By Nazgol Ghandnoosh, Emma Stammen and Connie Budaci

In San Joaquin County, California in 2010, 19-year-old Emmanuel Mendoza helped lure a robbery victim to a location where a masked accomplice waited with a firearm. When a struggle with the victim over the firearm ensued, Mendoza’s accomplice fired a fatal shot. Although Mendoza did not have a weapon and the killing had not been planned, he was convicted of felony murder with special circumstances, and automatically sentenced to life without parole (LWOP). In prison, he ended his gang affiliation and mentored others to do the same, earned a GED and associate degree, embraced his faith, and has been an active father to his three children. “I understand that at the end of the day someone lost their life,” Mendoza says. “Our plan that night wasn’t to kill anyone. I can’t take it back. But I also feel that it was a huge injustice to not be given an attempt at freedom.” Murder typically refers to an intentional killing. But “felony murder” laws hold people like Mendoza liable for murder if they participated in a felony, such as a robbery, that resulted in someone’s death. These laws impose sentences associated with murder on people who neither intended to kill nor anticipated a death, and even on those who did not participate in the killing. As such, they violate the principle of proportional sentencing, which is supposed to punish crimes based on their severity. These excessively punitive outcomes violate widely shared perceptions of justice. With one in seven people in U.S. prisons serving a life sentence, ending mass incarceration requires bold action to reduce extreme prison terms such as those prescribed for felony murder. These laws run counter to public safety, fiscal responsibility, and justice. Although other countries have largely rejected the felony murder doctrine, 48 states, the District of Columbia, and the federal government still use these laws. The only two states that do not have felony murder laws are Hawaii and Kentucky. Seven other states require some proof of intentionality regarding the killing to consider it murder, though the use of a gun—or mere knowledge of a co-defendant’s gun use—satisfies this requirement in some jurisdictions. In any case, all felony murder laws use the underlying felony to either a) treat as murder a killing that would not have otherwise been considered murder, or b) increase the gradation of murder, such as from second to first degree.

Washington, DC: The Sentencing Project, 2022. 36p.

By Marie Manikis and Nicholas Doiron

The continuous perpetration of unjustified harms by the carceral state through its use of solitary confinement justifies the creation of a novel process of automatic sentence review. This process is necessary to account for such state-perpetrated harms and communicate censure more accurately. This article proposes the use of a communicative theory of punishment developed in sentencing to characterise and account for the state’s wrongdoing and harms in the context of a sentence that involves solitary confinement. Specifically, it outlines a justification for an automatic review process of the offender’s carceral sentence based on an expanded and relational understanding of censure developed in the literature and proposes a two-step process to implement this review.

(2024) 26:1 Punishment & Society 72-90.

By  Paul H. Robinson and  Jeffrey Seaman

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended. This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices. A more accurate understanding is needed to produce effective reform.The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s. This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more. While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s—a fact in direct conflict with the mass incarceration narrative. Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice. While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad. It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally. For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.This Article is not pro-incarceration. It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary. The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions. The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment—a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.Part I of the Article describes the mass incarceration myths that have become so broadly accepted. Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative. Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness

U of Penn Law School, Public Law Research Paper No. 24-04

By Christian Dippel and  Michael Poyker

Using a newly constructed complete monthly panel of private and public state prisons, we ask whether the presence of private prisons impact judges’ sentencing decisions in their state. We employ two identification strategies, a difference-in-difference strategy that compares only court-pairs that straddle state-borders, and an event study using the full data. We find that the opening of a private prison has a small but statistically significant and robust effect on sentence length, while public prisons do not. The effect is entirely driven by changes in sentencing in the first two months after prison openings. The combined evidence appears inconsistent with the hypothesis that private prisons may directly influence judges; instead a simple salience explanation may be the most plausible. 

The Journal of Law and Economics, Volume 66, Number 3, 2023. 52p

By Nicholas Goldrosen, Christian Michael Smith, Maria-Veronica Ciocanel, Rebecca Santorella, Shilad Sen, Shawn Bushway, Chad M. Topaz

Substantial race-based disparities exist in federal criminal sentencing. We analyze 380,000 recent (2006–2019) sentences in the JUSTFAIR database and show that these disparities are large and vary considerably across judges. Judges assign White defendants sentences 13% shorter than Black defendants' and 19% shorter than Hispanic defendants' sentences, on average, conditional on case characteristics and district. Judges one standard deviation above average in their estimated Black-White disparity give Black defendants sentences 39% conditionally longer than White defendants' sentences, vis-à-vis average disparity of 13%. Judges one standard deviation above average in their estimated Hispanic-White disparity give Hispanic defendants sentences 49% conditionally longer than White defendants' sentences, compared to the average disparity of 19%.

Journal of Institutional and Theoretical Economics, Volume 179, Issue 1, pages 92–113 (March 2023)

By Hayli Millar, Yvon Dandurand, Vivienne Chin, Shawn Bayes, Megan Capp, Richard Fowler, Jessica Jahn, Barbara Pickering, and Allan Castle

This Overview forms part of a broader project on the Best Interests of the Child in Sentencing and Other Decisions Concerning Parents Facing Criminal Sanctions, made possible through the support of a generous project grant from the Vancouver Foundation. The broader project’s objective is to instigate and support a systemic and cultural change in the way that the best interests of the child are considered by defence counsel, the prosecution and the courts. The ultimate intention is to mitigate the negative impact on the child of a parent facing criminal sanctions, especially when the parent/legal guardian is a primary or sole caregiver. The motivation for this work is the general lack of attention directed towards the best interests of dependent children whose parents are before the criminal courts, despite a wide range of international and regional norms and standards which suggest that domestic criminal courts are obliged to take the rights and best interests of dependent children into account as a primary consideration when making bail and sentencing decisions. This lack of attention persists despite all that is known about the negative influence of parental criminal sentences, and in particular incarceration, on children. This Overview is intended specifically to encourage active consideration of child impact and family impact at time of sentencing and other court decisions, principally by prosecutors and judges but also all those with influence in criminal proceedings, to avoid the potentially negative impacts of those decisions. A broader purpose is to raise awareness about these issues more generally, and to assist the reader in identifying practices which serve to diminish consideration of the best interests of the child, where these exist. More generally, the Overview is intended to influence policy change, to encourage greater availability of non-carceral or community-based alternatives to incarceration for people with parental responsibilities, and to support parents in mitigating the impact of their own sentencing and court order compliance on their children. The recommendations in this Overview are intended to stir productive discussion. Our efforts will have been successful if this document encourages subject matter experts and decision makers holding positions of responsibility in the criminal process to consider how the best interests of the child may most suitably and effectively be incorporated into decisions and orders of the criminal courts.

Vancouver: International Centre for Criminal Law Reform and Criminal Justice Policy, 2023. 56p.

By Hilde T. Werminka, A. A. J. Bloklanda,b, J. Beenc, P. M. Schuyt, . N. Tollenaare and R. Apel;

Noncustodial sanctions may present an attractive way to reduce the prison population rate, but only when noncustodial sanc-tions meet custodial ones in terms of deterring recidivism. Using administrative criminal records data of all individuals convicted in the Netherlands in 2012, this study examines the effects of short-term imprisonment versus noncustodial sanctions on crime. We employ an instrumental variables approach to account for selection processes and to produce consistent estimates of the effects of imprisonment. Findings indicate that being sentenced to prison rather than a noncustodial sanction increases the prevalence of recidivism by 10 percentage points and increases recidivism rates by 1.07 registered crimes during a follow-up period of three years. Treatment effect heterogeneity analyses show that the detri-mental impact of imprisonment is most pronounced for first-time prisoners, and adult offenders, compared to repeat prisoners and young adult offenders.IntroductionReducing the prison population is one of the biggest challenges faced in the criminal justice system across countries worldwide. There are many good reasons to exercise restraint when it comes to imprisonment. For one, imprisoning people is an expensive enterprise, and the costs of imprisonment typically weigh heavy on the criminal justice budget (e.g. Phelps & Pager, 2016). To the extent that imprisonment maintains or even increases marginalization of the imprisoned population following their release, these direct costs may be dwarfed by imprisonment’s indirect societal costs

Justice Quarterly, April 2023.

By The United States Sentencing Commission

This report updates and expands upon the Commission's 2012 Report to the Congress: Federal Child Pornography Offenses. In this report, the Commission provides data from fiscal year 2019 regarding:

• the content of the offender’s child pornography collection and nature of the offender’s collecting behavior;

• the offender’s degree of involvement with other offenders, particularly in an internet community devoted to child pornography and child sexual exploitation; and

• the offender’s engagement in sexually abusive or exploitative conduct in addition to the child pornography offense.

The report also examines the evolution of technology since the 2012 Child Pornography Report its continued impact on offender conduct and the widespread applicability of sentencing enhancements. Lastly, it provides a recidivism analysis of non-production offenders.

Washington, DC: USSC, 2021. 94p.

By Jacqueline Beard

Sentences of Imprisonment for Public Protection (IPP sentences) were available for courts to impose from 2005 to 2012. They were designed to detain offenders who posed a significant risk of causing serious harm to the public through further serious offences in prison until they no longer posed such a risk. IPP sentences are indeterminate as opposed to fixed-term sentences. They have a minimum term that must be served in custody, sometimes called a ‘tariff’ that must be served before a prisoner can be considered for release by the Parole Board. The prisoner can then only be released once the Parole Board is satisfied the prisoner no longer needs to be confined for the safety of the public. Release is never automatic, and prisoners can be detained indefinitely if the Parole Board decides it is not safe to release them. When released, a person serving an IPP sentence will be on licence, subject to conditions. Breaching the conditions of the licence may result in the person being recalled to prison. If recalled, a person must remain in prison until the Parole Board is satisfied that custody is no longer necessary for public protection. The licence will be in force indefinitely until its termination. People serving an IPP sentence are eligible to have termination of their licence considered by the Parole Board ten years after their first release.

London: House of Commons Library, 2023. 22p.

By  Lauren Knoth-Peterson, Katelyn Kelley 

In Washington State, some individuals convicted of a criminal offense may be eligible to receive a Drug Offender Sentencing Alternative (DOSA) in lieu of the standard incarceration sentence. Using administrative data from the Department of Corrections and WSIPP’s Criminal History Database, this study examined whether individuals participating in prison or residential DOSA were less likely to recidivate compared to similar individuals who received a non-DOSA sentence. Our findings indicate the prison DOSA reduces the likelihood of recidivism by 6.9 percentage points. These reductions in recidivism were consistent across subgroups by sex, race, and ethnicity. Our findings for residential DOSA were less conclusive. In general, residential DOSA had no effect on the likelihood of recidivism compared to a standard sentence. While we provide several potential explanations for the differences in the effectiveness of prison and residential DOSA, future research is needed to fully understand the mechanisms by which the two DOSA programs impact individuals’ outcomes, including recidivism.

Olympia: Washington State Institute for Public Policy 2022. 32p.