In August, Attorney General Eric Holder delivered a widely noted address to the American Bar Association that seemed to promise significant changes in federal prosecutorial policies. I wrote these reactions for the Federal Sentencing Reporter.
Following decades in which the U.S. Department of Justice has consistently advocated for a rigid and harsh legalism in criminal justice policy—in which DOJ, in the name of abstract principles of national uniformity, has willfully disregarded the devastating impact of its charging, plea-bargaining, and sentencing practices on real-life human beings—Attorney General Holder’s ABA address seems a breath of fresh air. He calls for a more flexible federal criminal justice system, in which prosecutorial charging priorities are more specifically tailored to meet local needs, in which sentencing is more individualized to the offender and prosecutors sometimes forego mandatory minimum sentences, and in which individual U.S. Attorney Offices experiment with new diversion programs as an alternative to conventional case-processing. Holder believes—correctly, I think—that a more flexible and pragmatic system can achieve better public-safety results at a lesser cost than a system in which preserving the integrity of the federal sentencing guidelines is the overriding value.
Through Holder’s address, DOJ offers its most prominent and unequivocal endorsement yet of an emerging new criminal justice paradigm. Continue reading “Thoughts on the Holder Address: Two Cheers for the New Paradigm”
- Wisconsin voters do not favor indiscriminate harshness in the treatment of criminal offenders, but rather believe that the costs and benefits of imprisonment should be carefully weighed in each case. In the July 2013 Marquette Law School Poll, a clear majority of Wisconsin voters (55.3%) expressed support for the idea that “prisons are a government spending program, and just like any other government program, they should be put to the cost-benefit test. States should analyze their prison populations and figure out if there are offenders in expensive prison cells who can be safely and effectively supervised in the community at a lower cost.”
- An overwhelming majority of Wisconsin voters (85%) agree that “criminals who have genuinely turned their lives around deserve a second chance.”
- An overwhelming majority of Wisconsin voters (86%) say that they “feel safe walking alone at night” in their neighborhoods.” Although fear and outrage have sometimes dominated public discussion of criminal justice policies, Wisconsin is ready for a more balanced conversation that considers what policies will deliver the greatest benefits to the state at the least cost over the long run.
Imprisonment and Crime Trends
Continue reading “Thoughts on Imprisonment in Wisconsin: Past, Present, and Future”
AG Holder’s remarks to the ABA earlier this week, announcing new DOJ initiatives, are here. The related “Smart on Crime” report is here. Press coverage of the Holder speech focused on the announcement that federal prosecutors would no longer seek to have “draconian” mandatory minimums imposed on low-level drug offenders, but there are other interesting aspects to the new policy, including expanded compassionate release for federal prisoners and a new focus on reentry and collateral consequences.
It seems to me that just about everything here could have been said, and should have been said, two decades ago by AG Reno. Still, better late than never . . . .
Ironic that this federal backing away from mandatory minimums occurs the very same week we see a push in Wisconsin for new mandatory minimums at the state level.
Wisconsin has already had two sentencing commissions, now both defunct. Is it time to think about a third? Sentencing commissions have proven their worth over the long haul in a number of other states, including Minnesota, North Carolina, and Virginia. A successful sentencing commission promulgates guidelines that channel judicial sentencing discretion and reduce sentencing disparities, collects and analyzes sentencing data in order to support evidence-based decision making, and provides information and recommendations to the legislature than can help to blunt some of the political system’s tendencies to excessive harshness. Although it is certainly not cost-free, a good commission may ultimately save the state far more than is required to fund its operations.
With these considerations in mind, the latest edition of the Marquette University Law School Poll asked respondents their views of commissions and of judicial sentencing discretion. (For my earlier posts on the Poll, see here and here.) The results indicate that there is substantial support for a commission, but that Wisconsinites also appreciate what their locally elected judges bring to the table as sentencers. Continue reading “Is Wisconsin Ready for Another Sentencing Commission?”
Along with my colleagues Dan Blinka, Dean Strang, and Gordon Hylton, I’ve been organizing a conference at Marquette Law School on the Wickersham Commssion, America’s first national crime commission. Appointed by President Hoover and including many legal luminaries of the day, the Wickersham Commission produced an extraordinary series of reports in 1931 that examined in great detail the causes of crime and the operation of the American criminal-justice system. Perhaps best remembered for the critical light it cast on extreme police interrogation tactics, the Commission’s work might also be thought of as the coming-of-age of American criminology, as a progenitor of the contemporary “evidence-based decision making” movement, and as a centerpiece of the first presidential effort to craft a comprehensive federal crime-control policy.
The conference will kick off at 4:30 on October 4 with a keynote address by one of my favorite authors on crime policy, Professor Frank Zimring of Berkeley. Registration information for the keynote is here.
The conference will continue with a series of panels beginning at 8:30 on October 5. Speakers will include distinguished historians, law professors, and criminologists. Additional details and registration information are available here.
For at least two and a half centuries, since the time of Cesare Beccaria, criminologists have recognized that the effectiveness of punishment depends more on its swiftness and certainty than on its severity. Yet, in the United States today, our criminal-justice system has it exactly backwards, relying on what Mark Kleiman and Kelsey Hollander justifiably call “a system of randomly Draconian punishments.” In an insightful new article, Kleiman and Hollander describe in clear, simple terms the systemic reforms that ought to be adopted in order to implement the basic principle that certainty matters more than severity. See “Reducing Crime by Shrinking the Prison Headcount,” 9 Ohio St. J. Crim. L. 89 (2011). They even have an actual, working model of this system to demonstrate its effectiveness: Honolulu’s Project HOPE, which, using a system of summary sanctioning, has achieved dramatic reductions in recidvism among probationers. Klieman and Hollander argue that the HOPE model can and should be expanded to a number of other populations, including parolees.
I find much that is appealing in Kleiman and Hollander’s reform program. But I also think there is something important that is missing in their analysis. As I’ve pointed out in my criticisms of the “evidence-based decision making” movement, there are real dangers when we think about criminal justice purely in terms of the efficient management of social risk. The most fundamental problem with this model is that it assumes that we are capable of treating the people we label as “dangerous” in a restrained, carefully cost-benefit-justified way, when experience teaches that this sort of marking tends to unleash powerful emotional responses like disgust and vindictiveness. James Whitman has written eloquently, and I think persuasively, of these important tendencies.
Indeed, we should ask why it is that the certainty-based approach of Kleiman and Hollander is not the norm. After all, the central premises of their model date back to Beccaria.
Continue reading “Certainty v. Severity of Punishment: The Need for Mechanisms of Restraint”
I’ve been reading some more of Robert Weisberg’s scholarship in anticipation of his visit. He reflects on the Model Penal Code: Sentencing Draft in his essay “Tragedy, Skepticism, Empirics, and the MPCS,” 61 Fla. L. Rev. 797 (2009). He is particularly interested here in the views of the MPCS on empirical social science as a basis for making sentencing policy. He finds in the MPCS evidence of what he calls “tragic skepticism” about empirical proof in legal reform, which has both negative and positive dimensions: “(1) a sober recognition of the limited human knowledge about the effects of our laws that is offset (2) by a sensible, chastened, realistic commitment to a spirit of reasonable experimentation in an unknowable world.” (797) Weisberg seems quite sympathetic to this stance (as, by the way, am I).
Continue reading “Weisberg on the MPC: Sentencing”
There is a natural tendency to believe that the offenders who have committed the most serious crimes are the most dangerous. We assume that the commission of a heinous crime reveals intrinsic character flaws that will inevitably manifest themselves in future offenses. But is this true? Empirical research casts doubt on the assumption. For instance, the well-known study by the Bureau of Justice Statistics on recidivism among prisoners released in 1994 found lower rearrest rates among violent offenders than property offenders (61.7 percent versus 73.8 percent), with homicide offenders having the lowest rearrest rates among all of the categories studied (40.7 percent).
A new study of parole violations by Ryken Grattet, Jeffrey Lin, and Joan Petersilia reaches a similar conclusion. Their dataset included the records of more than 250,000 parolees in California in 2003 and 2004. Here is what they found regarding the effect of offense category:
The commitment offense variables indicate that parolees who had last been incarcerated for property offenses pose the greatest risk to violate, followed by parolees committed for drug (the omitted category), violent, and sexual offenses. Parolees committed to prison for violent offenses have a 19.1 percent lower hazard of violation than drug offenders, and parolees committed for sexual offenses have a one-third lower risk than drug offenders. Individuals with greater numbers of prior violent convictions also have a lower hazard of violation. For each additional violent conviction, a parolee has a 2.0 percent lower hazard of violation. The number of serious convictions also lowers the hazard of violation by 3.4 percent per prior serious offense. . . .
[P]olicy makers and the public, who often assume that the seriousness of a parolee’s past behavior is positively correlated with risk, might be surprised to learn that markers of the seriousness of the offender’s criminal history actually lower the risk of violation. In other words, the type of crime a parolee has been convicted of is indeed predictive of future bad behavior; however, it is drug and property—so-called low-level offenders—that pose heightened risks of violations. (385-87)
What is new and particularly helpful about this study is that it attempted to hold supervision intensity constant.
Continue reading “Which Parolees Are the Biggest Risks? The Answer May Surprise You”
Yesterday, in United States v. Garthus (No. 10-3097), the Seventh Circuit affirmed a thirty-year sentence for a defendant who pled guilty to transporting, receiving, and possessing child pornography. Given the defendant’s age, 44, this is close to a de facto life sentence, which is remarkable — or should be remarkable, but perhaps really isn’t any more — for a mere consumer, not a producer, of kiddie porn.
In any event, Judge Posner’s wide-ranging opinion for the panel includes much food for thought. Here are some of the more noteworthy aspects of his analysis, some of which have broad relevance to sentencing outside the pornography context.
Continue reading “Posner Weighs in on Sentencing for Possession of Child Pornography . . . and Much More”
Fear of crime obviously contributes a great deal to penal politics, but our knowledge of what drives crime fears is quite limited. It would be good to know, for instance, to what extent crime fears are “rational” and to what extent they are a product of misperceptions. It would also be good to know the sources of misperceptions and the extent to which they can be remedied.
An interesting new article by Ian Brunton-Smith and Patrick Sturgis fills in some of the gaps, but still leaves many questions unanswered. Their principal interest was in determining the effect of neighborhood of residence on fear. They used survey and demographic data from England and Wales, crunching the numbers in a variety of ways to try to isolate the effects of several different variables. Their analysis “shows that fear is significantly higher among women, people with poor health, those identified as more socioeconomically disadvantaged, those with recent experience of household or personal victimization (repeat victims are identified as even more fearful of crime), and readers of newspapers that devote a larger proportion of space to the reporting of violent crimes (348-50).” (The latter result, on tabloid readers, is certainly suggestive of one source of irrationality in crime perceptions.)
These sorts of individual-level variables explained more than 80 percent of the variation in fear, with geographic variables accounting for only about 8 percent. Still, even if in a limited way, the data do support the hypothesis that where you live matters.
Continue reading “Fear of Crime: Where You Live Matters, But So What?”