Sentencing Law In Practice

Sentences for crimes vary considerably from state to state. Furthermore, the relationship between the official length of a sentence for a crime and the actual time served varies greatly from state to state. 

• Actual time served in prison is often quite different from the sentence length pronounced in court, and therefore sentence length alone only partially explains the individual and policy-level implications of long sentences.
• The relationship between sentence length and time served varies greatly across states and jurisdictions due to the difference in the legal and statutory framework that governs prison release.
• States that have higher than average sentence length also have higher than average time served, but the relationship between these two factors is modest.
• The average judicial maximum sentence in states with highly indeterminate systems (7 years) is twice as long as in highly determinate states (3.5 years). However, the difference in average time served in highly indeterminate and highly determinate states is much narrower, ranging between 2.1 and 2.6 years.
• Some states are much more likely to impose long prison sentences than others. The proportion of people entering prison with long sentences ranges from 2% in Colorado to 66% in Michigan.
• Individuals serving long sentences in states with highly determinate systems spend, on average, nearly three times as long in prison as individuals serving long sentences in states with highly indeterminate systems.
• Nationally, back-end factors such as the allocation of sentence credit discounts, and for paroling states, the parole release framework explain more of the variation (60%) of average time served than variation in average sentence length (40%).
• States with identical average sentence length can have different average time served based on the degree of indeterminacy and back-end factors. For example, Oregon and Texas both had an average sentence length of 4.4 years in 2016, yet the average time served in Texas (2.1 years), a state with a high degree of indeterminacy, was lower than in Oregon (3.5 years), a state with a low degree of indeterminacy.

From here.

Criminal Justice System Flaws

No one reasonably acquainted with the facts would conclude that the criminal justice system produce perfect karmic justice, convicting and punishing everyone who commits a crime worth punishing, while wrongfully convicting no one, and violating no one's civil rights. Indeed, no humanly created criminal justice system ever will, and even if could, it would be far too costly a goal to justify the benefit of achieving it.

This doesn't mean that we shouldn't evaluate quantitatively, as best we can, the extent to which the status quo deviates from this ideal, subject, of course to uncertainties like any other scientific measurement. This post considers various metrics of the criminal justice system's flaws that can be considered that are better or less well documented from area to area. 

Generally, however, the criminal justice system is well examined academically compared to many other areas of the law, although there are definitely gaps out there too. This post is intended as an overview and reference point for where future inquiry might be necessary and a reminder of areas where what we already know may suggest reforms. It is also intended to help sort of the possible areas of reform with an eye towards assisting in prioritizing the different possible reform areas based upon the magnitude of the problems and the tools available to address them. 

Some are frequently voiced as concerns of conservatives (e.g. failure to hold blue collar criminals accountable), others are more frequently voiced as concerns of liberals (e.g. fair treatment of minorities in the criminal justice system and wrongful convictions). 

Others aren't on the political radar screen of either major political party even though they are systemic and important (e.g. remedies for people who are charged with crimes, incarcerated prior to trial, have their lives ruined and their fortunes spent on private criminal defense lawyers, and then are acquitted).

Wrongful Convictions

We can, for example, make reasonable estimates of the number of people who are wrongfully convicted. 

Wrongful Convictions At Trial

In the State of Colorado, for example, the number of people wrongfully convicted and currently incarcerated following trials and the appellate process is on the order of 200 (about 10% of felonies that go to trial), often facing exceptionally long sentences because these innocent defendants refused to plea bargain and face the long sentences attached even with a plea bargain to lesser charges for very serious offenses. 

Wrongful Guilty Pleas

Something on the order of another 200 people (about 1% of felonies resolved by guilty pleas) are wrongfully convicted and currently in prison, but usually facing more lenient than usual sentences for the crimes for which they were originally accused (because the weakness of the guilt-innocence case usually produces favorable plea bargains, and because wrongfully pleading guilty to a lesser charge is a more tolerable choice when the sentence isn't too severe). The percentage of innocent people who plead guilty is lower than the percentage of wrongful convictions at trial, however, because empirically, innocent people are far more likely to go to trial rather than plea guilty than innocent people. 

Of course, a large share of people who plead guilty to felonies 40%-60% (perhaps 8,000-12,000) are pleading guilty to significantly lesser charges than the most serious offenses that they actually committed in the criminal episode for which the were charged and are currently in prison, while a fairly modest minority, probably more than 1%, but less than 5% (200-1000 in Colorado) plead guilty to an offense more serious than the most appropriate charge for their conduct.

It is also possible with a bit of effort to identify cases where the risk of wrongful convictions at trial and plea bargains by innocent people are elevated and reduced.

Wrongful Convictions Of Lesser Charges

There are, of course, wrongful convictions at trial and wrongful plea bargains to misdemeanors and lesser charges, and the literature on the accuracy of the criminal justice system in this area is much less carefully studied. 

But, given that about half of people incarcerated at any given time are awaiting trial (mostly, but not exclusively, for felonies), that many lesser offenses are almost always sanctioned with fines and/or probation and/or community service, rather than jail time, that minor offenses have lower maximum sentences, and that most minor offenses punishable by incarceration result in post-conviction jail sentences far shorter than the maximum allowed by law, the number of people wrongfully convicted of sub-felony offenses and currently incarcerated for those charges post-conviction at any one time is much smaller. 

Also, the collateral consequences of a sub-felony charge apart from the sentence imposed in a particular case are typically far less severe than those in a felony case, so the harm from a wrongful conviction of a such a charge is usually far more modest. 

This is despite the fact that the number of sub-felony charges is vastly greater than the number of felony charges brought.

Wrongful Acquittals, Wrongful Pre-Trial Dismissals, And Known Dismissals Of Guilty Defendants

It is also possible to estimate with tolerable uncertainty the number of people who are charge with a crime of which they a guilty who are wrongfully acquitted at trial, which is about 5%-10% of the cases that go to trial each year.

There is far less of a literature on the risk factors that give rise to wrongful acquittals than those that are associated with wrongful convictions, although race and socio-economic status and an ability to afford private defense counsel are often suggested. Likewise, crimes involving strangers and rapes with known offenders who don't deny having had sex with the victim are probably fairly high on the list.

It is harder to estimate the number of cases where people are charged even though the charges are dismissed prior to trial, or arrested but not charged, not because the prosecutor or law enforcement or a victim believes the defendant is guilty but is showing mercy, but because the prosecutor or law enforcement can't comfortably be sure that the prosecutor will prove the case beyond a reasonable doubt at trial. The one exception to this is the subset of cases where a dismissal follows an unfavorable court ruling following a hearing to suppress key evidence that was unlawfully obtained, which involve a guilty person who is spared criminal punishment in the vast majority of such cases, a number that can be reasonably estimated with some precision.

Wrongful Pre-Trial Incarceration And Criminal Charge Defense Costs

One confounding factor, especially for sub-felony offenses and minor felonies, is that a significant share of people who are arrested are incarcerated for some or all of the time prior to their trial, and then either plead guilty to time served which an acquittal at trial can't remedy, or receive a sentence following a conviction which is mostly time served (sometimes following a trial and sometimes following a plea bargain).

People who have been detained prior to trial who plead guilty in exchange for a time served sentence, or a sentence mostly served prior to conviction, make up a particularly large share of wrongful guilty pleas. But, in fairness, even criminal defendants who ultimately plead guilty to lesser offenses and then are sentenced to time served or to only a short remaining sentence (surely at least 80%-90%) are still predominantly guilty as charged, although determining the exact percentage can be challenging.

For example, a great many individuals who are arrested, incarcerated prior to trial and then sentenced to time served or a short additional sentence, are caught red handed by police or on surveillance video while in the act of soliciting prostitution or soliciting a prostitute, selling a small amount of drugs, selling alcohol or tobacco to a minor, trespassing, shoplifting, engaging in porch piracy, committing an aggravated traffic offense, stealing a bicycle, joy riding a stolen vehicle, disturbing the peace, spray painting graffiti, or assaulting someone without a deadly weapon and without causing serious physical injury. The evidence of guilt is unmistakably clear in the lion's share of people arrested and incarcerated in the first place for such minor offenses.

Judges typically have particularly great discretion to impose much longer than typical sentences when sentencing a defendant for minor offenses, so pleading guilty in exchange for time served, cost costs, and often a fine, is often merciful for the offender, cheap for the criminal justice system, and just. 

Offenders who are guilty against whom minor charges are voluntarily dismissed by the prosecution without forcing the person arrested to plead guilty, often more affluent defendants with private criminal defense counsel and few or no prior criminal convictions, are similarly situated but even better off because they are spared a conviction on their permanent criminal record. This is particularly valuable for people with few or no prior adult criminal convictions, since an adult criminal record, especially if it is recent, still has some collateral consequences.

Still, people who are detained prior to trial who are acquitted at trial, or for whom the charges are ultimately dismissed prior to trial, in the federal system and all but a tiny number of U.S. states, receive no compensation for the time that they were incarcerated while presumed innocent except in a tiny percentage of cases where flagrant civil rights violations by law enforcement or while incarcerated are proved in a separate civil case. They also almost never receive compensation for the costs they incurred to hire private criminal defense counsel, if any, unless they are corporate executives charged with white collar crimes who are indemnified by their employers.

This is a serious injustice to criminal defendants who are detained for a long time prior to trial who are innocent, and either are acquitted at trial or ultimately have their charges dismissed. The right to a speedy trial mitigates the worst harms in these cases, but it is still incomplete. 

Even a week or a month of pre-trial incarceration is often enough to result in the loss of a job, loss of income resulting in evictions or harm to one's credit rating, impairment of an ability to get a new job, negative outcomes in child custody matters, intangible harm to the well-being of one's children, damaged family and romantic relationships, and harm to one's long term reputation from the arrest despite the absence of a conviction.

This burden is overwhelmingly concentrated on wrongfully arrested and charged innocent people who are too poor to post a cash bond to allow them to be released prior to trial. There is also very strong evidence that the lion's share of people incarcerated prior to trial for a failure to post a cash bond (perhaps 80%-90%) pose no serious risk to the public while not incarcerated and awaiting trial.

An upper bound on the number of people who experience wrongful pretrial incarceration, or who incur private criminal defense attorney expenses and are subsequently acquitted or have their charges dismissed is fairly easy to establish with considerable accuracy. One can reduce that figure by a factor of something between 80%-95% or so, to get a reasonable estimate of the number of people who are wrongfully punished based upon mere probable cause when they are actually innocent, prior to trial.

Wrongful Stops and Arrests

The law allows law enforcement to stop someone in a brief "Terry stop" based upon a mere reasonable suspicion that they are engaged in some improper conduct. The harm in any individual case from a wrongful stop of someone who is innocent of any wrongdoing is modest: a few minutes to perhaps ten minutes of time, a certain amount of emotional distress and fear, and perhaps showing up late for one's next appointment. There is no official record of these stops in most cases that don't result in a citation of some kind, so there are also rarely significant collateral consequences from them, although a suspicionless Terry stop can unfairly expose the person stopped to criminal justice consequences for offenses (often minor ones like marijuana possession or underaged drinking) that are usually overlooked. In the individual case, this exercise of discretion towards someone who is actually guilty of a minor offense isn't really unjust, but it is still something of a gray area harm because collectively and over time a pattern of discriminatory Terry stops influences how severely someone is punished relative to their absolute level of criminality compared to other similarly situated people who don't face discriminatory enforcement. 

The main harm associated with wrongful Terry stops in a karmic justice sense is that they are typically conducted in a discriminatory manner and efforts to estimate statistically the number of wrongful Terry stops (and wrongful arrests) on racial grounds can provide some quantification of the number of these lesser injustices.

Arrests of innocent people, either with or without probable cause, that don't give rise to pre-trial incarceration (either because the defendant posts bonds, or no charges are ultimately pressed) or to charges resulting in criminal convictions are studied mostly in the context of efforts to quantify racially and ethnically discriminatory law enforcement practices. An upper bound on wrongful arrests is easier to quantify because arrests are generally well documented and can be compared to charging information and conviction information. As noted above, probably 80%-95% of arrests are of people who are obviously guilty and caught red handed, whether there is a formal conviction or not, especially arrests resulting in formal criminal charges being lodged or pre-trial incarceration.

Arrests, because they are longer, may cause someone to have to incur the costs associated with posting bond (which are often 10% of the posted bond if one doesn't have sufficient cash on hand to post it all without a bail bondsman) and possibly private criminal defense costs, neither of which can be recouped in most cases, are more serious. Bail bond fees amount to an unappealable, law enforcement imposed fine on poor people. 

Also, the record of an arrest, even if no charges are brought, charges are dismissed, or the person arrested is acquitted at trial, can have significant collateral consequences for future employment, in any pursuit for which there are background checks, and in law enforcement and prosecution attitudes when future criminal charges are considered (even though judges and juries aren't supposed to consider them in trials or in probable cause hearings).

Arrests are very numerous and as with Terry stops, there is strong evidence that they are carried out in a racially and ethnically discriminatory manner, even adjusting for different per capita levels of crime commission that justifies arrests and Terry stops by age, gender, race, ethnicity, and geographic context.

A young black man in a ghetto who is dressed in an anti-authority manner who talks and behaves like a typical man in that demographic out late at night in that neighborhood, who may even have a minor juvenile or adult criminal record or to have received some non-legal system disciplinary punishments at school, is indeed much more likely to have committed a crime than an elderly white woman in an upper middle class suburb who talks and behaves like a typical woman in that demographic in that neighborhood. But his is also vastly more likely to be wrongfully stopped or arrested to a degree disproportionate to the elevated likelihood he has currently committed a crime.

Still, while it can be quantified wrongful stops and arrests because of the much lesser magnitude of the harm are not as much of a problem as their sheer frequency might suggest.

Uncleared Crimes 

There is also good data on the number of many kinds of crimes that are committed in which no suspect is ever identified and arrested, the so called "clearance rate".

For a few crimes, like mass shootings or mass stabbings, and rapes where there is DNA evidence, the clearance rate in the long run probably exceeds 90%.

For murders involving organized crime or gangs, the clearance rate tends to be somewhat under 50%.

For other violent crimes, felony property crimes, and more serious misdemeanors, clearance rates tend to be in the 5% to 40% range. The number of truly petty offenses that are never cleared is higher, because few resources are available to address them and many are never formally reported, although insurance claims, crime victimization surveys, and police reports can provide ballpark estimates that can be compared to conviction rates for the crimes in question. 

The number of traffic and parking offenses that never results in citations, and the number of safety and regulatory violations not giving rise to actual physical injuries or large scale economic harm to any one individual that are never cited, are basically uncountable. The average driver is technically guilty of speeding many times every day but is typically cited for this less than once a year, and commits scores of other traffic offenses each year but only receive citations for them a few times a lifetime.

Quantifying The Harm Associated With Crimes

The rates at which crimes are not cleared is not the end of the analysis, either. Not all crimes are created equal. 

The harm from economic crimes is proportionate to the economic harm done plus some sort of kicker for the preventative measures these crimes make necessary and the sense of victimization and loss of societal trust that they produce even if no physical harm is done. There are lots of good studies quantifying these harms in more and less comprehensive ways.

Traffic offenses in cases where accidents don't result, safety regulation violations, and vice offenses aren't intrinsically wrong (they are not malum per se and are instead malum prohibitum). The costs of non-enforcement of violations of these criminal offenses is a function of the extent to which non-enforcement leads to the harms that these prohibitions are designed to prevent like accidents, STDs, addiction, drug overdoses, other criminal conduct caused by substance abuse, damaged non-commercial romantic relationships, and the creation of a marketplace that encourages people to do degrade themselves.

Violent crimes and certain other non-economic crimes also vary in seriousness, in part, by type of injury and in part by the harm that they do to the social fabric and the economically and socially costly measures that are taken to prevent them. There have been good economic studies attempting to value this harm and they uniformly conform to the conventional wisdom that serious violent crimes are extremely costly in terms of their harm to society as a whole and victims of them in particular.

Serious Criminals Who Are Never Caught

A harder to estimate figure, although there is some literature to allow for crude estimates, is the number of people who commit felonies who are never charged with a crime by the number, type, and seriousness of the crimes.

A reasonable estimate for the number of serial killers and serial rapists (overlapping sets of people) who are never convicted of any serious crime, probably number in scores to low hundreds for the entire nation at any one time, based upon clearance rates in crimes where this is suspected of happening and the frequency with which someone is convicted of serial killings and/or serial rapes only after committing a great many such offenses.

There is fairly good data out there about the average number of burglaries and robberies committed that are not cleared, by any given burglar or robber who is convicted of burglary or robbery, which combined with clearance rates and with studies of the impact of recidivist sentencing for these offenses can be used to make some sort of reasonable estimate of how many serial burglars and robbers are never convicted of serious crimes, although with significant uncertainty.

It is also possible from evidence of convictions to conclude that the lifetime number of serious crimes that a person commits follows a power law whose parameters are possible to reasonably approximate. This data together were clearance rates and confidential survey data on previous uncharged offenses (and non-confidential information on people discovered to have committed many offense when they are first convicted of serious offense) for offenders with different numbers of convictions can be used to make reasonable estimates of the number of people who have never been convicted of a crime who have committed any given number of serious offenses. 

The hardest parameter to estimate because it has only weak support in the literature, is the bias which is almost certain to be present to some degree or another, that some criminals are more likely to be caught than others.

This parameter can't be too high for the subset of people who commit crimes who do it as a livelihood, since we can reasonably estimate the share of people who are gainfully employed full time or otherwise engaged in education, training, peaceful retirement, homemaking, and the like.

Quantifying The Effectiveness Of Crime Prevention Measures

One can quantify the effectiveness of various crime prevention measures although doing so is particularly challenging to do well and the approaches to doing so vary greatly.

This can include the effect of different approaches to incarceration and sentencing (including recidivist sentencing and overall incarceration rates), the effects of lead poisoning, abortion legalization, and education, the effects of security cameras and visible law enforcement patrols, the effects of DNA testing, the effects of religious practice and marriage,  the effects of youth programs and mental health programs, the effects of wars and weather, and more impacts on crime rates.

Jail and Prison and Parole And Probation Maladministration

One can quantify the extent to which jail and prison conditions, and treatment of people on parole and probation is improper or deficient in preventing harm.

One can look at overuse of solitary confinement which is increasingly well-quantified.

On one hand, one can look at estimates from discipline reports and survey data and prosecutions on crimes by inmates who are incarcerated directed at other inmates, guards, other staff, and visitors, with prison and jail riots at an extreme. 

This can also extend to allowing the early release of dangerous inmates who engaged in rampant unpunished misconduct and crimes while incarcerated on one hand, and failing to release model inmates who pose little or no threat to the public on the other when this is allowed.

One can likewise at crimes and misconduct committed by guards and staff against inmates, with indifference to health concerns (especially those related to substance abuse, pregnancy, and mental health issues), indifference to safety from inmate on inmate violence, tolerance for gang activity, sexual abuse of inmates by guards and staff, and other capricious or outrageous conduct. 

One can look at undue laxity towards parole and probation violations that can put the public at risk, and a general lack of supervision when needed by understaffed probation and parole departments. One can look for efforts to set ex-cons up for failure or success upon reentry to the general population upon release. And, one can look at abusive and extortionate conduct by parole and probation officers.

Some of this is well-quantified, much of it, especially in the areas of parole and probation supervision abuses and laxity is not.

Quantifying Civil Rights Violations

There are various efforts to quantify civil rights violations. There are estimates of wrongful convictions, wrongful arrests, wrongful stops, and discriminatory exercises of discretion in law enforcement, charging and sentencing and plea bargaining decisions. There is evidence of Brady violations (i.e. failures of prosecutors to disclose exculpatory evidence in a criminal cases). There are include criminal prosecutions, civil actions, settlements, and firings for wrongful law enforcement conduct. There are successful evidence suppression hearings and post-trial collateral attacks on criminal convictions. There is data on when police use deadly force and other kinds of force that can be parsed to identify questionable cases. There is discrimination in employment litigation in the criminal justice system. There are scandals that are reported on in the media demonstrating patterns of misconduct.

There are decent estimates of the percentages of law enforcement officers who have engaged in particular kinds of misconduct, and of law enforcement officers who are witnessed particular kinds of misconduct and failed to report it or take action to prevent it. It isn't perfect or complete, but it is clear that a large percentage of law enforcement officers (far more than a majority), at a minimum tolerate some kinds of legally actionable misconduct that they witness in their peers.

DNA Registration In Denmark Seems To Greatly Reduce Revidivism

I'm skeptical that this result would replicate to the very different society and criminal justice system found in the U.S. from the results in Denmark. But even a much smaller effect size from the same strategy of creating  a DNA database of felons would still be worth it.

This paper studies the effects of adding criminal offenders to a DNA database. Using a large expansion of Denmark’s DNA database, we find that DNA registration reduces recidivism within the following year by up to 42%. It also increases the probability that offenders are identified if they recidivate, which we use to estimate the elasticity of crime with respect to the detection probability and find that a 1% higher detection probability reduces crime by more than 2%. We also find that DNA registration increases the likelihood that offenders find employment, enroll in education, and live in a more stable family environment.

Anne Sofie Tegner Anker, Jennifer L. Doleac, and Rasmus Landersø, "The effects of DNA databases on the deterrence and detection of offenders" (April 2020).

Hat tip to Yglesias via Fully Myelinated.

From the body text of the paper:

[W]e measure the effects of a 2005 Danish reform that increased offenders’ probability of being added to the DNA database from 4% to almost 40%. The change allowed police to add anyone charged with what is roughly equivalent to a felony in the U.S. (which is the relevant policy margin for most U.S. states considering database expansions), increasing offenders’ average probability of being included in the DNA database dramatically. Using the database expansion as an exogenous shock to the likelihood of DNA registration, we estimate that being added to the DNA database reduces recidivism by 6.5 percentage points (42%) in the first year (p < 0.01) – a deterrence effect persisting for at least three years. 

Using the rich Danish register data, we are further able to explore heterogeneity in effects of DNA registration by previous criminal history, age, and family structure. We find statistically significant deterrence effects for all groups except older offenders. The effects of DNA registration are larger for first time offenders, offenders with children, and offenders initially charged with violent crime, while DNA databases prevent subsequent property, weapon, and violent crime, which supports the hypothesis that offenders frequently commit multiple types of crime instead of specializing in one specific type. 

In addition, we find that DNA registration has beneficial effects on subsequent employment, education, and family life. Young offenders are more likely to enroll in education while older offenders are more likely to be employed if they are in the DNA database. Also, first-time offenders are more likely to be married after they are added to the DNA database, and recidivists are more likely to be with the same partner and to live with their children, at least in the short run. These findings are consistent with the hypothesis that keeping people out of trouble (and out of prison) can put their lives on a more positive track. 

Table 1 compares the characteristics of felons before and after the 2005 reforms in Denmark (which are generally speaking similar before and after the reforms).

Table 6 sets forth the core conclusions of the paper.

 

Table A-2 shows that the more serious the crime, the more inclusion in the DNA registry discouraged felons from reoffending by committing it.

Recidivism was extremely low, however, for federal prisoners who received early release due to COVID-19. As the Washington Post reports:

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release.

Better distinguishing between offenders with high and low risks of recidivism and adjusting sentences accordingly could greatly reduce mass incarceration in the United States. The most important factor was that the early released prisoners were mostly old or sick.

Solitary Confinement

About 4-5% of people in prison at any one time in the U.S. are in solitary confinement, about half of a percent of people in prison have been in solitary confinement for more than a year, and about one in a thousand people in prison have been in solitary confinement for a decade or more.

Colorado uses this form of punishment only very rarely.

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.

From here. 

Periods of more than ten years of solitary confinement were predominantly in Texas, Alabama, the federal Bureau of Prisons, and Nevada, with Idaho, Tennessee, Wisconsin, Washington, New Hampshire, and Connecticut having one to seven inmates in solitary confinement for that duration each. 

Colorado had no one who has been in solitary confinement for more than 29 days.

U.S. Sentencing Commission Facts

This U.S. Sentencing Commission summary also says a lot about the federal criminal justice system more generally, even though it is out of commission due to vacancies.

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

* Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.

* Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload.

* Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20.

* Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).

* In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook. Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).

* Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.

* 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual).

* The Annual Report presents an overview of the Commission's work in FY21.

Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.

Colorado Supreme Court Favors Weaker Interpretation Of Governmental Immunity

In the case of Cisneros v. Elder, 2022CO13, the Colorado Supreme Court today chose an interpretation of the state's governmental immunity statutes that is less protective of jail guards. The official syllabus states:

In this case, the supreme court considers whether section 24-10-106(1.5)(b), C.R.S. (2021), of the Colorado Governmental Immunity Act ("CGIA") waives sovereign immunity for intentional torts that result from the operation of a jail for claimants who are incarcerated but not convicted.

The court now concludes that section 24-10-106(1.5)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted. In reaching this determination, the court concludes that the statutory language waiving immunity for claimants who "are incarcerated but not yet convicted" and who "can show injury due to negligence" sets a floor, not a ceiling.

In contrast, in many circumstances, governmental immunity is waived for negligent acts of governments and government officials that cause injury, but not for intentional acts.  

The Colorado Supreme Court also rejected the argument that governments themselves should not be responsible for the intentional wrongs of their employees, basically on that theory the intentional wrongs are beyond the scope of the authority of these officials and that suing particular government employees for "willful and wanton" acts is expressly permitted in Colorado under CGIA. In this case, the court reasoned, the government was not being held vicariously liable for the willful and wanton misconduct of its employees, but for its own intentional wrongs as a matter of policy.

The underlying case involved the El Paso County Sheriff refusing to release an inmate who had posted bail, without authorization to do so, in connection with an alleged immigration hold that was held to be improper in separate litigation  resulting in the inmate's release four months later. 

The inmate was represented by the Colorado ACLU and Holland & Hart, LLP, one of the largest law firms in the state (presumably pro bono).

The decision of the Colorado Supreme Court was unanimous and followed a 2-1 decision against the inmate in the Colorado Court of Appeals which was reversed.

The damages in this individual case aren't huge, perhaps a few hundred thousand dollars at most, and possibly much less. But, the principal will probably significantly influence how sheriffs manage jails in Colorado going forward.

Few Inmates Released To Home Confinement Due To COVID Committed New Crimes

A natural experiment arising due to COVID legislation reveals that home confinement for low level federal offenders (which is vastly less expensive, probably reduces recidivism and prison violence due to interactions with other inmates, and greatly reduces the spread of infectious disease), who made up about 20% of pre-COVID federal prison inmates, is vastly underutilized.

In all, 99.24% of prisoners released to home confinement due to COVID did not even commit a "technical violation" of their parole rules. Only 0.02% committed new crimes. None of those crimes was violent or harmed an unwilling third-party victim. 

Recidivism rates for inmates who serve their entire terms in prison are typically 25-65 times higher, with an even greater relative recidivism rate restricted to released inmates who commit new crimes, as opposed to technical violations of parole conditions.

More than 300 federal inmates who were transferred to home confinement as a pandemic mitigation strategy reoffended and were sent back to prison, a top federal official said Thursday. Bureau of Prisons Director Michael Carvajal told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security that substance abuse was the “most common” offense that landed inmates back behind bars.

“About 160 of those 320 were for abuse of alcohol or drugs,” Mr. Carvajal said. “Some of them were escapes – they weren’t where they were supposed to be – most of them were violations of that nature. Some was misconduct, eight of those were new crimes committed, the rest of those were technical violations.”

A bureau spokesperson told The Washington Times that six of the eight new crimes were drug-related, one was for escape with prosecution and one was for smuggling non-citizens....

During Thursday’s hearing, he said the 320 reoffending inmates are among more than 37,000 who were transferred to home confinement since Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES) in March 2020 to address threats posed by the pandemic.

The CARES Act allows the bureau to transfer certain low-level inmates convicted of nonviolent crimes to home confinement if they meet the COVID-19 risk factors identified by the U.S. Centers for Disease Control and Prevention. While some transfers have been put back in prison, others have completed their sentences and 5,485 inmates are still in home confinement.

From the Sentencing Law and Policy Blog.

For comparison purposes, in 2019, prior to COVID, there were 175,116 federal inmates (the group affected by the CARES Act). The CARES Act transferred about 20% of federal inmates to home confinement.

The CARES Act significantly reduced COVID deaths, hospitalization and infection rates for people who had been incarcerated in federal prison when the pandemic started in 2020 or were convicted of federal crimes after the pandemic started.

Federal and State Inmates Compared

The potential to reduce prison populations from a state equivalent to the CARES Act isn't as great as in the federal system, however.

This is because the one out of nine prison inmates who are incarcerated in the federal system includes a larger share of white collar crime offenders, non-violent drug crime offenders, and immigration law offenders (with the last two categories being classic "victimless crimes") than state prisons. 

But, federal prisons confine a far smaller share of violent criminals, and far fewer people who commit "blue collar" property crime offenders like people who commit larceny and burglary (even though some of the "worst of the worst" terrorists, hijackers, and kidnappers are often incarcerated in federal prisons).

Out of all people incarcerated in state prisons in the U.S., about 56% were convicted of violent crimes (mostly homicide, rape, robbery and aggravated assault), and 14% were convicted of burglary, car theft, or larceny and other non-violent "blue collar" property crimes, a combined 70%. About 5% of state prisoners are incarcerated for weapons possession violations.

About 14% of state prisoners are incarcerated for drug crimes, about 2% are incarcerated for fraud, and about 8% are incarcerated for other crimes, mostly regulatory offenses and felony DUI cases (the total number of state inmates adds to 99% due to rounding errors).

So, proportionately, far fewer state inmates would be eligible for a CARES Act styled release to home confinement. But, because there are 8 times as many state prisoners as there are federal prisoners, the absolute number of state inmates affected would still be significant.

In contrast, in federal prison, 8% of inmates are violent criminals and 1% committed non-violent "blue collar" property crimes (a combined 9%), and about 18% were convicted of non-violent weapons offenses, predominantly possession of a firearm by a former felon.

In federal prisons, drug offenses are the most serious offense conviction for 46% of inmates, immigration offenses make up 5%, private sector fraud offenses account for about 4%, and federal regulatory offenses like contempt of court (usually a serious violation of a court order), federal traffic felonies, tax fraud, bribery, perjury, prostitution, child pornography, gambling law, liquor law, national defense secrecy law,  hunting law, and environmental law felonies make up most of another 16% (although a small number within that percentage involve racketeering which is sometimes a white collar offense and sometimes a violent one, witness intimidation, extortion, and escapes that are more than technical), for a total of 74% of federal inmates (the total number of federal inmates adds to 101% due to rounding errors).

Inmate Citizenship

As an aside, due to the focus of the federal criminal justice system on immigration offenses and other crimes with international dimensions, 18.0% of federal inmates are not U.S. citizens, while only 5.7% of state inmates are not U.S. citizens (significantly less than in the general population, especially when comparing populations of similar age and gender to federal and state prison inmates respectively).

The lion's share of non-citizen prison inmates at both the state and federal level will be deported when they finish serving their sentences, greatly reducing the likelihood that those inmates will reoffend within the United States.

Juvenile Life Without Parole

The use of life in prison without possibility of parole sentences for juvenile offenders has declined dramatically as a result of to key U.S. Supreme Court decisions and some legislative reforms that they triggered. But it also remains far more common in the U.S. than anywhere else in the world and some states are particularly at fault on this score including 210 cases in the three states singled out below.

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive . . .

At the time Miller and Montgomery were decided, Pennsylvania, Michigan, and Louisiana each had more children sentenced to life without parole than any other state in the country

While 76% of the pre-Miller JLWOP population in Louisiana was Black, Black children received 93% of JLWOP sentences since 2012. Today, the sentence is reserved almost exclusively for Black boys. . . . Despite six years passing since the Supreme Court ordered resentencings in Montgomery, almost 100 people still serving unconstitutional JLWOP sentences in Michigan have not yet had their day in court. This is especially concerning in light of the COVID-19 pandemic, which tragically claimed the life of William Garrison a few months shy of freedom.. . . . JLWOP population at time of Miller: 297 Completed resentencings: 251 Currently Serving JLWOP: 63 Released: 99

Once second to Pennsylvania in JLWOP cases, Michigan now has the most children serving life without parole in the country. Racial disparities for this population in Michigan are starker than they are nationally—71% of those eligible for resentencing in Michigan after Miller were Black (compared to 61% nationally), and 74% of those still awaiting resentencing are Black. . . . JLWOP population at time of Miller: 356 Completed resentencings: 273 Currently Serving JLWOP: 97 Released: 154

At the time Miller was decided, Pennsylvania mandated JLWOP for first and second degree murder and had the highest number of children sentenced to life without parole in the country. Subsequent reforms have abolished JLWOP for second degree murder, a significant step forward. Since Montgomery, approximately 90% of these cases have been resentenced with only 1% resentenced to JLWOP. This progress was bolstered by the Pennsylvania Supreme Court, which acted to ensure resentencing hearings had constitutionally sufficient procedure. The Pennsylvania Parole Board has also recognized the importance of meaningful consideration of these cases, granting parole in approximately 70% of the former JLWOP cases. . . . JLWOP population at time of Miller: 526 Completed resentencings: 463 Currently Serving JLWOP: 50 Released: 268

At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children. In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child. . . . 

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population.... 

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

From this report. 

Sentences Based Upon Acquitted Conduct Still Deeply Troubling

Federal courts are allowed to base their sentencing determinations in criminal cases, in part, on conduct for which a jury has acquitted a defendant (as long as the maximum sentence does not exceed the maximum sentence authorized by the crimes upon which the defendant was convicted). This is because: 

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S. 148, 157 (1997).

This happens something on the order of dozens of times a year. A recent example is a case out of the 7th Circuit upholding a sentence based upon a jury verdict finding a defendant guilty of robbery but innocent of murder, in which a judge imposes a sentence based upon its own contrary determination that the defendant committed murder to 228 months in prison (about twice the sentence that would otherwise have been imposed). In that case, the 7th Circuit notes that:

Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations. See, e.g., Jones v. United States, 574 U.S. 948, 949–50 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of cert.) (noting that it violates the Sixth Amendment when the conduct used to increase a defendant’s penalty is found by a judge rather than by a jury beyond a reasonable doubt, and highlighting that this is particularly so when the facts leading to a substantively unreasonable sentence are ones for which a jury has acquitted the defendant); Watts, 519 U.S. at 170 (Kennedy, J., dissenting) (allowing district judges “to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.”); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of the r’hrg en banc) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”). Many other circuit court judges have supported this position in dissenting and concurring opinions. 

This is still contrary to everything that the U.S. Constitution and a just criminal justice system stand for. But neither Congress nor the U.S. Supreme Court have taken action to prevent this obvious and routine injustice. It is one symptom, among many, of the deeply broken state of the U.S. criminal justice system and of the deep flaws in our political system that allow such abominations to persist.

The Biggest U.S. Military Justice Overhaul In 70 Years

On December 27, 2021, President Biden signed the National Defense Authorization Act for fiscal year 2022 which contained the biggest overhaul of the U.S. military justice system in 70 years (effective December 27, 2023 assuming that the new regulations mandates by the Act are in place by then). This was driven by Congressional concern that the military has mishandled sex offenses and sex discrimination within its ranks. 

The Lawfare blog explores in detail what has changed. The big points are as follows:

The act creates a novel independent Office of the Special Trial Counsel for each service (Army, Navy, Marine Corps, Air Force and Space Force) except the Coast Guard, reporting directly to the civilian secretary of that service, not to the judge advocate general or chief of staff of that service.

This office has primary jurisdiction over all military justice matters concerning someone alleged to have committed a "covered offense" defined as:

wrongful broadcast or distribution of intimate visual images (Article 117a); murder (Article 118); manslaughter (Article 119); rape and sexual assault, including of children, and certain other types of “sexual misconduct” (Articles 120, 120b, 120c); kidnapping (Article 125); domestic violence (Article 128b); stalking (Article 130); retaliation (Article 132); and producing, processing, receiving, viewing and distributing child pornography (Article 134); as well as conspiring to, attempting or soliciting any of the above (Articles 80, 81, 82).

It creates a new sexual harassment offense: 

but only under Article 134. This means such behavior (also defined by this act) is not criminalizable conduct unless the sexual harassment is, under the case-by-case circumstances, “of a nature to bring discredit upon the armed forces” and/or is “prejudicial to good order and discipline.” Both of these elements are highly fact-dependent and, in the latter case, must have a “direct and palpable” negative effect on something clearly germane to military readiness or mission accomplishment.

Sentencing in court-martial cases is reformed more generally: 

Military judges, not panels, will now make the sentence determination for all noncapital convictions, regardless of type of offense, at special and general courts-martial.

Sentencing determinations are to be made within certain new “sentencing parameters;” a judge may depart from the parameters if he or she includes the factual basis and reason for that departure in writing in the record of trial. The sentencing parameters, as well as “sentencing criteria,” shall be prescribed by the president, based on recommendations devised by a newly established Military Sentencing Parameters and Review Board reporting to the secretary of defense. These parameters, having the same purpose as the federal sentencing guidelines, must be prescribed within two years of this section’s enactment.

"Finally, Article 133’s “conduct unbecoming an officer and a gentleman” offense is revised to strike “and a gentleman.”"

The analysis also explores at length what distinctive features of the military justice system remain unchanged to make the point that these changes are not a wholesale "civilianization" of the military justice system.

Sentencing Ideas And News

*  Juries should know the sentences that their guilty verdicts authorize.

* A law review article considers putting someone into a coma involuntarily as an alternative to the death penalty or incarceration.

* The trial penalty in criminal cases is too high:

Akin to a peace deal in the American justice system, plea agreements enable defendants to avoid the worst possible scenario in exchange for waiving their right to a battle at trial. However, the current approach to these deals means a defendant who does not concede defeat upfront can obtain no assurance regarding their sentence if convicted.

This dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.

Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty....

The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.

One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial. Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

* Many essays about excessive punishment and whose fault it is that this happens.

* The pandemic has resulted in a huge drop in federal criminal sentencing hearings.

Criminal Sentencing Law Design Flaws

Background

In the U.S. criminal justice system, when someone is convicted of a crime they are then sentenced pursuant to that conviction to some punishment that has been authorized by a statute.

Outside of death penalty cases, military justice convictions, and a handful of states like Texas that have jury sentencing, the sentencing decision is made by a judge.

If the sentence exceeds the sentence authorized by statute, and was not consented to in some manner by the defendant being sentenced, it can be appealed, or if not timely appealed, possibly subjected to a collateral attack in a post-trial motion or habeas corpus petition.

While some sentences authorized by statute are unconstitutional as a matter of law, the U.S. Supreme Court and other courts interpreting the U.S. Constitution and often parallel provisions in state constitutions, over the years, have afforded legislatures immense discretion in adopting, ex ante, generally applicable statutes establishing sentences for crimes. So, most "design problems" with sentencing statutes that lead to inappropriate sentences for crimes, do not have a ready constitutional law solution.

This means that the most expedient way to solve problems in sentencing law is with statutory amendments to sentencing laws.

This post briefly reviews some of the most serious common design flaws and suggests solutions. I group the design flaws into two general categories: non-discretionary and discretion related problems.

Non-Discretionary Sentencing Design Flaws

There are several ways that sentencing statutes frequently produce unjust results that do not involve a judge (or other sentencing body) misapplying its discretion.

Non-discretionary provisions of sentencing laws usually produce unjust sentences one of several ways.

* Unfair Mandatory Minimum Sentences

The problem of unfair mandatory minimum sentences comes up most commonly for federal crimes where a statute sets a minimum sentence for an offense that is much higher than a judge with more discretion or other jurisdictions set for the same offense, and higher than the overall scheme of sentences in the system suggest is fair.

For example, the federal controlled substances act set a mandatory minimum sentence for possession of small amounts of drugs (often $10 worth) and possession of large amounts of drugs by someone with little culpability (e.g. a "drug mule") that were very high, such as five or ten years in federal prison.

Frequently, an issue is that a crime is defined too broadly and while the mandatory minimum sentence may be appropriate for some conduct that violates the statute, the crime also includes conduct that merits only a less serious punishment. When this happens, the less serious cases that are excessively punished with a mandatory minimum are prosecuted disproportionately in order to secure guilty pleas in exchange for more appropriate although often still high, sentences. 

The statutory solutions are to (1) repeal the mandatory minimum sentence, (2) reduce the mandatory minimum sentence to a more reasonable mandatory minimum sentence, or (3) create a safety valve provision that is broad enough to allow the mandatory minimum sentence to be ignored in cases where the sentence required by law is problematic.

Most criminal offenses have sentences statutorily assigned to them by legislatures, however, are not grossly outrageous in the case of an of a recidivist offender who is convicted of one count of committing a single crime. The problems usually arise instead with either consecutive sentences or recidivist sentencing.

A maximum sentence that is too low creates similar problems that are easily solved by increasing the maximum sentence, at least in circumstances that are aggravated.

* Consecutive Sentences. 

Legislatures rarely give any serious thought to whether imposing multiple sentences for different counts of the same crime or multiple distinct crimes is collectively appropriate. Often it is not.

Individually, a minor felony may be punishable by up to three years in prison. But it is rarely the case that it is actually just to imprison someone who commits that crime ten times and is convicted of all counts to be sentenced to thirty year in prison.

In general, when someone is convicted of multiple crimes concurrent sentencing is closer to the appropriate sentence. But it is understandable and fair that there should be some enhancement of a sentence for someone who commits more crimes that aren't lesser included offenses of each other, or for someone who commits multiple counts of the same crime - perhaps in the same criminal episode and perhaps not.

A rough justice solution which would be much better than the status quo, would be to require all sentences arising from the same episode of criminal conduct to be served concurrently and for any additional marginal sentence in excess of the longest one imposed for crimes committed in different criminal episodes to not increase the total sentence by more than some multiple or function of the longest sentence, perhaps a multiple of three in the worst case scenario.

One somewhat less rough method would be to first determine the longest sentence imposed for each criminal episode. The longest sentence would be the starting point. A second criminal episode with the second longest sentence could add one half of that additional sentence. A third criminal episode with the third longest sentence could add to the first two sentences, one third of the sentence for the third criminal episode, and so on.

For example, suppose someone committed manslaughter for which a ten year sentence is imposed, car theft, for which a three year sentence is imposed, and extortion, for which an eight year sentence is imposed, in three independent criminal episodes. Under the proposed formula, one would start with a base sentence of ten years. This would be increased to fourteen years (half of the eight year extortion sentence) for the next most serious offense. And, it would be increased from there by one year to fifteen years for the third most serious offense (a third of the three year car theft sentence).

The total sentence would be fifteen years, instead of the twenty-one years that would be imposed typically today, if consecutive sentencing was imposed. Each offense increases the total sentence. The sentence is higher than it would be if just one offense was committed. But it doesn't get endlessly high.

Suppose instead that someone committed ten car thefts punishable by three years in prison in separate criminal episodes. The sentence would be 3 years plus 1.5 years plus 1 year plus 3/4 years plus 3/5 years plus 1/2 year plus 3./7th years plus 3/8th years plus 1/3 year plus 1/10th of a year. This would be a total of 8 years and about 7 months, as opposed to 30 years if the sentences were served consecutively.

* Recidivist Sentences. 

It makes sentence to commit repeat offenders to longer prison sentences than first time offenders. They are more likely to commit crimes again if they are released and crime can be reduced with equal amounts of criminal justice resources if these people are in prison longer and others who are less likely to reoffender serve shorter sentences that aim to punish but not necessarily to prevent reoffending to the same degree.

There are several ways that recidivist sentencing is handled. One is to treat an offense committed by a recidivist as a more severe crime than one committed by a first time offender as if it is a separate crime. One is to have a threshold like "three strikes and you're out" after which one has to serve a life sentence or a long term of years sentence, if the number of qualifying offenses are committed. One is to impose a sentence enhancement such as a multiple of the underlying offense sentence, upon repeat offenders, sometimes adjusted based upon how many prior offenses there are of a particular type. One is to require that repeat offenders be sentenced at the middle to high end of the range of discretion for ordinary offenders convicted of the same crime and should not be eligible for "safety valves" or sentences at the low end of the permissible range for a first time offender committing the same offense.

There are several ways that this can go wrong. The worst situations (which have been mostly upheld as constitutional under 8th Amendment challenge) is to elevate minor misdemeanors to felonies for recidivists, to treat the enhanced offense level as felony counts on a three strikes type situation, and to include all prior adult convictions no matter how stale. This is the kind of approach that leads to travesties of justice like life sentences for shoplifting.

One first step is to ignore stale convictions and/or to reduce the impact for repeat offender sentencing for moderately old convictions. Convictions more than ten years old do not increase the risk of a new offense relative to the general population, and older offenses that are not ten years old involve less risk.

Another is to insist that there be some proportionality between the actual crime of conviction and that sentence. A double or treble sentence should be the maximum enhancement all other things considered. Limiting low sentences such as probation and fines rather than prison, or minimal sentences within the permissible range for defendants with long rap sheets is also generally preferable to draconian long sentences.

A third is to insist that enhancement for serious crimes only be imposed when the repeat offender has previously committed other similar and equally serious crimes. Car theft felony convictions should not enhance sentences armed robbery or aggravated assault or rape vey much.s

Another problematic feature of recidivist sentencing is that committing crimes is typically a developmental phase. Adolescents and young adults are most prone to commit crimes, while the likelihood of repeat offenses declines sometime in a person's thirties or so and continues to fall with age. Yet recidivist sentencing laws disproportionately impact offenders at the end of their criminal careers who commit one last offense or two before aging out and become a much less crime prone older person. Ignoring stale convictions can help address this issue, but it points to the need to limit repeat offense sentencing excesses.

Sentencing Discretion Design Flaws

Basically there are two kinds of sentencing problems that can occur from abuses of discretion by a judge within a statutorily permitted range. A judge (or other sentencing body) can impose a sentence that is too low for the gravity of the crime committed, or can impose a sentence that is too high.

There are also different causes of abuses of discretion.

In the usual case where an individual judge sets the sentence, the sentence can be a result of the judge's idiosyncratic biases or inclinations.

Another common issue is that a judge considers inappropriate factors when imposing a sentence. These factors can be particular to a case (like considering acquitted conduct) or can be systemic (like consider race).

Another common issue is that a crime is defined too broadly, so that it includes both more serious and less serious offenses in a single broad sentencing range.

* Establishing Reasonable Mandatory Minimum Sentences

Some serious offenses, e.g. forcible rape or child rape or domestic violence, are a travesty to punish with only a minimal sentence and many offenses have no minimum sentence. Establishing a reasonable minimum sentence that matches the least serious conduct covered by an offense can address this issue. 

Breaking up offenses so that less serious conduct does not have a minimum sentence, but aggravated conduct does have a minimum sentence, can also address this issue.

* Expressly Disallow Inappropriate Factors

Some factors are legally permitted but troubling. Sentencing based upon alleged other acts evidence beyond the offense of conviction, such as acquitted conduct or uncharged conduct, removes the rightful place of the jury to decide what a person is convicted of having done for which they are being sentenced. Only the crime of conviction and relevant offender characteristics should be considered, and recidivist sentencing should be based only on actual prior convictions and not mere alleged prior conduct.

* Reducing Maximum Sentences

Sometimes the legally authorized sentence far exceeds the sentence that is ever imposed in the ordinary course. This is particularly common in the case of municipal ordinance violations and misdemeanor offenses.

Typically, a violation of a municipal ordinance might generically be punishable by up to a year in prison and/or a $1,000 fine, even though only a very rare handful of kinds of violations are ever punished by more than a fine and/or a month in jail. Reducing the statutorily authorized punishment except for the most serious delineated offenses for which more severe punishments are available reduces the risk of an abuse of discretion by a lower court judge that is completely immune to review on appeal despite being clearly unfair and biased.

Circumstances that justify more severe sentences should be broken out, but studying existing sentencing norms should be used to reduce maximum sentences.

* Publicly Evaluate Judges For Bias In A Systemic Manner

Judges in criminal jurisdiction courts impose lots of sentences which creates lots of data. This should be systemically monitored and evaluated, and systemic exercises of discretion out of line with other similarly situated judges should have consequences such as removal from office or informing the public of the fact in judicial retention elections.

* Panel Decision Making For Serious Offenses

Ultimately, sentencing design can't solve every injustice. Creating a solution to individual cases where a judge might impose a one year sentence when a ten day sentence is the norm may be impractical and the harm caused by these abuses, while real, is not the worst of all injustices.

But for serious offenses, it is problematic when a judge can impose a sentence of five years or three decades, for example, a range of twenty-five years of a defendant's life, on what amounts to a whim.

In cases where a judge has significant discretion to impose a sentence which is potentially severe, perhaps, for example, when there is at least a ten year discretion range, sentencing decisions should be made by panels of three or more judges, rather than a single judge, reducing the risk that any one judge's individual biases with unjustly influence the result.