October 22, 2016
Eastern State Penitentiary and other (in)famous US prisons past and present
This post is to facilitate discussion an reflection on prison history in the United States, building on the video about Eastern State Penitentiary and more generally about the reality that time in jail or prisons is now something of a modern default sentencing "output." If you are interested in learning more about Eastern State, check out this terrific website. Notably, in recent years Eastern State Penitentiary has been trying to incorporate more modern art and education into its tours; it recently has been working on an ambitious exhibit titled "Prisons in the Age of Mass Incarceration."
In addition, there are lots of other (in)famous prisons that tell stories about not only American crime and punishment, but also stories about America. A number of notable Ohio-centric stories are to be found within in the history, as documented by this book entitled "Central Ohio's Historic Prisons." That book is summarized this way:
With the opening of the Ohio State Reformatory in 1896, the state legislature had put in place "the most complete prison system, in theory, which exists in the United States." The reformatory joined the Ohio Penitentiary and the Boys Industrial School, also central-Ohio institutions, to form the first instance of "graded prisons; with the reform farm on one side of the new prison, for juvenile offenders, and the penitentiary on the other, for all the more hardened and incorrigible class." However, even as the concept was being replicated throughout the country, the staffs of the institutions were faced with the day-to-day struggle of actually making the system work.
The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site. I urge everyone to take a virtual tour via this huge photo gallery. And if you are ever looking for some web-surfing fun, check out these additional links to some good sites about some of the United States' most (in)famous prisons:
Notably, a few years ago, students had a lot to say in the wake of watching the ESP video, and you might be interested to read these 2011 student comments about prison history. This coming week, we will be shifting back into a discussion of sentencing law and the (non-capital) sentencing process, but everyone should keep thinking about both the theory and practices of imprisonment as a form of punishment as we get into the nitty-gritty of modern sentencing doctrines.
October 17, 2016
Lies, damn lies and federal prison and commutations statistics
As I mentioned in class, as we turn our attention more to the history and modern realities of non-capital sentencing and especially to the history and modern realities of incarceration, having a basic understanding of a lot of number becomes important. The title of this post is designed to make sure, before you dive too much into these data, that you keep in mind perhaps the most famous quote about statistics. Once you have that quote in mind, consider some of the data and their sources.
The latest detailed breakdown of the federal prison population comes from this terrific "Quick Facts" document released this month by the US Sentencing Commission titled "Federal Offenders in Prison – March 2016." Here are just some of the data therein that caught my eye:
• A large majority of offenders in the federal prison population are male (93.3%).
• Hispanic offenders make up the largest group of the federal prison population(35.2%), followed by Black offenders (34.4%), White offenders (27.0%), and Other Races (3.5%).
• More than three-quarters (77.9%) of these offenders are United States citizens.
• The majority of offenders pleaded guilty (88.5%).
• Nearly one-quarter (23.9%) of all offenders serving a sentence for a federal conviction possessed a firearm or other weapon in connection with their offenses.
• Half of all offenders (50.2%) in the federal prison population were sentenced to more than ten years in prison, while 5.2% were sentenced to 30 years or longer, and 2.7% were sentenced to life in prison.
• Approximately 17,000 offenders (9.9% of all incarcerated offenders) have served more than 10 years in prison.
• More than half (56.8%) of offenders in the federal prison population were convicted of an offense carrying a mandatory minimum penalty.
The data in the USSC report is already significantly dated because it analyzed a federal prison population of 195,676 "offenders in the custody of the Federal Bureau of Prisons on March 27, 2016." But, just a little more than six months later according to the Federal Bureau of Prisons latest inmate population report, it is now only in charge of 191,322 total federal inmates. In other words, in just the last 6 months alone, there has been more than a 2% decline in the overall federal prison population!
Speaking of changes over time in the population levels in the Federal Bureau of Prison, check out this BOP year-by-year report of the past federal prison population in modern times, which includes these numbers:
Fiscal Year BOP Population
In other words, in just the last 20 years up to 2013 (12 of which had a Democrat in charge in the Oval Office and his appointees running the US Department of justice), there was 250% increase in the overall federal prison population!
As you may now realize, the number of federal prisoners for fiscal year 2013 was the year with the highest ever federal prison population (it was also, of course, the first year of Prez Obama's second term in office and the fifth year of the US Department of Justice being run by former US Attorney General Eric Holder).
Also, as of the end of Fiscal Year 2013, this webpage from the Office of the Pardon Attorney reports that Prez Obama had received well over 8,000 federal commutation petitions and had granted a grand total of 1 commutation. (If you are running the numbers, this means that as of the end of 2013, Prez Obama had granted only about .01% of commutation petitions received from federal prisoners.)
Of course, Prez Obama has picked up the pace on commutation grants: as this White House website highlights, by having now granted a total of 774 commutations, Prez Obama "has granted commutations to more prisoners than the past 11 presidents combined." But his actions here ought to be put in some other statistical context, as does this webpage from the Office of Pardon Attorney, which reports that Prez Obama has received 29,078 commutation petitions during his time an office. So, by having now granted 774 commutations from among the 29,078 commutation petitions received, Prez Obama has now upped his granted rate to about 2.5% of all commutation petitions received from federal prisoners.
As always, a great way for students to earn extra credit for the class would be to mine these numbers for further insights and data points worthy of highlighting in the comments to the blog (or in class). And any student who can find good data on the race/gender of the 774 persons to have received commutations from Prez Obama and compares them to the general federal prison population will be sure to receive extra, extra, extra credit.
October 05, 2016
Game planning next week's final(?) capital punishment discussions (and requests for expressions of any continued DP interest)
As I surmise you could tell from the last few classes, I am not at all troubled that our discussions of how Teddy K.'s capital case might play out in states like Florida and Texas has gone on longer than I had initially planned. I am hopeful you were able to get a real feel from this week's two classes concerning the various important structural and practical realities of modern death penalty decision-making that have resulted from the Supreme Court's modern Eighth Amendment "guided discretion" jurisprudence.
With the Teddy K. hypo and some of its lessons now covered, I want to update/clarify our plans and my expectations for next week's classes and beyond:
Monday, Oct 10: Guest presentation/discussion with Kevin Stanek, Assistant Chief Counsel for Ohio Governor John Kasich (and OSU Moritz College of Law Class of 2013). There is no need to prepare anything formal this class, but this Dispatch article and this part of a Wikipedia entry provides a quick overview of the Ohio execution administration issues that ACC Stanek will likely be discussing. (And for a lighter (and not-so-tasteful) look at these issues, check out this satire video from The Onion, "Ohio Replaces Lethal Injection With Humane New Head-Ripping-Off Machine.")
Tuesday, Oct 11: We will finally get to discussing McClesky v. Kemp (paying extra special attention to the final few paragraphs of the majority opinion and then debating a possible Ohio Racial and Gender Justice Act)
Wednesday, Oct 12: Wrap up DP discussions and start transition to LWOP/non-capital sentencing challenges by identifying enduring lessons ....
UNLESS YOU REPORT IN THE COMMENTS OR ELSEWHERE ABOUT ADDITIONAL CAPITAL PUNISHMENT ISSUES YOU WOULD LIKE TO HAVE US COVER IN CLASS. If nobody raises any addition death-penalty issues in the comments or in other ways with me, I will assume that everyone has already had more than their fill of death penalty discussions and thus will feel all that much more confident moving on to discussions of non-capital sentencing realities ASAP.
For those students hoping and eager for us to move on beyond our death penalty discussions, please feel free to get started on our first set of prison readings, in the form of:
- All of Chapter 7, paying particular attention to pp. 549-558, 570-581 and 595-623 (especially Graham v. Florida)
- A bit of Chapter 5, pp. 401-415 (especially Miller v. Alabama)
UPDATE: ACC Stanek suggested that everyone read this DC Circuit case, Cook v. FDA, to get a flavor of some of the challenges states face when trying to acquire the drugs needed to conduct a lethal injection.
February 17, 2014
Lots of interesting reflections on McClesky a quarter-century later
As I mentioned very briefly in class, the Fall 2012 issue of the Ohio State Journal of Criminal Law had a lead symposium focused on "McClesky at 25." Here are links to all the articles in the symposium:
McClesky at 25 OSJCL Symposium Articles:
Douglas A. Berman, McCleskey at 25: Reexamining the “Fear of Too Much Justice" , 10 Ohio St. J. Crim. L. 1 (2012).
Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).
John H. Blume & Sherri Lynn Johnson, Unholy Parallels between McCleskey v. Kemp and Plessy v. Ferguson: Why McCleskey (Still) Matters, 10 Ohio St. J. Crim. L. 37 (2012).
G. Ben Cohen, McCleskey’s Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65 (2012).
Robert P. Mosteller, Responding to McCleskey and Batson: The North Carolina Racial Justice Act Confronts Racial Peremptory Challenges in Death Cases, 10 Ohio St. J. Crim. L. 103 (2012).
Kent Scheidegger, Rebutting the Myths About Race and the Death Penalty, 10 Ohio St. J. Crim. L. 147 (2012).
Anyone interested in the intersection of race and the death penalty should consider taking a quick peak at all of these article. But, especially for future class discussion purposes, the final two pieces linked above (the long Mosteller piece and the short Scheidegger piece) may be most worth your extra reading time and attention.
January 20, 2014
Some past (and present) MLK-inspired perspectives on sentencing
As perhaps is already clear from our first full week of discussion, issues of race and class are necessarily important concerns when we consider the law, policy and practices of modern sentencing systems. In part because of that reality, I have often through the years emphasized a number of MLK-inspired themes on my main sentencing blog, and here are some links to some of my favorite past MLK Day posts (as well as the one I did today):
From MLK Day 2006: Should criminal justice reform be the new civil rights movement?
From MLK Day 2008: Reflecting on race and criminal justice realities to honor MLK's legacy
From MLK Day 2012: NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
November 01, 2011
Readings (and videos) on Paul Butler's proposal for race-based jury nullification
I mentioned briefly in class Professor Paul Butler's (in)famous and provocative law review article in which he urged race-based jury nullification. The article was published as Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995), and is available at this link. Here is a snippet from the piece's introduction:
My thesis is that, for pragmatic and political reasons, the black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison. The decision as to what kind of conduct by African-Americans ought to be punished is better made by African-Americans themselves, based on the costs and benefits to their community, than by the traditional criminal justice process, which is controlled by white lawmakers and white law enforcers. Legally, the doctrine of jury nullification gives the power to make this decision to African-American jurors who sit in judgment of African-American defendants. Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws....My goal is the subversion of American criminal justice, at least as it now exists. Through jury nullification, I want to dismantle the master's house with the master's tools. My intent, however, is not purely destructive; this project is also constructive, because I hope that the destruction of the status quo will not lead to anarchy, but rather to the implementation of certain noncriminal ways of addressing antisocial conduct. Criminal conduct among African- Americans is often a predictable reaction to oppression. Sometimes black crime is a symptom of internalized white supremacy; other times it is a reasonable response to the racial and economic subordination every African-American faces every day. Punishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal's "just deserts." Hence, the new paradigm of justice that I suggest in Part III rejects punishment for the sake of retribution and endorses it, with qualifications, for the ends of deterrence and incapacitation.
In a sense, this Essay simply may argue for the return of rehabilitation as the purpose of American criminal justice, but a rehabilitation that begins with the white-supremacist beliefs that poison the minds of us all --- you, me, and the black criminal. I wish that black people had the power to end racial oppression right now. African-Americans can prevent the application of one particularly destructive instrument of white supremacy ---American criminal justice --- to some African-American people, and this they can do immediately. I hope that this Essay makes the case for why and how they should.
For those who (understandably) do not have enough time to read all of Butler's remarkable Essay, here is an effective (though dated) 60 Minutes video (under 10 minutes) discussing Butler's ideas.
September 26, 2011
Working draft for proposed "Ohio Racial and Gender Justice Act"
As the casebook highlights, Kentucky in 1998 enacted the first statutory response to the McClesky ruling through its Kentucky Racial Justice Act. And just two years ago, North Carolina followed suit through the enactment of the North Carolina Racial Justice Act.
There has not been much litigation over the Kentucky RJA because that legislation was expressly made notretroactive so that it could not be applied to any person sentenced to death in Kentucky before July 1998. (A short 2010 law review article on the Kentucky RJA can be found at this link.)
In contrast, many defendants on North Carolina's death row right now have pending claims based on the NC-RJA because that statute provided a one-year window for previously sentenced defendants to file a claim based on the NC-RJA. All but a few death row defendants did file claims based on the NC-RJA, though litigation on particular defendants' claims have so far been stalled in the North Carolina lower courts. (A long, now-dated 2010 law review article on the NC-RJA can be found at this link.)
Though there is much to discuss concerning McClesky and the Kentucky and NC RJAs, I wanted here to set forth my working draft of a proposed "Ohio Racial and Gender Justice Act" for discussion in the comments and in class. So here goes (with language based in large part on the NC-RJA):
1. No person shall be subject to or given a sentence of death or shall be executed pursuant to any judgment that was, in any part or in any way, sought or obtained on the basis of race or gender.
2. A finding that race or gender was in any way any part of the basis of the decision to seek or impose a death sentence may be established if the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed. Evidence relevant to establish a finding that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed may include statistical evidence or other evidence, including, but not limited to, sworn testimony of attorneys, prosecutors, law enforcement officers, jurors, or other members of the criminal justice system or both, that, irrespective of statutory factors, one or more of the following applies:
(A) Death sentences were sought or imposed any more frequently upon persons of one race or gender than upon persons of another race or gender.
(B) Death sentences were sought or imposed any more frequently as punishment for capital offenses against persons of one race or gender than as punishment of capital offenses against persons of another race or gender.
(C) Race or gender was in any way any part of decisions to exercise peremptory challenges during jury selection.
3. The state of Ohio has the burden of proving beyond a reasonable doubt that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.
4. If the court finds that race or gender was in any way any part of decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed, the court shall order that a death sentence not be sought, or that the death sentence imposed by the judgment shall be vacated and the defendant resentenced to life imprisonment without the possibility of parole.
5. This act is effective when it becomes law and applies retroactively.
The language in bold and italics within my proposed Ohio statutory language highlights my tweaks to the Kentucky and NC RJAs, both of which concern only race and seem only concerned with race as a "significant" capital sentencing factor. In addition, both acts place the burden on defendants to prove race was a significant factor in their cases. As my draft reflects, I am very eager to ensure that neither race nor gender plays any role in the pursuit or imposition of the punishment of death. In service to that goal, my proposal puts the burden on the state of Ohio, once a claim is brought under this Act, to prove convincingly that neither race nor gender played any role in the death sentencing process.
Thoughts? Who is willing to co-sign this bill as proposed? I am open to friendly amendments and also eager to hear if any legislators oppose this effort to eradicate the problem identified in McClesky through a legislative response.
September 20, 2011
Troy Davis denied clemency ... now what if you think he might be is innocent?
As a few folks have already noted in comments to a prior post and as this lengthy Atlanta Journal-Constitution article reports, this morning the Georgia Board of Pardons and Paroles declined to commute the death sentence of Troy Anthony Davis. A couple quick thoughts and questions to set up a discussion here (and perhaps also in class):
1. I was wrong in my prediction that the Georgia Board would grant clemency (and I have already proudly admitted this at my SL&P blog in this post). Not that you needed proof that I can be wrong, but I hope you all realize that I am never ashamed to be wrong and I often then become eager to figure out why.
2. Troy Davis got every layer of traditional appellate review of his original death sentence as well as (many) additional ones. Should this fact make us more comfortable with his pending execution or more concerned about the value of lots and lots of review of death sentences?
3. What should persons who are genuinely concerned that the Georgia might execute an innocent person tomorrow do now? What if those persons work for the US President or Georgia's governor?
4. Is the Davis case getting so much attention only because of innocence issues? How much of a role do you think race and geography is playing here? If all the offense facts were the same, but the state about to execute Davis was Ohio and Davis was white, do you think the case gets as much attention? More?
I have lots of coverage of both the history and current doings in the Davis case in this posts from my SL&P blog:
- SCOTUS orders innocence hearing in Troy Davis case (Aug 2009)
- A year after SCOTUS intervenes, Troy Davis innocence hearing about to start (June 2010)
- "Innocence claim rejected: Troy Davis loses challenge" (Aug 2010)
- Will third time clemency hearing be the charm for Troy Davis on eve of his latest execution date?
- The latest news (and helpful background) on the Troy Davis case
- "Slain officer's family calls for Troy Davis' execution"
- Georgia board denies clemency to Troy Davis
UPDATE: The official statement from the Georgia Board of Pardons and Paroles is short and available at this link. Here is the text in full:
Monday September 19, 2011, the State Board of Pardons and Paroles met to consider a clemency request from attorneys representing condemned inmate Troy Anthony Davis. After considering the request, the Board has voted to deny clemency.
Troy Anthony Davis was convicted in 1991 of the murder of 27-year old Savannah Police Officer Mark MacPhail. On August 19, 1989, MacPhail was working in an off-duty capacity as a security officer at the Greyhound Bus Terminal which was connected to the Burger King restaurant located at 601 W. Oglethorpe Avenue. At approximately 1 a.m., on that date, Officer MacPhail went to the Burger King parking lot to assist a beating victim where MacPhail encountered Davis. Davis shot Officer MacPhail and continued shooting at him as he lay on the ground, killing MacPhail. Davis surrendered on August 23, 1989.
Davis is scheduled to die by lethal injection September 21, 2011, at 7 p.m., at the Georgia Diagnostic and Classification Prison in Jackson, Georgia.
August 24, 2011
Racial and gender disparities in death sentencing and federal kiddie porn prosecutions
Issues of race and gender arise throughout the criminal justice system and their impact on sentencing outcomes is often a subject of great debate and controversy. In addition to encouraging you to consider the linkages between theories of punishment and race/gender issues, over the next few classes we will explore in various ways the relationships between sentencing discretion, disparity and discrimination.
Though there is (too) much to say on all these matters, I thought it useful in this forum to encourage focused consideration of these matter in two distinct contexts: the imposition of the death penalty for murder and the federal prosecution and sentencing of child pornography offenses.
Death Sentencing: As you may know, the death penalty is often criticized for having a racial skew, and pages here and here from the Death Penalty Information Center provide lots of data and reports on this front. One of many statistics on these pages I find notable is that out of roughly 1250 persons executed in the US in the modern era, more than 250 black defendants have been executed for killing white victims, but only 16 white defendants have been executed for killing back victims.
Far less frequently discussed are the apparent gender disparities in the application of the death penalty in the United States, though this page from the Death Penalty Information Center and this report from Professor Victor Streib provides coverage of this issue. The data from these sources reveals that women account for about 10% of all murder arrests, but that women make up less than 2% of death rows (55 / 3,261) and less than 1% of those executed (12 / 1,250+). Indeed, in the last 8 years, nearly 450 men have been executed, while only 2 women have been executed (0.45%).
Federal Child Porn Prosecutions: Federal sentencing for child pornography offense is a hot topic, in part because the number of prosecutions and the length of sentences imposed for these offenses has increased dramatically over the past decade. What is rarely discussed, however, is the disproportionate involvement of white men in these cases, especially relative to the the general federal offender population. The latest federal data from the US Sentencing Commission is in this report which provides a detailed racial and gender breakdown for offenders in each primary federal offense category (Tables 23 and 24 at pp. 44 and 45 of the pdf).
Roughly speaking, when immigration offenses are excluded (because 90% involve hispanic offenders), the general population of federal defendants sentenced is about 1/3 white, 1/3 black and 1/3 hispanic. But for child porn offenses, the sentenced defendants are almost 90% white and only 3% black and 6% hispanic. Similarly, the general population of federal defendants sentenced is about 85% male and 15% female. But for child porn offenses, the sentenced defendants are over 99% male and less than 1% female.
Do you find these data surprising? disturbing? What additional information would you like to have in order to make a judgment concerning these data?