Dark Clouds on the Horizon for Graham v. Florida?

In 2010, the Supreme Court ruled in Graham v. Florida that juveniles given a life sentence for nonhomicide crimes must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision earlier today in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of the geriatric release decision under Virginia law, which effectively permitted the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

A unanimous Supreme Court reversed today in a brief per curiam opinion.   Continue reading “Dark Clouds on the Horizon for Graham v. Florida?”

New Research Suggests Potential of Prison Furloughs, But Shadow of Willie Horton Still Looms

It remains the paradigmatic moment in the modern history of tough-on-crime politics. In  the summer of 1988, Michael Dukakis, the Democratic Governor of Massachusetts, seemed to be cruising toward a presidential election victory in November. Then, Republican operatives began to pummel him for a horrific failure in Massachusetts’s prison furlough program. This program offered short leaves for inmates to spend time at home, which was thought to help prepare them for their permanent release. The program had a good track record until an inmate named Willie Horton absconded during one of his releases and brutally assaulted a young couple. As the Horton story became more widely known nationally, Dukakis’s lead in the polls evaporated. His eventual loss seemed to confirm that politicians could no longer afford even a tangential association with policies or programs that were perceived to be soft on crime.

The Horton story reverberated for years across the whole field of criminal justice, but perhaps its most direct impact was a sharp constriction in prison furlough programs, which had previously been widely accepted and utilized by American corrections officials.

As furlough programs faded away, so, too, did research on their effectiveness. Although several older studies suggested that furloughs might help to reduce post-release recidivism, there has been a growing need for updated research.

A new paper by L. Maaike Helmus & Marguerite Ternes helps to fill the gap.   Continue reading “New Research Suggests Potential of Prison Furloughs, But Shadow of Willie Horton Still Looms”

Public Attitudes Toward Truth in Sentencing

The final version of my article “Imprisonment Inertia and Public Attitudes Toward ‘Truth in Sentencing'” is now available at the BYU Law Review website.  Coauthored with Darren Wheelock, this article is based on research conducted through the Marquette Law School Poll.  Here is the abstract:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

Good Time in Wisconsin: Why and How

In a couple of recent posts (here and here), I have discussed the possibility of Wisconsin reinstituting “good time.”  I have developed the argument for good time at much greater depth in a new article that is now available on SSRN.  Here is the abstract:

Wisconsin is one of about twenty states not offering good conduct time (GCT) to prisoners. In most states, prisoners are able to earn GCT credits toward accelerated release through good behavior. Wisconsin itself had GCT for more than a century, but eliminated it as part of a set of reforms in the 1980s and 1990s that left the state with what may be the nation’s most inflexible system for the release of prisoners. Although some of these reforms helpfully brought greater certainty to punishment, they went too far in eliminating nearly all meaningful recognition and encouragement of good behavior and rehabilitative progress. This article explains why and how Wisconsin should reinstitute GCT, drawing on social scientific research on the effects of GCT, public opinion surveys in Wisconsin and across the United States regarding sentencing policy, and an analysis of the GCT laws in place in other jurisdictions. Although the article focuses particularly on Wisconsin’s circumstances, the basic argument for GCT is more generally applicable, and much of the analysis should be of interest to policymakers in other states, too.

Entitled “Good Conduct Time for Prisoners: Why (and How) Wisconsin Should Provide Credits Toward Early Release,” the article is forthcoming in the Marquette Law Review.

Why No “Good Time” in Wisconsin?

Unlike most other states, Wisconsin does not recognize prisoners’ good behavior with credits toward accelerated release.  Wisconsin had such a “good time” program for well over a century, but eliminated it as part of the policy changes in the 1980s and 1990s that collectively left the state unusually — perhaps even uniquely — inflexible in its terms of imprisonment.  I’ve been researching the history of good time in Wisconsin in connection with a forthcoming law review article.

Wisconsin adopted its first good time law in 1860, which placed it among the first states to embrace this new device for improving prison discipline.  Twenty years later, in 1880, the Legislature expanded good time and restructured the program in the form it would retain for about a century.  In the first year of imprisonment, an inmate could earn one month’s credit for good behavior; in the second, two months; in the third, three; and so forth.  Credits maxed out at six months per year.   A model prisoner with a ten-year term, for instance, might earn enough credits to knock off two years or more from the time served.

In Wisconsin and elsewhere, good time has had a distinct history, structure, and purpose from parole.   Continue reading “Why No “Good Time” in Wisconsin?”

Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases

In 1998, Wisconsin adopted what may have been the nation’s most rigid truth-in-sentencing law, eliminating parole across the board and declining to put into place any alternative system of back-end release flexibility, such as credits for good behavior in prison.  Subsequent reforms to this system have been either short-lived or very modest in scope.  However, new results from the Marquette Law School Poll confirm and strengthen findings from other recent surveys that Wisconsin residents would actually welcome a more flexible system.

As I noted in an earlier post, the Law School Poll has asked Wisconsinites their views about criminal-justice policies in each of the past three summers.  Although the Poll has revealed significant support for truth in sentencing, it has also revealed comparable or even greater support for enhanced flexibility.

In 2012, Poll results included the following:  

  • 85% of respondents agreed that “criminals who have genuinely turned their lives around deserve a second chance.”
  • 67% agreed that “Wisconsin should recognize prisoners’ rehabilitative accomplishments by awarding credits toward early release.”
  • 55% agreed that “once a prisoner has served at least half of his term, he should be released from prison and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.”

Continue reading “Two-Thirds of Wisconsinites Support More Flexibility for Prisoner Releases”

Imprisonment Inertia and Public Attitudes Toward “Truth in Sentencing”

Preoccupied by a couple of other projects, I’ve fallen behind in my blogging.  However, I’m pleased to report that one project is now complete and posted on SSRN (available here).  Coauthored with Darren Wheelock (Marquette Department of Social and Cultural Sciences) and entitled “Imprisonment Inertia and Public Attitudes Toward ‘Truth in Sentencing,'” the paper provides more in-depth analysis of the Wisconsin survey research I’ve discussed in a number of posts (e.g., here and here).  The abstract goes like this:

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.

The paper will be published in early 2015 in the BYU Law Review.

Truth in Sentencing and Early Release: A Follow Up

Last week, I spoke on truth in sentencing at Marquette Law School as part of Mike Gousha’s “On the Issues” series.  My PowerPoint slides and a video of the event are available here.  Alan Borsuk summarized some of the key points in this blog post.

If you watch the video, you will see that time constraints caused me to skip over a couple of slides.  I’ll fill in those gaps here and then suggest where I would like to see Wisconsin go with early release.

First, I think one of the most interesting and puzzling aspects of our polling research is that substantial numbers of Wisconsin voters say they support both truth in sentencing (“TIS”) and release from prison when an offender can demonstrate that he is no longer a threat to public safety, even though these two policies are in tension with one another.  My Marquette colleague Darren Wheelock and I have been studying this “both-and” group to better understand what underlies their thinking.  Comprising more than one-quarter of our polling sample, I think of this group as the TIS swing voters — the people who support TIS, but not so strongly as to categorically rule out support for a well-designed, well-justified early release program.   Continue reading “Truth in Sentencing and Early Release: A Follow Up”

Earned Release From Prison: Judges Not Necessarily the Best Deciders

In 2009, Wisconsin expanded release opportunities for prisoners and established a new Earned Release Review Commission to handle the petitions.  But, just two years later, the legislature reversed course, largely repealing the 2009 reforms and abolishing the ERRC. The 2011 revisions effectively returned authority over “early” release to judges. Critics of the ERRC, an appointed body, maintained that it was more appropriate to give release authority to elected judges.

However, last month’s Marquette Law School Poll indicates that Wisconsin voters would actually prefer to put early release into the hands of a statewide commission of experts rather than the original sentencing judge.

Among the 713 randomly selected Wisconsin voters who participated, a 52% majority stated that release decisions should be made by a commission of experts, as opposed to only about 31% who favored judges. An additional 13% stated that both options were equally good. The Poll’s margin of error was 3.7%.

We asked several questions to try to identify more specifically the perceived strengths and weaknesses of both options.   Continue reading “Earned Release From Prison: Judges Not Necessarily the Best Deciders”

Truth in Sentencing: We Like the Symbolism, But Have Mixed Feelings About the Practical Policy

Two-thirds of Wisconsin voters support truth in sentencing, the 1998 law that abolished parole in the state and required prisoners to serve the full term of their sentences.  At the same time, a majority of Wisconsin voters (54.5 percent) agreed that once a prisoner serves half of his term, he should be released and given a less costly form of punishment if he can demonstrate that he is no longer a threat to society.  These seemingly inconsistent opinions point to complex, mixed feelings about sentencing policy in the state.

The numbers come from the Marquette Law School Poll, which earlier this week released the results of its latest survey of Wisconsin voters regarding politics and public policy.  This edition of the poll included a rich array of questions relating to truth in sentencing.  (Full disclosure: I collaborated in the design of these questions with Poll Director Charles Franklin and Professor Darren Wheelock of the Marquette Social and Cultural Sciences Department.)

The poll results this year were remarkably consistent with results from a year ago, when some of the same questions were posed.  Last July, 63% supported truth in sentencing, while 55% supported release opportunities at the half-way mark.  An even more decisive two-thirds majority supported awarding credits toward early release to recognize prisoners’ rehabilitative accomplishments, which also violates truth in sentencing (at least in the particularly hard-line way in which it was adopted in Wisconsin).

What gives?

Continue reading “Truth in Sentencing: We Like the Symbolism, But Have Mixed Feelings About the Practical Policy”