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.
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”
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”
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).
Continue reading “Truth in Sentencing: We Like the Symbolism, But Have Mixed Feelings About the Practical Policy”
The latest edition of the Marquette University Law School Poll includes some interesting data on sentencing policy. I’m grateful to Professor Charles Franklin for collaborating with me in putting the questions together. The results are here (note that the sentencing questions start at Q25a).
The primary purpose of the questions was to determine the attitudes of Wisconsin residents toward truth-in-sentencing, which was adopted by the state legislature in 1998. The questions are timely in light of recent political debates over new early release opportunities for prison inmates, which were embraced by the legislature in 2009, but then repealed two years later. Early release undercuts truth-in-sentencing by introducing uncertainty into the actual date that inmates will be released. Indeed, critics of the 2009 reforms complained — in what was probably a bit of an overstatement — that the new early release mechanisms “gutted” truth-in-sentencing.
At first blush, the new poll seems to provide strong support for the 2011 repeal and the return to a purer form of truth-in-sentencing: a decisive 63% majority agreed that “truth in sentencing should continue to be the law in Wisconsin.” (25c) Moreover, only 27% agreed that “many of the people who are locked up in prison do not deserve to be there,” and only 37% agreed that “many of the people who are locked up in prison could be safely released without endangering the community.” (27d, e)
But the story is a little more complicated than might first appear. Continue reading “Wisconsinites Like Truth-in-Sentencing . . . Sort Of”
For people like me who do not regularly follow immigration law and who are only dimly aware of the recent emergence of the new field of legal practice and scholarship known as “crimmigration,” David Alan Sklansky has a terrific new article with a wealth of data demonstrating the “vanishing boundary” between criminal law and immigration law, as criminal enforcement of immigration laws has skyrocketed and as deportation has increasingly become a favored tool of law enforcement in dealing with suspected criminals. In addition to the fascinating data, Sklansky also supplies an insightful new explanation for the rise of crimmigration — one that centers on what he sees as a growing comfort level in the United States with the idea of giving front-line actors wide discretion to select from a range of law-enforcement tools in order to address threats to public safety. I’d like to add another layer of nuance to Sklansky’s theory of discretion, but, first, here are some of the numbers from the article that I found particularly striking:
Continue reading “Crimmigration and Discretion”
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”
The Bureau of Justice Statistics released a new report yesterday showing that the number of adults under community supervision declined by 1.3 percent in 2010. Entitled Probation and Parole in the United States, 2010, the report summarizes the most recent national data on community supervision. The decline in 2010 built on a smaller drop in 2009, and may point toward a long-term retreat from the massive increase in the American supervised population that occurred in the 1980’s and 1990’s.
Yet, even following a two-year drop, the supervised population stood at 4,887,900 at the end of 2010, or about one in every 48 adults. This compares to a supervised population of less than 1.4 million in 1980.
The supervised population includes both probationers and those released from prison to community supervision. (BJS refers to the latter population as “parolees,” although many jurisdictions no longer use the term “parole.”) The overall drop in the supervised population was driven entirely by a 1.7 percent decline in probationers; the number of parolees actually increased slightly in 2010. Like the overall drop, the probation decline in 2010 built on a smaller drop in 2009.
Why are fewer Americans on probation? The report provides no definitive answers, but some clues are apparent.
Continue reading “U.S. Probation Population Continues to Drop: What’s Happening in Minnesota?”
My article “Beyond Rehabilitation: A New Theory of Indeterminate Sentencing” is now out in print at 48 Am. Crim. L. Rev. 1247. The article is on-line here. The abstract is as follows:
Indeterminate sentencing—that is, sentencing offenders to a range of potential imprisonment with the actual release date determined later, typically by a parole board—fell into disrepute among theorists and policymakers in the last three decades of the twentieth century. This sentencing practice had been closely associated with the rehabilitative paradigm in criminal law, which also fell from favor in the 1970s. In the years that followed, most states eliminated or pared back the various devices that had been used to implement indeterminate sentencing, especially parole release.Yet, sentencing remained indeterminate in most places to varying degrees, and now parole and similar mechanisms are staging an unexpected comeback. However, despite its perseverance and apparent resurgence, indeterminate sentencing has lacked any clear theoretical foundation since the demise of the rehabilitative paradigm. Indeed, indeterminate sentencing is commonly thought to conflict with retributivism, the dominant approach to punishment theory today. The lack of a clear theoretical foundation has likely contributed in recent decades to the ad hoc expansion and contraction of parole in response to short-term political and fiscal pressures.
In the hope of bringing greater stability and coherence to what seems once again an increasingly important aspect of our penal practices, this Article proposes a new normative model for indeterminate sentencing that is grounded in a retributive, communicative theory of punishment. In essence, the model conceives of delayed release within the indeterminate range as a retributive response to persistent, willful violations of prison rules. The Article explores the implications of this model for prison and parole administration and for punishment theory.
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”