In his recent remarks at the Florida Sheriffs Association’s Winter Conference, the governor commented on the trial of the Stoneman Douglas High School shooting perpetrator. He said that the mass murderer’s conviction was long overdue, but he was disappointed that the jury did not recommend capital punishment. Wrongly suggesting that the outcome was the result of a lone juror’s personal opposition to the death penalty, Gov. DeSantis argued:

I think it was really based on one person’s idiosyncratic views. Fine, have a supermajority, but you can’t just say one person. So maybe 8 out of 12 have to agree or something. But we can’t be in a situation where one person can just derail this.

The jury foreman in that decision told CBS News that three jurors voted against recommending the death penalty. One juror in question was reportedly a “hard no” because the juror believed that the gunman was mentally ill.

Setting aside the details of any particular case, Florida’s proposal stands in stark contrast to the growing number of states moving away from executions. Twenty-three other states have totally abolished the death penalty. Governors in three additional states have placed an indefinite moratorium on executions, and at least nine states are actively considering abolishing the death penalty.

Meanwhile, a group of conservative lawmakers and pastors in Oklahoma are calling for a moratorium on executions as the state presses forward with plans to execute Richard Glossip, a man widely believed to be innocent. Reason.com reported:

Glossip’s case has garnered attention from death penalty opponents, because he’s on death row for a murder he did not commit. Glossip was convicted and sentenced to death for allegedly masterminding the murder of Barry Van Treese, the owner of a hotel where Glossip worked, in 1997. Glossip allegedly convinced Justin Sneed, a 19-year-old maintenance man at the hotel at the time, to kill Van Treese, and in exchange the two would split the victim’s money.

Glossip has insisted on his innocence, and there is no corroborating evidence tying him to the crime. Once Sneed confessed to the killing and pointed the finger at Glossip, he was convicted and sentenced to death based upon the testimony of Sneed alone. Sneed avoided the death penalty. Since then, Glossip and his attorneys have been fighting to get the state to reconsider its plans to execute him.

Among the states that still allow the death penalty, all but three require juries to reach a unanimous decision. Alabama requires that 10 out of 12 jurors agree to recommend the death penalty. In Missouri and Indiana, judges can make the final decision if juries are unable to reach a unanimous vote.

Florida previously allowed trial judges to make the final determination regarding capital punishment, with juries only serving an advisory function. However, the U.S. Supreme Court’s 2016 ruling in Hurst v. Florida found that the state’s procedure violated defendants’ Sixth Amendment right to a trial by jury.

Initially, Florida lawmakers responded with legislation that would have required 10 out of 12 jurors to recommend capital punishment, but that law was quickly struck down by the Florida Supreme Court. The Florida legislature subsequently passed a law requiring unanimous jury recommendations for capital punishment. The Florida Supreme Court further complicated the issue in 2020 when it reversed its position on jury unanimity, opening the door for Gov. DeSantis’ proposal.

Regardless of whether unanimity is constitutionally required, it would be unwise to lower the threshold. In fact, Florida should put an end to executions altogether.

A wrongful conviction is perhaps the worst possible outcome in the justice system. It consistently deprives innocent people of their liberty and denies justice to victims. The National Registry of Exonerations shows over 80 exonerations in Florida since 1989—cases in which a person was wrongly convicted of a crime and later cleared of all the charges based on new evidence of innocence. Wrongful convictions are made immeasurably worse when they result in wrongful execution by the state.

Additionally, lengthy and costly series of appeals also typically precedes executions—more than half of all inmates on death row in the U.S. have been there for more than 18 years. Lengthy appeals are part of the reason why capital cases are so costly to taxpayers. It is estimated that capital punishment costs Florida about $51 million annually beyond what it would cost to sentence first-degree murderers to life in prison without parole. Thus, Florida would save about $24 million per inmate sentenced to life without parole rather than capital punishment.

However, the delay for appeals between conviction and execution is critically important. It serves as a bulwark against wrongful executions. According to the Death Penalty Information Center, 30 people in Florida are among the 191 people in the United States who have been exonerated while they were awaiting execution since 1972. That translates to roughly one exoneration for every 8.2 executions nationwide. Florida’s justice system is much worse than the average at convicting innocent people, with one person on death row being exonerated for every 3.3 executions since 1979. Eleven out of the 30 people exonerated in Florida had wrongly been on death row for more than 10 years before they were cleared.

Clifford Williams, a Florida man, was exonerated in 2019 after serving 43 years on death row––the longest time on record among exonerees nationwide. An appeal uncovered several weaknesses in Williams’s trial, including mistaken witness identification, official misconduct, and an inadequate legal defense. Williams was initially denied compensation due to a prior felony, but Gov. DeSantis later approved a $2 million award.

Proponents of the death penalty might argue that it serves as a deterrent, but there is no consistent evidence to support that claim. Empirical research on the subject is marked by intense methodological disagreements and has produced conflicting results. As a 2015 National Research Council report concluded:

[R]esearch to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates. Therefore, the committee recommends that these studies not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide.

Even in the absence of evidence on deterrence, capital punishment involves significant tradeoffs when it comes to upholding justice. Capital punishment is a sentence reserved for the most heinous and depraved criminals. It is understandable that Gov. DeSantis and many others are frustrated when these individuals receive anything less than swift execution. However, the costs of error in capital cases is high, and Florida’s track record demonstrates that errors are not uncommon. Making it easier to send people to death row risks more cases like Clifford Williams’ experience of wrongly losing 43 years on death row while adding financial consequences on top of concerns about justice.

Jury unanimity doesn’t eliminate wrongful convictions and executions, but lowering the standard, as Gov. DeSantis has expressed he would like to see happen in Florida, would only increase the opportunity for errors that could result in wrongful executions by the state.

Instead of taking this misguided cue from Gov. DeSantis, Florida lawmakers should consider abolishing the death penalty altogether.

The post Florida should abolish capital punishment, not make it easier appeared first on Reason Foundation.

Seven years after legalization, many Alaskans are still saddled with criminal records for low-level marijuana possession. Twenty-four other states have already adopted reforms that facilitate the expungement or sealing of marijuana-related criminal convictions. 

House Bill 28 is a small but necessary step toward justice in Alaska.

The post Alaska House Bill 28 would help provide justice for those harmed by marijuana prohibition appeared first on Reason Foundation.

Humphrey is the named plaintiff in a 2020 class action lawsuit filed against the secretary of the Louisiana Department of Public Safety and Corrections (LDOC), James LeBlanc. Following Humphrey’s lawsuit, the U.S. Department of Justice (DOJ) launched an investigation into Louisiana’s prisoner release practices. The Department of Justice investigation concluded that the Louisiana Department of Public Safety and Corrections “routinely confines people in its custody past the dates when they are legally entitled to be released from custody, in violation of the Fourteenth Amendment.”

The DOJ investigation report further noted that “of the 4,135 people released from LDOC’s custody between January and April 2022, 1,108 (or 26.8 percent) were held past their release dates.” On average, overdetained individuals were held 29 days past their release date. A startling 24 percent of those overdetained in Louisiana were held for over 90 days.

Louisiana’s routine practice of overdetention is not only unjust, but it also comes at a steep cost to taxpayers. According to the U.S. Department of Justice report, the Louisiana Department of Public Safety and Corrections paid parish jails at least $850,000 in fees for the time individuals were incarcerated beyond their lawful sentences over a four-month period. That translates to approximately $2.5 million in annual costs associated with overdetention in the state.

The problem of overdetention isn’t limited to Louisiana. In 2002, a $27 million suit was settled in Los Angeles County that involved overdetention and illegal strip searches. Another $6.2 million settlement was reached in the District of Columbia in 2015, also involving overdetention and strip searches. More recently, in 2022, a class action suit was filed against the Baltimore Central Booking and Intake Center, and a $300 million suit was filed against New York City, both involving overdetention of inmates.

While overdetention may occur in other jurisdictions, the state of Louisiana is an outlier. Notably, LDOC has been aware of the problem for over a decade. A 2012 internal report and legislative audits conducted in 2017 and 2019 highlighted a consistent pattern of overdetention due to administrative delays, poor data management, and a lack of clearly defined procedures.

LDOC’s outdated computer systems might be at least partially to blame for lengthy delays. The Corrections and Justice Unified Network (CAJUN) is the primary software that LDOC uses to manage its prison system. The software was developed in 1970 and was last updated in 1991. In 2015, the software was supposed to be replaced by a $3.5 million dollar system (Offender Management System-OMS), but the new system was quickly abandoned after less than two months because “it caused confusion and interrupted work efficiency.” LDOC has continued to rely on CAJUN since. In some cases, moving paperwork between departments requires government employees to physically drive documents across the state.

A 2017 audit of Louisiana’s management of offender data found that the tracking of offender data through CAJUN was sometimes inaccurate. The audit revealed numerous “material weaknesses in internal control procedures.” Eleven percent of files reviewed in the audit showed that inmates were at a different facility than what was reflected in CAJUN and 38% of users with access to the system were no longer employed at LDOC.  Notably, the audit concluded that LDOC’s procedures for calculating release dates were inconsistent and could produce errors. The Legislative Auditor recommended implementing a review process for all initial sentence computations.

In a response to the 2017 audit, LDOC Secretary James LeBlanc said, “Calculating each offender’s release dates is a complex process with up to 20 different criteria that impacts the computation process.”

LeBlanc went on to describe LDOC’s efforts to provide employees with training and resources to address challenges associated with high turnover rates and frequent legislative changes that impact sentence computation. A subsequent audit in 2019 found no improvement.

As Maybell Romero, associate professor of Law at Tulane University, told The Advocate, “This isn’t rocket science. Every other state — at least most of them — has a system that works.”

LDOC’s current practices cannot continue. The DOJ report includes several remedial recommendations, including substantial technological upgrades and the decommissioning of CAJUN. The DOJ also recommended the establishment of new policies and procedures related to personnel training, interagency coordination, and quality assurance and supervision.

At a minimum, LDOC should adopt all of the DOJs recommendations, although the severity and duration of the agency’s misconduct suggest that broader cultural changes are necessary. Other jurisdictions should also take note of LDOC’s failures and take proactive measures to avoid unlawful overdetention.

The post Louisiana has been detaining people beyond their legal release dates for over a decade appeared first on Reason Foundation.

The primary responsibilities of the legal system are to promote public safety and to provide for justice. Pressure to raise revenue, at best, undermines and, at worst, directly conflicts with those responsibilities. When incentives are misaligned, police departments and court systems become more concerned with taxation by citation than carrying out their core functions. Such conflicts of interest can undermine the legitimacy of the criminal justice system. 

Using data from the Census Bureau’s Annual Survey of State and Local Government Finances, Reason Foundation created this data visualization tool to shed some light on the amount of revenue generated through fines and fees in 2020, the most recent year for which data is available.

In 2020, local governments across the United States collected just under $9 billion in fines and fees. Local governments in three states—New York ($1.4 billion), California ($1.26 billion), and Texas ($1.17 billion)—collected well over a third of the $9 billion in fines and fees in 2020.

Local governments in New York, California, Texas, Illinois, Florida, Georgia, Ohio, New Jersey, Washington, and Pennsylvania** collected the most fines and fees in 2020. In all, 20 states saw their local governments bring in more than $100 million in fines and fees in 2020.

On a per capita basis, local governments in New York, Illinois, Texas, and Georgia collected more than $35 per resident in fines and fees in 2020. In contrast, local governments in New Hampshire, Connecticut, Maine, Nebraska, and Kentucky* collected less than $3 in fines and fees revenue per resident in 2020.

Local governments use fines and fees as a significant source of revenue

In 2019, local fines and fees revenue accounted for less than 2% of pre-pandemic state general revenue in all 50 states. The year 2017 is the most recent year for which comprehensive local revenue data are available. In 2017, 28,159 U.S. cities, townships, and counties reported a total of $4,975,608,000 in revenue from fines and fees after excluding jurisdictions without sufficient data (see data and methodology notes below). In most places, fines and fees accounted for less than 5% of general revenue.

However, a sizable minority of jurisdictions in the United States appear to be highly dependent on criminal justice and court-related fines and fees. At least 482 local governments derived 10% or more of their general revenue from fines and fees in 2017.

In fact, in 176 local U.S. jurisdictions, the money from fines and fees accounted for 20% or more of that government's total general revenue in 2017.**

Going further, there were 42 municipalities where fines, fees, and forfeits made up 50% or more of the general revenue.

Rural areas with relatively small populations tend to be the most dependent on fines and fees. Along major roadways, so-called speed-trap towns appear common. Due to data limitations, these numbers understate the scope and scale of the revenue generated by local fines and fees in many states.

U.S. cities, townships, and counties getting more than 5% of their revenue from fines and fees in 2017

For more information, please see Reason Foundation's recently released policy brief, "Fines and fees: Consequences and opportunities for reform."

Recommendations for reform

Fines and fees have turned many courts into revenue centers for state and local governments. While most governments do not derive a significant portion of their general revenues from fines and fees, some are almost entirely dependent on them. Nonetheless, fines and fees are not a reliable source of revenue.

Moreover, using fines and fees to directly fund courts, law enforcement agencies, or other government activities can result in undesirable conflicts of interest. In addition to these fiscal considerations, fines and fees have devastating consequences on low-income individuals, racial minority groups, and juveniles and their families.

The following policy recommendations address the primary fiscal considerations associated with fines and fees, ensure accountability, and promote fairness within the justice system.

Eliminate user fees and poverty penalties

User fees effectively transfer costs away from taxpayers and onto individual users of government services. While user fees are appropriate and desirable in many contexts, they do not make sense in the justice system. The rule of law benefits all members of society, and the users of courts—particularly defendants—are often those who are least likely to be able to pay for their operations. Funding law enforcement and court systems through user fees make access to justice regressive—costing the poor far more relative to their income or wealth than the middle class or wealthy. That is fundamentally unjust. Funding the legal system through user fees also reduces the opportunity for lawmakers to weigh funding priorities, rein in excess, and ensure that the system is funded appropriately.

Poverty penalties, including interest fees, late fees, payment plan fees, and collection fees are particularly regressive. These fees punish individuals for their financial status rather than their crimes, and this undermines the objective of fairness within the justice system. Moreover, such punitive financial penalties may hinder the ability of former offenders to reintegrate, contributing to high recidivism rates.

Fully fund courts from state budgets

Eliminating user fees in the justice system may require states to assume greater responsibility in funding their court systems. Allocating funds from general revenues would protect against potential conflicts of interest. The particular structure of court systems in each state may complicate this process, especially in states without unified court systems. This obstacle is worth overcoming to ensure that courts are adequately and equitably funded.

Develop standardized tools to determine the ability to pay and scale fines accordingly

Determination of a defendant's ability to pay fines should not be left solely to the subjective assessment of an individual judge. This can result in wildly different outcomes for otherwise comparable defendants. Establishing standard practices would ensure that individuals are treated equally under the law. Scaling fines according to an individual's ability to pay would also reduce the administrative costs associated with pursuing uncollectable debts.

Affidavits, bench cards, or ability-to-pay calculators may be used to standardize ability-to-pay determinations. Income-based fines, or day fines, could also be used to scale penalties according to an individual's financial status. There is room for experimentation among the states in this area. Still, state law should clarify the factors that are considered when determining an individual's ability to pay. Defendants should be made aware of these factors and what documentation they will be expected to provide.

Provide alternatives to monetary sanctions

Indigent defendants should be able to receive alternatives to monetary sanctions. Community service is one possible alternative to fines but it may prove overly burdensome for some. For example, community service may conflict with work schedules or family obligations. Such conflicts should be avoided, as maintaining employment and social ties are critical to reducing the risk of recidivism. Courts should be able to consider a range of alternatives, including waivers, job training, and drug or mental health treatment. Incarceration should never be considered an alternative to monetary sanctions, and fees should never be charged for alternatives to monetary sanctions.

Eliminate all fines and fees in juvenile cases

The objective of the juvenile justice system should be to rehabilitate young offenders and avoid future escalation in their criminality. Fines are a purely punitive measure and do not serve any rehabilitative function. They do, however, place undue financial burdens on youth and their families. Juveniles should be considered indigent by default, and their families should not be held responsible for any monetary sanctions they incur.

End driver's license suspensions for failure to pay

Driver's license suspensions are an inefficient and counterproductive penalty for failure to pay fines and fees. There are significant administrative costs associated with the enforcement of suspensions. Driver's license suspensions also inhibit the ability of individuals to secure and maintain employment necessary to fulfill their legal financial obligations.

Collect and publish data on court debt and collection practices

Data on fines and fees is needed for transparency, accountability, and fiscal responsibility. Without sufficient information, lawmakers, advocates, and other stakeholders are less able to understand the problems related to fines and fees and identify possible policy reforms.

Currently, most states do not adequately track the imposition and collection of fines and fees. When information is available, it is often dispersed among local governments, individual courts, and private collections firms. This practice not only undermines the ability of lawmakers to make informed policy and budgetary decisions but also contributes to the broader perception that the justice system is unfair and unaccountable. Enabling citizens to access information related to fines and fees would help restore the justice system's legitimacy and allow them to hold their lawmakers more accountable.

At a minimum, states should collect and publish information related to fines and fees, including:

• The monetary amount of fines and fees levied annually;
• The revenue generated by fines and fees;
• How fines and fees revenue is allocated;
• And the costs associated with the collection of the fines and fees.

*Correction: A previous version of this post misstated Kentucky's fines and fees data as $31 per capita rather than $2.50 per capita.

**Correction: A previous version of this data incorrectly displayed data for Jamestown, South Carolina, where Jamestown, Pennsylvania, is located. Jamestown, Pennsylvania, should not have appeared on the map, "U.S. cities, townships, and counties getting more than 5% of their revenue from fines and fees in 2017," above, which shows municipalities that get more than 5% of their general revenue from fines and fees. As reported by the Census Bureau, Jamestown, Pennsylvania, collected approximately $2,000 in fines and forfeits revenue in 2017, which accounted for less than 5% of the town's general revenue that year.

The correct data for Jamestown, South Carolina, is as follows:
Fines and Forfeits: $105,000
Percent of revenue: 64.4%
General Revenue: $163,000
Per Capita: $1,313

This error was made in the GPS settings of the "U.S. cities, townships, and counties getting more than 5% of their revenue from fines and fees in 2017" above, but the error was not made in any state-level calculations.

Notes on data and methodology

In general, there is a severe lack of data regarding the revenue generated from fines and fees. This lack of data can make it difficult for policymakers to assess the scale of the problem and the potential impacts of reform. In the absence of data, perceived reliance on fines and fees revenues to fund court systems and other government activities can present a significant obstacle to reform.

The Annual Survey of State and Local Finances includes a line item for "Fines and Forfeits." According to the Census Bureau's classification manual, Fines and Forfeits includes revenue from:

• Penalties imposed for violations of the law
• Civil penalties (e.g., for violating court orders)
• Court fees, if levied upon conviction of a crime or violation
• Court-ordered restitution to crime victims where the government actually collects the monies
• Forfeits of deposits held for performance guarantees or against loss or damage (such as forfeited bail and collateral)

The Census Bureau's survey of state and local government finances has been administered annually since 1957. A census is conducted every five years (years ending in '2' and '7'). In the intervening years, a sample of state and local governments is used to collect data. A new sample is selected every five years (years ending in '4' and '9'). Even in census years, many values are imputed rather than being collected directly.

In our analysis of individual local governments, we excluded any city, county, or township whose "fines and forfeits" value was imputed. We also excluded any jurisdiction that reported zero general revenues or for whom more than 50% of line items were imputed. As a result of those data filters, approximately 8,330 cities, townships, and counties were excluded from our analysis.

The post Local governments collected $9 billion in fines and fees in 2020 appeared first on Reason Foundation.

In August 2014, Michael Brown, Jr., was shot and killed by police officer Darren Wilson in Ferguson, Missouri. The incident triggered several nights of protests and tense interactions between police and city residents. The U.S. Department of Justice subsequently launched a civil rights investigation into the Ferguson Police Department, the results of which were released in a report published by the DOJ in March 2015.

The Department of Justice report offered a scathing review of the Ferguson Police Department. Specifically, the investigation revealed widespread racial bias and discrimination within the police department. Moreover, the report noted that:

Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community.

Law enforcement officials in Ferguson delivered higher revenues through fines and fees resulting from municipal code enforcement. Between 2010 and 2015, fines and fees nearly doubled as a share of Ferguson’s general revenues—from $1.30 million (12%) to 3.09 million (23%). As noted in the DOJ report, fines and fees charged by the city were higher than those charged by neighboring municipalities. For example, the charge for “Weeds/Tall Grass” in a neighboring city was just $5. In Ferguson, the charges for the same violation were between $77 and $102.

Ferguson is a particularly stark example of a problem in jurisdictions across the country. Fines and fees are often used as a source of state and local government revenues. Fines and fees revenue is typically used to fund court operations, including salary and personnel costs. However, some governments rely on courts to generate revenue for other services as well. In some cases, this revenue is earmarked for a specific purpose related to the offense committed. In others, it goes to a government’s general fund or to purposes wholly unrelated to the justice system. The use of fines and fees as a source of revenue raises significant questions of fairness and may create poor incentives for law enforcement agencies, courts, and other government entities, which may be dependent on the revenues generated.

The primary responsibilities of the legal system are to promote public safety and to provide for justice. Pressure to raise revenue, at best, undermines—and at worst, directly conflicts with—those responsibilities.

When incentives are misaligned, police departments and court systems become more concerned with “taxation by citation” than carrying out their core functions. Such conflicts of interest also serve to undermine the legitimacy of the justice system among the public.

Lawmakers are beginning to recognize the problems presented by fines and fees, but fiscal concerns may present a barrier to reform.

The aim of this policy brief is to summarize existing research on the effects of fines and fees in the justice system and to present potential reforms that would resolve such fiscal concerns.

Full policy brief — Fines and fees: Consequences and opportunities for reform

The post Fines and fees: Consequences and opportunities for reform appeared first on Reason Foundation.

Of the seven charges Osby was indicted on, he was convicted of two and acquitted of the other five. His convictions included two counts of possession of drugs with intent to distribute (the drugs found in the vehicle). For the charges he was convicted of, the guideline range for his sentence would have been 24-to-30 months. However, Osby was sentenced to 84 months in prison.

What is the difference between the two? Acquitted conduct sentencing.

Acquitted conduct sentencing essentially allows federal judges to consider any “relevant conduct” in determining sentences. This conduct can include crimes that the defendant has been acquitted of or even crimes which the defendant was not formally charged with.

“Known as acquitted conduct sentencing, the practice allows judges to bloat a prison term when sentencing a defendant by punishing them for a separate charge or charges on which a jury deemed them not guilty,” writes Reason.com’s Billy Binion.

While juries must consider whether the evidence presented proves guilt beyond a reasonable doubt, judges are held to a lower standard—a preponderance of evidence—for additional conduct that can be considered during sentencing.

Many judges have asserted that acquitted conduct sentencing violates criminal defendants’ Fifth Amendment right to due process and their Sixth Amendment right to trial by jury. U.S. Supreme Court Justice Brett Kavanaugh shared his disapproval of acquitted conduct sentencing many times before his appointment to the U.S. Supreme Court. In a 2008 opinion, Kavanaugh wrote, “allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the right to due process and to a jury trial.”

Former Supreme Court Justice Antonin Scalia also noted that facts considered against a defendant to extend their sentence should be found by the jury or admitted by the defendant, “it may not be found by a judge.”

On the other hand, circuit courts all over the country have found the practice to be appropriate in accordance with the 1997 Supreme Court decision in United States v. Watts. In a 7-2 decision, the Supreme Court ruled that acquitted conduct sentencing is constitutional and does not violate the double jeopardy clause, citing the United States Sentencing Commission’s guideline manual:

In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U. S. C. § 3661.

Following his sentencing, Osby petitioned for a writ of certiorari from the United States Supreme Court. The question presented to the court is whether the practice of using acquitted conducted to enhance a defendant’s sentence violates their Fifth and Sixth Amendment rights. Osby’s petition was denied by the Supreme Court in October 2021.

However, the Supreme Court may soon reconsider acquitted conduct sentencing in the case of 17-year-old Daytona McClinton. Reason magazine reported:

In 2015, when he was 17, Dayonta McClinton and five accomplices robbed a CVS pharmacy in Indiana at gunpoint. Federal prosecutors also alleged that McClinton shot and killed one of his accomplices, Malik Perry, during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy and brandishing a gun during that crime but acquitted him of robbing and killing Perry.

U.S. District Judge Tanya Walton Pratt nevertheless granted the government’s request that McClinton serve time for causing Perry’s death. Taking into account his prior criminal record, the sentencing guidelines recommended a prison term of 57 to 71 months for the convictions. McClinton instead received a sentence of 228 months—19 years. Pratt said Perry’s murder was “the driving force in this sentence.”

The case vividly illustrates how defendants can be punished for crimes even when a jury finds them not guilty of those offenses…

Seventeen retired federal judges, appointed by both Republicans and Democrats, also filed a brief supporting McClinton’s appeal. They argue that the “simple and straightforward solution to this problem” is to rule that “no alleged conduct upon which a jury has acquitted a defendant should be used to enhance the defendant’s penalty for any crime.”

Acquitted conducted sentencing is standard practice for federal circuit courts. Moreover, according to the Due Process Institute, 40 states and the District of Columbia either implicitly or explicitly permit acquitted conduct sentencing. Among the 10 states that prohibit acquitted conduct sentencing, only four prohibited the practice through statutory or regulatory sentencing guidelines.

In the remaining six states, court decisions have banned the practice. For example, the Michigan Supreme Court’s ruling in  People v. Beck ended acquitted conduct sentencing in the state. The question before the Michigan Supreme Court in People v. Beck was whether a sentencing judge could sentence a defendant for a crime of which the defendant was acquitted. The court held that they could not, reasoning that “once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.”

At the federal level, Congress has considered three bills—the Prohibiting Punishment of Acquitted Conduct Act of 2019, the SAFE Justice Act, and the Jobs and Justice Act of 2018—that sought to remove acquitted conduct from sentencing guidelines. However, since their introduction, no further action has been taken on any of these bills.

If it takes McClinton v. United States, the U.S. Supreme Court could soon reconsider the constitutionality of acquitted conduct sentencing. But Congress, the U.S. Sentencing Commission, and individual states also have an opportunity to act.

The post Acquitted conduct sentencing is unconstitutional appeared first on Reason Foundation.

The New York Times recently published a guest essay by Patrick Irving, a maximum security prisoner in a facility just south of Boise, Idaho, who writes that prices at the commissary, an internal store where inmates can buy a limited range of personal items, in Irving’s facility rose by 8.5% in April 2022. Similar price increases have been reported in other prisons across the country. These price increases are particularly harmful to prisoners, who earn little to nothing for their labor.  

According to a report released by the American Civil Liberties Union this year, over 65% of the more than 1.2 million people incarcerated in state and federal prisons work while incarcerated. Among those who are paid, wages typically range between $0.14 and $0.63 per hour. These wages may be subject to further reductions in pay for various legal financial obligations, including paying fines, fees, child support payments, and restitution. Most work assignments in Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas are unpaid. 

The issue of prison labor made headlines recently as five states considered ballot initiatives related to slavery in November. The 13^th Amendment to the United States Constitution abolished slavery, “except as punishment for a crime whereof the party shall have been duly convicted.”

The ballot initiatives sought to eliminate similar language in the Tennessee, Alabama, Oregon, Vermont, and Louisiana state constitutions. All the initiatives passed except for the one in Louisiana, where the wording of the proposed amendment generated confusion among voters and prompted some of the initiative’s proponents to turn against the measure.  

Sixteen states, including Louisiana, still have language that permits slavery or involuntary servitude as punishment for a crime. It is unlikely that repealing this language will meaningfully impact prison labor practices, but it may open the door to potential legal challenges related to the wages earned by prisoners. 

Notably, the intent of these initiatives is not to prohibit prisoners from working. In Tennessee, for example, the language made an important distinction, reading, “Slavery and involuntary servitude are forever prohibited. Nothing in this section shall prohibit an inmate from working when the inmate has been duly convicted of a crime.”

As Tennessee State Sen. Raumesh Akbari (D-Memphis), who helped get the initiative on the ballot, told the Associated Press, “We understand that those who are incarcerated cannot be forced to work without pay, but we should not create a situation where they won’t be able to work at all.” 

Criminal offenders frequently struggle to maintain stable, full-time employment before and after incarceration. There is evidence that prisoners who find employment post-release are less likely to return to prison in the future. Other research has found that individuals with stable, full-time employment are less likely to engage in criminal activity.  

Programs that provide prisoners with work experience while incarcerated are intended to improve post-release employment and recidivism outcomes. According to a recent Brookings Institute report, evidence that these programs reduce recidivism is mixed—although a number of studies have found favorable effects on post-release employment and prison misconduct.

A recent study concluded that the amount of time a prisoner engages in employment programs may be an important factor. Prisoners who spent a greater share of their time employed while incarcerated had lower rates of recidivism, higher rates of post-release employment, and fewer instances of institutional misconduct.  

Given that prison work programs can be beneficial, low wages are the primary source of contention. Commissary prices may rise with inflation, but the wages paid to prisoners are rarely increased. But there are efforts being made across many states to change that. 

Lawmakers in New York and Illinois are seeking to raise prisoner wages even as prison minimum wage legislation has failed in Arizona, Maryland, Mississippi, Nevada, Texas, and Virginia since 2019. Meanwhile, a proposed amendment to the California State Constitution failed to gain legislative support after the California Department of Finance estimated it would cost $1.5 billion in 2022 to pay the state’s $15 minimum wage to 65,000 incarcerated Californians.  

While it is likely not feasible to pay prisoners market wages, current wages are unreasonably low and should, at the very least, be adjusted to account for inflation. Moreover, states should end the practice of deducting legal financial obligations from prisoners’ wages. In particular, “pay to stay” fees––which charge prisoners for room and board and healthcare costs––should be eliminated entirely. Of the 1.2 million people incarcerated in the United States, roughly 85% will leave prison and return to their communities.

The current state of corrections in most states today does little to ensure that returned citizens are equipped with the skills and financial resources to successfully reintegrate into society. The experience of working and earning regular wages while incarcerated can be effective for easing the transition to life “on the outside.” In this light, prison work programs should be viewed as a tool for reducing recidivism rather than sources of revenue.  

The post As inflation rises, incarcerated people are paid less than 63 cents per hour for labor appeared first on Reason Foundation.

Even small changes to how criminal justice supervision programs are administered can have important effects and help achieve criminal justice reform goals of reducing recidivism and the prison population. Simply sending text message reminders can reduce missed parole and probation meetings by nearly 30 percent, a new Reason Foundation policy brief finds. Reducing the number of missed appointments could help keep some people from being sent back to jail or prison for technical violations.

Probation and parole are intended to provide a more constructive alternative to incarceration by allowing offenders to be supervised within their communities. However, some research suggests that community supervision programs may be contributing to the problem of mass incarceration in unintended ways.

Individuals on parole and probation must adhere to strict rules and procedures. Behaviors that violate these rules, but are not criminal, are considered technical violations. Technical violations include missing appointments with supervising officers, failing drug tests, and violating curfews.

One of the most common and important requirements of individuals on parole and probation is regular contact with a supervising officer assigned to their case through in-person meetings. Supervisors commonly provide employment updates at these meetings, receive support and treatment, and are tested for recent drug use. Higher-risk supervisees are typically required to have more contact through more frequent meetings.

Meanwhile, supervision agencies are frequently underfunded, and supervising officers are overloaded with cases. As the number of people on parole and probation has grown over recent decades, supervising agencies and the officers they employ have been required to do more with less. The coordination of supervision meetings is one significant inefficiency.

A relatively minor reform that focuses on reducing the frequency of missed appointments for probation and parole supervision has considerable promise: sending text messages reminding supervisees to attend upcoming meetings. From picking up prescription medications to reminding us of a doctor’s appointment, text message reminders are commonplace in everyday life for most Californians. Recently, some governments have experimented with sending text message reminders to improve court attendance with positive results.

In a randomized experiment involving text-message reminders for upcoming parole and probation meetings in Arkansas, a sample of individuals on parole and probation were randomly assigned to one of four experimental groups. Three groups received text message reminders for upcoming meetings at different time intervals. The fourth group served as a control group and did not receive any text messages. The group that received a text message one day before their upcoming meeting had 21% fewer canceled meetings and 29% fewer missed appointments relative to the control group, the Reason Foundation brief shows.

These findings suggest that even minor changes, like sending text message reminders, can significantly impact individuals within the criminal justice system. To the extent that missed appointments lead to technical parole and probation violations and increase the burden placed on supervising officers, text-message reminders could be a low-cost improvement. The program only costs the Arkansas Division of Community Corrections about two cents per text message.

Reducing missed appointments could allow supervising officers to spend more time managing the cases of higher-risk supervisees. Research suggests that effective supervision can improve long-term outcomes for individuals on parole and probation, but supervising officers need adequate time and resources to do their jobs effectively.

California should be at the forefront of using technology––in this case, simple text messages––to help citizens reintegrate into society and improve their lives. Of course, much more significant criminal justice reforms could be made to the state’s parole and probation systems. Still, text message reminders for parole and probation meetings are an easy and inexpensive way to help people stay on track and reduce recidivism.

A version of this commentary was originally published in The Orange County Register.

The post How text messages could help California reduce parole and probation violations appeared first on Reason Foundation.

High rates of incarceration in the United States have rightfully garnered significant attention from policymakers, researchers, and the public. However, community supervision programs, including parole and probation, have received comparatively little attention. This disparity is notable given the fact that the number of people under community supervision is more than twice as large as the incarcerated population.

In fact, the 3.9 million people on parole and probation in 2020 accounted for 70% of the total correctional population that year. As policymakers pursue reforms to reduce the incarcerated population, the share of correctional populations under parole and probation has increased. Supervision agencies are often under-resourced and are increasingly required to find ways of doing more with less.

Probation and parole are intended to encourage community reintegration by providing an alternative to incarceration and keeping justice-involved individuals in their communities. However, a growing body of research finds that community supervision programs may be contributing to the problem of mass incarceration in unintended ways. Individuals under community supervision are typically subject to conditions including regular check-ins, drug testing, curfews, electronic monitoring, and the payment of fines and fees. In some cases, failure to comply with these conditions can result in a revocation of community supervision and a return to jail or prison.

Of the reported 1,790,000 individuals who exited probation in 2019, only about 53% successfully completed their probation. Approximately 13% of parole exits that year were attributable to parole revocations that resulted in incarceration. Among those who were revoked and returned to incarceration, about 40% were incarcerated due to technical violations. Only 31% were incarcerated for new crimes, with the remaining 29% incarcerated for other unknown reasons.

One of the most common requirements placed on individuals under community supervision is that they have regular contact with the officers assigned to manage their cases. The nature and frequency of this contact varied depending on the specific needs and risk level of each individual under supervision. One form of contact between supervisees and officers is an in-person parole or probation meeting. These meetings often take place at an agency office and may serve a variety of purposes. Supervisees may provide updates on education and employment, receive support and treatment, and be tested for recent drug use.

Despite their importance to effective supervision, office visits are often difficult to coordinate. Supervisees frequently miss appointments due to work, education, or difficulty securing transportation. Missed appointments and time spent coordinating meetings represent opportunities to improve the use of scarce time by parole and probation officers. Eliminating these inefficiencies would allow officers to focus their time and attention on higher-risk supervisees in greater need of intensive supervision.

Moreover, failure to meet with supervising officers is among the leading forms of technical violations committed by parolees. For example, an analysis of parole violations in Michigan found that failure to report to probation officers was by far the most common type of violation, accounting for over 33% of all recorded violations.

Surprisingly, one relatively low-cost intervention that focuses on reducing the frequency of missed appointments for probation and parole supervision is supported by a growing body of evidence: sending text message reminders to supervisees regarding upcoming appointments.

To assess the potential of test-message reminders to reduce the number of missed parole and probation meetings, a randomized control trial was recently conducted among community supervision participants in Arkansas.

Our findings suggest that sending text scheduled appointments could reduce canceled and missed appointments by as much as 21% and 29%, respectively.

To be sure, there are many necessary reforms to community supervision in the United States. Policymakers should seek to ensure that community supervision is focused on rehabilitation and reintegration rather than doling out punishment. To that end, revocations and incarceration for technical violations should be limited.

Supervising officers must also have sufficient time and resources to effectively support the clients under their supervision. While certainly not a panacea, improving meeting attendance through text message alerts is a cost-effective way of reducing technical violations and improving the efficiency of community supervision programs.

Each year, more than four million Americans are under community supervision. Too often, community supervision programs like parole and probation exacerbate the problem of mass incarceration rather than diverting people away from jail and prison. Individuals on community supervision are subject to a litany of supervision conditions and, more often than not, fail to meet all of those conditions. As many as three-fourths of people under community supervision commit some form of a technical violation of their supervision conditions. These technical violations can result in incarceration, creating a supervision-to-incarceration pipeline. In fact, technical supervision violations account for approximately 23% of state prison admissions each year.

Several reforms are necessary to ensure that community supervision programs fulfill their purposes. Reforms should refocus supervision on reintegrating justice-involved individuals into society and maintaining public safety rather than punishing individuals for minor technical violations. As demonstrated in the Arkansas experiment reviewed in this policy brief, sending text message reminders is an inexpensive and effective way to improve supervision appointment attendance at a cost of just two cents per text message. Improved attendance can reduce the number of technical violations and helps make efficient use of supervising officers’ time and resources.

As the share of correctional populations under parole and probation continues to grow, making efficient use of supervision agency resources will be increasingly important. While text message reminders may only be a minor part of necessary policy reforms within community supervision, their potential impact should not be overlooked.

Full Policy Brief—

Addressing Mass Supervision In the United States: How Text Message Reminders Can Help Reduce Technical Violations of Community Supervision

The post How text message reminders can help reduce technical parole and probation violations appeared first on Reason Foundation.

With the law set to take full effect in less than three months, several Illinois officials have publicly criticized the bill. Illinois State House Republican Leader Jim Durkin, for example, called the elimination of cash bail “a horrible slap in the face to victims and neighborhoods desperately seeking safety.”

Sangamon County State’s Attorney Dan Wright and County Sheriff Jack Campbell filed a lawsuit against Illinois Gov. J.B. Pritzker and others, questioning the constitutionality of the law.  

There are some flaws with the pretrial components of the SAFE-T Act that merit discussion, but it is first important to consider clearly the proper intent of cash bail within the criminal justice system. Cash bail is meant to be a pretrial release mechanism that encourages suspects to show up for court dates. A sum of money determined by the court is paid by the defendant and is refunded after the defendant shows up for their court appearances. This provides a financial incentive for defendants to attend their required court dates.  

Proponents of cash bail sometimes identify an additional purpose: protecting public safety. The theory is that setting high bail amounts is an effective strategy for ensuring that dangerous individuals remain detained during the pretrial process. However, criminal justice reform advocates contend that cash bail is unfair because, in effect, an individual’s likelihood of pretrial release is highly dependent on their economic status.  

There is ample evidence that even short periods of pretrial detention can result in lost employment, severed social ties, a greater risk of conviction, and an increased likelihood of future criminal involvement. For example, a recent study in The Journal of Law and Economics found that being detained increased the likelihood of being convicted regardless of whether the accused is innocent or not, and even more so when the accused is a person of color. Another study in The Journal of Legal Studies found that longer periods of pretrial detention are associated with recidivism.  

It should be noted that in the U.S. legal system, individuals suspected of a crime are presumed innocent until proven guilty. Defendants awaiting trial are, by definition, presumed innocent. Consequently, punishment is not a proper function of bail. Collateral consequences of pretrial detention and economic hardships endured to make bail, therefore, cannot be justified as deserved penalties. 

With these understandings in mind, one can more reasonably evaluate the disparate claims of proponents and critics of the Illinois SAFE-T act.  

Critics of the SAFE-T Act most frequently cite public safety concerns arising from the elimination of cash bail. However, cash bail is not the most effective tool to ensure that dangerous individuals are kept away from the community. Public safety concerns are more appropriately dealt with by determining whether a defendant is eligible for bail, or pretrial release, to begin with. Illinois statute (Sec. 110-6.1.) specifies the circumstances under which an individual may be denied under pretrial release. Generally, those include circumstances in which the defendant is charged with a forcible felony or other serious crime, and it is alleged that the defendant’s release poses a specific, real and present threat to any person or the community. To the extent that critics of the SAFE-T Act are concerned about public safety, their focus should be on these conditions for pretrial detention.   

But the relationship between pretrial detention and public safety is not as straightforward as critics of the SAFE-T Act might assume. There is evidence that pretrial detention can reduce the likelihood that an individual will commit an additional offense while awaiting trial. This is primarily due to the incapacitation effect of pretrial detention. A 2019 study published in The Journal of Law and Economics examining criminal cases in New York City found that pretrial detention reduced the probability of being rearrested by 12.2 percentage points for felony defendants and 10.6 percentage points for misdemeanor defendants. However, the same study found that these short-term benefits were offset in the longer term by future arrests. These findings are consistent with other research which suggests that pretrial detention results in higher rates of recidivism.  

So long as bail amounts are reasonable and appropriately consider individuals’ financial circumstances, cash bail is a reasonable tool for encouraging court attendance. Unfortunately, bail amounts are often excessive, and judges rarely consider defendants’ ability to pay. Many people remain in jail during the pretrial process, not because they are a danger to society or because they are a flight risk, but because they cannot afford the price of their freedom.

Ironically, Illinois statute allows judges to deny pretrial release to some individuals with a high likelihood of willful flight (Sec. 110-6.1 (7)). The elimination of cash bail means that judges have one less tool to address flight risk, running the risk of increased reliance on pretrial detention in these cases.  

The SAFE-T Act contains many beneficial reforms across the justice system, but it is not without flaws. As policymakers consider potential revisions to the law, they should proceed with a clear understanding of the purpose of cash bail and rely on evidence from empirical research. Ultimately, critics and proponents of the SAFE-T Act would benefit from coming together and forging a common-sense compromise that protects both public safety and individual liberty.  

The post The SAFE-T Act’s impact on cash bail in Illinois appeared first on Reason Foundation.

Unfortunately, wrongful convictions occur in death penalty cases at an alarming rate. Since 1981, 10 people in Oklahoma have been exonerated while on death row awaiting execution.

The Death Penalty Information Center maintains a database of death row exonerations in the United States. The database only includes cases where individuals were acquitted of all charges, had all their charges dismissed, or received a complete pardon based on evidence of their innocence. It provides very conservative estimates and likely understates the true number of innocent people who have been sentenced to death in America.

Death Row Exonerations Nationwide

• Since 1972, over 185 Americans have been exonerated while awaiting executions on death row.
• 68% of exonerations involved perjury or false accusations.
• 69% of exonerations involved misconduct by officials.

Death Row Exonerations in Oklahoma

• Since 1981, 10 individuals have been exonerated while on death row awaiting execution in Oklahoma.
• Six of those cases involved perjury or false accusations.
• Seven cases involved official misconduct.
• Oklahoma County, Oklahoma, has had the 4th highest number of death row exonerations among all counties in the US. Four of the five death row exonerations in Oklahoma County involved misconduct by officials.

Full document: Abolishing Oklahoma’s death penalty would be good for justice and for taxpayers

The post Abolishing Oklahoma’s death penalty would be good for justice and for taxpayers appeared first on Reason Foundation.

Ohio’s Issue 1 on the November 2022 ballot requires a court to consider public safety concerns, such as the seriousness of the alleged offense, a person’s criminal record, and the likelihood a person will return to court when determining bail amount. The amendment would eliminate the Ohio Supreme Court’s current authority to determine the procedures for establishing the amount and conditions of bail.

Amendment 1 was advanced in response to an Ohio Supreme Court ruling, DuBose v. McGuffey. In that case, the state Supreme Court determined a $1.5 million bond for a Cincinnati man accused of fatally shooting a man during a robbery was too high. Through their ruling, the Ohio Supreme Court decided that only the defendant’s risk of non-appearance could be considered in determining bail amounts. This change in guidelines animated prosecutorial, judicial, and victim-rights interests to propose a constitutional change ensuring factors of public safety must once again be included in setting bail conditions.

Proponents’ Arguments

Those supporting the constitutional amendment believe courts should consider public safety, among other factors prescribed by the Ohio General Assembly, when determining bail amounts. They say these public safety factors include the seriousness of the individual’s alleged offense, the individual’s criminal history, and the likelihood of the individual reappearing in court for trial. Advocates believe Issue 1 will clearly and unambiguously guarantee courts include such factors in the financial conditions of bail. 

Proponents of Issue 1 are concerned that career criminals may exploit the justice system’s presumption of innocence to commit additional crimes, if not disappear from law enforcement, before the adjudicating process. They further citte public safety as a historical and appropriate consideration when setting reasonable bail.

Longtime Hamilton County Prosecutor Joe Deters claimed that pretrial defendants languishing in jail is largely a myth. According to Deters: “Prosecutors are required to bring their case to trial within 90 days if a defendant is locked up. If we do not do that, the case is dismissed, unless the defendant requests a continuation.”

Additionally, Deters contends that the criminal justice system does not target those in poverty. He suggests crime is more rampant in poorer neighborhoods, requiring the need to prevent offenders from easily accessing the street prior to trial. 

Opponents Arguments

Opponents of the constitutional amendment argue the Supreme Court should maintain authority over determining bail procedures. The alternative could create a risky mosaic of policies and standards determined, no longer by the Supreme Court, but by individual judges.

Opponents of Issue 1 also suggest that low-income, non-violent offenders are often casualties of excessive bail practices, while violent offenders, such as those with access to illegal cash, have the means to buy their way out of jail. Furthermore, Sen. Cecil Thomas has argued that “good prosecutors in Ohio already know how to keep dangerous suspects in jail pending trial…They request a detention hearing and present evidence about the risk to public safety.” Thomas further noted that judges may also decide to hold a defendant without bail.

Advocating against the merit of the amendment’s language, the ACLU of Ohio suggested that “cash bail creates a two-tiered system of justice in which people who can afford their freedom go home to their families, and those who cannot are forced to suffer in jail.” The ACLU further notes that “[o]n any given day in Ohio, there are as many as 12,000 people held pretrial.”

Opponents have additionally cited a U.S. Department of Justice study of the country’s 75 largest counties, including two in Ohio, that found 33% of felony defendants were charged for at least one type of misconduct between being released and the disposition of their case. A warrant for failing to appear was issued for 23% of released defendants, and roughly 17% were arrested for a new offense. 

Discussion 

The debate around Ohio’s Issue 1 centers on the proper role and function of cash bail. The primary goal of setting bail is to ensure that defendants show up in court. Concerns about the threat that individual defendants pose to public safety are more appropriately dealt with through the decision of whether or not a defendant is eligible for bail, or pre-trial release, to begin with. The Ohio Constitution already provides for automatic pre-trial detention without bail in three circumstances:

1. When a person is charged with a capital offense “where the proof is evident or the presumption great;”
2. When a person is charged with a felony “where the proof is evident or the presumption great;”
3. When a person “poses a substantial risk of serious physical harm to any person or to the community.”

Ohio law also allows judges to consider “the nature and circumstances of the offense charged,” the “history and characteristics of the accused,” and “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release” when determining whether or not an individual will be granted bail. 

These provisions already provide judges with adequate tools to detain individuals who pose a credible risk to the community. In DuBose v. McGuffey, the Supreme Court of Ohio took issue with the fact that Mr. DuBose’s bail amount was set at an excessive level with the intention of ensuring his detention pre-trial. As explained by Ohio Supreme Court Justice Michael P. Donnelly, the “issue is that the amount set by the trial court was clearly calculated to be at a level that DuBose cannot possibly afford to pay,” and that the “trial court has the power to order that such defendants be held without bail, but as clearly explained in the majority opinion, the way to do that is to follow the procedure in R.C. 2937.222, not to set a bail amount so high that the defendant cannot afford it.”

Issue 1 would unnecessarily alter the procedures in setting bail in ways that threaten to undermine the legitimacy of the justice system by making an individual’s ability to pay more relevant to their pre-trial status than their likelihood of appearing in court. Existing provisions in the statute and the Ohio Constitution are sufficient to ensure that public safety is considered when determining whether or not a defendant will be detained.

Ultimately, if an individual poses a credible threat to the community, no amount of money should be sufficient to secure their release. For that reason, public safety should not be a relevant factor when setting bail amounts. Instead, factors of public safety should be considered, as is the current practice, as part of a judge’s decision regarding an individual’s eligibility for bail.

This voter guide was updated on September 30, 2022.

The post Ohio Issue 1 (2022): Determining bail amounts based on public safety appeared first on Reason Foundation.

Since 1979, 11 people in Ohio have been exonerated while on death row awaiting execution.

The Death Penalty Information Center maintains a database of death row exonerations in the United States. The database only includes cases where individuals were acquitted of all charges, had all their charges dismissed, or received a complete pardon based on evidence of their innocence. It provides very conservative estimates and likely understates the true number of innocent people who have been sentenced to death in America.

Death Row Exonerations Nationwide
• Since 1972, over 185 Americans have been exonerated while awaiting executions on death row.
• 68% of exonerations involved perjury or false accusations.
• 69% of exonerations involved misconduct by officials.

Death Row Exonerations in Ohio
• Since 1979, 11 individuals have been exonerated while on death row awaiting execution in Ohio.
• Nine of those cases involved perjury or false accusations.
• Ten cases involved official misconduct.
• In Ohio, for every 6.2 executions, one innocent person on death row has been exonerated
• On average, exonerees in Ohio had been on death row for 20 years.
• The longest sentence served by a death row exoneree was 39 years.

Full document: Abolishing Ohio’s death penalty would be good for justice and for taxpayers

The post Abolishing Ohio’s death penalty would be good for justice and for taxpayers appeared first on Reason Foundation.

The history of drug prohibitions and enforcement efforts in the United States always reflects a kind of federalism in action. Because the federal government always lacks the resources and often the political will to fully enforce drug prohibitions nationwide, state laws and local practices will inevitably shape and color the full picture of U.S. drug policy and enforcement. When alcohol prohibition was written into our nation’s Constitution, for example, state and local officials embraced an array of different approaches to enforcing temperance, which produced a patchwork of on-the-ground practices across the nation.

In modern times, marijuana prohibitions and reforms present the most salient example of national drug policies reflecting diverse and sometimes clashing federal and state laws and local practices. Though some have explored how federal marijuana prohibition has shaped state reform efforts and local enforcement realities, few have focused attention on the most tangible and arguably most consequential aspect of federal enforcement, namely federal sentences imposed for marijuana activity.

Even while formal federal marijuana law has persisted unchanged amid state-level reforms, federal marijuana enforcement on the ground has changed dramatically. Drawing on data from the U.S. Sentencing Commission (USSC), this brief notes new federal enforcement patterns that have emerged in recent years.

The impact of marijuana prohibitions and the scope of enforcement are often documented through nationwide arrest data, in part because the numbers are enormous and in part because there is little other reliable national information on marijuana enforcement.

Yearly marijuana arrest data, as collected by the Federal Bureau of Investigation (FBI), are dynamic: as arrests for all drug offenses increased during the War on Drugs acceleration in the 1980s, the total number of possession and sale of marijuana arrests actually dipped due to a more aggressive focus on cocaine and heroin. Yet, as state marijuana reforms picked up steam, so too did total marijuana federal and state arrests—peaking at over 850,000 arrests in 2007 and averaging over 750,000 arrests annually for more than a dozen years. Starting in 2014, FBI data showed declines in total marijuana arrests and they reached a (pre-pandemic) low of under 550,000 arrests in 2019, and then hit another new low of just over 350,000 in 2020.

Disconcertingly, as the American Civil Liberties Union has documented, one pernicious consistency in marijuana arrest data has been racial disparities, with Blacks many more times likely than Whites to be arrested for marijuana possession.

While national arrest patterns tell one story, sentences imposed for marijuana convictions reflect the most significant consequence of marijuana prohibition enforcement. Disappointingly, there seemingly has been no systematic collection or analysis of marijuana sentencing outcomes nationwide since the work done by Ryan King and Marc Mauer through the year 2000.

Indeed, even with growing attention on marijuana reform, there are no recent data on how many persons nationwide are incarcerated for marijuana offenses nor any detailed accountings of the types of offenders still incarcerated for marijuana activities in the states.

However, data assembled by the USSC allow a close look at how federal marijuana enforcement has cashed out since the start of state-level marijuana reforms in the form of yearly sentencing outcomes.

Full Policy Brief: How State Reforms Have Changed Federal Enforcement of Marijuana Prohibition

The post How state reforms changed federal enforcement of marijuana prohibition appeared first on Reason Foundation.

In November 2014, police pulled over a disabled veteran in South Carolina for a minor traffic violation. After searching the veteran’s car, the police discovered small amounts of cannabis. Officers gave the veteran an ultimatum: help them or face stiff charges. Out of fear of criminal punishment, the veteran agreed to a controlled purchase of cannabis— roughly 100 dollars’ worth—from her friend, Julian, in Myrtle Beach. As a result, the police had enough information to establish probable cause to obtain a search warrant for Julian’s home.

A few months later, 12 officers from a multi-jurisdictional Drug Enforcement Unit (DEU) prepared to enter Julian’s home as part of “Operation Jules”—the nickname DEU used for the raid on Julian’s apartment. The officers, dressed in face coverings and camouflage, forced open the apartment door with a battering ram and eventually fired 29 bullets at Julian, leaving him paralyzed from the waist down.

As the result of the shooting and subsequent eight-figure settlement against the DEU and the City of Myrtle Beach, several changes to policing practices in the area were made. Specifically, the DEU stopped executing search warrants and using routine traffic stops to turn citizens into drug informants. While such policy changes should be lauded, reducing such overly intrusive policing tactics should not have to come at such costs.

The Myrtle Beach case encapsulates many of the problems with policing practices today: pretextual stops, militarization, and the overpolicing of low-level offenses.4 Although various policing reforms considered by lawmakers to address some of these problems may yield favorable results, such reforms fail to consider an essential aspect of modern-day policing—its inseparable link to the drug war. Because policing tactics are designed to maximize drug arrests and seizures, law enforcement initiates frequent and unwarranted contact with pedestrians and motorists. Such contact results in the overpolicing of minority communities, increased prison populations and jeopardized public safety.

Despite the interwoven nature of drugs and policing, drug decriminalization is not often considered a reform of policing practices. However, one could argue that decriminalization should be understood as a vital tool in limiting intrusive policing practices. Drug decriminalization is typically defined as a law that removes criminal sanctions for acquiring, possessing, or transporting small quantities of drugs for personal use and replaces them with civil sanctions.

This paper adopts that definition with two additions. First, the definition includes only decriminalization laws that have been considered by courts to limit police investigative authority—i.e., laws that affect police ability to establish reasonable suspicion or probable cause. Thus, state decriminalization laws that permit custodial arrests for civil drug offenses are not included.

Second, the definition also includes cannabis legalization. The definition does not include removing criminal sanctions for the production, distribution, or sale of drugs.

This paper proceeds in three parts.

Part 2 discusses the substantive reform arguments and approach to the decriminalization debate.

Part 3 explores how drug decriminalization affects policing practices. Specifically, it describes how drug decriminalization affects police authority to expand stops, conduct searches, and make arrests for drug possession. To illustrate these effects, three case studies are examined: New York, Oregon, and Colorado.

Part 3 also examines how drug decriminalization affects departmental incentives to conduct pretextual stops and militarize police personnel and divisions.

Lastly, Part 4 acknowledges and addresses how implementation issues with decriminalization affect policing practices.

Proponents of drug decriminalization typically emphasize the reform’s utilitarian potential to reverse mass incarceration trends, reduce racial disparities within the justice system, and minimize the economic costs associated with drug enforcement. However, such arguments are incomplete because they miss an important benefit—decriminalization’s effect on policing.

Recent decriminalization legislation in New York, Oregon, and Colorado affects police authority to expand stops, conduct searches, and make arrests for drug possession. Such legislation also affects departmental incentives to conduct pretextual stops and militarize police personnel and divisions. With the diminished capacity and incentive to pursue drug possession arrests, police can redirect resources toward crimes with victims, crime prevention, and public safety.

More time and data are needed to assess decriminalization’s impact on policing thoroughly. Nonetheless, cannabis legalization in many states, as well as comprehensive decriminalization in Oregon, provides a natural case study for further examination of this approach.

Full Policy Brief: Drug Decriminalization as Police Reform

The post How drug decriminalization affects policing appeared first on Reason Foundation.

Montana’s C-48 would amend the Montana State Constitution to explicitly protect electronic data and communications from unreasonable search and seizure. In effect, the amendment would require law enforcement to obtain a search warrant in order to conduct searches of electronic data or communications. Montana’s C-48 is a legislatively referred constitutional amendment, meaning that the Montana State Legislature voted to put the initiative before Montana voters. 

Proponents’ Arguments For

Proponents of C-48 argue that the amendment is necessary to modernize Montana’s laws regarding law enforcement searches and seizures of personal property. The Montana State Constitution currently protects “persons, papers, homes, and effects from unreasonable searches and seizures.” 

As digital technology has evolved, it has come to be the home for a lot of our personal and private information, replacing paper documents stored in file drawers or safes. Supporters argue that the government should have to meet the same standards and processes for accessing personal information in digital form as the constitution set out for similar information when it only existed in hard copy. 

As State Sen. Ken Bogner argued when the legislature was voting, the amendment: 

Senate Bill 203 is about updating Montana’s Constitution to reflect life in the 21st Century and make it explicitly clear that our digital information is protected from unreasonable government searches and seizures. Today, so much of our private lives—financial information, communication with family and friends, medical information, and much, much more—is contained on and transferred electronically among many devices and computer systems. The government should need a warrant before accessing or gathering Montanans electronic data or communications.

Opponents’ Arguments Against 

There is no officially published opposition to the amendment. However, some law enforcement officials have expressed concerns. Mark Murphy, representing the Montana Association of Chiefs of Police, said the group’s position on the amendment is “soft opposition.” Murphy said, “What I see in this change is a fairly large opportunity for unintended consequences.” 

Brian Thompson of the Montana County Attorneys Association has stated that the amendment would have little practical effect. According to Thompson, current law already protects electronic communications from unreasonable searches and seizures, but he added that clarification is welcome.

Additional Discussion 

Outside of a few notable exceptions, courts in the United States have tended to require warrants for any search of digital content. The legal question around digital data was generated in part when police began using GPS devices to track locations without warrants. And a seminal case, Riley v. California, questioned whether the entire contents of unlocked cell phones were allowed to be searched during the course of an arrest, as police are legally allowed to search the immediate contents of the person during an arrest. The courts have struck down both of these practices as unconstitutional and ruled that police need a warrant to search devices containing digital content because they contain much information that may or may not be relevant to the activity at hand.

Warrants for digital information have become the norm. But there have been court cases as recently as 2018 in which location tracking without a warrant was ruled unconstitutional, exposing the fact that these practices may still occur despite claims to the contrary.

As web technology develops and people routinely share information with third-party providers, the question becomes whether that data is public and, if it is not, how a warrant should be written and executed. Police argue, in particular, that location data should be public, claiming it is the “network equivalent of public observation” which is not protected by warrant. Similar questions may arise around social media and other forms of data.

Should the warrant be written to obtain all of the information, then filtered and sorted by the prosecution manually despite the extensive manpower required? Do digital searches for keywords represent the completion of the search? Should the police search the hardware such as servers and computers, which opens up possibilities of “in plain sight” expansion of their interest? Or should third-party providers with a narrow mandate, and no obligation to report other information they might see, prepare data, and then send files to the police? Does a warrant to search a house include all of the devices in the home or how specific does a warrant in the digital realm need to be? Does clicking on a police-generated URL advertising illegal activity justify a warrant?

These questions and others will have to be continually considered by courts and legislators. What is certain is that police will continually push to have access to more data. Given the importance of privacy, it is preferable to err on the side of protecting individuals’ privacy from searches and using practice in the real world to work out what very limited exceptions may be constitutional.

The post Montana C-48 (2022): Search warrant for electronic data amendment appeared first on Reason Foundation.

However, some states and municipalities are implementing interventions within courts, the community, and correctional institutions that could help address this shortcoming of the criminal justice system and serve as models for others to follow.

A 2006 report from the U.S. Bureau for Justice Statistics found that more than half of all inmates in prisons and jails had a mental health problem. Mental health problems were most prevalent within local jails (64% of inmates), followed by state prisons (56% of inmates) and federal prisons (45% of inmates). The incidence of mental health problems remained high, even when only considering relatively severe disorders.

According to the report, an “estimated 15% of state prisoners and 24% of jail inmates reported symptoms that met the criteria for a psychotic disorder.” Inmates with mental health problems were found to be more likely to have committed violent offenses, have more prior offenses, have substance abuse disorders, and have used drugs in the month prior to their arrest (Figure 1).

The prevalence of mental health conditions among inmates suggests that treatment and alternative interventions may be valuable in terms of rehabilitation and reducing the risk of future offenses.

One alternative intervention is the use of mental health courts (MHCs), which are specialized court systems that serve as diversion tools to keep individuals with mental illnesses out of the traditional criminal justice system. These courts were developed to address the inability of traditional correctional institutions to rehabilitate offenders with mental illness. They are designed to redirect offenders who would normally be sentenced to incarceration into mandated treatment.

Mental health courts service individuals who are charged with a variety of offenses but the majority of cases usually involve misdemeanors. Although foundationally similar, MHCs are developed individually and are based on the needs, regulations, and treatment availability of their jurisdiction. For this reason, there is no single MHC model. However, MHCs typically rely on a team of court staff and mental health professionals to design treatment plans unique to each defendant that participates in the court process.

Over time, mental health courts could potentially save public funds by reducing recidivism. For example, an analysis of MHC outcomes in North Carolina found that individuals who completed the mental health court process were 88% less likely to be re-arrested than those who did not. Using administrative data from county and state agencies, a 2007 Rand study suggested mental health courts could result in long-term net savings to the government due to reduced recidivism and reductions in relatively expensive types of mental health treatment such as hospitalization.

When individuals with mental illness re-enter the community under supervision programs such as parole or probation, their particular needs should also be accounted for through specialized programs. Specialized supervision programs target common challenges facing individuals with mental health needs that lead to rearrests. In contrast to traditional parole and probation officers, officers with specialized cases need to be knowledgeable about the mental health needs of their probationers. This is important because they serve as their point of contact with judges, attorneys, psychiatrists, and many others.

In an Illinois study, 40% of program participants had no new arrests or offenses within three years after their probation was terminated. Study participants received individualized case management aiding in meeting needs such as housing, food, and employment in addition to receiving mental health assessment, treatment, and counseling.

A more recent 2017 study found that after two years, 29% of specialty probationers were rearrested in comparison to 52% of probationers who participated in the traditional probation process. The success of these programs shows that planned programmatic improvements and partnerships can have a positive effect on lowering the recidivism rates of mentally ill offenders.

For those who are not diverted from traditional correctional institutions, it is essential that their mental health needs be prioritized while they are incarcerated. Offenders within the correctional system should be quickly identified and provided with treatment to assist their rehabilitation and avoid exacerbation of their mental illness.

In 2014, the Federal Bureau of Prisons released a program statement with policies, procedures, and guidelines for the implementation of mental health services for inmates with mental illness within correctional institutions.

A 2016 meta-analysis by the National Institute of Justice’s CrimeSolutions found that if treated while incarcerated, adult offenders within their study were significantly less likely to commit crimes when compared to adult offenders who did not receive the same treatment.

Of course, policymakers should pursue reforms that would expand access to treatment and prevent individuals from entering the criminal justice system in the first place. But once an individual has entered the justice system, the priority should be to ensure that they receive the care they need to not commit further crimes in the future. The traditional justice system fails to meet the needs of mentally ill offenders, resulting in high recidivism rates among offenders with mental illness. The formation of mental health courts, prioritization of treatment within correctional settings, and specialized community supervision programs are promising interventions that could improve public safety and save tax dollars by slowing the revolving door of mentally ill offenders cycling in and out of the criminal justice system.

The post The criminal justice system is failing people suffering from mental illnesses appeared first on Reason Foundation.

Among the resolution’s most questionable statements was the assertion that “qualified immunity applies to public safety workers in narrow and well-defined circumstances.” Calling the circumstances in which qualified immunity applies narrow and well-defined is like calling Mount Everest a small hill. Qualified immunity prevents victims from holding officers accountable unless the officer’s action was unreasonable under “clearly established law.” This standard means that the circumstances in which qualified immunity applies include any behavior not previously identified by a court as a violation of civilians’ rights, such as in the case of Thomas Irwin, a suspect who fled police and was shot twice but cannot sue the officers involved because their violation of his rights was not “clearly established.”

The resolution further argues that “the clearly established right standard is appropriate as public safety workers should not be forced to imagine abstract rights,” stating this is because “public safety workers cannot be expected to be legal scholars or think through legal arguments when attempting to protect the public during high-stakes situations.” While it would be ludicrous to expect public safety workers to be “legal scholars,” it is entirely reasonable to expect armed individuals tasked with enforcing the law to have at least a passing familiarity with the law and the rights guaranteed to the citizens they serve. Returning to the example of Thomas Irwin, is it reasonable to shoot a suspect moving away from officers?

Many defenses of qualified immunity, including this Utah resolution, warn of an unending wave of frivolous lawsuits against law enforcement officers if the doctrine were struck down. The resolution refers to “unwarranted lawsuits against public safety workers and political bodies, in which judges and juries are allowed to second-guess split-second decisions with the luxury of hindsight and under vastly different circumstances, such as the quiet of a courtroom.”

However, these proponents fail to recognize an alternative that would protect law enforcement from frivolous lawsuits while actually being narrow and well-defined: the common-law standard of reasonableness. The reasonableness standard was applied in the 1989 case Graham v. Connor, in which the Supreme Court held that an officer could not be held liable for depriving rights if doing so was reasonable at the time. This case also explicitly prohibited courts from judging officers’ actions “with the 20/20 vision of hindsight.”

Fear of frivolous lawsuits does not vindicate qualified immunity. Instead, it vindicates the standard with which reform advocates often hope to replace qualified immunity.

Utah’s failed resolution did get one thing right when noting that qualified immunity does not just apply to law enforcement. The doctrine has also been applied to other public employees including public school teachers and firefighters. Unsurprisingly, the same protection can lead to the same abuse, as in the case of a first-grader who was allegedly held in a chokehold by their teacher. Eliminating qualified immunity in favor of the reasonableness standard is therefore not anti-law-enforcement. Rather, proponents of reform are advocating for greater accountability for government actors when they violate the rights of other citizens. 

On March 4^th, 2022, the Utah State Senate filed this resolution in its “file for bills not passed.” But Utah state legislators should do more than merely refuse to pass this resolution. They should engage in efforts such as those being executed in New Mexico and Colorado. These states have abolished qualified immunity and replaced it with the common law standard that strikes a far better balance between the difficulty of making split-second public safety decisions and the need to give victims of abuse a chance to recover damages. When government employees violate civilians’ rights, they should be held accountable. With the power of public trust comes the responsibility of respecting the rights of the people.

The post Utah should abolish qualified immunity, implement the common law standard appeared first on Reason Foundation.

Headlines across the country have warned of a spike in crime since 2019. Indeed, violent crime increased by roughly 4.6 percent in 2020 compared to the previous year. Homicides increased by nearly 30 percent––the largest single-year increase ever recorded. Aggravated assaults increased by 12 percent, nearly breaking the record increase of 14 percent set in 1986.

Without question, violent crime increased in 2020. However, year-over-year changes only tell part of the story and, in many ways, are a flawed way to view trends in crime. It is also important to observe long-term trends in the rate of violent crime (the number of crimes committed per 100,000 population). When viewed from this perspective, violent crime has decreased dramatically since its peak in the 1990s. In 2020, the violent crime rate remained near the record lows achieved throughout the 2000s.

The recent increase in violent crime appears to be a nearly universal phenomenon. Between 2019 and 2020, homicides increased in every state except Alaska, New Hampshire, and New Mexico. While it could be years before researchers determine the underlying causes of the rise in violent crime, its universality suggests dispersed––as opposed to localized––causes. In other words, it is unlikely that particular state or local policies are responsible for the spike in crime given that it occurred just about everywhere.

Crime rates increased more in some states than in others, but looking at variation among the states doesn’t offer any obvious insights. The rate of increase in each state does not appear to be correlated with criminal justice reforms, political factors, or demographic characteristics.

The post Understanding the recent nationwide increase in crime appeared first on Reason Foundation.

“As a governor, you have to look at a unanimous vote every step of the way and then say, how do I disagree with every single member of the Senate and the House?” State Sen. Annette Taddeo told the Miami Herald after the governor’s veto last year.

In response to Gov. Desantis’ claims, the new state bill, House Bill 195, clearly excludes forcible felonies from being expunged. This more cautious bill to expunge juvenile records passed unanimously in the Florida House of Representatives last month and the State Senate unanimously passed it today.

According to the new bill’s lead author, State Rep. David Smith, some 26,000 juveniles in Florida could be eligible to have their records cleared if the new legislation becomes state law.  

Juvenile arrest rates have steadily declined over recent decades and reached an all-time low in 2020. Yet thousands of Floridians are saddled with the burden of having a criminal record for life due to mistakes they made when they were minors.

Obstructing the post-release lives of minors who were convicted of crimes backfires, preventing them from re-establishing themselves as productive members of society and leaving few legitimate paths to self-sufficiency. Data and experience show us that misdemeanor criminal records can keep rehabilitated offenders who have served their punishments from finding work and places to live, establishing credit, and more. A criminal record can preclude other important steps—like attending college or joining the military—that would improve these young people’s chances at putting past transgressions behind them while reducing the likelihood of recidivism.

“They would have the ability to look that college recruiter in the eye, that employer, to say they have never had an arrest,” State Rep. Smith said, describing how the bill could help young people attend college and gain employment.

Research shows that increasing access to expungement reduces the likelihood that a person will recidivate or return to criminal behavior. One of the largest empirical studies ever conducted on expungement found that only 0.6% of expungement recipients were later reconvicted for violent crimes.

In 2017, the United States Sentencing Commission concluded that when people re-enter society after serving their sentences having criminal records increases recidivism rates even when controlling for other factors. This counters the idea that harsh sentences and penalties reduce the incentives to commit crimes. In fact, the barriers that having a criminal record creates often amplifies the disruption to life, work, and family—ultimately putting society at greater risk.

By reducing recidivism, well-designed expungement programs improve public safety by giving minor offenders a better chance to successfully reintegrate into society. And with one of the most restrictive adult and youth expungement regimes in the country currently in place, Florida is in desperate need of this expungement reform relative to other states.

The proposed state legislation does not change the expungement process, it simply opens up more offenses to be eligible for expungement. Giving young people more avenues to potentially change their lives for the better, without any disadvantages to society. To receive expungement under this new bill, minors in Florida must complete a diversion program that includes rehabilitation, training, and restoration.

This more cautious legislation, designed to address Gov. DeSantis’ concerns, is a common-sense approach that benefits not just minor offenders, but society at large. It’s time to fix a broken system that is denying far too many young people a fair chance to rehabilitate themselves and start a normal life.

The post Florida bill to expunge juvenile records headed to Gov. DeSantis’ desk, again appeared first on Reason Foundation.