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.

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.

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.

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.