Sentencing Class @ OSU Moritz College of Law

What data in the federal system would indicate the Biden Administration is drawing down the federal drug war?

With my usual apologies for only scratching the data/metrics surface in class yesterday, I wanted to link here to some of the materials I mentioned and then set up our final discussion giving particular emphasis to the (federal) war on drugs.  To start, on the crime front, I flagged graphics in class drawn from this short FactTank report, titled "What the data says (and doesn’t say) about crime in the United States," from the Pew Research Center.  I recommend the full piece, though I could easily cite to dozens more articles about so many other uncertain metrics regarding crime.

And when it comes to uncertainty about crime, I always think about drugs because illegal drug activity is the kind of behavior that is unlikely to be regularly reported to police and that is so wide-spread that it has to be, by necessity, only selectively enforced by police and prosecutors.  One reason the so-called "War on Drugs" is often called racist is because survey evidence suggests that blacks and whites use and sell drugs at roughly similar rates, but blacks are much, much more likely to be subject to drug-related arrests, sentences, and incarceration.  This data visualization (also reprinted) from The Hamilton Project is a little dated, but it captures the basic disconcerting data realities of seemingly extraordinarily disparate enforcement patterns.

But, as is often the case, there are reasonable debates based on existing data as to whether we ought to worry particularly about drug war disparities if our biggest concern is mass incarceration.  LawProf John Pfaff wrote an interesting book a few years ago (summarized here) stressing data showing the relatively low percentage of state prisoners incarcerated for drug offenses to argue that we ought not focus on drug offenses as a cause or driver of modern mass incarceration.  Sure enough, if you check out the amazing "Whole Pie" accounting of incarceration, one sees that "only" about 15% of the state prison population is made up of drug offenders.  (One quibble I have always brought up in discussions with Prof Pfaff is his failure to consider sufficiently how prior drug offenses impact and extend the sentences of state (and federal) offenders for other crimes.  Many folks in the states subject to particularly harsh three-strikes or habitual offender laws often have prior convictions based in drug enforcement.  As I see it, folks getting decades in prison for, say, a robbery in 2015 based in part on prior drug offenses in 2010 and 2005 are still "drug war" prisoners.)

However one considers drug war realities in state justice systems, the significant impact of drug enforcement at the federal level is indisputable.  I noted in class this US Sentencing Commission Quick Facts document about caseloads and sentencing in drug cases in the federal system, and that data document shows that more than a quarter of all federal cases sentenced last year were drug cases and the average sentence for all these cases was 77 months (whereas the average sentence for all fraud offenses last year was 23 months).  Another way to see the impact of drug cases in the federal system is this other USSC Quick Facts document on the federal prison population as of June 2020.  That document shows that roughly 45% of the federal prison population is incarcerated for drug offenses and that there are more than 10 times as many current federal prisoners serving time for drug offenses than for fraud offenses.  Indeed, it appears that there are roughly the same number of meth offenders in federal prison as there are federal firearm and robbery offenders combined (and firearm and robbery offenders are the two biggest categories of prisoners after drug offenders according to this USSC data).

But the story gets even more interesting if you look at some of the quite divergent racial patterns in federal drug enforcement and sentencing.  In this Vox article is a slightly dated chart (also reprinted here) that breaks down the racial composition of offenders for different drugs in the federal system, and it shows that almost all sentenced crack offenders are black whereas very few marijuana and meth offenders are black.  These data suggest that if one had the goal of significantly reducing the number of black federal prisoners serving time for drug offenses, reducing significantly the number of crack (and powder cocaine) prosecutions would be sufficient.  But it the concern was more broadly about all people of color, marijuana and meth prosecutions are key because they are disproportionately involving Latinx individuals.  And, if gender intersectionality is of concern, check out this USSC Quick Facts on female offenders which reports that "Among female drug trafficking offenders, 41.6% were Hispanic followed by White (40.1%), Black (13.4%), and Other races
(5.0%)" as compared to "female fraud offenders, [who were] 43.6% were White, followed by Black (31.3%), Hispanic (18.6%), and Other races (6.5%)."

I know that processing all this data is near impossible, and my main goal is just to highlight how many different metrics one might wish to consider.  But I also wanted to finish by focusing on how the new Biden Administration players might set goals for these data as part of an effort to "de-escalate" the drug war.  The number of drug cases prosecutors by federal authorities would seem to be a matter largely of prosecutorial discretion and a matter that the Biden Administration could significantly alter over time.  Given that recent history details about 20,000 federal sentences imposed for drug cases averaging around six years in prison, that means roughly 120,000 years of federal prison is being allocated to federal drug enforcement each year.  Would it be reasonable for a new Attorney General to announce that by, say, 2024 she thinks the federal system ought to allocate only around 50,000 years of federal prison to federal drug enforcement each year (e.g., there should be only 10,000 cases averaging 5 years)?  Or how about only 20,000 years of federal prison to federal drug enforcement each year (only 5,000 cases averaging 4 years)?  Or is this crazy talk?

Watching the Eastern State Penitentiary video and thinking about other (in)famous US prisons past and present

As mentioned last week, Tuesday's class is to be devoted to the history of early prisons in the United States as told through a 53-minute documentary titled simply "Eastern State Penitentiary."  My savvy daughter astutely mentioned to me today that, in this Zoomy world, students might prefer watching this video on their own rather than being "forced" to watch it during the class hour.  If this is true, I wanted to provide this link to the full 53-minue documentary.  Assuming I can get the technology to work, I am still planning to show this video in class on Tuesday.  But you are welcome to watch at your pace (or again) as you see fit.

In this post (and a bit in class), we might talk further about Eastern State Penitentiary or 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.  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 this historic site.   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:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

Though we will not discuss prison history or prison practices too much in the week ahead as we shift into a discussion of sentencing law and the (non-capital) sentencing process, I start this unit with these materials because I think it important that everyone 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.

In addition, if you are really interested in any aspects of the realities of prison past or present, so many aspects of prisons would make for great final paper topics.  And if you just want to spend time watching videos about prison realities, check out these links:

• TED talks about life in prison
• A (supposed) list of "Must-See Prison Documentaries"

As always, I welcome tips for other viewing (or reading) in the comments.

Previewing "College Behind Bars"

This recent USA Today article, headlined "'Undoing a mistake': Ken Burns film looks inside the push to bring college education back to prison," provides some important backstory on a notable new documentary about a notable prison education program in New York.  I suspect the full documentary with be worth watching/streaming, and I think just the preview serves as a potentially useful watch before our special guest scheduled for a visit on Monday.  Check it out:

Reading up on "Beyond Guilt" before David Singleton visits

As mentioned in class, on Wednesday October 2, we will have the pleasure of a visit from David A. Singleton, Executive Director and Attorney at Law at the Ohio Justice & Policy Center.  (He will also be speaking at lunchtime in Drinko Hall 245 from 12-1pm on Oct 2.)  Though there are many topics that David could usefully discuss, I have encouraged him talk about his new project "Beyond Guilt".  The initiative, in this recent New York Times article, is focused on excessive punishment of those who have admitted guilt and were convicted of more serious offenses, including violent crimes.  In preparation for his visit, I encourage you to look around the OJPC/Beyond Guilt website, and here is how the project is described on this "Our Mission" page: 

Our Mission

The mission of Beyond Guilt is to transform our punitive legal system to one focused on justice, redemption, and humanity for those over-punished. 

Strategies

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence. Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement—freeing innocent prisoners and people convicted of low-level, non-violent offenses. Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released. The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release. The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released. Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes. The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website. The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws. The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety. Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

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.

If you really want to get into Eastern State Penitentiary and other (in)famous US prisons past and present....

then this post can help facilitate discussion and reflection on prison history in the United States, building on the video about Eastern State Penitentiary and the modern reality that time in jail or prisons is now our default punishment for crimes both major and minor.  If you are interested in learning more about Eastern State, check out this terrific website.   Notably, the Eastern State Penitentiary has this new exhibit on "Prisons Today: Questions in the Age of Mass Incarceration."  And that includes this little survey: "What are Prisons For? Take the quiz."

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.  Some Ohio-centric stories are to be found within in this history, as documented via 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:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

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.

A county-specific look at the death penalty in Ohio ... and wondering if anyone is taking a country-specific look at LWOP

I just noticed this lengthy new article from the Cincinnati Enquirer headlined "Why is a murder trial here so much more likely to end with a death sentence?".  I recommend the piece in full, and here is some of the "who" coverage:  

Hamilton County has sent more people to death row and is responsible for more executions than any county in Ohio since capital punishment returned to the state in 1981. The county has a larger death row population per capita than the home counties of Los Angeles, Miami or San Diego. And it has more people on death row than all but 21 of the more than 3,000 counties in the United States....

“There’s no question Hamilton County is and definitely was a conservative county,” said Andrew Welsh-Huggins, the author of “No Winners Here Tonight,” a book about capital punishment in Ohio. “A conservative county is going to elect conservative prosecutors, and they’re going to take their cues from that,” he said....

No politician in town is more closely identified with the death penalty than Joe Deters, the latest in a long line of Hamilton County prosecutors who have regularly sought capital murder charges.

Deters said he tries to answer the same questions before every murder trial: Is the accused eligible for the death penalty under Ohio law? Does he have the evidence to remove all doubt of innocence? Was the offense so terrible the defendant deserves to die?

If the answer is yes on all counts, he seeks a death sentence. Not because he relishes the thought of an execution, Deters said, but because that’s what the law dictates. “People in really bad cases want the death penalty,” he said. “There are certain cases that are so hideous they are just evil.”...

Victims’ relatives often feel [killers deserve to die], but it’s up to the prosecutor to decide how aggressively to pursue the ultimate punishment. Deters said he has, in some cases, sought the death penalty even when relatives asked him not to, because the law and the facts of the case demanded it.

Robert Dunham, executive director of the Death Penalty Information Center, said the approach of local prosecutors is the single biggest factor in whether a convicted killer ends up on death row. In some places, he said, “the death penalty appears to be part of the culture.”

An Enquirer analysis of data from Dunham’s group found Hamilton County's death row population ranks 22nd out of the 647 counties nationwide that have at least one person on death row. Among U.S. counties with 20 or more inmates on death row, Hamilton County ranks seventh per capita.

What’s happened here over the years is part of a broader trend that has seen death penalty cases become highly concentrated. Less than 1 percent of U.S. counties now account for 40 percent of all death row inmates.

One reason for that disparity is the growing number of states, now 19, that have banned the death penalty. Another is the uneven application of death penalty laws by the prosecutors elected to enforce them. A county with a strong death penalty proponent, such as Deters, might send killers like Tibbetts or Van Hook to death row, while a prosecutor in another county might be content to seek life without parole, or less.

Franklin County, about 100 miles to the north, has a larger population and more homicides than Hamilton County, but less than half as many inmates on death row with 11. Cuyahoga County, also more populous and more violent than Hamilton County, has 21 death row inmates. “The law is prosecuted differently depending on who is the elected prosecutor,” said Welsh-Huggins. “Your chances of going to death row depend on where you committed the crime.”

Geography will continue to matter for years to come in death penalty cases, and not just close to home in Ohio. Death rows in Texas and the Deep South remain crowded places, while those in the Northeast are smaller or nonexistent....

Hamilton County has seen a decline in death sentences, too, as jurors increasingly recommend sentences of life without parole instead of death. The option, which eliminates the risk of a killer one day walking free, has fundamentally changed the calculus of capital trials. "That has impacted death sentences across the country," said Abe Bonowitz, spokesman for Ohioans to Stop Executions. "If you can guarantee the guy is never getting out, why do you have to kill him?"

Sometimes, though, juries and judges still find a reason. Ohio's life without parole law didn't exist when Van Hook was convicted in 1985, but it was on the books when Tibbetts went on trial in 1998. His Hamilton County jury recommended the death penalty anyway.

Deters said that’s fine with him. He said he can't worry about what other prosecutors do or whether Hamilton County is sending more people to death row than other counties. He said the solution for those who do worry about it is simple. “If people don’t want the death penalty, I don’t care,” Deters said. “Pass a law and get rid of it.”

For a lot more information about executions by county, here is a lot of information from the Death Penalty Information Center.  And for a big report on death sentences by counties, here are Part I and Part II of a big recent report titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties.  

As the title of this post highlights, in addition to encouraging you to think about all this county-by-county examination and analysis of the death penalty, I am interested in whether you can help me find any county-by-county analysis of LWOP sentences.   The "Too Broken to Fix" report notes than "in 2015, juries only returned 49 death sentences" and that only 33 counties of 3,143 counties in the US imposed the sentence. Can anyone help me find any estimate of how many total LWOP sentences were imposed in 2015 (or any other calendar year)?  Can anyone help me find any county-by-county accounting of LWOP sentence in Ohio or anywhere else?

Gearing up for figuing the (right?) sentence for the various convicted "Bridgegate" federal criminals

As I mentioned in class today, our coming exploration of the federal sentencing system will be based in part on using the real-world "Bridgegate" case into a real-world sentencing exercise.  To get started in preparation to that end, I recommend some review of at least the following two links:

This Wikipedia page, titled "Fort Lee lane closure scandal" provides lots of background on the scandal, at it provides this very helpful initial summary of the crime and the three protagonists now facing federal sentencing:

The Fort Lee lane closure scandal, also known as the George Washington Bridge lane closure scandal, or Bridgegate, is a U.S. political scandal in which a staff member and political appointees of New Jersey Governor Chris Christie (R) colluded to create traffic jams in Fort Lee, New Jersey, by closing lanes at the main toll plaza for the upper level of the George Washington Bridge.

The problems began on Monday, September 9, 2013, when two of three toll lanes for a local street entrance were closed during morning rush hour. Local officials, emergency services, and the public were not notified of the lane closures, which Fort Lee declared a threat to public safety. The resulting back-ups and gridlock on local streets ended only when the two lanes were reopened on Friday, September 13, 2013, by an order from Port Authority Executive Director Patrick Foye. He said that the "hasty and ill-informed decision" could have endangered lives and violated federal and state laws.

The ensuing investigations centered on several of Christie's appointees and staff, including David Wildstein, who ordered the lanes closed, and Bill Baroni, who had told the New Jersey Assembly Transportation Committee that the closures were for a traffic study.

The United States Attorney for the District of New Jersey Paul J. Fishman launched a massive federal investigation, resulting in a sweeping nine-count indictment against Bridget Anne Kelly, the deputy chief of staff, Baroni and Wildstein. Wildstein entered a guilty plea, and testified against Baroni and Kelly, who were found guilty on all counts in November 2016.

The copy of the plea agreement in which Mr. Wildstein agreed to plead guilty and which also has a copy of his charging "information."

The full opinions in Graham and Miller....

are worth checking out if you are eager to think deeply about the future of Eighth Amendment limitations on extreme prison sentences.  And here are links to the original SCOTUS slip opinions:

• Graham v. Florida (2010) (all 84-fun-loving-PDF-pages)

• Miller v. Alabama (2012) (all 62-fun-loving-PDF-pages)

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:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

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.

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

1983                 33,216

1993                 88,565

2003                 172,499

2013                 219,218

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.

Some more on prisons past, present and future

This post provides a space for discussion of last week's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.   Notably, in recent years ESP has been trying to incorporate more modern art and education into its tours; it is working now on an ambitious new exhibit for 2016 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 to be found within in this history, as documented by this book entitled "Central Ohio's Historic Prisons," which 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:

• Alcatraz
• Missouri State Penitentiary
• West Virginia Penitentiary 

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.

Also, of course, everyone should be thinking not just about the past and present of prisons, but also the future.  To that end, check out this forward-looking video:

Link to Ohio Supreme Court oral argument in Ohio v. Moore

This morning (Feb 4, 2015), the Ohio Supreme Court heard argument in Ohio v. Moore to examine whether the SCOTUS 2010 Graham ruling declaring unconstitutional LWOP for juvenile non-homicide offenses should apply to a lengthy term-of-year sentence. The Justices asked many questions of both sides, and I believe only one of the seven Justices failed to ask at least one question.

The argument lasted for approximately an hour, and here is a link to the oral argument.  I highly recommend all students interested in Eighth Amendment issues take the time to watch these proceedings.

I suspect and fear we will not get a ruling from the Court before the end of the semester (but maybe that will be a kind of good news allowing me to ask a take-home exam question about the case).

"Parolable Lifers in Michigan: Paying the price of unchecked discretion"

The title of this post is the title of this February 2014 report by the Citizens Alliance on Prisons and Public Spending concerning the sentencing policies and practices in a state that, as this article notes, "abolished the death penalty on March 1, 1847, making it the first U.S. state and possibly the first in a democratic country in the world to do so."

I thought it useful to spotlight this new report as we begin our transition from capital to non-capital sentencing as a reminder that (1) not all US states and localities are impacted by modern capital punishment debates and doctrines, that (2) all US states and localities are impacted by modern non-capital sentencing debates and doctrines, especially with respect to the impact and import of "unchecked discretion," and that (3) there might be a variety of dynamic and complicated relationships between how states with and without the death penalty approach modern non-capital sentencing debates and doctrines.

Student guest-post asks great questions about prison labor

So far, one student has succeeded in earning extra credit by sending me "top-flight" guest posting material.  Here is the content of this guest-post (along with the picture) that was sent my way this past weekend:

One topic that we have not had time to discuss in detail in class this year has been prison labor.  See, for example, this article from the New York Times, published earlier this year and headlined "Enlisting Prison Labor to Close Budget Gaps."  And this article from the Dayton Daily Newss published about a month ago, which is headlined "Bureaucracy, politics hinder prison labor force," and explains problems with Ohio’s prison labor force.

As the first article explains, nearly all states have some form of prison labor, and the use of prison labor seems to be rising in response to cuts in federal financing and decreased tax revenue. Supporters of prison labor say that this could be a win-win for prisons because it could (1) allow prisons to use the labor to reduce their own costs and (2) help inmates develop skills which will help them to re-enter society. Because of these advantages, coalitions supporting prison labor have included both conservative budget hawks and liberal humanitarian groups.

But prison labor continues to have its share of critics as well (e.g. labor unions and civil rights advocates).  What do you think?  

Is prison labor a good idea?  

Does it matter whether it is required or voluntary?

Should it only be available to some inmates?

Other comments?

Students should remember that they can earn class participation by simply commenting on this effective post.  And the offer to send me guest-post fodder for extra credit remains open at least through this week.

SCOTUS grants cert on juve LWOP for young murderers ... and creates new final paper opportunity

Big sentencing news from the Supreme Court today, as reported in this blog post at SL&P: "Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!"  These cases now on the Supreme Court's agenda are Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas).

I will discuss these two new SCOTUS cases briefly in class this week (in part to explain how writing an amicus brief for filing in the Supreme Court can be an alternative to the final take-home paper in the class).  In the meantime, here are links to the state court rulings now to be reviewed by SCOTUS: 

• Miller v. Alabama
• Jackson v. Hobbs
  

Do we need to worry about (complex) guidelines enhancing disparity or severity or both?

I know I did not leave enough time at the end of class today for a complete discussion of all the early results of the guideline part of the Rob Anon sentencing exercise, but I went slow today because (1) I wanted to get out more general themes before jumping into the USSG weeds, and (2) I wanted to make sure everyone have a chance to work through the FSG basics for Rob Anon before our sentencing law weed-whacking the rest of the semester.  Nevertheless, even the hasty report of different offense level calculations for Rob prompts the question in the title of this post. 

Consider especially the disparity in guideline sentencing ranges that could result from even seemingly minor differences in offense level and criminal history computations.   Specifically, if the person who calculated Rob's offense level to be "only" 31 also had him in criminal history category II, his guideline range would have been 121-151 months in federal prison (roughly 10 to 12.5 years).  Meanwhile, if  whomever calculated Rob's offense level to be 35 also had him in criminal history category III, then his guideline range would have been 210-262 months in federal prison (roughly 17.5 to nearly 22 years).  And, of course, anyone scoring Rob's offense level at 39 or above would be getting a guideline range calling for near or above the 25-year statutory maximum for his offense of conviction.

Obviously, all of these guideline-calculated sentences are significantly longer than the 8 years imposed by many in our pre-guideline group-sentencing exercise earlier this week.  And, remember, in the pre-SRA federal sentencing world with parole eligibility, even a sentence of 25 years (300 months) for Rob would in fact mean he would become eligible for release on parole in 100 months.  In the post-SRA world in which defendants can only earn a 15% reduction for good time, Rob would actually have to serve at least 103 months of even a sentence of "only" 121 months.

Reactions?  Comments?  Concerns?

Reminder: Before Tuesday's class, do/review the pre-modern-reform federal sentencing exercise!

This coming week we are going to shift our look into modern (non-capital) sentencing reforms into high gear.  To have everyone on the same page, it is essential that you come to class on Tuesday having completed the pre-modern-reform sentencing exercise I handed out at the end of last Tuesday's class.

The front page of the exercise requires you to sentence Rob Anon (whose crime and history appear in short form at pp. 273-74 of our text) as if you were a federal judge sentencing in the pre-modern-reform era (say, around 1972, which was when US District Judge Marvin Frankel wrote his book criticizing then-common discretionary sentencing practices).  The only key legal concerns for you as a federal judge sentencing circa 1972 are (1) that Rob Anon's statutory sentencing range is 0 to 25 years in federal prison and 0 to $250,000 in a fine, and (2) that federal parole officials will have discretionary authority (but no requirement) to release Rob Anon after he has served at least one-third of the sentence you impose.

You need not yet (and I suggest you do not yet) try to sentence Rob Anon under current post-reform (and post-Booker) modern federal sentencing laws.  After we have had a chance in class to talk about your experiences and judgments concerning Rob Anon's sentencing circa 1972, then I will give you guidance and help in sentencing him under modern federal sentencing laws and guidelines.

UPDATE:  Please feel free (indeed, encouraged) now to comment with thoughts and insights as a result of our in-class sentencing exercise/discussion on Tuesday 10/18.  In particular, I am eager to hear perspectives on any special virtues or special vices that you identify in the pre-guideline sentencing world in which very little law limited or shaped your sentencing discretion.  (We will later discuss special virtues and vices of the modern structured sentencing system.)

Eastern State Penitentiary and other historic prisons

This post provides a space for discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website.  

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 to be found within in this history, as documented by a relatively recent book entitled "Central Ohio's Historic Prisons."  Here is a snippet from the book:

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.

Excerpts from this book can be accessed at this link.  The Ohio State Reformatory referenced in this passage is located in Mansfield, and is now an historic site (and also where the great movie The Shawshank Redemption was shot).  I could be readily talked into a class field-trip to this site (for extra credit, of course, and we can skip "Glamour in the Slammer").  Even without a trip north, I urge everyone to take a virtual tour via this huge photo gallery.

Especially if you are looking for some weekend web-surfing fun, check out these additional links to some good sites about some of the United States' most famous or most interesting prisons and jails:

• Alcatraz
• Missouri State Penitentiary
• Rotary Jail Museum
• West Virginia Penitentiary 

Ohio sentencing news and resources

Intriguingly, there has been a good bit of Ohio sentencing and punishment coverage in the Columbus Dispatch during our break this week, and I have linked some of the biggest stories via this post on my main blog.  In addition, I encourage everyone interesting in Ohio non-capital sentencing law and policy to look around the website of the Ohio Criminal Sentencing Commission.  

There are lots of notable (and intricate) materials to be found on the "Resources" sections of the OCSC website  here and here.  And I will likely assign for required or recommended reading later this month these particular OCSC documents:

• A Decade of Sentencing Reform (especially through p. 25)
• Prison Crowding: The Long View, With Suggestions
• H.B. 86 Summary: 2011 Changes to Criminal & Juvenile Law

Seeking reactions to Eastern State video and on prison as a sentencing output

 As promised, here is a space to enable discussion of today's video about Eastern State Penitentiary and more generally about prisons as out modern default sentencing "output."  If you are interested in learning more about Eastern State, check out this terrific website (and also this special opportunity to get your own ESP "mug-shot" mug shown here).

More broadly, I plan to start our next class together discussing whether there is a modern viable alternative to imprisonment as a default presumptive sentence for most serious crimes.  It would be great if this discussion could get a running start in the comments to this post. 

Snow day readings on revising the MPC sentencing provisions

I briefly mentioned at the end of class this past week that the American Law Institute is in the midst of revising the Model Penal Code's sentencing provisions, and that I have been critical of some of the structural changes that the MPC revision is advocating.  If you want to do some snow day reading of my writings on these matters, check out this piece from the September 2009 issue of the Florida Law Review, which is titled "The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions."

In addition, you can find other terrific (and relatively short) readings on the Model Penal Code's new sentencing proposals in this issue of the Florida Law Review.  As always, comments are welcome and encouraged on these topics.

Pew Center report brings attention to state punishment rates in Ohio and nationwide

Though we likely won't formally transition to non-capital sentencing topics until next week (or maybe even the week after), I wanted to start that transition on the blog by highlighting a new report from the Pew Center on the States, titled "One in 31: The Long Reach of America Corrections."  The full report -- which provide an effective "gold-standard" model for what a great final paper might look like -- is available at this link.  I have blog coverage of the report at SL&P here and here.

The Columbus Dispatch provides a local spin on the report with this article, headlined "Punished population soars in Ohio, U.S." Here is the start of the Dispatch article:

One in every 25 adult Ohioans is in prison, jail or on parole or probation, a study by the Pew Center on the States shows. While the national average is one in 31 U.S. adults, the numbers are more dramatic for Latinos (one in 27), men (one in 18), and blacks (one in 11), according to One in 31: The Long Reach of American Corrections, released yesterday.

Ohio's one-in-25 rate was sixth among the states. Georgia had the highest at one in 13, and New Hampshire the lowest at one in 88.

The first-of-a-kind study showed a huge jump in the corrections rate since 1984, when it was one in 77 Americans. Nationally, there were 7.3 million people in prison, jail, on parole or on probation in 2007. Of those, 351,879 were in Ohio -- about 50,000 in state prisons, with the vast majority in community corrections facilities, on parole or on probation.

At a time when states are facing the worst financial crunch in decades, spending on corrections continues to be one of the fastest-growing pieces of state budgets, second only to Medicaid in the past two decades, the Pew Center concluded. The national cost to taxpayers for all forms of corrections is $68 billion annually. The study said $1 out of every $15 in discretionary state spending goes to prisons.

The Dispatch also has this webpage seeking reader input, titled "The Hot Issue: Would you rather see Ohio build more prisons or put more offenders on probation?".  As of this writing, the on-line voting is very close (but on-line voter "turn-out" is low).