Tomorrow, Jan. 17, I’ll be at Boswell Books in Milwaukee at 7:00 p.m. for an event to mark the release of my new book, Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. All are welcome. More information is here. Thanks to the American Constitution Society for cosponsoring the event.
Ringing in the new year, the U.S. Bureau of Justice Statistics recently released its data on prisoners in the United States in 2015. After rising consistently for about four decades, the U.S. prison population (state and federal combined) peaked at a little over 1.6 million in 2009. Since then, the population has declined steadily, but very slowly. For 2015, the total was a little over 1.5 million, or about 35,000 less than 2014. The continued reductions are encouraging, but must be kept in perspective: the population remains many times above its historic norms. The current rate of 458 prisoners per 100,000 U.S. residents is over four times greater than the long-term rate of about 100 per 100,000 from before the imprisonment boom. We are still very much in the era of mass incarceration.
The Wisconsin numbers continue to be lower than the national norms, but are moving in the opposite direction. At yearend 2015, Wisconsin’s prison population numbered 22,975, up 1.7 percent from 2014. This amounts to 377 prisoners per 100,000. By comparison, Minnesota’s rate was just 196 per 100,000.
Here are a few additional observations:
Sixty years in prison may seem like a long time for a crime not involving homicide, but such was the term Nathan Brown received in the Northern District of New York for producing and possessing child pornography. Brown’s sentence was premised, in part, on the psychological harm done to three children whom Brown photographed in sexually graphic ways. However, the record only provided clear support for harm to two of the children; the third was apparently photographed while sleeping and had no recollection of the incident afterwards. Last June, a panel of the Second Circuit initially ruled (2-1) that Brown should be resentenced so as to ensure that his punishment did not result from an erroneous understanding of the facts. However, the same panel of the Second Circuit reversed itself earlier this month, affirming Brown’s sentence as originally imposed.
The panel’s switch resulted from a change of heart by Judge Robert Sack, who ultimately concluded that the long sentence was reasonable and a resentencing not likely to lead to a different outcome. Although backing away from the panel’s initial holding, Sack apparently remained troubled by aspects of the district judge’s “rhetorical overkill” at Brown’s sentencing. Sack elaborated on his concerns in a thoughtful concurring opinion. Highlighting what seems an important challenge in the sentencing of certain types of cases involving highly disturbing offenses, Sack’s opinion merits quoting at length: Continue reading “Sentencing and Disgust”
It is widely known that many offenders find themselves in trouble with the law again within a few years of their release from prison, but do the recidivism data reflect specialization among criminals? The question has implications for sentencing, among other things. Judges appropriately take risk of reoffense into account when setting prison terms, but, in assessing these risks, it is important to know not only whether a defendant is likely to commit another crime, but also what crimes the defendant is most likely to commit. We may want to keep our likely future murderers and rapists behind bars as long as possible, but we probably feel quite differently about potential future shoplifters and disorderly drunks.
The U.S. Bureau of Justice Statistics is an excellent resource for national recidivism trends. As discussed in this earlier post, the BJS’s most recent major report in this area appeared in 2014. Earlier this week, the BJS issued supplemental tables that speak to the specialization question.
In brief, the evidence points to a modest degree of specialization, varying considerably by offense type.
Consider sexual assault, for instance. Continue reading “Recidivism and Criminal Specialization”
I now have a publication date for my new book: January 17. The excessively long, but nicely descriptive, title is Wisconsin Sentencing in the Tough-on-Crime Era: How Judges Retained Power and Why Mass Incarceration Happened Anyway. More information (including how to order a copy) is available through the University of Wisconsin Press. I’ll be doing a release event at Boswell Books in Milwaukee on January 17 at 7:00 p.m.
Somewhat lost in the run-up to Labor Day weekend and wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined.
Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Bill Clinton’s pardon of financier Marc Rich and George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, among other scandals, contributed to a perception that clemency was unfairly used to benefit wealthy, powerful defendants.
Despite these negative perceptions of clemency, the Obama Administration announced in 2014 that it would welcome commutation applications from certain nonviolent federal offenders. In particular, the initiative focuses on offenders who were convicted many years ago of crimes that would result in a shorter sentence today. Federal sentencing law has undergone several important changes in the past decade, especially in relation to the sentencing of crack cocaine offenses. Federal crack sentences were notoriously severe for many years, with greatly disproportionate effects on black defendants. As a result of the recent changes, thousands of federal prisoners are now serving terms that would be shorter if they were imposed for the same offenses today.
In comparison to the secretive, ad hoc decisionmaking of previous presidents, President Obama’s initiative represents an admirably transparent, principled approach to clemency. Continue reading “Obama Clemency Grants Pick Up Steam”
In the Marquette Law School Poll conducted earlier this month, fifty-nine percent of registered Wisconsin voters agreed that marijuana “should be fully legalized and regulated like alcohol.” Only thirty-nine percent disagreed.
Support for legalization in Wisconsin follows the recent decisions to legalize marijuana in Colorado and Washington in 2012, and in Oregon and Alaska in 2014. Nationally, support for legalization has grown steadily since the early 1990s and finally crossed the fifty-percent threshold in 2013.
In the Law School Poll, respondents were asked which arguments for legalization they found most convincing.
With a wonderful group of Marquette law students, I have been working this year to help about a dozen federal prisoners apply for clemency (sentence reduction) from President Obama. All but one are applying through Clemency Project 2014 as nonviolent offenders. Adam Clausen is the odd man out. He was convicted of a string of robberies in 2000, but is nonetheless a very deserving clemency candidate. Indeed, I know of no more compelling case for a sentence reduction. Adam is doing extraordinary work in prison to help fellow inmates turn their lives around and prepare for reentry. He is a leader and innovator in his institution, helping to design and run programs that are receiving national attention. His request for clemency is being supported by his warden and many other prison officials, which is highly unusual. If released early, he is a sure bet not only to avoid future crime, but also to have a tremendous positive impact on the lives of many others.
In order to give his clemency request an extra boost, his supporters have put a petition on change.org. I have signed on, and I encourage others to do so, too.
My paper on Wisconsin sentencing for Oxford Handbooks Online is now available. Apologies for the paywall. Here is the abstract:
This essay provides an overview of sentencing policies and practices in the state of Wisconsin and considers their impact on the state’s imprisonment rate. Current policies and practices are placed in historical context. Since 1980, state policy has increasingly emphasized the role of the local sentencing judge in determining punishment. Most importantly, a 1998 law ended discretionary parole, which had served as a check on the increasing severity of judge-imposed sentences. Although the state’s prison population remains near its record high of the mid-2000s, there seems little interest in adopting new restrictions on judicial sentencing discretion or otherwise restructuring the sentencing and corrections system in a fundamental way. The essay concludes by describing some more modest reforms that seem politically viable in the near term.
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.