In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.
Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.
In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes. Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”
Earlier this week, the United States Department of Justice released a scathing report on police and court practices in Ferguson, Missouri. Figuring prominently in the DOJ’s criticisms, Ferguson criminal-justice officials were said to be overly concerned with extracting money from defendants. For instance, the DOJ charges:
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. (3)
I don’t know how fair these particular criticisms are, but they echo numerous other criticisms made in recent years about the increasing tendency of the American criminal-justice system to rely financially on a burgeoning array of fines, surcharges, fees, forfeitures, and the like.
Professors Wayne Logan and Ron Wright have a fine recent article on this subject, appropriately entitled “Mercenary Criminal Justice” (2014 Ill. L. Rev. 1175). Continue reading “Mercenary Justice?”
In my previous post, I argued that Wisconsin should consider reinstituting “good time” for prisoners, that is, credits toward accelerated release that can be earned based on good behavior. An established program that Wisconsin might emulate is Washington’s.
Washington has long been regarded as a national leader in criminal justice. Indeed, Wisconsin has previously borrowed from other Washington innovations, such as its “three strikes and you are out” law and its civil commitment program for sexually violent offenders. Washington’s good-time law takes a balanced, moderate approach. It is neither among the most generous nor the most stringent in the nation.
Notably, Washington’s recidivism rate has been consistently lower than both the national average and Wisconsin’s. Although many factors contribute to a state’s recidivism rate, some research suggests that the incentives established by a well-designed good-time program may help to reduce repeat offending.
With the rules set forth here, the Washington program works like this:
Continue reading ““Good Time” in Washington: A Model for Wisconsin?”
The Valparaiso University Law Review has now posted the final version of my article “Mass Incarceration in Three Midwestern States: Origins and Trends.” Here’s the abstract:
This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized, Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.
This paper was part of an interesting symposium issue on mass incarceration and the drug war.
By 2002, in the wake of a recession that caused major fiscal challenges in many states, there was an increasingly widespread recognition that the American imprisonment boom of the 1980s and 1990s was not economically sustainable. Dozens of states adopted new sentencing and corrections policies that were intended to restrain further growth in imprisonment. These reforms seem to have had some success, as imprisonment rates finally stabilized after so many years of explosive growth. However, very little progress has been made toward bringing U.S. imprisonment rates back down to our historical norms. The “if you build it, they will come” principle seems in evidence — after so much prison capacity was built in the boom years, we’ve found ways to keep using it even as crime rates have tumbled down.
A few states have had success, however, in downsizing their prison populations. Here are the ten states whose prison populations dropped between December 2002 and December 2012:
New York -19%
New Jersey -17%
South Carolina -5%
Rhode Island -2%
Even the largest decreases on the list are rather small compared with the size of the pre-2002 increases. Nonetheless, some might wonder whether reduced imprisonment has resulted in more crime. With that concern in mind, I gathered data on violent crime in the five states that experienced double-digit drops in imprisonment. Continue reading “Which States Have Reduced Their Prison Populations in the Past Decade?”
The Encyclopedia of Criminology and Criminal Justice has finally come out in print, and with it my two entries on restitution and sentencing commissions. A copy of “Restitution” is here, and a copy of “Sentencing Commissions” here.
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”
As noted here a few weeks ago, my forthcoming article comparing imprisonment trends in Indiana, Minnesota, and Wisconsin in now available on-line. Due to space constraints, I was unable to include in the article all of the interesting data I have collected on the three states. I’ll present some of that additional material in an occasional series of posts here.
Today, let’s take a look at the supervised populations of the three states. The supervised population is comprised of four subgroups: those in prisons, those in jails, those on probation, and those out on post-imprisonment supervised release (a status that goes by different names in different jurisdictions, but which I will call parole). As is well known, Minnesota has a remarkably low imprisonment rate (at least by U.S. standards), although all three states have experienced an imprisonment boom since the 1970s. Here are the imprisonment numbers, reflecting the number of prisoners per 100,000 state residents:
As the graph indicates, Minnesota has maintained a consistently lower imprisonment rate than the other two states since the mid-1960s. Indeed, the Minnesota advantage has tended to widen over time. By contrast, Indiana has generally had the highest imprisonment rate, although Wisconsin has been close at times, and even took the lead for a few years.
The story is quite different, however, if you consider the supervision numbers more broadly. Continue reading “Tale of Three States: Minnesota’s Surprisingly Large Supervised Population”
I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.
The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.
The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my
primary theme is the relationship between sentencing commissions and legislatures. Although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.” A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.
A draft of my new article, “Mass Incarceration in the Three Midwestern States: Origins and Trends,” is now available on SSRN. Here’s the abstract:
This Article considers how the mass incarceration story has played out over the past forty years in three medium-sized Midwestern states, Indiana, Minnesota, and Wisconsin. The three stories are similar in many respects, but notable differences are also apparent. For instance, Minnesota’s imprisonment rate is less than half that of the other two states, while Indiana imprisons more than twice as many drug offenders as either of its peers. The Article seeks to unpack these and other imprisonment trends and to relate them to crime and arrest data over time, focusing particularly on the relative importance of violent crime and drug enforcement as drivers of imprisonment growth.
The article builds on my series of “Tale of Three States” blog posts from about a year ago. It will appear in print later this year in a symposium issue of the Valparaiso Law Review.