Sentencing Class @ OSU Moritz College of Law

Thanks for a great semester and...

remember that if you are taking the take-home exam, you should upload your exam answers to www.exam4.com on or before May 10. (Remember that a copy of the exam can be downloaded at the same locale and can also be found in front of my office.)

If you are working on a final paper, you should turn in that paper on or before May 10, and if you want feedback on a draft I would be grateful to see it at least a few days before then.

And whatever your plans, be checking this space (and my main blog) for continued coverage of sentencing topics AND for continued opportunities to comment about sentencing topics to continue to earn class participation points.

Examining the "why" and "who" of modern mass incarceration and its potential alternatives

As we finish up the semester with a final few classes examining the particulars of modern mass incarceration and possible alternatives, I realize it would be useful and fitting to return to some of the early themes of the class concerning the "why" and "who" of sentencing.  Specifically (and building off themes stressed by Fordham Law Professor John Pfaff at the Reckless-Dinitz Lecture), I will likely start Monday's class by exploring:

(1) "why" incarceration has become such a popular punishment in modern American history, and

(2) "who" has been most responsible for the particular emphasis on incarceration in modern American history.

I think some reasonable answers to these questions are important for anyone eager to move the nation away from modern mass incarceration: without having some sense of just why incarceration has proved so popular and just who has had a leading role in inflating incarceration levels, it will be hard to engineer a successful change of course.

Especially because there have recently been a whole lot of notable new court opinions about Eighth Amendment limits on extreme juvenile prison sentences — see examples here and here and here and here and here from the Third Circuit, the District of Connecticut, the Iowa Supreme Court, the Georgia Supreme Court and the Wyoming Supreme Court — I am especially eager to discuss what role we think courts have played in creating modern mass incarceration and what role courts could play in moving us away from modern mass incarceration.

In this context (and again to serve as a kind of semester review), I think it important to recognize that courts have played a major role in the modern decline of the death penalty in the United States over the last two decades.  All sort of litigation has played all sorts of roles in "gumming up" the modern machinery of death, and many abolitionists have come to expect that the US Supreme Court will play a starring role in a final push to have the death penalty fully abolished throughout the United States. 

Is there any basis to hope or expect courts to play a major role in a decline in the use of incarceration in the United States over the next two decades?

Should particular pie pieces or particular populations be of particular concern for those troubled by modern mass incarceration?

The question in the title of this post will be one I will be eager to unpack in coming classes, and it is inspired in part by the points emphasized in the Prison Policy Initiative updated version of its terrific incarceration "pie" graphic and report now at this link.  Here is part of the PPI pie report's introductory text and subsequent discussion:

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 626,000 people walk out of prison gates, but people go to jail 10.6 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (150,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

Breaking down incarceration by offense type also exposes some disturbing facts about the youth confined by our criminal and juvenile justice systems: Too many are there for a “most serious offense” that is not even a crime. For example, there are over 8,500 youth behind bars for “technical violations” of the requirements of their probation, rather than for a new offense. Further, 2,300 youth are locked up for “status” offenses, which are “behaviors that are not law violations for adults, such as running away, truancy, and incorrigibility.” Nearly 1 in 10 is held in an adult jail or prison, and most of the others are held in juvenile facilities that look and operate a lot like prisons and jails.

Turning to the people who are locked up criminally and civilly for immigration-related issues, we find that 13,000 people are in federal prison for criminal convictions of violating federal immigration laws, and 13,000 more are held pretrial by U.S. Marshals. Another 34,000 are civilly detained by U.S. Immigration and Customs Enforcement (ICE) separate from any criminal proceedings and are physically confined in federally-run or privately-run immigration detention facilities or in local jails under contract with ICE. (Notably, these categories do not include immigrants represented in other pie slices because of non-immigration related criminal convictions.)

Adding to the universe of people who are confined because of justice system involvement, 22,000 people are involuntarily detained or committed to state psychiatric hospitals and civil commitment centers. Many of these people are not even convicted, and some are held indefinitely. 9,000 are being evaluated pre-trial or treated for incompetency to stand trial; 6,000 have been found not guilty by reason of insanity or guilty but mentally ill; another 6,000 are people convicted of sexual crimes who are involuntarily committed after their prison sentences are complete. While these facilities aren’t typically run by departments of correction, they are in reality much like prisons....

While this “whole pie” provides the most inclusive view of the various systems of confinement in the U.S. justice system available, these snapshots can’t capture all of the important systemic issues. Once we have wrapped our minds around the “whole pie” of mass incarceration, for example, we should zoom out and note that being locked up is just one piece of the larger pie of correctional control. There are another 840,000 people on parole and a staggering 3.7 million people on probation. Particularly given the often onerous conditions of probation, policymakers should be cautious of “alternatives to incarceration” that can easily widen the net of criminalization to people who are not a threat to public safety.

Beyond identifying the parts of the criminal justice system that impact the most people, we should also focus on who is most impacted and who is left behind by policy change. For example, people of color are dramatically overrepresented in the nation’s prisons and jails. These racial disparities are particularly stark for Blacks, who make up 40% of the incarcerated population despite representing only 13% of U.S residents. Gender disparities matter too: rates of incarceration have grown even faster for women than for men. As policymakers continue to push for reforms that reduce incarceration, they should avoid changes that will widen disparities, as has happened with juvenile confinement and with women in state prisons.

Notably, last fall the Prison Policy Initiative working jointly with the ACLU’s Campaign for Smart Justice released this great report with a particular population perspective: "Women’s Mass Incarceration: The Whole Pie 2017."  The report explains that it provides "a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control."  In addition to thinking about how the female incarceration "pie" looks different, I wonder if you share my concern about discussion of "women's mass incarceration" given that there are around 165 million women in the United States and thus really less than 0.15% of all US women are incarcerated. 

Is it accurate and helpful to describe a phenomenon as "mass" if it directly impacts less than 1 out of 500 persons in a population?

Reading in preparation of John Pfaff's visit on April 12 and our discussions of mass incarceration

As repeatedly mentioned in class, Fordham Law Professor John Pfaff will be on campus this coming Thursday, April 12.  At 4pm at the Barrister Club he will be delivering the Reckless-Dinitz Lecture titled "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration." Here is the abstract for this lecture:

"Reducing America's exceptional reliance on incarceration is one of the few issues of genuine bipartisan cooperation these days. Yet despite years of work, change has been slow and halting.  One critical reason is that the story we tell about what has driven prison growth often emphasizes causes that matter less at the expense of those that matter more.

"We talk about the impact of long sentences — which certainly matter — but end up overlooking the even more important role of prosecutorial charging behavior in the process.  We emphasize the need to stop sending people to prison for drugs, but as a result fail to talk about changing how we punish those convicted of violence — even though only 15% of the prison population is serving time for drugs, compared to over 50% for violence.  And reformers frequently direct their attention on private prisons, and thus don't focus on the fact that public institutions hold over 90% of all inmates, and that (public) correctional officer unions and legislators with public prisons in their districts play far bigger roles than the private prison firms in pushing back against reform efforts. Even the modest reductions in prison populations since 2010 are something to celebrate, but more substantive cuts will require us to start asking tougher questions about the sorts of changes we need to demand."

As I have noted before, Professor Pfaff is the author of Locked in: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017), and I expect his lecture will be covering many points he develops in his book.  Were I an evil lawprof, I could demannd that you all read his full book ASAP.  Instead, I will be content to here link to some effective reviews of Locked In:

• From Pacific Standard, "Have We Been Looking at Mass Incarceration All Wrong?"
• From The New Yorker, "How We Misunderstand Mass Incarceration"

Though everyone should feel free to read Locked In, for class discussion purposes I think it might be useful for folks to read Professor Pfaff latest commentary titled "A Smarter Approach to Federal Assistance with State-Level Criminal Justice Reform."  Here is its abstract:

This brief explains how Congress and the president can best help reduce our country’s outsized reliance on imprisonment, a goal with rare, widespread bipartisan support. Successful interventions will need to target issues that previous efforts have overlooked or ignored, and they will need to take better account of the haphazard ways that costs, benefits, and responsibilities are fractured across city, county, state, and federal governments. If designed properly, however, federal efforts could play an important role in pushing our criminal justice system to adopt more efficient, as well as more humane, approaches to managing and reducing crime.