« May 20, 2012 - May 26, 2012 | Main | June 3, 2012 - June 9, 2012 »

May 29, 2012

A year after Plata ruling, a "picture of success" fixing California's overcrowded prisons

UTI1646197.jpg_t220Before the completion of the federal litigation that culminated in last year's Plata Supreme Court ruling, the iconic image of the California's persistently crowded prisons was a picture of hordes of men in orange prison garb atop triple-stacked bunk beds in a packed gymnasium that was never intended to house inmates.  Versions of this iconic image were even reprinted in the Supreme Court reporter as part of the majority opinion in Plata which affirmed the federal court order that California reduce its total prison population to prevent continuing constitutional violations of the inmates' Eighth Amendment rights.

Now, thanks to this new article from the San Diego Union-Tribune, which is headlined "Prison crowding eases as local jails house more inmates," we can see a new "picture" of what the Plata ruling has achieved through a photo showing all those bunk beds now empty. Here are excerpts from the article in which this new image of California's prison system appears:

UTI1645141_1_r620x349

Just a few months ago, California’s inmates were packed into double- and triple-stacked bunk beds in prison gymnasiums, classrooms and other areas never meant for housing. Now those beds are empty.

The prison population is declining, but not because there are fewer criminals. Instead, a new state law shifted the responsibility for some lower-level offenders to the county jails, which are filling up.

State officials have “taken the monkey off their back and put it on ours,” said Sheriff Bill Gore, whose department runs seven county jails. In the nearly eight months since the law took effect, Gore has used a number of strategies to ward off jail crowding, including early releases, but he insists the county is handling the load. He and other county officials have said that with proper funding the local authorities can do better than the state at rehabilitating criminals so they’re less likely to end up back behind bars. “We can’t warehouse these inmates,” Gore said.

At Donovan state prison in Otay Mesa, rows of graffiti-scarred bunks sit empty in one of the prison gyms, where more than 150 men once slept in an area the size of a basketball court. A couple of inmates likened the experience to “living in the crazy house.”

“It’s horrible. It’s violent. It’s crowded,” said David Dewrance, 50, who spent almost two years in a gym trying to rest and study for his correspondence courses. When space became available earlier this year, Dewrance was moved to a two-man cell in one of the housing units, which allowed him access to one of the preferred vocational programs. The Brooklyn, N.Y., native, imprisoned for second-degree murder, now works in the prison bakery.

Fellow inmate Jesus Yanez said he was housed in a gym at another prison before coming to Donovan five months ago to continue serving his sentence for assault with a deadly weapon causing great bodily injury. In an interview this month at the prison, he recalled trying to sleep, shower and keep his bunk clean while keeping watchful eye dozens of fellow inmates.

“I wouldn’t wish that on the worst person,” said Yanez, 40, whose head and arms are inked with tattoos, many of them evidence of his former gang life in Los Angeles. The cells, he said, are “100 percent better.”

Shortly after the state’s prison population had reached an all-time high in the summer of 2007, more than 19,600 inmates were sleeping in so-called nontraditional beds. All inmates were cleared out of Donovan’s gyms and day rooms at the beginning of this year. And in March, the state Department of Corrections and Rehabilitation announced it had stopped bunking inmates in gyms and day rooms at all California prisons.

“It’s a lot safer,” said Daniel Paramo, a 20-year corrections department veteran who became Donovan’s warden in July. The extra bunks, he said, “made it very difficult to manage the institution.”

As of this month, 3,573 prisoners were being held at Donovan, about 1,000 fewer than the facility housed at the same time last year, but it remains overcrowded. The prison is designed to hold 2,200 inmates with one man to each cell....

In January, the corrections department announced that the population of inmates housed in its 33 institutions had dropped by more than 11,000 inmates over six months. This month, the population was pegged at 122,305 — 153.6 percent of capacity — according to the most recent figures available.

“The population is going down,” said Dana Simas, a department spokeswoman, who acknowledged county officials’ frustrations over rising jail populations. “We never purported that it would be without a few bumps in the road,” Simas said.

Even with the recent inmate reductions, some doubt the state will meet the Supreme Court’s deadline.   Prison officials want the court to allow them to hold the inmate population at 144 percent of capacity — rather than the 137.5 percent as originally ordered — while maintaining constitutional standards for medical and dental care, Simas said. “Our conditions have vastly improved,” she said.

Of course, simply managing to move bodies out of a crowded gym hardly proves that the Plata decision was a perfect ruling or that all is now better in California's often dysfunctional criminal justice system.  But, at the very least, these pictures document that a constitutional ruling by the Supreme Court combined with a serious state effort to respect that ruling can quickly engineer some needed changes to a prison system that had for many years been stalled in a political and practical quagmire concerning overcrowding.

I am hopeful that there will be a number of serious and systematic efforts to take stock of what has followed from the Plata ruling in California.  I have little doubt that the demands on local facilities as a result of the urgent need to move bodies out of state facilities has created various new problems.  Still, this story confirms my gut instinct that, a year after the controversial Plata ruling, the 5-4 decision has produced a net gain for not only the inmates who were suffering Eighth Amendment violations, but also for the entire state of California.  At the very least, there seems to be limited evidence (or at least limited reporting of evidence) that the dire predictions of doom and California crime waves right after the Plata ruling (which appeared in the Plata dissents and on this blog) were a bit overstated and hyperbolic.

UPDATE:  I am intrigued and a bit surprised that oft-vocal "tough on crime" commentors like Bill Otis and federalist, who were quick to condemn the Plata ruling last year, have not yet had anything to say here about the opinion a year later when now it seems the opinion's benefits have been greater than its harms.   In that vein, I found notable this new Sacramento Bee commentary from a former California Assembly member titled "Fear mongers were wrong about prison system's 'realignment'." Here are excerpts:

A year ago we heard fear-mongering voices warning of dangerous criminals being released and counties too broke to provide jail space, parole officers or programming for realigned prisoners.

One year in, how's realignment actually working out? The number of people held in state prison has dropped by more than 25,000 in 16 months since Brown has been in office. The count of people on parole is down almost 30,000, and the number of people held in private out-of-state prisons is down 10 percent; all that without a spike in crime.

The crime rate continues to fall and putting fewer people in state prisons means saving tax dollars, and given the $15.7 billion gap forecast in the May revise those savings have never been needed more than they are now. CDCR estimates that it is saving $1.5 billion a year through realignment and will save another $2.2 billion a year by canceling $4.1 billion in new construction projects....

Corrections built prisons, but it was the Legislature that filled them with hundreds of laws that created new crimes and lengthened sentences. Serious sentencing and parole reforms are long overdue and communities, advocates, and other experts throughout the state have been providing ideas of where to start for decades.

An easy step could be to address the rapidly aging population by implementing a geriatric parole process, and expanding medical parole and compassionate release. Other options include passing legislation to decriminalize drug possession, or supporting the initiative to reform the "three strikes" law on the November ballot. We need only the political will to move away from sentencing and parole policies that have done more to bankrupt our state treasury than to secure safety in our neighborhoods.

Do we return to the course of expanding prisons and jails and expanding the percentage of our resources that go to filling them? Or do we take realignment as only a first step toward further downsizing, offering us the opportunity to use tax funds to invest in the well being of our residents now and in the future? I advocate for the latter.

May 29, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

May 28, 2012

"A Tough Judge’s Proposal for Fairer Sentencing"

The title of this post is the headline of this new Sidebar column by Adam Liptak now available via the New York Times. The piece does a terrific job reporting upon and providing context concerning US District Judge John Gleeson's fascinating Dossie opinion from earlier this year (which I blogged about here and here). The piece also makes (too) brief mention of US District Judge William Young's similarly themed (and similarly fascinating) opinion in Gurley from earlier this month (discussed here). Here are excerpts from the Liptak piece:

Judge John Gleeson hears cases where he used to prosecute them, in the federal courthouse in Brooklyn. There, in 1992, he led the team of prosecutors that put the Mafia boss John J. Gotti in prison for life. Judge Gleeson is not shy about meting out tough sentences.  “Most people, including me,” he wrote in a 2010 decision, “agree that the kingpins, masterminds and midlevel managers of drug trafficking enterprises deserve severe punishment.”

But he has lately been saying that his old employer, the Department of Justice, has stopped living up to its name when it comes to some small-time criminals.  Almost 20 years to the day after delivering his closing argument in the Gotti trial, Judge Gleeson considered the fate of Jamel Dossie, whom he called “a young, small-time, street-level drug dealer’s assistant.”

Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140.  Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence.  “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

It is a curious game, one in which a participant rather than the supposed umpire can have the last word, Judge William G. Young of Federal District Court in Boston wrote in a ruling in another case a couple of weeks ago.  “Prosecutors run our federal justice system today,” Judge Young wrote.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless.  Defense counsel take what they can get.”

The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.  “We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”

The Dossiecase illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.... As for Mr. Dossie, the judge wrote, “no one could reasonably characterize him as a leader or manager of anything, let alone of a drug business.”

Judge Gleeson called on Attorney General Eric H. Holder Jr. to implement a new policy at the Department of Justice. “D.O.J. should seek mandatory minimum sentences,” the judge wrote, “only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level offenders like Dossie who constitute the bulk of the federal drug docket.”

About 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence in the year that ended in September, according to statistics compiled by the United States Sentencing Commission.  But only 5 percent of them led or managed a drug business.

A Justice Department spokeswoman said the administration supported the judicious use of mandatory minimum sentencing laws for some serious crimes.  In a 2010 report, Lanny A. Breuer, an assistant attorney general, said mandatory minimum sentences “remove dangerous offenders from society, ensure just punishment and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks.”

Paul G. Cassell, a former federal judge who is now a law professor at the University of Utah, said Judge Gleeson’s proposal to have the Justice Department limit its use of mandatory minimum sentences in drug cases to defendants who played a leadership role was “a brilliant package.”  It was, he said, administrable, fair and “doable in this political environment” because it requires no action from Congress.

Jamel Dossie, meanwhile, is serving what Judge Gleeson called an onerous and disproportionate sentence.  “The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Some recent related posts:

May 28, 2012 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

A market challenge for sentencing reformers: imagining profitable uses for closed prisons

PRISONSBREAK2-custom1The title of this post is prompted by this fascinating new article from the New York Times, which is headlined "New York Has Some Prisons to Sell You." Here are the story basics:

One property, in the Hudson Valley, includes a 16-car garage, a piggery and hundreds of yards of lake frontage. Another offers 69 acres of waterfront land on the west shore of Staten Island, complete with a two-story gymnasium, a baseball diamond and an open-air pavilion.

Those seeking seclusion have an option, too: 20 acres adjoining state forest land in rural Schoharie County, perfect for hunting, trapping and fishing. The property comes with its own wastewater- and sewage-treatment plants, as well as a chapel and a carpentry shop.

The ideal buyer is someone who craves space to spread out, and who does not mind a property that has had thousands of guests over the years. And a fondness for “The Shawshank Redemption” would not hurt.

These real-estate listings come from an unpracticed seller, the State of New York. After cutting costs through traditional means like freezing wages of state workers and consolidating government offices, Gov. Andrew M. Cuomo is embarking on a less conventional effort: trying to sell New York’s old prisons.

The state has a glut of vacant correctional facilities because of lower crime rates, new programs that allow early release for nonviolent offenders and the dismantling of its strict drug laws. The situation in New York reflects changing national attitudes toward criminal justice policy: the number of state prisoners nationwide declined in 2009 and 2010 for the first times in at least three decades, according to the federal Bureau of Justice Statistics.

Mr. Cuomo’s predecessor, Gov. David A. Paterson, closed three prisons as he confronted budget problems. Mr. Cuomo declared in his first address to the State Legislature that prisons were “not an employment program,” and proceeded to shut seven of the state’s remaining 67 correctional facilities, removing 3,800 beds.

These closings reflect a sharp reversal. After New York adopted mandatory drug sentences in 1973, the state’s prison population soared from 13,437 to a peak of 71,472 in 1999, prompting a boom in prison construction, much of it during the tenure of Gov. Mario M. Cuomo, the current governor’s father. But since then, the number of inmates in state facilities has fallen nearly a quarter, to about 55,000, leaving thousands of empty beds....

Last year, Mr. Cuomo formed a facility closure team, composed of agency commissioners, that meets weekly to go property by property to find more that can be sold. “Instead of spending millions maintaining facilities we don’t need,” said Howard B. Glaser, director of state operations, “the governor’s approach saves taxpayers millions and opens up transformative economic development and investment opportunities in communities across the state.”

Among the facilities the team is considering selling are 23 state-owned residences set aside for prison superintendents. Some are quite lavish: one in Auburn, to be auctioned this summer, is an 8,850-square-foot brick mansion with eight bedrooms, six bathrooms, an attached gazebo and a barn-size garage....

But the prisons are by far the largest, and most challenging to sell, of the properties on the market. Some of them would be quite expensive to maintain or demolish, and many are in rural areas where real estate is inexpensive and undeveloped land is plentiful.

“It’s a building that’s just sitting there,” said Harold Vroman, chairman of the board of supervisors in Schoharie County, where Mr. Cuomo shut down a 100-bed minimum-security prison last year. “Who wants to buy a jail, you know?”

Other states offer some encouraging examples. In Massachusetts, the old Charles Street Jail in Boston was transformed into the Liberty Hotel, which opened in 2007 and embraces its history — among the offerings at one of its bars, Alibi, is a $12 blueberry mojito called the Jailbait. And three years ago in New Jersey, the cells were removed from a former county jail in Newark and the building was converted into government office space.

But those buildings were jails, which are often smaller, grander and more centrally located than prisons. “Those ones, like old courthouses, have a future life,” said Elizabeth Minnis, chairwoman of the American Institute of Architects’ advisory group for correctional facilities, courthouses and law-enforcement buildings. “But the stuff out in the middle of nowhere, it probably has nothing. You’re going to have to just try to get it off your books. It’s almost worth paying somebody to take it off your hands or give it away for free, because it becomes a liability.”

Consider the Oneida Correctional Facility, a 998-bed medium-security prison in Rome that closed last October. It shares utilities with a rather unattractive neighbor: another state prison. “The only possible thing that you could use this for would be for government or military,” said Fred Macchia, a commercial real-estate broker in Rome. “You couldn’t make it into a hotel. You couldn’t make it into an apartment complex. You’re talking millions of dollars to renovate. Who’s going to do it? The state’s not going to do it — they’re trying to get rid of it.”

All three prisons closed by Mr. Paterson are vacant. One was mentioned as a possible test site for hydraulic fracturing, the much-debated method of extracting natural gas. Another, Camp Gabriels — a minimum-security prison in Brighton, in the Adirondacks, that was originally built as a sanitarium for tuberculosis patients — has twice been put up for auction, first with a minimum price of $950,000, and then with a $750,000 minimum. No one bid either time.

“The state, when they closed the prison, it didn’t seem like they had much of a plan,” said Brian McDonnell, a member of the town board in Brighton. “You get the impression that they just walked away and threw the keys in the river and said, ‘Well, move along.’ ”

Cuomo administration officials said they were more optimistic about the prisons they shut down last year. They are reviewing proposals for a new retail development to replace the former Arthur Kill Correctional Facility on Staten Island, and for a manufacturing plant at Camp Georgetown, a shuttered 262-bed prison in central New York.

In the Hudson Valley, local officials have taken the lead in trying to find a new use for the former Mid-Orange Correctional Facility in Warwick. They want to split the 736-bed prison property into smaller parcels, and several manufacturers have expressed interest in moving to the site. Other ideas for reuse included a wildlife sanctuary, a solar power facility and a Greek-style yogurt plant.

Michael Sweeton, the Warwick town supervisor, said local officials feared that if they did not come up with ideas for the prison, the state would “get some knucklehead guy to pick it up for what he thinks is a song” and let the property fall into disrepair. “We didn’t want them to think that we were just going to sit on our hands and let this play out,” Mr. Sweeton said. “We looked at it as a great opportunity.”

As advocate continue to urge sentencing and prison reforms in states around the nation, they would do well to help jurisdiction figure out how to make better use of the extra prisons and related space that get freed up by effective reforms like those in New York.  I share the view that closed prisons could and should become a great opportunity not only for states and local communities, but also for some clever private developers and/or industries.  Indeed, given that there are already (too) many private corporations and organizations profiting directly from the growing the size and scope of incarceration nation, long-term reform efforts could and would benefit from having some number of private corporations and organizations profiting directly from shrinking the size and scope of incarceration nation.

I am pleased to see from the New York Times article that various folks are thinking about various ways to make good use of shuttered prisons and related property.  But I suspect and hope that readers of this blog might be able to brainstorm on other market possibilities.  Especially as I gear up for The Memorial Tournament this week here in Ohio while also watching The French Open, I am thinking maybe some of the prison properties could be converted into unusual golf and tennis resorts.  Any other clever ideas, dear readers?

May 28, 2012 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (14) | TrackBack

Dharun Ravi as example of (rare?) defendant aided at sentencing by letter campaign

At various times in various settings, many practitioners have on this blog shared their views concerning the potential virtues and vices, as well as the potential impact, of having crime victims or supporters of a defendant or others sending letters directly to a judge before sentencing (see recent posts here and here and here, for example).  This new AP article, which is headlined "Letters to judge in Rutgers gay roommate's suicide asked for leniency," reports on one high-profile case in which letters written to the judge may have had a significant sentencing impact:

The letters came from a man who was once beaten with a baseball bat in a racially motivated attack, the widow of a Minnesota judge, a group representing lesbian, gay and transgender people from South Asia, a gay member of the Navy, and the father of a woman who committed suicide, among others.

There were more than 100 in all, and nearly all had the same theme: telling the judge it would be unjust to put former Rutgers student Dharun Ravi in prison for using a webcam to see roommate Tyler Clementi kissing another man in 2010, just days before Clementi killed himself.

"I learned a lot about bias crimes and bullying through this case," said a writer named Louise. "The bullying and bias acts occurred when the legal system and media got involved.  Ravi is not to blame for the hardships endured by the gay community nor should he be tied to the whipping post because of it.  If Tyler was not gay, this would have been just a prank gone wrong and no one would have rushed to incarcerate."

Ravi, now 20, was convicted in March of 15 criminal counts. Soon after, the letters began pouring into Superior Court Judge Glenn Berman's chambers making requests for how to handle sentencing.  Last week, Berman said Ravi would have to serve 30 days in jail. Because the sentence is less than a year, it decreases the chances that immigration authorities will seek to have Ravi deported to India, where he was born and remains a citizen. Prosecutors said they would appeal the sentence as too light.

Before delivering the sentence, Berman held up a folder, inches thick, of the letters he had received.  Later, he quoted one of them, calling Clementi's suicide the "pink elephant" in the case.

Some of the letters came through an orchestrated effort. More than 30 of those in the file opened by the judge included a pre-printed plea with space for personal additions. Sandeep Sharma, a friend of Ravi's family and an organizer of the letters, said he thinks the letters were one factor in the relatively light sentence. "It had probably some influence," Sharma said. "I think the judge himself did not believe that this case belonged to the criminal court system to begin with."

The Ravi case is, of course, unique in many ways.  Nevertheless, I think there is an important lesson here for sentencing advocates, especially on the defense side: letter from crime victims urging leniency may be especially potent and influential on judges.

Recent related posts on Ravi case:

May 28, 2012 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

May 27, 2012

Commentary calls for "cleaning house" at DOJ's Office of the Pardon Attorney

Julie Stewart of Families Against Mandatory Minimums and former Maryland Governor Robert Ehrlich have this notable commentary on The Hill's Congress blog under the headline "Cleaning house at OPA: A Congressional investigation is needed." Here are excerpts:

On the surface, Presidents Bush and Obama have shown little interest in exercising their extraordinary presidential authority to issue pardons and commute sentences. Many of us who support a robust exercise of executive clemency have been disappointed and disturbed by this inaction.  But thanks to Monday’s Washington Post-ProPublica story, we now know that a significant part of the problem stems from a grossly inept Office of Pardon Attorney (OPA) at the U.S. Justice Department. Congress must investigate this vitally important taxpayer-funded office immediately....

The Post-ProPublica story revealed [various] problems that help to explain why Presidents Bush and Obama have commuted a miserly twelve federal sentences over the past dozen years.  For example, the OPA is not taking seriously its responsibility to fully review and give advice on the thousands of petitions it handles.  A former OPA staffer recalled that most denial recommendations are simply long lists of applicants’ names, sent to the White House with no explanation of the most basic facts, such as the individuals’ crimes, rehabilitation, or special circumstances....

Our Constitution gives the president exclusive power “to grant reprieves and pardons.” This awesome authority is important to our criminal justice system.  Presidents can help to ensure that all individuals receive the justice they deserve and, in some cases, the mercy they have earned.  But it is Congress that created and funds the OPA.  If the OPA is withholding or misrepresenting critical information in a manner that frustrates the president’s constitutional responsibility, Congress must act.  Taxpayers should not be forced to subsidize a government office that is abusing its power, nor should applicants for executive clemency face a deck that was stacked in secret.  Congress must investigate.

Related posts concerning federal clemency practices:

May 27, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

"2 South Dakota brothers, 1 fate: Siblings go to execution chamber for separate crimes"

The title of this post is the headline of this (sad? instructive?) AP article.  Here are excerpts for the start of the piece:

Rodney Berget lives in a single cell on South Dakota’s death row, rarely leaving the tiny room where he awaits execution for bludgeoning a prison guard to death with a pipe during an attempted escape.

For Berget’s immediate family, his fate is somewhat familiar. He is the second member of the clan to be sentenced to death.  His older brother was convicted in 1987 of killing a man for his car. Roger Berget spent 13 years on Oklahoma’s death row until his execution in 2000 at age 39....

The Bergets are not the first pair of siblings to be condemned. Record books reveal at least three cases of brothers who conspired to commit crimes and both got the death penalty. But these two stand out because their crimes were separated by more than 600 miles and 25 years....

The siblings’ journey from the poverty of their South Dakota childhood to stormy, crime-ridden adult lives shows the far-reaching effects of a damaged upbringing — and the years of havoc wrought by two men who developed what the courts called a wanton disregard for human life.

Rodney Berget is scheduled to die later this year, potentially ending the odyssey that began when the two boys were born into a family that already had four kids.  A former prison principal described Rodney as a “throwaway kid” who never had a chance at a productive life.  A lawyer for Roger recalled him as an “ugly duckling” with little family support.

May 27, 2012 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (2) | TrackBack