February 2, 2010
"A Law for the Sex Offenders Under a Miami Bridge"
The title of this post is the headline of this new piece in Time magazine, which discusses broadly the issue of sex offender residency restrictions. Here are excerpts:
The Julia Tuttle Causeway is one of Miami's most beautiful bridge spans, connecting the city to Miami Beach through palm-tree-filled islands fringed with red mangroves. But beneath the tranquil expanse sits one of South Florida's most contentious social problems: a large colony of convicted sex offenders, thrown into homelessness in recent years by draconian residency restrictions that leave them scant available or affordable housing....
Miami is hardly the only place in the U.S. where registered sex offenders can't find shelter. In Georgia, a group living in tents in the woods near Atlanta was recently ordered out of even that refuge. But the Miami shantytown, with as many as 70 residents, is the largest of its kind, thanks to a frenzied wave of local laws passed in Florida after the grisly 2005 rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender....
But with the disturbing bridge colony putting Miami under increased national scrutiny — it has managed the improbable feat of arousing sympathy for pedophiles — Miami-Dade County hopes to return some sanity to the issue. A new law takes effect on Monday that supersedes the county's 24 municipal ordinances, many of which make it all but impossible for offenders to find housing. It keeps the 2,500-feet restriction, but applies it only to schools. It also sets a 300-foot restriction to keep offenders from loitering near anyplace where children gather, which many experts call a more practical solution than harsh residency restrictions.
County officials, as well as the American Civil Liberties Union, hope the law will prod states and perhaps even the U.S. Congress to craft more-uniform laws to prevent the kind of residency-restriction arms race that Florida let local governments wage. "The safety of Floridians has suffered as local politicians have tried to one-up each other with policies that have resulted in colonies of homeless sex offenders left to roam our streets," says state senator Dave Aronberg, a Democrat running for state attorney general. The excessive rules, he adds, "have the effect of driving offenders underground and off law enforcement's radar."...
Ironically, it was one of residency restrictions' fiercest proponents who helped push the softer Miami-Dade law through the county commission. Ron Book, a powerful Florida lobbyist, began his crusade for tougher residency laws after discovering that his daughter was molested by a nanny for years. Now, realizing that homelessness makes offenders potentially more dangerous, Book has shifted his campaign to the kind of child-safety, no-loitering zones that are built into the Miami-Dade measure. "Child-safety zones [should] have been a critical component of what we did [before]," says Book. "We just didn't think of them."...
Research by agencies like the Minnesota Department of Corrections has found that a stable home is the strongest guarantor of sound post-incarceration behavior among sex offenders. What's more, Jill Levenson, an expert on sex offenders, says the no-loitering zones are more effective than unreasonable residency restrictions aimed at keeping predators away from kids.
February 1, 2010
DOJ budget request for FY 2011 suggests it is not tightening its belt
Available today from the US Department of Justice's website is this new press release titled "Department of Justice FY 2011 Budget Request." These parts of the text of the release suggests that the talk of a spending freeze is not applicable to even the regular law enforcement activities of the federal government:
Attorney General Eric Holder announced today that President Obama’s Fiscal Year (FY) 2011 budget proposal totals $29.2 billion for the Department of Justice (DOJ) to increase support for the department’s national security and traditional law enforcement missions, renewed focus on economic crime and financial fraud, while strengthening state, local and tribal public safety efforts. The request represents a 5.4 percent increase in budget authority and an increase of 2,880 positions over the FY 2010 enacted appropriation....
FY 2011 program increases and key priorities include:
- $300.6 million increase to strengthen national security and counter the threat of terrorism;
- $234.6 million increase to defend the interests of the United States, including fighting financial fraud;
- $121.9 million increase to reduce violent crime and drug trafficking;
- $722.5 million increase to assist state, local and tribal law enforcement, including the Adam Walsh Act;
- $19.8 million increase to protect civil rights and vulnerable populations;
- $15 million increase to combat international organized crime;
- $527.5 million increase to maintain prisons, detention and parole services and judicial and courthouse security;
- $11 million increase to enforce immigration laws; and
- $448.8 million in total resources to ensure public safety in Indian Country.
The items I have highlighted here strike me as especially disappointing in light of all the talk of belt-tightening in the President's State of the Union Address last week. As I suggested before, I thought regular criminal justice issue would be part of this pledge in the SotU:
Starting in 2011, we are prepared to freeze government spending for three years. Spending related to our national security, Medicare, Medicaid, and Social Security will not be affected. But all other discretionary government programs will. Like any cash-strapped family, we will work within a budget to invest in what we need and sacrifice what we don't.
Especially given that crime rates are hitting record lows, and also given that there are good reasons to believe that crime-fighting resources are always best invested at the local level, it is especially troublesome to see DOJ seeking an increase in funding of almost $1,000,000,000 for growing the federal criminal justice system in FY 2011 on top of seeking another increase of nearly $750,000,000 in federal dollars in order to grow state, local and tribal criminal justice systems.
Given that the federal government is truly cash-strapped, where is the evidence that "we need" to invest close to two billion federal taxpayer dollars in growing the size of our nation's various criminal justice systems? I fully understand both the political and practical disinclination to cut criminal justice spending even when crime is declining. But what sound basis is there for continuing to grow a federal criminal justice system that is already at a record size?
Some recent related posts:
- How could (or should) proposed spending freeze impact federal crime and punishment?
- President Obama's 2011 budget includes money for obtaining Illinois prison
- The state of cost problems in the states of prison nation
- How many states are being forced by economic realities to consider releasing prisoners?
- Will we invest in classrooms or cells in these tough times?
- Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
Third Circuit approves Delaware's lethal injection protocol
A unanimous panel of the Third Circuit today rejected constitutional challenges to Delaware's lethal injection protocol. Here is how the ruling in Jackson v. Danberg, No. 09-1925 (3d Cir. Feb. 1, 2010) (available here), gets started:
This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court’s highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky’s lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware’s protocol presents no such risk. Accordingly, we will affirm the District Court’s grant of summary judgment for Delaware and dissolve the District Court’s stay.
This local press report about the ruling provides some details about the possible practical consequences of this decision:
This appears to mean that Delaware can almost immediately resume executions, which have been on hold since 2006 when the lawsuit alleging that the state's method of execution presented an unconstitutionally unnecessary risk of pain and suffering by the condemned.
Attorney General Beau Biden issued a statement saying that executions in Delaware will move forward, and that Superior Court judges can begin to schedule executions as appropriate. There are 18 inmates on Delaware's death row.
California Supreme Court rejects most challenges to state's residency restrictions for sex offendersIn this post at How Appealing, Howard Bashman provides links to major media coverage of today's big ruling from the California Supreme Court concerning the state's residency restrictions for sex offenders. Here are snippets from this Los Angeles Times coverage of the ruling:
The California Supreme Court ruled Monday that residency requirements for sex offenders imposed by "Jessica's Law," passed overwhelmingly by voters in 2006, can be applied retroactively to offenders convicted before the measure's passage.
But the 5-2 decision also made it possible for registered sex offenders to challenge the law's residency requirement when they are paroled to places where it is impossible to avoid living near parks and schools.
The decision rejected several constitutional challenges brought by four parolees who contended they would be forced to leave their homes and families if subject to Proposition 83's residency requirements, which bar registered sex offenders from living within 2,000 feet of any public or private school or park where children regularly gather.
Proposition 83, passed by 70% of voters, makes it impossible for some registered sex offenders to live in densely populated cities. Nearly all of San Francisco is off-limits to them because of the number of parks and schools close to housing....
Justice Carlos R. Moreno, joined by Justice Joyce L. Kennard, dissented, arguing that Proposition 83 contained no language making it retroactive. Moreno also noted that the purpose of the law was to protect children, and two of the four parolees challenging it had not committed crimes against children.
The full ruling in In re EJ is available at this link, and here are snippets from the start of the majority opinion:
We have determined that petitioners‟ retroactivity and ex post facto claims, common to all four petitioners, can be addressed on the record currently before us. We conclude they lack merit and must be denied.
Petitioners' remaining claims — that section 3003.5(b) is an unreasonable, vague and overbroad parole condition that infringes on a number of their fundamental constitutional rights — present considerably more complex “as applied” challenges to the enforcement of the new residency restrictions in the respective jurisdictions to which each petitioner has been paroled. Petitioners are not all similarly situated with regard to their paroles. They have been paroled to different cities and counties within the state, and the extent of housing in compliance with section 3003.5(b) available to them during their terms of parole — a matter critical to deciding the merits of their “as applied” constitutional challenges — is not factually established on the declarations and materials appended to their petition and traverse. With regard to petitioners' remaining constitutional claims, evidentiary hearings will therefore have to be conducted to establish the relevant facts necessary to decide each claim.
Will President Obama take pot legalization question seriously in YouTube interview?As detailed in this blog post at CitizenTube, President Obama is doing a YouTube interview this afternoon:
Today at 1:45 pm EST, President Obama will participate in a unique interview at the White House in which you get to ask the questions -- and have a say in which questions will be asked. For the past five days, since the President's State of the Union speech, people across the country have been submitting and voting on video and text questions in our Moderator platform on CitizenTube. Looking at your votes, we've scoured through the top tier of the over 11,000 questions -- and we'll bring as many as we can to the President today. The event will be live-streamed on CitizenTube (youtube.com/citizentube).
I heard a report that questions about the legalization and taxing of marijuana again were very popular among the citizen-suggested questions. Especially on a day in which President Obama has put forward a $3.8 trillion budget that call for tax increases and many program cuts (including NASA's moon program), I hope the President might finally take seriously the idea that we may no longer be able to afford spending taxpayer resources on pot prohibition.
At a time of lean budgets, I know I would rather have my tax dollars spent trying to help Americans reach new heights in space rather than trying to prevent Americans from getting high.
UPDATE: Refer madness strikes again: despite marijuana legalization questions being the most popular in the voting about what to ask President Obama in his Monday YouTube appearance, the issue was not raised in the event. So much for power to the people.
"Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory?"
The title of this post is the title of this new article from Alex Reinert that is now available via SSRN. Here is the abstract:
The Eighth Amendment’s prohibition of “cruel and unusual punishments” conveys different meanings in different contexts. When challenges are brought to prison conditions, a range of cases that encompasses claims such as overcrowding, excessive uses of force, and failure to provide adequate medical care, a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. When challenges are brought to the proportionality of criminal sentences, the Court compares the severity of the sentence with the seriousness of the criminal offense of incarceration. In both sets of cases, although courts purport to review a “punishment” for its conformity with the Eighth Amendment, different standards contribute to the ultimate resolution. This paper questions whether these differences are justified and whether there are ways to bridge the gap between proportionality review and conditions of confinement review.
In particular, I argue here that there are two ways in which elements of proportionality litigation could invigorate conditions of confinement review. First, I suggest that the focus on subjective state of mind in conditions of confinement litigation is called into doubt by proportionality jurisprudence. Second, I propose that the deference to legislators which is assumed in proportionality litigation is not as easily translated into conditions of confinement cases, where the delegation which such deference implies may not be present or appropriate. I conclude by examining three specific areas of conditions jurisprudence in which proportionality principles could be usefully applied.
The virutes of (faith-based) video-conferencing for prisoners and their familiesThe modern realities of crime and punishment produce precious few feel-good stories, but here is one coming from the Virginia prison system. The local piece is headlined "Videoconferencing lets families visit Va. prison inmates," and here are highlights:
For the five years Tori Chisholm has been held in a mountaintop prison near the Kentucky border, there haven't been many visitors from back home in Richmond. It was snowing in Big Stone Gap on Jan. 2 when he sat down inside Wallens Ridge State Prison and began talking with his mother, Lisa Chisholm, and his 17-year-old brother, Rashawn Brathwaite.
But Chisholm's family did not have to drive six or seven hours from Richmond's East End for the one-hour visit. Instead, they took advantage of a videoconferencing program started by New Canaan International Church in Henrico County, which allowed them to see and speak with one another while almost 400 miles apart.
The Virginia Department of Corrections is allowing the program to expand to nine other prisons -- at no cost to taxpayers. The Rev. Owen C. Cardwell Jr., pastor of the church at 1708 Byron St., said that "to the best of our knowledge, we're the only [faith-based] program like this in the nation."
The church has been using donated equipment and charging $30 for a one-hour visit and $15 for 30 minutes to help cover the costs. In a high-security prison such as Wallens Ridge, using a live video connection enables inmates and "visitors" to see and hear one another as well as -- if not better than -- during in-person visits conducted through clear, but solid, plexiglass windows using phones.
Since starting the program 3½ years ago, New Canaan and two other churches now involved have arranged 650 video visits between Wallens Ridge inmates and their families. The cost for the video visits is considerably less than that of daylong drives and overnight stays often needed to visit some of Virginia's more remote, high-security prisons. "It's taken a long time to pull this together," Cardwell said....
Fran Bolin, the program's executive director, said they will be doing video visits later with inmates at the Bland and Pocahontas correctional centers, the Virginia Correctional Center for Women, and Red Onion State Prison. They have been assisted by a $20,000 grant from The Community Foundation Serving Richmond and Central Virginia.
Bolin said a round-trip drive from Richmond to Red Onion in Wise County is 744 miles. Factoring in mileage, meals and lodging, an in-person visit there could cost hundreds of dollars, making the $15 and $30 fees a bargain, she said....
Larry Traylor, spokesman for the Department of Corrections, said that in addition to helping families, video visitations help inmates. Visits help ease tensions, and long periods without visits can increase the problems of inmates. "The program has been successful at Wallens Ridge, and we felt that the good results we had there warranted expansion to other prisons, on a pilot basis," he said. All such visits are recorded, he said.
The link above to this full story also provides access to a short video that shows how effectively personal these video visits can be. Because of the potential cost savings to both governments and prisoner families, I suspect that these sorts of video visit may before too long become the norm rather than the exception in many major prisons.
President Obama's 2011 budget includes money for obtaining Illinois prisonAs detailed in this local article, which is headlined "Obama’s 2011 budget includes money for Thomson prison purchase," all the recent talk of a proposed spending freeze has not prevents a budget line-item to enable the feds to buy a prison. Here are the details:
The Obama administration’s budget for fiscal year 2011 includes $237 million for the purchase, renovation and staffing of the Thomson Correctional Center. The administration has proposed buying the nearly vacant facility 50 miles northeast of the Quad-Cities and using it to house detainees now held at Guantanamo Bay, Cuba. The prison also would take approximately 1,600 federal prisoners.
An administration official was careful to point out Sunday the figure is not a projected purchase price for the facility. Negotiations still are ongoing with the state and the figure builds in flexibility depending on the final purchase price, said the official, who asked not to be identified because the budget has not been officially released yet.
Despite the uncertainty over the final purchase price, though, this is the most explicit the administration has been publicly about the potential cost of the deal. Peter Orszag, the administration’s budget director, said Sunday the expenditure would be warranted even without the transfer of prisoners from Guantanamo Bay because the Federal Bureau of Prisons needs the extra space.
Congress must approve funding for the purchase, a process that is bound to be contentious.... The figure, while still subject to negotiation, is bound to disappoint some Republicans in the state legislature, who have said the federal government ought to pay more than $300 million for the facility.
Thomson was completed in 2001 for $140 million, but it has sat mostly vacant since then. Pledges to fill the prison with state inmates have gone unfulfilled.
January 31, 2010
"Significant State Sentencing and Corrections Legislation in 2009"The title of this post is the headline of an on-line report available herefrom the National Conference of State Legislatures, which includes a terrific (and seemingly comprehensive) state-by-state review of new sentencing and corrections legislation. Here is part of the textual prelude to the chart with each state's new legislation:
Amid the most difficult economic situation since the Great Depression, state legislatures addressed sentencing and corrections policies that better manage correctional populations and budgets. In 2009, states fine-tuned sentencing laws, expanded community-based diversion programs, and created policies and programs aimed at reducing recidivism. California, Delaware, Maryland, Montana, Oregon and Washington increased the monetary thresholds for theft-related crimes, to better align low-level offenses with less severe penalties. States required presentence risk assessments to identify defendants appropriate for community-based sentences. In Illinois and New Hampshire, presentence screening that includes treatment recommendations must be completed for current military or veterans diagnosed with a mental illness.
Legislatures expanded access to substance abuse treatment by creating secure programs for more serious offenders and community-based programs for probation and parole violators. A measure in Kentucky places offenders, identified by pretrial screening as having substance abuse issues, in community-based or secure substance abuse treatment. Florida and North Dakota have designated specific substance abuse treatment programs as sanctions for probation and parole violations. States also relaxed mandatory sentences for drug offenders. New York amended the “Rockefeller Drug Laws” by decreasing mandatory minimums, expanding probation eligibility, and permitting departures from mandatory incarceration for various felony drug offenses.
California, Colorado, Illinois and Montana enacted performance incentive funding policies that provide funds to counties for reducing probation revocations to state prisons. In California, recidivism reduction programming must be evidence-based and funding provided to counties is directly related to costs avoided by the Department of Corrections and Rehabilitation due to a decrease in probation revocation admissions. Programs created in Colorado and Montana focus on mentally ill offenders.