Clemency and Video

Many posts have discussed executive clemency.

Matt Nadel and Jan Kobal at NYT:

Using lights, a camera and a tried-and-true narrative formula, Matt Nadel produces short films about incarcerated people in New York. His goal? To persuade the governor, Kathy Hochul, to grant his clients clemency.

Thanks to the tough-on-crime zeitgeist that began in the 1980s, governors have often come to view clemency as a political liability rather than an opportunity to give people second chances. Grants of clemency in New York, for example, have plummeted as a result. Filmmakers like Mr. Nadel — hired by lawyers — have become a last resort.

“It feels like I’m trying to hack a broken system,” he says.

But as Mr. Nadel argues in the Opinion Video above, it shouldn’t require such an elaborate production to get people out of prison.

Racial Inequality, Educational Inequality, and Prison

 Many posts have discussed economic and educational inequality. The effects of inequality reach many corners of American life.

 Proceedings of the National Academy of Sciences (PNAS),

Falling racial inequality and rising educational inequality in US prison admissions for drug, violent, and property crimes
Christopher Muller https://orcid.org/0000-0003-3855-3375 muller@fas.harvard.edu and Alexander F. Roehrkasse https://orcid.org/0000-0003-4996-9317Authors Info & Affiliations
Edited by Paul DiMaggio, New York University, New York, NY; received September 4, 2024; accepted December 15, 2024
January 21, 2025
122 (4) e2418077122
https://doi.org/10.1073/pnas.2418077122


Abstract
Using administrative and survey data, we show that there has been a sea change in the contours of American imprisonment. At the end of the twentieth century, inequality in the prison admission rates of Black and White Americans was comparable to inequality in the prison admission rates of people with and without a college education. However, educational inequality is now much greater than racial inequality in prison admissions for all major crime types. Violent offenses have replaced drug offenses as the primary driver of Black prison admissions and Black–White inequality in the prison admission rate. The prison admission rate of Black Americans has fallen, but the prison admission rate of White Americans with no college education has dramatically increased for all offense categories. These findings, which are robust to adjustments for changing selection into college attendance, contribute to a growing body of evidence documenting narrowing racial inequality and widening educational inequality in Americans’ life chances.

Attitudes Toward the Justice System

% of U.S. adult citizens who support / oppose the following criminal justice policies that have been backed by Kamala Harris:
Creating national standards for police use of force: 69% / 16%
Restoring voting rights to people formerly incarcerated: 61% / 22%https://t.co/vdddlKjI8j pic.twitter.com/yE8CGhxREE

— YouGov America (@YouGovAmerica) August 16, 2024

Americans generally feel positively about roles in the justice system — including several held by Kamala Harris
% of U.S. adult citizens favorable / unfavorable toward...
District attorneys: 53% / 33%
Prosecutors: 51% / 37%
Attorneys general: 48% / 34%https://t.co/vdddlKjI8j pic.twitter.com/0UKkecGACG

— YouGov America (@YouGovAmerica) August 16, 2024

Attica

Today is the 50th anniversary of the Attica Massacre. On September 9, 1971, inmates in the Attica Correctional Facility, in Attica NY rioted and seized control of the prison.  They took 43 staff members hostage. During the next four days, authorities yielded to many of the prisoners' demands, but would not agree to amnesty or the removal of the prison's superintendent. On September 13, talks broke down and Governor Nelson Rockefeller ordered state police to storm the prison.  In all, 43 people died, including ten correctional officers and civilian employees. (Source: NY State Library)

State Senator John Dunne -- who would later be my boss -- was there in his capacity as chair of the State Senate Corrections Committee.  Prisoners asked him to be one of the mediators because they trusted him. He had earned that trust by making unannounced inspections of prison conditions. In an oral history, he remembered calling Rockefeller and urging him to come to Attica.

I’m a Rockefeller Republican. But, let’s see, it was Wicker, Badillo, the editor of the Amsterdam News, and me, the four people who spoke to him that afternoon. I was the last one to speak with him. And he just wouldn’t do it. He wouldn’t come. See, my thought was this, “Come and be there. Not meet with them, I don’t want you going in D Yard. Come, be there. So you’re symbolically involved.” For example, what’s going on in China now, they send a premier in China to go to the earthquake site so that you’re showing you’re involved, in your commitment, your interest. That’s what we were trying to achieve because we had agreed on, I think, 29 of the 32 or 33 demands. And what those guys inside were worried about was, “Hey, you know, once we lay down our arms, you know, they’re not going to honor any of these conditions.” So we wanted to get him to put his imprimatur on it. And now, people say to me, “Gosh, do you think it would have made a difference?” I don’t know if it would have made a difference. But when you consider the stakes that we were facing, and I knew, I had a very good idea of what was going to happen. Should have tried it.

...

It was his responsibility. I mean, it was very clear that they were going to use lethal force to retake the facility. You had guards who were in there who were targets, the likelihood, as it turned out, was correct, were going to meet their death. He was the man; he was in charge. The Sunday after the Attica riot I was on one of those Sunday morning programs; they asked me straight out, “Do you think he should have come?” And I said, “Yes.” You know, two years later I was stripped of my chairmanship. I don’t mean to be any kind of a martyr. But, yeah, I really, to this day, I think it could have made a difference. Could have.

 

Incarceration Rate Lowest Since 1995

 Todd D. Minton, Lauren G. Beatty, and Zhen Zeng, "Correctional Populations in the United States, 2019 – Statistical Tables," BJS, July 2021.

At year-end 2019, an estimated 6,344,000 persons were under the supervision of adult correctional systems in the United States, about 65,200 fewer persons than in 2018. The adult correctional system includes persons incarcerated in prisons and jails and persons supervised in the community on probation and parole. This was the first time since 1999 that the correctional population dropped to less than 6.4 million. The correctional population declined by 1.0% in 2019 and has declined an average of 1.3% each year since 2009.

About 1 in 40 adult U.S. residents (2.5%) were under some form of correctional supervision at the end of 2019. This represented a drop from 1 in 32 (3.1%) a decade earlier.

...

•  The incarceration rate dropped each year during the last decade, from 980 per 100,000 adult U.S. residents held in state or federal prisons or local jails at year-end 2009 to 810 per 100,000 at year-end 2019.
• By the end of 2019, the incarceration rate had dropped to the same rate as 1995 (810 per 100,000 adult U.S. residents).

Counting Students and Prisoners

 Paul Mitchell at The Redistricting Report notes that the Census Bureau needed to count college students just as the pandemic emptied campuses.

It appeared to be a problem, but the Census Bureau assured college students they’d be all counted together at their respective campuses through a process called Group Quarters whereby the bureau receives manual tallies of the populations of college dormitories, nursing homes, and prisons based on the records kept for those facilities instead of direct interviews with the census enumerators or self-responses. You can really geek out on how this process is performed by reading the Census Bureau’s blogpost about it.

And for many this was confusing. What if a student was living off campus, not in the dorms? Would they be counted in the group-quarters or would they have to report themselves as living in their off-campus apartment? What if their parents already put them on their census form – would they be in trouble if they got double-counted? This was something that colleges were email blasting students about as they wanted them to report as living in their college community.

The census has a process for de-duplicating in a case where someone is accidentally, or purposefully reported being in two places at once. They also have processes for imputing populations where there was no reporting at all – which could have been significant in a once-bustling college town that turned into a ghost town overnight.

And that’s where the Republican lawsuit comes in. The GOP harbors some doubt about how those headcounts were arrived at and they’re suing to find out exactly how the Census arrived at the numbers of students who will be counted at college campuses, which often carry significant heft in the drawing of electoral districts.

...

Similarly, in the increasing number of states like California that are confronting the “prison gerrymander,” Group Quarters plays a part as well. These states are planning to count prison inmates in the communities they resided in at the time of arrest instead of where they were incarcerated on April 1. For California, that’s an estimated 116,000 people statewide that would be removed from the headcounts in the largely rural communities in the Central Valley and desert communities, depleting them of that redistricting currency in the upcoming redraw. A higher prison imputation by the Census Bureau in Kings County’s prison facilities, for example, means that county will have that many more individuals removed from their population base in the maps drawn for Congress, Assembly, and Senate.

Shifts in Opinion on the Death Penalty

Jeffrey M. Jones at Gallup:

For the first time in Gallup's 34-year trend, a majority of Americans say that life imprisonment with no possibility of parole is a better punishment for murder than the death penalty is.

The 60% to 36% advantage for life imprisonment marks a shift from the past two decades, when Americans were mostly divided in their views of the better punishment for murder. During the 1980s and 1990s, consistent majorities thought the death penalty was the better option for convicted murderers.

The Oct. 14-31 survey was conducted before a Texas state court halted the scheduled execution of Rodney Reed in mid-November. A number of prominent politicians and celebrities joined legal activist groups in lobbying Texas officials to spare Reed amid new evidence that could exonerate him.

Even as Americans have shifted to viewing life imprisonment without parole as preferable to execution, a majority still favor use of the death penalty, according to Gallup's long-term death penalty trend question, which was updated in an Oct. 1-13 poll. That question, first asked in 1936, simply asks Americans if they are "in favor of the death penalty for a person convicted of murder," without providing an alternative option. Currently, 56% of U.S. adults say they are in favor of the death penalty for convicted murderers in response to this question.

Grim News on Recidivism

From the Bureau of Justice Statistics

Five out of six state prisoners were arrested at least once during the nine years after their release, the Bureau of Justice Statistics announced today. This is the first BJS study that uses a 9-year follow-up period to examine the recidivism patterns of released prisoners. The longer follow-up period shows a much fuller picture of offending patterns and criminal activity of released prisoners than is shown by prior studies that used a 3- or 5-year follow-up period.

This 2018 update on prisoner recidivism tracks a representative sample of prisoners released in 2005 in 30 states and chronicles their arrests through 2014. In 2005, those 30 states accounted for 77 percent of all persons released from state prisons nationwide.
Overall, 68 percent of released state prisoners were arrested within three years, 79 percent within six years and 83 percent within nine years. The 401,288 released state prisoners were arrested an estimated 2 million times during the nine years after their release, an average of five arrests per released prisoner.

On an annual basis, 44 percent of prisoners were arrested during the first year after release, 34 percent were arrested during the third year and 24 percent were arrested during the ninth year. Five percent of prisoners were arrested during the first year after release and were not arrested again during the 9-year follow-up period.

Released property and drug offenders were more likely to be arrested than released violent offenders; however, released violent offenders were more likely to be arrested for a violent crime. More than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime.

Among prisoners arrested after release, the percentage of those arrested in another state increased each year after release. Eight percent of prisoners arrested during the first year following release were arrested outside of the state from which they were released. In comparison, 14 percent of prisoners arrested during the ninth year following release were arrested in another state.

To conduct this large-scale recidivism study, BJS used prisoner records obtained from state departments of corrections through BJS’s National Corrections Reporting Program and criminal history records obtained through requests to the FBI's Interstate Identification Index and state repositories via the International Justice and Public Safety Network.

The report, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014) (NCJ 250975), was written by BJS statisticians Mariel Alper and Matthew Durose and former BJS statistician Joshua Markman. The report, related documents and additional information about BJS’s statistical publications and programs can be found on the BJS website at www.bjs.gov.

The Bureau of Justice Statistics of the U.S. Department of Justice is the principal federal agency responsible for collecting, analyzing and disseminating reliable statistics on crime and justice systems in the United States. Jeffrey H. Anderson is director.

Incarceration Rates

John Gramlich at Pew:

The U.S. incarceration rate fell in 2016 to its lowest level in 20 years, according to new data from the Bureau of Justice Statistics (BJS), the statistical arm of the Department of Justice. Despite the decline, the United States incarcerates a larger share of its population than any other country.

At the end of 2016, there were about 2.2 million people behind bars in the U.S., including 1.5 million under the jurisdiction of federal and state prisons and roughly 741,000 in the custody of locally run jails. That amounts to a nationwide incarceration rate of 860 prison or jail inmates for every 100,000 adults ages 18 and older.

The nation’s incarceration rate peaked at 1,000 inmates per 100,000 adults during the three-year period between 2006 and 2008. It has declined every year since then and is now at its lowest point since 1996, when there were 830 inmates per 100,000 adults.

... 

.Despite these downward trends, the U.S. has the highest incarceration rate in the world, according to the World Prison Brief, a database maintained by the Institute for Criminal Policy Research at Birkbeck, University of London...The World Prison Brief’s data put the U.S. incarceration rate at 655 inmates per 100,000 people, which is nearly 7% higher than the rate of the next-closest country, El Salvador (614 inmates per 100,000 people), and far higher than the rates of other heavily populated nations, including Russia (415 inmates per 100,000 people) and Brazil (324 per 100,000). Incarceration rates in Western Europe are less than a quarter of the U.S. rate: In England and Wales, there are 142 inmates for every 100,000 people, while France and Germany incarcerate 102 and 77 people, respectively, for every 100,000 residents.

Earlier this year, Prof. Bessette wrote:

So, why then are U.S. incarceration rates so much higher than European ones, even adjusting for differences in murder rates? Much of the answer lies in the simple fact that even apart from murder, the United States remains a more violent place than your typical European country...

As the table above shows, as one moves down the list of crimes from most serious to the less serious, the statistical differences between the U.S. and the most populous European nations seem to disappear. Yet, even here there can be real differences in crime seriousness concealed by the overall data. Consider robbery. The reported U.S. rate is about the same as the average for the other countries: almost twice as high as in Germany and Italy but lower than in France and Spain. Yet another source – the Fifth Edition of the European Sourcebook of Crime and Criminal Justice Statistics, Table 1.2.1.14 (downloadable here)—shows for 2011 the rates for robbery with a firearm, widely recognized by policymakers, judges, and others as a more serious crime than unarmed robbery or robbery with a less lethal weapon. FBI data from Crime in the United States, 2011, Table 19, allow a comparison with U.S. rates. Here are the rates (number of crimes reported per 100,000 residents) for robbery with a firearm for 2011: United States, 45.8; Germany, 4.3; France, 10.0; England/Wales, 4.5; and Spain, 4.3. (Italy did not report.) Thus, the U.S. rate was more than ten times higher than that in three of the four reporting European countries, and more than four times higher than in the other. So, just comparing overall robbery rates between the U.S. and European countries would obscure the fact that gun robberies are much more common in the United States. Thus it would not be surprising if compared to European countries the United States had a higher incarceration rate for robbery.

We know then that the United States has many more murders, rapes, and gun robberies per person than European nations. It likely also have more gun assaults. The FBI reports that in 2015 guns were used in 24% of aggravated assaults in the United States. Given how rare gun robberies are in Europe, it would not be surprising if gun assaults are also much less common there than in the United States.

These are compelling reasons why incarceration rates in the United States are considerably higher than in Europe. Nonetheless, it may well be that crime-for-crime, offenders in the United States are somewhat more likely to be sentenced to incarceration or to serve longer behind bars. Yet it is not obvious what the relevance of such a difference would be to American criminal justice policies. Europe has abolished the death penalty, but 31 American states retain it. But this hardly proves that Europe is right and the 31 American states are wrong. More than a few European nations punish murderers much less severely than does the United States. Anders Breivik killed 77 in Norway in 2011 and received a 21-year sentence, which will expire when he is 52 (though a special preventive detention provision of Norwegian law may allow his indefinite confinement if he is judged to be a continuing danger). Volkert van der Graaf assassinated the Dutch politician Pim Fortuyn during a political campaign in 2002 and though found to me of sound mind was sentenced to just 16 years in prison and was then freed after 12. He now lives as a free man in the Netherlands. Such punishments for mass murder and political assassination are inconceivable in the United States, even in the states without the death penalty. I have not heard any responsible public figure in the United States argue that we should take our direction in punishing murderers from Norway and the Netherlands.

Felon Disenfranchisement

From the Sentencing Project:

In this election year, the question of voting restrictions is once again receiving great public attention. This report is intended to update and expand our previous work on the scope and distribution of felony disenfranchisement in the United States (see Uggen, Shannon, and Manza 2012; Uggen and Manza 2002; Manza and Uggen 2006). The numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2016 election.

Our key findings include the following:

• As of 2016, an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased. There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.

• 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.

• The state of 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.

• Onein 13 African Americans of voting ageis disenfranchised, a rate morethan 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.

Education, Joblessness, and Incarceration

CBO reports:

In every year between 1980 and 2014, young men with less education were more likely than young men with more education to be jobless or incarcerated. During the recent recession and ensuing slow recovery, the gap widened between young men with a high school education or less and young men with some college education or more. Over the 35-year period, the rate of joblessness and incarceration for young men with only a high school education gradually came to resemble more closely the corresponding rate for young men without a high school education

Too Many Americans Behind Bars?

At Powerline, Paul Mirgengoff discusses the familiar claims that the United States puts too many people behind bars.

But are these claims rooted in fact? Not according to a paper by Michael Rushford, President & CEO of the Sacramento-based Criminal Justice Legal Foundation (via Crime and Consequences).

The statistical claim that we house nearly 25 percent of world prisoners is bogus, as one would expect from an outfit like the Centre that is funded by George Soros’ Open Society Foundation. In America, we report our prison population honestly and include folks who spend a few days in the country lock-up (data that often is unavailable from other countries, according to Rushford). Does anyone imagine that nations like China (with its 1.3 billion population), North Korea, and Iran report their prison numbers honestly?

As for the composition of U.S. prisoners, Rushford points out that drug offenders are in the minority, and the vast majority of such offenders were convicted of dealing.

87 percent of U.S. prisoners are in state prisons. According to the Department of Justice, 54 percent of state inmates are serving sentences for violent crimes; 19 percent for property crimes; and only 16 percent for drug offenses. Almost all inmates, particularly property and drug offenders, received a plea bargain, meaning they agreed to plead guilty to lesser crimes than they actually committed, again according to Rushford.

In federal prisons, nearly half the inmates (48.3 percent) are drug offenders. But, as noted, federal jails hold only 13 percent of U.S. prisoners. Rushford points to a study by the Urban Institute which found that 99.5 percent of drug offenders in federal prisons are dealers.

Spending on Students, Prisoners, and Medicaid Beneficiaries

Inside Higher Ed reports on a new study of higher education finance by the National Association of State Budget Officers.  One chart compares per-student expenditures with per-prisoner corrections funding and per-beneficiary Medicaid spending.

Religion Behind Bars

Tocqueville came to America to study its penitentiaries.  He reported on religious influences behind bars -- which continues today, as the Pew Research Center reports:

Professional prison chaplains see America's state penitentiaries as places bustling with religious activity, ranging from efforts by inmates to proselytize or convert other inmates to religious switching by prisoners.

In the view of the chaplains, religious counseling and other religion-based programming play an important role in rehabilitating prisoners.

More than seven-in-ten state prison chaplains say efforts by inmates to convert others are very or somewhat common. About three-quarters of them report that a lot or some religious switching occurs among inmates, and they note growth in the numbers of Muslims and Protestant Christians in particular as a result of this switching. Nearly three-quarters of the chaplains surveyed say they consider access to religion-related programs in prison to be "absolutely critical" to successful rehabilitation of inmates.

A sizable minority of chaplains say that religious extremism is either very or somewhat common among inmates, but an overwhelming majority report that religious extremism seldom poses a threat to the security of the facility in which they work

Felon Voting

In our chapters on civil rights and political participation, we discuss laws that forbid voting by felons. In the case of Farrakhan v. Gregoire, a three-judge panel of the Ninth Circuit Court of Appeals has ruled that a Washington State law disenfranchising prisoners runs afoul of the federal Voting Rights Act.  AP reports:

The issues the ruling raises about racial bias in the justice system are not unique to Washington state, said Marc Mauer, executive director of The Sentencing Project, a Washington, D.C., group promoting sentencing reform.

"They are issues that permeate the justice system and are relevant in every state," he said.

Mauer said that an estimated 5.3 million people nationwide are ineligible to vote because of a felony conviction.

Tuesday's court's ruling is "an embarrassment," said Trent England, a policy director at Evergreen Freedom Foundation, a conservative think tank in Washington state.

"It flies in the face of precedent," he said. "Not only is felon disenfranchisement constitutional but it's good policy. People who commit the most heinous crimes should be deprived of their voice in our system of government at least for a time."