Category: Scholarly articles

Study: Texas diversion provides dramatic benefits for people facing their first felony

NOTE: In light of renewed interest in state legislatures in judicially-administered diversion and deferred adjudication programs, we are re-publishing our 2021 report on a remarkable study of deferred adjudication in Texas by researchers Michael Mueller-Smith and Kevin Schnepel. We noted at the time that “The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction.

by Margaret Love and David Schlussel (Feb 23, 2021).

Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record.

Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now.

By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect.

Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists.

Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder.

The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates.

For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.”

The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.”

Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers.

Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course.

Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers:

Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform.

The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction.

Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753.

Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.

A closer look at racial disparities in California’s automatic record clearing

Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans.

The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups.

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Racial disparity in clean slate record clearing? California responds

Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing “can inadvertently perpetuate racial inequity within the criminal justice system.”

This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons:  Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that “to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded.”

The California legislature seems to have anticipated the recommendations in this report,  for on August 18 it enrolled and sent to Governor Newsom’s desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California’s “clean slate” law by far the most extensive in the country.

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How Europe manages access to criminal records – a model for U.S. reformers

We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy.

For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant.

Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.

Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners.

Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books:

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“Public opinion and the politics of collateral consequence policies”

The title of this post is the title of an intriguing new academic article by Travis Johnston and Kevin H. Wozniak of the University of Massachusetts, Boston.  The two find “little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies.” Here is the abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment. We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals. These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

A link to the article is here.

“The Future of the President’s Pardon Power”

A blue textured circle overlaps a red circle with white and red text overlay that reads The Future of the President's Pardon Power, 2021 Clemency Panel Series

The Collateral Consequences Resource Center is pleased to announce a series of online panels on successive Tuesdays in September, starting on September 14, that will explore in depth the use of the pardon power by President Donald Trump, and how it both reflects recent trends in pardoning and is likely to influence pardoning in the future.

The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power.  The second panel, on September 21, will consider whether Trump’s pardons may prompt much-needed reforms in sentencing law and practice.  The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters.

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“After Trump: The Future of the President’s Pardon Power”

M_fsr.2021.33.5.coverThis is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue’s introduction, FSR is continuing its tradition of exploring each president’s pardoning practices at the end of their term:

This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

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New collection of research on sex offense registration

Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding sex offense registration and community notification (SORN).  Since SORN’s origin in the early 1990s, basic questions have existed regarding its effects, including whether it actually achieves its intended purpose of reducing sexual offending.

SORN surely numbers among the most significant social control methods of the past several decades.  Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach.

An updated review of caselaw from Professor Logan on SORN and other collateral consequences triggered primarily by sex offenses will be included in the forthcoming fourth edition of Love, Roberts & Logan, Collateral Consequences of Arrest & Conviction: Law Policy & Practice (West/NACDL, 4th ed. 2021). Also, as readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification. (We plan a post about the MPC’s important new model in the near future.)

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“Tribal Pardons: A Comparative Study”

This is the title of a fascinating new working paper by Andrew Novak, Assistant Professor of Criminology, Law and Society at George Mason University, about a little-studied issue: collateral consequences of tribal convictions and how they are mitigated or avoided.  This is an important topic not currently addressed in our national resources on restoration of rights and record relief.  Here is the abstract:

This paper surveys American Indian tribal justice systems to assess whether collateral consequences attach to convictions and whether a pardon or expungement process exists to remove tribal convictions. Tribal criminal jurisdiction is often limited to lesser crimes and only those occurring on a reservation by members of the tribe; with exceptions, other cases are transferred to U.S. state or federal court. The framework of the tribal pardon power varies widely across jurisdictions: it may be exercised by a tribal executive, a tribal legislature or council, a specially appointed pardons board or committee, a vote of the tribal membership, or some combination of the above. Some jurisdictions instead have a traditional peacemaking, forgiveness, or reconciliation ritual process in lieu of a true pardon or expungement process.

Many Indian tribes impose collateral consequences for convictions both in tribal court and in state or federal court. Most commonly, these consequences restrict tribal membership and rights, including the right to vote in tribal elections or hold tribal office, but they may extend to housing, gaming licenses, tribal employment, and other areas. Many tribal jurisdictions do not have a pardon or expungement process, despite having collateral consequences attach to convictions. Several tribal courts have considered whether their tribal constitutions create an implied pardon power where one is not specifically provided for in tribal law. As a normative matter, this paper takes the position that tribal jurisdictions should have a pardon or expungement process (or its equivalent in indigenous law) where collateral consequences attach to conviction.

The draft of this working paper is available here.

“Certifying Second Chances”

This is the title of a provocative new article by Cara Suvall, Assistant Clinical Professor of Law at Vanderbilt Law School, and Director of the Youth Opportunity Clinic.  The article, forthcoming in the Cardozo Law Review, catalogues and analyzes the costs and burdens that deter people from accessing certificates intended to enhance employment opportunities.  Professor Suvall focuses particular attention on certificate programs in Tennessee, Georgia, and New York, which vary widely in eligibility criteria, administration, and legal effect.  She highlights the learning, compliance, and psychological barriers that limit effectiveness of existing certificate programs, and describes proposals to lower those barriers.

Here is the abstract:

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers.

Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogues and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit in to the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.

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