Study recommends enhancing judicial discretion in sentencing

PRESS RELEASE

Council on Criminal Justice
March 21, 2023

As cities across the nation grapple with effective responses to increases in violent crime, a task force co-chaired by former U.S. Deputy Attorney General Sally Yates and former U.S. Rep. Trey Gowdy today released a report outlining a comprehensive approach for the use of lengthy prison sentences in the United States. 

The report, How Long is Long Enough?, presents 14 recommendations to enhance judicial discretion in sentencing, promote individual and system accountability, reduce racial and ethnic disparities, better serve victims of crime, and increase public safety. Defining long sentences as prison terms of 10 years or longer, the panel’s proposals include:

• ·         Shifting savings from reductions in the use of long prison sentences to programs that prevent violence and address the trauma it causes individuals, families, and communities (Recommendation 1).
• ·         Allowing judges to consider all relevant facts and circumstances when imposing a long sentence, and requiring that sentencing enhancements based on criminal history are driven by individualized assessments of risk and other factors (Recommendations 6 and 8)
• ·         Providing selective “second look” sentence review opportunities and expanding access to sentence-reduction credits (Recommendations 11 and 12)
• ·         Focusing penalties in drug cases on a person’s role in a trafficking organization, rather than the amount of drug involved, (Recommendation 7)
• ·         Reducing recidivism by providing behavioral health services and other rehabilitative living conditions and opportunities in prison (Recommendations 3 and 13)
• ·         Strengthening services for all crime victims and survivors by enforcing victims’ rights, removing barriers to services, and creating restorative justice opportunities (Recommendations 2, 4, and 9)

“Some may wonder, why would we even discuss the nation’s use of long prison sentences now, amid a rise in homicide rates and legitimate public concern about public safety? Because this is exactly the time to examine what will actually make our communities safer and our system more just,” Yates and Gowdy said in a joint statement accompanying the report. “When crime rates increase, so do calls for stiffer sentencing, often without regard to the effectiveness or fairness of those sentences. Criminal justice policy should be based on facts and evidence, not rhetoric and emotion, and we should be laser-focused on strategies that make the most effective use of our limited resources.”

The report is the product of a year-long analysis by the nonpartisan Council on Criminal Justice (CCJ) Task Force on Long Sentences, which includes 16 members representing a broad range of experience and perspectives, from crime victims and survivors to formerly incarcerated people, prosecutors, defense attorneys, law enforcement, courts, and corrections. The panel examined the effects of long sentences on the criminal justice system and the populations it serves, including victims as well as people in prison, their families, and correctional staff. 

Drawing on sentencing data and research, including a series of reports prepared for the Task Force, the sweeping recommendations offer a comprehensive blueprint for action on a complex and polarizing topic. According to an updated analysis by CCJ, 63% of people in state prison in 2020 were serving a sentence of 10 or more years, up from 46% in 2005, a shift due largely to a decline in people serving shorter terms. During the same period, the gap between Black and White people receiving long terms widened, from half a percentage point to 4 percentage points. Though murder defendants were the most likely to receive a long sentence, drug offenses accounted for the largest share (20%) of those admitted to prison to serve 10 or more years.

“Our nation’s reliance on long sentences as a response to violence requires us to wrestle with highly challenging questions about the relationship between crime, punishment, and public safety,” Task Force Director John Maki said. “Through their painstaking deliberations, our members rose to the challenge and produced a set of recommendations that recognize our need to advance public safety while respecting the humanity of those most affected by long prison terms.”

To view the recommendations, as well as research briefs, meeting summaries, and additional perspectives shared by members, please visit the Task Force website. Participants on CCJ task forces are asked to join a consensus signifying that they endorse the general policy thrust and judgments reached by the group, though not necessarily every finding and recommendation. 

Key Research Findings

To inform its deliberations, the Task Force commissioned and reviewed research on a wide range of topics, including:

• ·         The public safety impact of shortening lengthy prison sentences. Based on first-of-their-kind calculations, this research estimated that reducing long terms in Illinois (the state providing the data) would result in a very small increase in arrests of any kind, and almost none for violent or weapons offenses.
• ·         The impacts of long sentences on public safety. Summarizing the existing research on deterrence and incapacitation, the analysis finds that there are crime-reducing effects but that they are limited and vary by offense.
• ·         International comparisons. Researchers conducted original calculations to show that the U.S. remains a global outlier in its use of long prison sentences, even after accounting for the much higher homicide rate in the U.S., compared to Europe, and for actual prison time served (vs. sentence length).
• ·         Trends in the use of long prison sentences. Serving as a foundation for the Task Force’s work, this analysis shows how state prison admissions, the standing prison population, and releases changed from 2005 to 2019 and breaks down the trends by offense type, race, age, and sex.
• ·         Factors affecting time served in prison. Researchers examined how parole and other “back end” discretion decisions influence how long people actually serve behind bars.

·         Perspectives of crime victims, formerly incarcerated individuals, and their families. Through a series of interviews, victims and survivors offered their views on the role of long sentences in achieving accountability and justice.

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Idaho about to authorize firing squads to carry out executions

 Idaho is poised to allow firing squads to execute condemned inmates when the state can’t get lethal-injection drugs, under a bill the Legislature passed with a veto-proof majority, reported The Associated Press.

Firing squads will be used only if the state cannot obtain the drugs needed for lethal injections — and one death row inmate has already had his scheduled execution postponed multiple times because of drug scarcity.

The move by Idaho lawmakers is in line with those by other states that in recent years have scrambled to revive older methods of execution because of difficulties obtaining drugs required for longstanding lethal injection programs. Pharmaceutical companies increasingly have barred executioners from using their drugs, saying they were meant to save lives, not take them.

Idaho Republican Gov. Brad Little has voiced his support for the death penalty but generally does not comment on legislation before he signs or vetoes it.

Only Mississippi, Utah, Oklahoma and South Carolina currently have laws allowing firing squads if other execution methods are unavailable, according to the Death Penalty Information Center. South Carolina’s law is on hold pending the outcome of a legal challenge.

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Mangino discusses suit against Norfolk Southern in Ohio train derailment

Watch my interview on WFMJ-TV21 Weekend Today discussing the Ohio AG's suit against Norfolk Southern.

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Marsy's Law being challenged in state courts across the country

Starting with California in 2008, a dozen states have adopted the bundle of state constitutional amendments known as “Marsy’s Law,” promoted as giving crime victims important new legal rights. Civil libertarians have warned from the start that the package curtails the legitimate rights of criminal defendants and the interests of a free and vigorous press. Legal challenges now pending before state high courts in Wisconsin and Florida suggest they’re right, reported The Brennan Center.

The Marsy’s Law campaign is the brainchild of tech billionaire Henry Nicholas, who took up the cause following the murder of his sister. The packages typically include rights for crime victims to be notified of, attend, and sometimes speak at legal processes involving a defendant; rights not to be publicly identified in ways that could expose them to harassment or retaliation; and rights to refuse interviews or depositions taken at the request of the accused.

One threshold problem appears from the start: these laws designate some persons as victims at a point when no court has yet found that the defendant or anyone else has committed a crime against them. Yet not all claims of victimization pan out.

Voters in Florida and Wisconsin, like those in many other states, approved Marsy’s Law constitutional amendments by wide margins in 2018 and 2020, respectively. In a challenge argued in September before the Wisconsin Supreme Court, plaintiffs said the ballot description of the measure was incomplete and misleading and that the package enacted into law consisted of numerous disparate measures notwithstanding Wisconsin’s rule requiring a ballot measure to address only one subject. State high courts in Pennsylvania and Montana have struck down Marsy’s Law enactments as in breach of their states’ single-subject rules.

The Wisconsin ballot language read as follows:

Question 1: “Additional rights of crime victims. Shall section 9m of article 1 of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?”

According to the plaintiffs’ brief, this wording did not inform voters that it was rolling back rights of the accused or changing them in any way. On a hasty reading, in fact, voters might conclude the opposite.

The process dispute here points to an important disagreement on substance. Marsy’s Law proponents regularly argue that the laws don’t weaken the rights of criminal defendants. But there’s little doubt that the Wisconsin package does exactly that. For example, it “limits discovery available to defendants by allowing victims [t]o refuse an interview, deposition, or other discovery request,” argues a brief from the ACLU of Wisconsin. A brief from public defenders says it’s “common for documents to be more heavily redacted or not disclosed in the name of ‘Marsy’s Law’” and that “the accused’s diminished discovery rights have been narrowed further with the amendment.”

In addition, the ACLU argues, a provision granting victims the right to attend all proceedings does so by deleting a previous qualifying phrase recognizing their right to attend “unless the trial court finds sequestration is necessary to a fair trial for the defendant.”

Note also the description’s curious language about how the measure creates rights for victims “while leaving the federal constitutional rights of the accused intact.” That seeming concession of course is no real concession at all since a state has no power to curtail federal constitutional rights. As the public defenders’ brief notes, “this provision simply states what is already required.”

It gets worse. The package in fact removed from the language of a previous victims’-rights enactment stating that nothing in it “shall limit any right of the accused which may be provided by law.” It’s hard to avoid the conclusion that Wisconsin drafters of the package knew they were curtailing valuable state-level rights of the accused.

The Florida case, argued in December, arises from one of the law’s most bizarre effects and highlights another set of rights it may undermine: by asserting victim status, police in some Marsy’s Law states regularly block the release of their names after violent encounters with the public. A police union sued to prevent Tallahassee from releasing the names of two officers involved in fatal shootings, citing the law’s ban on disclosure of “information or records that could be used to locate or harass the victim or the victim’s family.” The city did not plan to charge the officers with wrongdoing but wanted to reassure the public through openness that its department had acted properly in the encounters.

But using Marsy’s Law this way may conflict with Florida’s Sunshine Amendment, a constitutional provision guaranteeing strong rights of public access to government records. The trial court ruled that it couldn’t harmonize the use of Marsy’s Law as a shield in instances of alleged misconduct with Floridians’ right to “hold government accountable by inspecting state records.” An intermediate appellate court, ruling for the officers and reversing the trial court, however, found no such problem. It ruled that the public records provisions yield when other constitutional provisions exempt records from disclosure.

Whatever the outcome of the Wisconsin and Florida cases, advocates and policymakers should be on notice that Marsy’s Law generates outcomes that are hard to defend in principle. 

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Mangino's column appears in book 'Juvenile Law'

Read Juvenile Law a book edited by Heidi Watkins published by Greenhaven Publishing LLC with a chapter exploring a column I wrote on juvenile life without parole for The Pennsylvania Law Weekly. 

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Mangino provides trial analysis for Law and Crime Network

Watch my analysis for the Law and Crime Network of the ice cream man double murder retrial of Michael Keetley in Florida.

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John Jay College: NYC bail reform laws reduced recidivism

Controversial new state bail laws that some politicians say lead to offenders getting released and then rearrested actually had the opposite overall effect, according to a new study of criminal justice data, reported by the Gothamist a New York City non-profit newsroom.

The study, from John Jay College’s Data Collaborative for Justice, showed that the 2020 bail reform laws eliminating judges’ ability to impose bail for low-level crimes actually reduced the likelihood that someone would get arrested again.

The one exception was for bail-eligible people who were released following recent violent felony arrests. The rate of rearrests for that cohort of offenders increased slightly.

“Fundamentally, we found that eliminating bail for most misdemeanors and nonviolent felonies reduced recidivism in New York City, while there was no clear effect in either direction for cases remaining bail eligible,” said Michael Rempel, director of John Jay College’s Data Collaborative for Justice, in a statement.

The study did not delve into the reasons behind the relative lack of recidivism among those who were released without having to pay bail. But experts have said that even temporary incarceration can lead to termination from jobs, family disruption and housing loss, which can incentivize further criminal activity.

The purpose of the 2020 reform laws was to allow people charged with most misdemeanors and nonviolent felonies to be released while their cases played out in court. That meant they didn’t have to choose between paying bail and going to the dangerous Rikers Island jails. Instead, judges had to release people under other conditions like supervised release, which involves nonprofit agencies in the community doing monitoring and support.

The reforms were designed to reduce incarceration and stop putting people in jail just because they could not afford to post bail. But since the laws went into effect, politicians who oppose bail reform — such as Democratic Mayor Eric Adams — and conservative outlets like The New York Post, have argued that the laws went too far and led to violent criminals roaming free on city streets.

"We have a recidivism problem in New York and far too many people, there's about 2,000 people who are repeatedly catch, release, repeat in crimes," Adams said earlier this month. "If we don't take them off our streets, they're going to continue to prey on innocent people."

This new study found that the two-year rearrest rate for those released due to bail reform was 44%, compared to 50% for those with similar charges, criminal histories and demographics who were held in jail in the period before the reform.

It also took longer for those released as a result of bail reform to get rearrested than those forced to do a stint in jail after being charged.

Since the bail reform measures passed in 2019 and 2020, the new laws’ effect on crime has been perhaps the most debated topic in New York politics. It was a central focus of last year’s state elections, with Republicans and conservative Democrats alike claiming it led to spikes in crime, especially shootings and burglaries, because people were released without bail and went on to commit illegal acts. But so far data to prove that assertion has been limited, as have analyses countering the argument.

Tuesday's report tracked alleged offenders over a longer period than prior studies — including the time after cases were disposed of — and compared rearrests of those released pretrial due to bail reform and other statistically similar people who were held in jail.

“Our goal with this study was to substantially upgrade the credibility of information known to New Yorkers about bail reform and recidivism,” said Rempel in a statement.

Bail reform remains a hotly debated topic. Gov. Kathy Hochul is now seeking to eliminate the mandate that judges impose the “least restrictive condition” necessary on those charged with crimes still eligible for the imposition of bail, like violent felonies. The change would give more discretion to judges to allow them to impose higher bail amounts in order to keep more people locked up pretrial if they can’t afford to pay. But opponents say the proposal is unconstitutional.

The bail reform laws were initially passed in 2019 and modified in 2020 and 2022. The latest modifications went into effect in May and were not part of the John Jay study.

Offenses that are still not eligible for mandatory release are almost all violent felonies, sex offenses and certain domestic violence cases. Judges can order holding certain repeat offenders and those deemed a flight risk.

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