See Continued Signs of a Captive Market," and here are a couple excerpts:

[There were] 264 vendors in booths at the Indiana Convention Center for what is essentially a trade show for the prison industry.  It is the shiny, customer­-friendly face of a fairly grim business. The A.C.A. accredits jails and prisons and is also the country’s largest association for the corrections field, with a membership filled with wardens and state and county correctional administrators.

The convention is where those people window­shop.  The United States currently imprisons about 2.2 million people, making it the world’s largest jailer.  Those in charge of this immense population need stuff: food, gas masks, restraints, riot gear, handcuffs, clothing, suicide prevention vests, health care systems, pharmacy systems, commissary services — the list goes on.  These outlays are a small fraction of the roughly $80 billion spent annually on incarceration, though precise sales figures are hard to come by because most companies in this niche market are private.  Two publicly traded players, the private prison operators Corrections Corporation of America and the GEO Group, have a combined market capitalization of almost $5.8 billion. Both companies had booths in Indianapolis.

For prison vendors, this would appear to be a historically awful moment.  Sentencing reform has been gaining momentum as a growing number of diverse voices conclude that the tough­-on-­crime ethos that was born 40 years ago, and that led to a 700 percent increase in the prison population since 1970, went too far....

My goal ambling through the oddly colorful bazaar in Indianapolis for three days was to see what effect — if any — this much discussed change was having on the hard­nosed bottom line.  Was anyone here experiencing a slump, or even bracing for one?  Nobody wants businesses to suffer financially, but if you think the current incarceration system is a calamity, there is no way around it: Bad news for these companies is good news for the country.  And if change was coming, or had already arrived, these vendors would be among the first to know.

I had no idea what I would find.  But a few days before the exhibition doors opened, I spoke on the telephone to a skeptic, a guy who just didn’t believe that the country was really on the verge of a correctional system makeover. “It’s hard for me not to be cynical about it,” said Jack Cowley, a retired warden who lives in Oklahoma. “Think about the size of our system, all the judges and lawyers, putting their kids through college, people that make leg irons, Tasers. Crime is driving the train. It’s like a business that is too big to fail.”...

In Indianapolis this summer, there were the ingratiating smiles that are always part of sales, but nobody seemed giddy. Concern about sentencing reform was in the air, but more than a few vendors seemed to regard the trend as a business opportunity....

[M]any companies are trying to diversify. In 2013, Corrections Corporation of America, the country’s largest private prison company, purchased Correctional Alternatives, which specializes in re­entry programs, like work furloughs and home confinement. “We have continued to look for opportunities in this service area,” a spokesman for C.C.A. wrote in an email. “It aligns with the needs of our government partners, who are increasingly looking to this type of solution.”

August 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, August 29, 2015

"Is It Ethical to Chemically Castrate a Child Sex Offender?"

The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia.  Here is how the piece gets started (with links from the original):

When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally.  The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.

New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation.  About 17 percent are arrested for a similar crime within two years of being released from prison.  Currently, sex criminals can volunteer for treatment, but are not required to undergo it.

Child sexual abuse runs rampant in Australia.  Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.

Anti-libidinal treatment is nothing new.  In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.

In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.

Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.

Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.  

Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane.  “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.

In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.

August 29, 2015 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Technocorrections | Permalink | Comments (14)

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 28, 2015

Massachusetts SJC rules local sex offender restrictions preempted by state law

As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law."  Here is more on the ruling: 

The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties.  The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.

“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.

Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass.  “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.

The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.

John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.

He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.

Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.

The full unanimous Massachusetts SJC ruling is available at this link.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (1)

Arkansas political corruption case showcases corruptness of federal sentencing guidelines

This local reporting from Arkansas, headlined "Martha Shoffner gets 30 months in bribery case," details today's federal sentencing of a significant political figure in the Natural State. Here are the basics, with some commentary to follow:

Judge Leon Holmes has sentenced former Arkansas Treasurer Martha Shoffner to 30 months in prison for taking bribes for state bond business. It will be followed by some supervised release. No fine was assessed.  The 71-year-old will have to report to a Fort Worth prison in 60 days.

She faced as much as 15 years in prison under federal sentencing guidelines.  Her attorney had asked for 12 to 18 months, with half that in home detention.  U.S. Attorney Chris Thyer, who'd asked for 60 months, said he was satisfied with the outcome....

Judge Leon Holmes said Shoffner had netted little — he ordered restitution of $31,000 she'd kept in bribes — but as a public official should do prison time....

Shoffner's attorney argued that the only loss was $36,000 in bribes, not the value of the bond business of $1.7 million. Holmes held there were multiple payments for multiple actions and the $36,000, paid in six installments, didn't amount to a single payment, which also means a potential enhancement of the sentence. He said [bribe giver Steele] Stephens benefited from the bribes to the tune of $900,000 the amount by which his $1.7 million in commissions exceeded the next biggest bond dealer who did business with Shoffner.

[Defense attorney Chuck] Banks asked the court to show mercy on Shoffner, saying she "made a terrible, terrible error in judgment" and characterizing her as "gullible" and "clueless." He said that she was inclined to accept the bribes from Stephens in large part because she was in a bad financial situation, having underestimated the cost of commuting on a regular basis between Newport and Little Rock.

Banks asked Holmes to consider Shoffner's "good deeds," including her work for the Humane Society. He presented the court with a picture of her dog, Fred, and said he was moved by the fact that after Shoffner was first arrested, she asked Banks to call her sister to check on Fred. He called two character witnesses to the stand to testify on her behalf.

He also said that in her capacity as treasurer, Shoffner's books consistently balanced and audits found no problems in the accounts of the office itself. "She was in all honesty doing a pretty dadgum good job," Banks said. "I'm proud to be standing with this poor woman here at this dark hour ... she really is gullible. She really is naive."...

Banks said Shoffner has experienced the most public vilification that he has ever seen in his career as an attorney.  He compared her haggard appearance today with a picture of her being sworn in a few years ago, to show the physical toll her ordeal has taken.  He said she was now "disgraced," "broke" and "ostracized" and noted that she drove to the courthose in a 2003 Oldsmobile this morning.

He also pointed out that Steele Stephens received complete immunity from prosecution for his cooperation with the FBI.  Stephens got a $25,000 fine and lost his brokers license, and "that's it," Banks said.

The attorney argued that sentencing Shoffner to a long period in jail would not serve the public interest, and urged Holmes to give her only as much punishment needed "to repair people's confidence in the office."  She might not live out a harsh sentence, he said.

Especially because to this day I remain grumpy Bill Clinton never got prosecuted for his crimes while in office, I tend not to be eager to argue for mercy for lawbreaking politicians. But, if I read the facts here right, it seems the bribe-giver netted nearly $1 million dollars in benefits and gets only a small fine for his misdeeds because of his FBI cooperation while the bribe-taker is headed off the prison for a couple years even though she has already been disgraced and likely never posed any real risk to public safety.

That all said, I do not find either the 30-month sentence imposed by the federal judge or even the 5-year sentence recommended by the federal prosecutor too troublesome. What offends me is a guideline structure that would recommend a 15-year(!) prison sentence for a 71-year-old, first-time offender who poses no risk to public safety. That guideline recommendation strikes me as crazy on these facts, and it is reassuring that the prosecutor here had the good sense to only urge a sentence only 1/3 as long as the guidelines recommend and that the judge imposed a sentence only half as long as the prosecutor requested. And it is cases like this that still lead me to consider circuit courts misguided in the post-Booker jurisprudence to embrace any kind of presumption of reasonableness for within-guideline sentences.

August 28, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3)

Despite copious reform talk, big and tough federal drug sentencing system churns on

ChartAs regular readers know, talk of federal sentencing reform, especially drug sentencing reform, has been all the rage in recent years.  And yet, as this new report from the US Sentencing Commission details, in the last fiscal year, the federal criminal justice system still sentenced tens of thousands of drug offenders to hundreds of thousands of years of federal imprisonment.

The new report, titled excitingly "Overview of Federal Criminal Cases, Fiscal Year 2014," actually reports a decline in the overall number of federal criminal case sentences in the last fiscal year.  But this overall decline was driven mostly by a significant decline in immigration cases.  Here are some snippets from the report which highlight some of modern federal sentencing trends:

The number of individual offenders sentenced each year grew steadily after the Commission began reporting sentencing data in 1988, reaching a high of 86,201 individual offenders sentenced in fiscal year 2011.  Since then the number of cases has decreased each year.  In fiscal year 2014, the number of individual offender cases reported to the Commission fell by 4,199 (5.2%) cases from the previous year to 75,836.  Since fiscal year 2011, the number of these cases has declined by 12.0 percent....

Drug cases have traditionally been the most common federal cases.  However, beginning in fiscal year 2009, the number of immigration cases steadily increased, reaching a high of 29,717 such cases in fiscal year 2011.  That year immigration cases were the most common offense in the federal system....  In fiscal year 2014, 24,011 drug cases were reported to the Commission, accounting for 31.7 percent of all cases. Most of these cases involved drug trafficking offenses.  That year there were 22,238 immigration cases, accounting for 29.3 percent of the total federal caseload that year....

Several factors affect the average prison sentence for drug offenders, including statutory mandatory minimum punishments, the quantity of the drugs involved in the case, the prior criminal history of the offender, and whether the offender assisted the government in the investigation of his or her crime and other crimes.

For more than 20 years, crack cocaine offenders have been the most severely punished, however the length of imprisonment imposed in these cases has decreased steadily since 2007.  In fiscal year 2014, the average imprisonment for drug crimes involving crack cocaine was 93 months of imprisonment (with a median sentence of 72 months).  This compares to a high of 129 for these offenders in fiscal year 2007.  Methamphetamine offenders are the next most severely punished drug crimes, with an average length of imprisonment of 88 months (and a median sentence of 70 months).  Marijuana offenders have the lowest average imprisonment at 36 months (with a median sentence of 24 months)....

Mandatory minimum penalties enacted by Congress play a large part in determining the sentence for drug offenders, either outright or through the impact of these statutes on the structure of the guidelines.  In fiscal year 2014, half of all drug offenders were convicted of an offense carrying a mandatory minimum penalty, however, this proportion was the lowest it has been since the Commission began reporting data about mandatory minimum penalty application in 1993.  The portion of drug cases carrying a mandatory minimum penalty in fiscal year 2013 was 62.1 percent.  This significant reduction was due, in large part, to a change in the policy of the Department of Justice as to how to charge drug cases.

In fiscal year 2014, powder cocaine offenders and methamphetamine offenders were convicted of an offense that provided for the imposition of a mandatory minimum sentence at the highest rates — 65.4 percent in powder cocaine cases and 61.8 percent in methamphetamine cases.  Mandatory minimum penalties were least common in drug cases involving “other” drugs (mostly prescription drugs) and marijuana, accounting for 4.3 percent and 33.2 percent, respectively, of those cases.

These data highlight that DOJ's new charging policies have a measurable impact of the operation of the federal sentencing system. But that change did not dramatically alter the modern annual pattern of more than 125,000 cumulative years of future federal prison time being imposed on all federal drug defendants. All those years, at a conservative average taxpayer cost of $30,000 per year, means just federal drug sentencing in 2014 served to commit nearly $4,000,000,000 in future federal taxpayer funds to incarcerating those drug defendants sentenced over the last USSC fiscal year.

August 28, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Do tough sex offender restrictions really hurt women and children more than keeping them safe?

The question in the title of this post is prompted by this lengthy new Al-Jazeera America article headlined "Collateral damage: Harsh sex offender laws may put whole families at risk: Research says that registries and residency bans leave children of sex offenders vulnerable to bullying, homelessness." Here are excerpts:

In 1996, Congress passed Megan’s Law, which allowed states to publicize the names of those convicted of sex offenses. A wave of federal and state laws followed that created online sex offender registries, broadened who is listed and restricted where registrants can live.

But today there’s a growing body of research and court opinions questioning those laws’ effectiveness and constitutionality. No studies have looked at what proportion of the country’s nearly 850,000 people on state registries are providing for families of their own. Activists say, however, that thousands of female partners and children are being hurt by laws that aim to protect kids....

Vicki Henry, who runs Women Against the Registry, a group trying to roll back registration and residency laws nationwide, [with] volunteers operate a hotline for family members of registrants seeking help in dealing with the consequences of those laws. They field about 100 calls a month, Henry says.

The only quantitative study to date suggests how serious those consequences may be. In the American Journal of Criminal Justice in January 2009, researchers Jill Levenson and Richard Tewksbury reported on their survey of nearly 600 immediate family members of registrants. More than 20 percent said they had to move out of a rental because their landlord found their relative’s name on the registry, and 40 percent said they found it hard to find an affordable place to live.

Respondents said that their kids didn’t fare well either. Two-thirds reported that their children felt left out of activities because of their parent’s status, more than three-quarters said their children were depressed, and almost half reported that their children were harassed....

Two new qualitative studies provide more backing for the 2009 study findings. From 2010 to 2012, a team of researchers from four universities surveyed almost 450 registrants about the consequences for their families of their being on the list. Their report on the study ran in the October 2014 Justice Policy Journal. Another by two University of Delaware researchers involved surveys last year of 36 family members and interviews with 16 of them; it’s still under review for publication. Both studies asked open-ended questions, so the researchers couldn’t crunch any numbers. But key themes run through the responses — children being shunned and harassed, families struggling to find a place to live, wives losing friends and jobs because a husband is on the list....

Those families may be the collateral damage in a war on sex crimes that’s been underway since passage of Megan’s Law. But it’s far from clear that the chief weapons politicians have employed — registries and residency bans — are helping to protect children or the public.

None of the six studies on sex offender registries conducted between 1995 and 2011 found that registries lowered recidivism, according to a meta-analysis of 20 years of research in the November 2012 Journal of Crime and Justice. “Over the last 15 years, sex offender registries have been established in all empirical forums not to reduce sexual offending behavior, violence, or the number of victims,” Kristen Zgoba, coauthor of that study, wrote in an email.

There’s an even broader consensus on residency restrictions. A U.S. Department of Justice brief released last month concluded that “research has demonstrated that residence restrictions do not decrease and are not a deterrent for sexual recidivism.” And a December 2013 study report in the journal Criminal Justice Policy Review noted that Florida’s residency laws likely play a “significant role” in homelessness and transience among sex offenders.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, August 27, 2015

"Criminal Justice Reform Begins With Fair Sentencing and Fair Chances"

American-spectator_20070710The title of this post is the headline of this new commentary which strikes me as especially notable because (1) it is authored by the Coaltion for Public Safety's senior policy advisor, Lance Lemmonds, who recently worked for the Association of Prosecuting Attorneys and on a number of Republican campaigns, and (2) it is published by The American Spectator.  Here are excerpts:

Political conservatives who, since at least the Nixon administration, have worn with pride the badge of “tough on crime” are beginning to realize that tough doesn’t necessarily mean the same as being “smart on crime.”

Just as the private sector has embraced the mantra of “working smarter, not harder,” it’s time for federal and state officials to acknowledge the need for a smarter and more cost-effective criminal justice system.

Reducing life-without-parole sentences is one of several planks in the Coalition for Public Safety’s nonpartisan campaign for fair sentencing and fair chances, the overall goal of which is aimed at reducing the nation’s burgeoning jail and prison populations and breaking down the barriers to successful re-entry into society.

The coalition supporting the fair sentencing and fair chances campaign believes that we can dramatically reduce the enormous amount of money — currently $80 billion — that American taxpayers spend annually on incarceration in the state and federal jail and prison systems — and do so without jeopardizing public safety.  That coalition includes the conservative groups Americans for Tax Reform, Faith & Freedom Coalition and FreedomWorks.

In addition to calling for a reduction in the number of life-without-parole sentences, CPS’ fair sentencing and fair chances campaign is also calling for reducing the length of federal mandatory-minimum sentences for nonviolent offenses, so that the punishment fits the crime.  That will help safely alleviate prison overcrowding while also curbing burgeoning costs....

At both the federal and state levels, we also advocate greater use of alternatives to incarceration, where appropriate.  These include restitution, community supervision and residential re-entry centers, both pre-trial and post-sentencing, as well as expanded access to mental health care, substance-abuse treatment, education and job training.

Programs that allow inmates to reduce their sentences through credit for good behavior and participation in recidivism-reduction training should be expanded. So should the sealing of criminal records, where appropriate, to encourage rehabilitation and to make it easier for ex-offenders to find gainful employment and reintegrate into society....

Clearly, something needs to be done when, since 1980, the federal prison population has increased nearly tenfold and the state prison population has quadrupled.  More than 1 percent of all U.S. adults are now behind bars, by far the highest rate of any nation in the world.

By addressing much-needed reforms to the current one-size-fits-all approach to prison sentencing, and by also reducing barriers to education, housing, and employment that so many ex-offenders face, we can protect our communities and increase public safety.  We must seize this unique opportunity for progress to make the justice system smarter, fairer, and more effective.

August 27, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

BJS releases latest data on crime victimization throughout United States

This new press release from the Bureau of Justice Statistics reports on encouraging crime news for 2014 based on one notable metric. Here are the basic data from the press release:

The violent crime rate did not change significantly in 2014 compared to 2013, the Bureau of Justice Statistics (BJS) announced today. Violent crimes include rape or sexual assault, robbery, aggravated assault and simple assault.  In 2014, the violent crime rate was 20.1 victimizations per 1,000 U.S. residents age 12 or older.

The rate of domestic violence, which includes crime committed by intimate partners (current or former spouses, boyfriends or girlfriends) and family members was also unchanged from 2013 to 2014 (4.2 per 1,000). Likewise, in 2014 the rates of intimate partner violence (2.4 per 1,000), violence resulting in an injury (5.2 per 1,000) and violence involving a firearm (1.7 per 1,000) did not change significantly.

In comparison, the property crime rate, which includes burglary, theft and motor vehicle theft, fell from 131.4 victimizations per 1,000 households in 2013 to 118.1 per 1,000 in 2014.  The overall decline was largely the result of a decline in theft....

From 2013 to 2014, crime rates varied slightly by region. There was no significant difference in the rate of violent crime in the Midwest and South, while the Northeast and West had slight decreases.  Property crime rates decreased in the Midwest, South and Western regions of the country, but there was no significant change in the rate of property crime in the Northeast....

From 2013 to 2014, there were no significant changes in rates of violent crime across urban, suburban and rural areas.

The full new BJS report, excitingly titled "Criminal Victimization, 2014," is available here and the findings are based on data from the National Crime Victimization Survey (NCVS). Interestingly, while the press release quoted above emphasizes there has been no change in violent crime rate, the first few paragraphs of the full report provides a slightly more encouraging story based on the detailed numbers (and the broader multi-year trends) and highlighted by my emphasis below:

In 2014, U.S. residents age 12 or older experienced an estimated 5.4 million violent victimizations and 15.3 million property victimizations, according to the Bureau of Justice Statistics’ (BJS) National Crime Victimization Survey (NCVS).  There was no significant change in the overall rate of violent crime, defined as rape or sexual assault, robbery, aggravated assault, and simple assault, from 2013 (23.2 victimizations per 1,000 persons age 12 or older) to 2014 (20.1 per 1,000) (figure 1).  However, the rate of violent crime in 2014 was lower than the rate in 2012 (26.1 per 1,000).  From 1993 to 2014, the rate of violent crime declined from 79.8 to 20.1 per 1,000.

The overall property crime rate (which includes household burglary, theft, and motor vehicle theft) decreased from 131.4 victimizations per 1,000 households in 2013 to 118.1 victimizations per 1,000 in 2014.  The decline in theft accounted for the majority of the decrease in property crime.  Since 1993, the rate of property crime declined from 351.8 to 118.1 victimizations per 1,000 households.

This particular BJS data source had shown an uptick in overall crime in the period from 2010 to 2012. It is encouraging news that this data source is now showing that crime seemed to be going back down again in the period from 2012 to 2014.

August 27, 2015 in Data on sentencing, National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Might Tennessee soon have its machinery of death up and running?

The question in the title of this post is prompted by this AP story headlined "Judge upholds Tennessee lethal injection method." Here are the basics:

A Tennessee judge on Wednesday upheld the state's lethal injection process for executing inmates.

Davidson County Chancery Judge Claudia Bonnyman said from the bench that the plaintiffs, 33 death row inmates, didn't prove that the one-drug method led to a painful and lingering death.  She also said the plaintiffs didn't show during a lengthy trial that there have been problems in states where the method has been used. "Plaintiffs were not able to carry their burdens ... on any of their claims," Bonnyman said.

Plaintiffs' attorney Kelley Henry said they plan to appeal.

Attorney General Herbert Slatery said in a statement he hoped the families of victims would be comforted by the ruling.  "The State of Tennessee has worked very hard to make sure the protocol used is reliable and humane, today the Court recognized that," the statement said.  While much of the focus of this case has been on the inmates, we should not forget the victims and the heartache suffered by their families."

Tennessee's protocol calls for the use of pentobarbital mixed to order by a pharmacist, because the only commercial producer of the drug has placed restrictions on its distribution to prevent it from being used in executions.  Tennessee has not executed an inmate for more than five years because of legal challenges and problems in obtaining lethal injection drugs.

Lawmakers moved from a three-drug lethal injection method to a one-drug method and to reinstate the electric chair as a backup.  Both changes brought challenges, and all previously scheduled executions have been put on hold.

This ruling and the planned appeals by the death row defendants suggests that Tennessee might be a good state to watch to see if the Supreme Court's ruling in Glossip can really help states finally get their death penalty machinery back up and running.  In the wake of Glossip and absent any evidence of illicit chicanery by Tennessee officials, any appeals in this case ought to be resolved fairly expeditiously (especially if Tennessee were now set execution dates for some condemned murderers). But, of course, the condemned still have every reason, and surely will seek every opportunity, to continue to extend the lethal injection litigation for as long as possible in both state and federal courts. I have thought that Glossip should speed things along in this state and others, but only time will tell.

August 27, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

"When Prisons Need to Be More Like Nursing Homes"

The title of this post is the headline of this new lengthy Marshall Project piece about the challenges posed by an aging prison population.  Here is how it begins:

America’s prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren’t designed to serve as nursing homes.

Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation’s prison inmates — or 145,000 people — were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration. Caring for elderly inmates can cost up to twice as much as caring for younger ones.

In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007 — its most recent figures — the state’s corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.

Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care.  “If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit’’ Stern said, “they would say, ‘O.K., where's your geriatric unit? Where's your dementia unit?’ It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization.”

But some states are confronting the costs and the problems. Here is a look at some innovative programs in New York, California and Connecticut.

A few (of many) recent and older related posts:

August 27, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)