6 Million Lost Voters

The Sentencing Project has published a new study, “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016” by Christopher Uggen, Ryan Larson, and Sarah Shannon. Their key findings:

  • As of 2016, an estimated 6.1 million people are disenfran-chised due to a felony conviction, a dramatic escalation from 1.17 million people disenfranchised in 1976, and 3.34 million in 1996.
  • Approximately 2.5 percent of the total U.S. voting age population – 1 of every 40 adults – is disenfranchised due to a current or previous felony conviction.
  • Individuals who have completed their sentences in the twelve states that disenfranchise people post-sentence make up over 50 percent of the entire disenfranchised population, totaling almost 3.1 million people.
  • Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions. In six states – Alabama, Florida, Kentucky, Mississippi, Tennessee, and Virginia – more than 7 percent of the adult population is disenfranchised.
  • Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals disenfranchised post-sentence account for nearly half (48 percent) of the national total.
  • One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population.
  • African American disenfranchisement rates also vary significantly by state. In four states – Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) – more than one in five African Americans is disenfranchised.

“What Is To Be Done?”

In a recent law review article, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429 (2017), Judge Rakoff discusses the history of prosecutorial power, plea-bargaining, and mass incarceration, and reviews some of the possible solutions. The short version:

  • Repeal mandatory minimum and career offender laws (something the federal judiciary has requested for several decades) and a reduction in the sentences “recommended” by sentencing guidelines.
  • Do away with plea bargaining altogether? This, in fact, is the status quo in many European countries. In Germany, for example, where plea bargains are officially not recognized, roughly 50% of all criminal cases go to trial, and most of the remaining cases are resolved through de facto pleas to the initial charges.
  • Promulgate binding regulations, similar to those enacted by administrative agencies, that would govern plea bargaining
  • A voluntary version of the same basic proposal, that prosecutorial agencies, state and federal, each adopt some internal guidelines that, while not enforceable by outside parties, would nevertheless bring some order to prosecutors’ exercise of discretion in the plea bargaining process.
  • A variation on what is sometimes referred to as a “preliminary hearing.” where the prosecutor and defense counsel would be required to appear shortly after indictment before a judicial officer, who would separately question them, in camera and under seal, as to what their evidence was, what discovery they would likely have, and what disposition they were seeking. The judicial officer, without revealing any of this information to the other side or to the judge who would be assigned to the case for all other purposes, would then recommend to the parties what leads still needed to be explored, what disclosures needed to be made, and, where appropriate, what the judicial officer thought would be a fair disposition of the case. In other words, the judicial officer would, in effect, oversee the plea bargaining process and, while not having the power to force either side to his view, could use her persuasive powers to assure a fairer, more neutral process. (This is Rakoff’s own proposal – a variation is currently in practice in the Connecticut).
  • Have prosecutors occasionally serve as defense counsel


“Changing defaults changes decisions”

One legacy of the “tough on crime” era is the aging prison population. From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. More than 10,000 federal prisoners are in their 60s, 70s or 80s. Older inmates have significantly higher medical costs than younger inmates, and often need special accommodations (such as lower bunks or wheelchair-accessible areas) that prisons are ill-equipped to provide. In an effort to address these issues, AG Holder announced an expanded compassionate release program for inmates who were elderly, seriously ill or both. But the Washington Post reports that only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.

What is the problem? In part its that the “default” for decision-making about compassionate release is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.

Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.

Search Warrant Means There’s Evidence? Not So Much….

The recent search warrant executed at Paul Manafort’s residence has generated a lot of speculation about how much evidence of criminal wrongdoing there must have been behind the search warrant affidavit justifying the search. But as the Washington Post  points out, what few systematic studies of the search warrant process there are suggest what most police officers, defense attorneys and  prosecutors will say: in most jurisdictions, it’s incredibly easy to get a warrant. Most judges exercise little to no scrutiny at all, and the few who do can be circumvented. You just take your affidavit to another judge. The federal process is described by former prosecutor Ken White:

“In the federal system, federal agents present search warrant applications to United States Magistrate Judges for review. Magistrate Judges aren’t nominated by the President and confirmed by Congress like United States District Court judges — they are appointed by other federal judges for set terms, and have a reduced level of authority and responsibility. They do a lot of the unglamorous day-to-day work of the federal judiciary.

The magistrate judge reviews the search warrant application and, almost always, signs the warrant approving it . . .  I think that magistrates can be a little rubber-stampy at times. But probable cause is a pretty low bar.”

As the article’s author points out, the impression that warrants for no-knock raids are carefully scrutinized and waged against only people for whom there is a significant amount of incriminating evidence just isn’t true.

NY Times Discovers Unaccountability

The New York Times reports that of the 23 cases in which the Brooklyn DA’s Conviction Review Unit has asked judges to free defendants who were wrongfully convicted by their office, only a handful have asked for anyone to be held accountable. The Aug. 8 article by Alan Feuer recounts the case of Jabbar Wsahington, who spent 20 years in prison after a prosecutor intentionally withheld evidence and coaxed a witness into giving testimony that was purposefully misleading; in court, the chief of the Conviction Review Unit said: “There’s a lot of — perhaps blame is maybe the wrong word — but responsibility that goes around on that,” he said. Feuer says:

“It might seem like an obvious step for prosecutors seeking to reverse a tainted conviction to declare in open court who in law enforcement had a role in compromising the case. But assigning blame, at least in public, doesn’t happen often — even in troubled cases.”

One hopeful note in the article is that prosecutorial accountability has become an issue in the DA race in Brooklyn. Ama Dwimoh, one of six challengers seeking to defeat Eric Gonzalez, the acting district attorney, called for a sweeping review of how Mr. Gonzalez has handled bungled cases. And at the end of July, Ms. Dwimoh, who once worked in the district attorney’s office, accused her former employer of never holding anyone accountable for the many botched convictions it has helped overturn.

And, of course, accountability does not necessarily mean criminal liability. Professional discipline could be a powerful disincentive as well. And there is this:

“The accountability thing is often what stops people from embracing this process,” said John Hollway, a professor at the University of Pennsylvania Law School who studies wrongful convictions. “They think that accountability means punishment, but it can also mean improving the system.”

Mental Health Courts and the “Revolving Door”

A three-year study of a Florida mental health court program found that the rate of recidivism dropped “significantly” after participants completed the court-ordered treatment program that the court offered as an alternative to jail.

The study’s authors, Julie Costopoulos and Bethany Wellman of the Florida Institute of Technology (FIT) suggested that the findings demonstrate the effectiveness of collaborative courts in helping end the “revolving door” which cycles many mentally troubled individuals between jail and the streets:

“The ‘revolving door’ has been exhaustive of institutional resources, resulting in such a poor system of treatment that many argue that the system …treats offenders with mental health challenges to the extent that recidivism is inevitable,”

The study followed 118 participants in an unidentified Florida mental health court. Three months after release, 90% had not been rearrested. After six months, the number dropped to 81% remaining free of any charges; and three years after release, 54% had not recidivated.

Perhaps almost as significant, the study found that participants were typically re-arrested  for much lesser offenses than those which originally sent them to the mental health court.

70 Million Jobs

Have a criminal record? Need a job? You are not alone – according to 70millionjobs.com, there are 70 million Americans in the same situation. The website, created by a former Wall Street trader incarcerated for securities fraud, acts as a clearing house for job applicants and employers transparent about criminal record pasts. The principles of the organization:

• That having served a sentence, a person should be able to get on with his or her life.

• That past mistakes should not define life in the future.

• That all people have a right to a good job, decent housing, competent medical care and other human needs.

• That we will run our business transparently, with integrity and compassion.

• That the formerly incarcerated deserve the right to vote.

• That all folks that have done time are our brothers and sisters and that we’re stronger when we work together.