Tag Archives: recidivism

Licensed by the Government of the United Nations… – Update for November 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In 1950, only one out of 20 jobs in America required a license. Today, the number has swollen to one out of four. Unsurprisingly, most of those licenses are denied to anyone with a criminal record.

spangler1711309Remember Carl Spangler, the demented assistant greens-keeper in Caddyshack, muttering about how he was “licensed by the Government of the United Nations, to kill gophers?” “Gopher shooter” is still not a licensed occupation (although possession of the sniper rifle Carl tried to use to kill the varmint could be problematic for a person with a criminal record). However, in a detailed study just released by the free market-leaning Institute of Justice, 102 other lower-income occupations were subject to licensing in many states.

The study ranked states according to the number of occupations (like tree trimmer, hair weaver, crane operator or bartender) subject to license, and how tough getting the licenses can be. Louisiana, Washington and California license the most; Vermont, Wyoming, Montana and South Dakota the least.

When it comes to the burdens states impose on would-be workers, however, Hawaii tops the list, requiring an average of almost 988 days in education and experience, more than $430 in fees, almost two exams, and grade and age requirements for the 63 occupations it licenses. Nevada is not far behind, with California, Arizona and Florida rounding out the top five.

dogirish171130The Report specifically noted the burden over-licensing places on people with criminal records. Noting that about “one in three adults has a prior arrest or conviction on their record,” criminal record prohibitions in licensing “likely affects a sizable share of the workforce.” The Report said, “Limiting employment opportunities not only hurts those with criminal records, it also puts communities at risk by making it tempting for former offenders to fall back into crime.5 Indeed, research has found a relationship between higher rates of recidivism and heavy licensing burdens… Between 1997 and 2007, recidivism rates grew by more than 9% in states with the heaviest licensing burdens and shrank by 2.5% in states with the lowest licensing burdens.”

Institute for Justice, License to Work: A National Study of Burdens from Occupational Licensing (Nov. 14, 2017)

– Thomas L. Root


Teacher, We Hardly Knew Ye: BOP School System is Stillborn – Update for May 24, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Alice Cooper is apparently next in line to run the Bureau of Prisons, nascent educational system, launched with great fanfare last fall. Last week, the BOP quietly fired a Texas education specialist it had hired last November to serve as the first “superintendent” of the BOP’s school system.

schoolsout170525The BOP brought on Amy Lopez last year to overhaul educational programs for prisoners, intending to ease their re-entry into society and reduce recidivism. In her position, she would have managed a “semi-autonomous school district within the federal prison system,” with the goal of giving prisoners the opportunity to earn their high school diploma and pursue post-secondary studies.

Lopez was fired last week, leaving the future of the reform efforts rather precarious.

“They’re shitcanning it,” a person who worked on the prison reform efforts told Huffington Post last week. “It’s tragic. This is really tragic.” Another unidentified person familiar with the status of the program said the school system plan had been quietly “canned or placed on hold.”

Lopez has not yet commented on her dismissal, and DOJ referred questions to the BOP. Last Friday, a BOP spokeswoman said the agency had “no announcements or updates regarding our programs at this time.”

The plan last fall when the BOP hired Lopez, an experienced prison educator, was for her to serve as superintendent of federal prison schools. Each inmate would get assessed upon entering the system, with an individualized plan developed for each prisoner that would include everything from remedial reading and plans to address learning disabilities, to earning a high school diploma.

warehouse170525But neither President Trump nor Attorney General Jefferson Beauregard Sessions III supports such an effort. In October 2015 congressional hearing on sentencing laws and the prison system, Sessions (then a senator) said he questioned the necessity of educational programs. “Do you think… nobody’s ever tried a program to reduce recidivism?” he asked. “My observation over the years of attempts to have education and other kind of character-building programs in prison before they’re released doesn’t seem to have much benefit.”

Former Deputy Attorney General Sally Yates said last fall that she believed the incoming administration would nonetheless maintain the new changes. She said research showed that inmates participating in prison education programs had 43% lower odds of returning to prison than those who did not, and that would mean cost savings for the Bureau Of Prisons.

“It’s smart from a public safety standpoint, and it’s less expensive,” Yates said.

beating170525Yates’ optimism appears to have been misplaced, her statistical evidence being no match for Sessions’ “observation over the years.” Yates, who was largely driving the prison reform initiative, said in a press release in November that the changes would “make our prisons more effective” and reduce recidivism ― and therefore prevent crime by “equipping inmates with the tools they need to successfully reenter society.”

A 2015 study reported that about one-third of students with learning disabilities were arrested within five years of the end of high school. The Yates plan had included more opportunities for inmates with learning disabilities and a pilot program in which inmates would be given customized tablets for online education.

But Attorney General Sessions knows best, and studies are no match for what he knows to be true.

Huffington Post, Federal Bureau Of Prisons Fires Head Of An Obama-Era Education Effort, Putting Reform Under Trump In Doubt (May 29, 2017)

Washington Post, The Justice Department just unveiled new prison reforms. But the Trump administration might scrap them (November 30, 2016)

– Thomas L. Root


Lies, Damn Lies and Statistics… Update for March 10, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Besides the obvious fact that society abhors sex crimes against children – including the possession of kiddie porn – one of the rationales for handing out Draconian sentences to defendants convicted of such offenses is that they pose such a danger to the public if they’re roaming free.

Everyone knows that’s true. After all, the Supreme Court itself has recognized that an “frightening and high” percentage of untreated child porn offenders “re-offend” – which is sociologist-speak for “commits the same crime again” – after release. The statistic everyone loves to cite is 80%.

roach170310Except it now appears that the statistic is wrong. But like roaches at the Roach Motel, the “alternate fact” has checked into federal jurisprudence, and it shows no sign of checking out.

A New York Times article published last Monday took the State of North Carolina to task for an argument its attorney made during the Supreme Court oral argument the week before in Packingham v. North Carolina. “This court has recognized that [sex offenders] have a high rate of recidivism and are very likely to do this again,” attorney Robert C. Montgomery told the court during his defense of a state law that bars sex offenders from using social media services.

Attorney Montgomery was literally correct. The Supreme Court observed in a 2003 decision, Smith v. Doe, that the risk that sex offenders will commit new crimes is “frightening and high.” The Times said the holding, in a decision affirming Alaska’s sex offender registration law, has been “exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.”

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited McKune v. Lile, a decision from the year before, which noted that “[t]he rate of recidivism of untreated offenders has been estimated to be as high as 80 percent.” That decision cited a 1988 Justice Department study entitled A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender, which was a collection of studies by experts in the field. Ironically, most of the recidivism rates cited in the Guide showed slight recidivism rates for sex offenders. One source, however, claimed an 80% re-offense rate, a number that the Guide itself cautioned might be an outlier.

80pct170310That source was a 1988 article published in the popular trade magazine Psychology Today. The Psychology Today piece simply asserted that “most untreated sex offenders released from prison go on to commit more offenses – indeed, as many as 80% do.” This statistic was not supported by any empirical evidence. In a recent Boston College Law Review article, Dr. Melissa Hamilton (who is both a criminologist and a lawyer) writes, “The Psychology Today authors were therapists in a sex offender treatment program with no apparent academic research credentials or statistical training. Evidently, the authors’ “statistic” was simply based on personal observations from their local treatment program.”

Hamilton argues that

In sum, a principal foundation on which the Supreme Court approved the existence of specialized sex offender policies rested upon virtually no scientific grounds showing that sex offenders are actually at high risk of reoffending. Unfortunately, the Supreme Court’s scientifically dubious guidance on the actual risk of recidivism that sex offenders pose has been unquestionably repeated by almost all other lower courts that have upheld the public safety need for targeted sex offender restrictions.

That may soon change. Pending before the Supreme Court is a petition for writ of certiorari in Doe v. Snyder, the 6th Circuit’s maverick decision to reject the “frightening and high” recidivism canard, in holding that Michigan’s civil sex offender law is unconstitutional. Hamilton argues that “Snyder’s engagement with scientific evidence has the potential to change the jurisprudence surrounding sex offender laws.”

reoffend130310With the Doe v. Snyder certiorari issue to be decided in the next few weeks, the argument against the 80% figure gain traction yesterday with a U.S. Sentencing Commission release of The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders. The study, which is third in a USSC series on the topic, reported that persons convicted of child pornography had a recidivism rate of 37.6%, lower than any other category of offense except economic crimes (which, at 35.9%, was almost indistinguishable). Violent crime offenders, by contrast, reoffended at a 64.1% rate, and drug traffickers at a 50.0% rate.

lies170310Benjamin Disraeli (or Mark Twain, no one’s really sure) famously said, “There are three kinds of lies: lies, damned lies, and statistics.” He has a “frightening and high” 80% chance of being right.

New York Times, Did the Supreme Court Base a Ruling on a Myth? (Mar. 6, 2017)

Hamilton, Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 58:E.Supp Boston College Law Review, (2017)

U.S. Sentencing Commission, The Past Predicts the Future: Criminal History & Recidivism of Federal Offenders (Mar. 9, 2017)

– Thomas L. Root


Sentencing Commission Issues Comprehensive Drug Recidivism Study – Update for February 23, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


A 149-page report issued Tuesday by the U.S. Sentencing Commission offers a fascinating, data-filled glimpse into recidivism by federal drug offenders.

shawshank161117First, our criticism: the data are drawn from 10,000+ federal drug offenders who were either released or placed on probation during 2005. While a study on recidivism necessarily has to watch a cohort of people over a period of years, a lot has happened since 2005 that may change the accuracy of some of the findings.

For example, the study showed that among the 2005 releasees, methamphetamine offenses constituted just under 17% of all offenses. By 2015, about 31% of all drug offenders were methheads. The other concern is that all of the releasees would have been sentenced before United States v. Booker, and thus had mandatory Guidelines sentences. That leaves unanswered the question whether non-mandatory Guidelines sentences have a different influence on drug offender recidivism than did the old regime of mandatory Guidelines sentences.

offenderages170223But our concerns do not materially lessen the benefit that the Report’s wealth of data confers on the sentencing debate. The overall finding is sobering: over an 8-year period, one half of the 2005 group of federal drug trafficking were rearrested for a new crime or a violation of supervised release conditions.

Some other findings:

• Crack cocaine offenders had the highest rate (61%) of recidivism of any drug type, while powder cocaine offenders had the lowest rate (44%);

• The median time from release to the first recidivism event was 25 months;

• Nearly one-fourth (24%) of recidivist drug trafficking offenders had assault as their most serious new charge, followed by drug trafficking and public order offenses at about 15% apiece;

offenderages170223• A drug trafficking offender’s criminal history was closely associated with the likelihood of recidivism, from a recidivism rate of 35% for offenders with no prior criminal history, to 77% for offenders in the highest criminal history. Interestingly, the Guidelines “career offenders” – whom policy dictates are supposed to represent the hardest-core offenders – had a recidivism rate of 63%, lower than three of the six other criminal history ranges;

• A federal drug trafficking offender’s age at time of release was closely associated with likelihood of recidivism. Drug trafficking offenders released prior to age 21 had the highest recidivism rate at 65%, while drug trafficking offenders over 60 years old at the time of release apparently retired, with a recidivism rate of only 16.5%;

• There is little apparent association between the length of imprisonment and recidivism for drug trafficking offenders overall, a finding that supports other studies suggesting that no prison sentence over 5 years has any greater deterrent effect than a 5-year term. However, once criminal history is accounted for, length of imprisonment is associated with lower rates of recidivism (probably because of the older age of the prisoner when released).

• Federal drug trafficking offenders had a substantially lower recidivism rate compared to state drug offenders released around the same time. Over 76% of state drug offenders released from prison were rearrested within five years, compared to 42% of federal drug trafficking offenders released over the same five-year period.

The Report includes chapters breaking down the numbers according to the types of drugs in the offenders’ cases.

rearrestbysent170223There’s plenty of data in the Report for everyone. While only being released two days as of this writing, the Report is already being used by one inmate going back for resentencing and another 60+-year old offender on supervised release who wants the court to end his supervision early.

United States Sentencing Commission, Recidivism Among Federal Drug Trafficking Offenders (February 21, 2017)

– Thomas L. Root