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November 6, 2013

Senate Judiciary hearing focused on federal prisons and "Cost-Effective Strategies for Reducing Recidivism"

This motning, Tuesday November 6, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary titled "Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism." Here is the official agenda/hearing list:

Panel I

Panel II

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours.

Here at The Atlantic, Andrew Cohen sets out "5 Questions for Federal Prisons Chief When He Comes to Capitol Hill"

November 6, 2013 at 09:51 AM | Permalink

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Comments

Here's a question that needs to get asked:

"Director Samuels, which do you think is more important to rehabilitation -- reformed government programs, or the inmate's conscience and empathy?"

My bet is, unfortunately, that the single most important thing that tells the tale about putting a brake on criminal behavior -- the actor's conscience -- will not be so much as mentioned. This is so despite the fact that a change of heart costs nothing, while rehab programs cost a bunch of taxpayer dough we are constantly told we don't have.

Posted by: Bill Otis | Nov 6, 2013 10:50:39 AM

The important thing is that we frame our questions as zero-sum dichotomies.

Posted by: Michael Drake | Nov 6, 2013 12:00:59 PM

Michael Drake --

No, the important thing is to pretend that conscience and empathy have nothing to do with behavior, so that we can blame bad behavior on anything else.

Posted by: Bill Otis | Nov 6, 2013 12:13:36 PM

That's silly!

Posted by: Tom McGee | Nov 6, 2013 12:59:33 PM

Tom McGee --

We can find out how silly it is by listening to what actually gets talked about as the way to reduce recidivism, which is allegedly the topic of this hearing. If we hear a lot about conscience and empathy, I will stand to be corrected -- and I'll be glad for it.

If we hear nothing about them, which is what I expect, then maybe my concerns aren't so silly after all.

P.S. Tom, if you had been a practicing criminal lawyer as long as I have been, you would know that THE WHOLE DEAL with criminal defense is to find someone or something outside yourself to blame.

Posted by: Bill Otis | Nov 6, 2013 1:31:01 PM

Bill, if you had been a correctional administrator as long as i was, you would know that it is not a question of who or what to BLAME, but what works.

Posted by: Tom McGee | Nov 6, 2013 5:54:52 PM

Tom --

The whole premise of criminal law is to assign blame, and the whole premise of defense lawyering is to find SOMEONE ELSE to blame.

I applaud your work in corrections, but I would happily say the above under oath.

BTW, we know what works: Keeping bad actors where they can't harm normal, law-abiding people.

Posted by: Bill Otis | Nov 6, 2013 6:38:03 PM

Tom: A guard says to an inmate, "Stop acting like an animal." What happens to the guard?

Do you know the guard to prisoner ratio the following years?

2000

1990

1980

1970

1960

How the number of murders in prison those year per 1000 prisoners? Assume medium security as a modal setting.

Posted by: Supremacy Claus | Nov 6, 2013 10:47:45 PM

Tom --

One more question if I might.

You mention that you were in corrections. What percentage of the inmates under your supervision were innocent, i.e., didn't do it?

Posted by: Bill Otis | Nov 6, 2013 10:58:07 PM

Bill--

First, as to your assertion that the" whole premise of the criminal law is to assign blame"--

This may be the threshold premise, but it is not the "whole" premise of the criminal law as you assert. Social order cannot be sustained simply by assigning blame.

As to your question about the number of innocent inmates that were under my supervision--

Obviously the answer is none that I knew about. All of them were blameworthy, which set the stage for accomplishing a whole range of objectives with their associated strategies and tactics.

You say that we know what works; simply keep bad actors where they won't harm normal, law-abiding people--

This strikes me as being an extraordinarily naive assertion.

Posted by: Tom McGee | Nov 7, 2013 12:07:53 AM

Supermacy--

"A guard says to an inmate, "Stop acting like an animal." What happens to the guard?"

It depends on the situation. The inmate may really have been acting like an animal. What's wrong with saying so?

"Do you know the guard to prisoner ratio the following years?"

Nope. In the system where I worked it ranged for five to eleven post coverage, depending on the living unit.

"How the number of murders in prison those year per 1000 prisoners? Assume medium security as a modal setting."

I'm not sure what you are getting at. Please be more specific.

Posted by: Tom McGee | Nov 7, 2013 12:26:40 AM

Tom: In some places, a remark like that would be labeled racist and abusive, with a reprimand to the guard or a firing.

As the ability to physically and verbally punish has diminished over time, the only substitute is an increase in staffing. That means, there is an inherent conflict of interest, and guards and administrators do not push back because their funding has to increase.

For example, the forensic unit of a state hospital receives people expelled from Supermax, because they are nuts. That unit has to go "restraint free." So an upset prisoner begins destroying the lounge. OK. Empty the lounge, and wait 3 hours for him to finish. OK. He is choking another prisoner, now turning blue. So now, staff will put their hands on him, and lie in the incident report or get fired.

The implication of the question about staffing ratios and murder rates was that past practices allowed more punishment, that fewer guards could control more prisoners, and keep them safer than today.

Posted by: Supremacy Claus | Nov 7, 2013 5:41:36 AM

Tom --

"...as to your assertion that the 'whole premise of the criminal law is to assign blame'--This may be the threshold premise, but it is not the 'whole' premise of the criminal law as you assert. Social order cannot be sustained simply by assigning blame."

Your error is in assuming that I think it's up to criminal law to "sustain social order." But I don't. Criminal law plays an important part, but nothing like the dominant part, which is played by the culture and the institutions that shape culture, like the family, education and (for many people) religion.

The law is, compared to those things, a weak instrument.

"As to your question about the number of innocent inmates that were under my supervision--Obviously the answer is none that I knew about. All of them were blameworthy, which set the stage for accomplishing a whole range of objectives with their associated strategies and tactics."

Thank you, sir. What I see on this site again and again is that we convict boatloads of blameless people, most of them by hiding proof of their innocence, extorting guilty pleas and manipulating false confessions. I'm glad that a man with experience throws some much needed light on this subject.


Posted by: Bill Otis | Nov 7, 2013 8:17:36 AM

"Your error is in assuming that I think it's up to criminal law to "sustain social order." But I don't. Criminal law plays an important part, but nothing like the dominant part, which is played by the culture and the institutions that shape culture, like the family, education and (for many people) religion."

This is self evident, but, Bill, for a lawyer, you one smart cookie. These institutions do compete for authority with the government, a wholly owned subsidiary of the CCE. So government is merciless in its attacks on all those more effective institutions.

Posted by: Supremacy Claus | Nov 7, 2013 9:22:48 AM

Bill Otis--

"Your error is in assuming that I think it's up to criminal law to 'sustain social order.' But I don't. Criminal law plays an important part, but nothing like the dominant part, which is played by the culture and institutions that shape culture, like the family, education and (for some people) religion.

The law is, compared to those things, a weak instrument."

Stated another way, would you agree that the GOAL is to sustain social order and that holding offenders accountable is just one OBJECTIVE among several that must to be accomplished in order to reach this goal? Each objective is accompanied by its own strategies and tactics.

If this is a correct restatement of your position, can we say that correction plans and programs operate on two tracks, one designed for holding offenders accountable and the other to control their risk of committing another crime? Accountability is based on facts that do not change once established. Risk control is based on those same facts, plus additional facts that do change over time; e.g., age and so on. Track one is static; track two is dynamic.

A sentence sets up track one. Track two cannot proceed until track one has been initiated. The tactics used to carry out the objectives of each track include restraints, requirements and takings. The most restrictive level of restraint imposed by each track controls at any given point in time. At a given point in time those tactics may be used to hold offenders accountable. At another they may be used to control that offender's risk, depending on the situation. These restraints are recursive and generic. That is the more restrictive restraints include those that are less restrictive.

What do you think?

Posted by: Tom McGee | Nov 7, 2013 2:15:07 PM

Tom McGee stated: "This strikes me as being an extraordinarily naive assertion."

First, I as a former prison employee (I taught in NYSDOCS for 10 years and did some accreditation functions as well) I appreciate your perspective.

As an "in the trenches guy", I have to ask you a question. If an inmate were to leave your facility a significantly better person than when he came in, what percentage of that is due to staff and what percentage is due to the inmate choosing to become better?

From my experience, my contribution or "credit" was about 1% (for being there and willing to help) and the inmates who improved got 99%. If an inmate wanted to get better, he did. I was just one of many resources for him to use. If he did not want to get better, he would not and having him in my class was a complete waste of his time and mine.

My point is that no program will "work" if the inmate is not interested in making it work. What "works" is personal responsibility and there is no program that can instill it in someone who has no interest in it.

Posted by: TarlsQtr1 | Nov 8, 2013 9:48:24 AM

TarisQtr1--

"If an inmate were to leave your facility a significantly better person than when he came in, what percentage of that is due to staff and what percentage is due to the inmate choosing to become better?"

The issue you raise here is important. I expect we would agree. It is wholly unrealistic to expect that correctional programs can "make offenders into better people" or to set this as a goal. If they become "better" so much for the good.

Correctional programs can and should be used to hold offenders accountable and control their risk of committing another crime. Penalties and punishment are the core strategies used to accomplish the former. Threatened penalties forestall criminal behavior to some extent. Punishments underwrite social norms.

Incapacitation, rehabilitation and discipline are the core strategies that are first used to control risk, and then reduce risk.

These two planning and programming tracks run in tandem. Together they help sustain social order, which is the goal.

Posted by: Tom McGee | Nov 8, 2013 12:29:33 PM

Bill Otis--

Come on, what do you think? Do you agree with the two-track correctional planning and programming system I described above?

Incidentally this is much like what existed before the so-called sentencing revolution. What we needed at that time was a workable two-track deprivation decision-making system. Instead the reformers, mostly lawyers, left us with the current mess.

Posted by: Tom McGee | Nov 8, 2013 12:49:41 PM

Tom --

So far as I understand it, I agree with it. But I'm less than fully confident that I understand it.

Posted by: Bill Otis | Nov 8, 2013 4:26:23 PM

Bill Otis--

Thanks for the response. Most lawyers tend to put their cards exclusively on track one. What you people should do is plow the ground for track two. Risk is a fact that justifies imposing restraints. Higher levels of risk justify higher levels of restraint and vice versa.

Posted by: Tom McGee | Nov 8, 2013 4:56:04 PM

Rehab is a joke. The rewards of crime are far too great to be influenced by anything in the repertoire of the system.

That leaves incapaciation as the sole mature goal of the criminal law. I ftha is true, then death is the most reliable incapacitation.

Tom: in making any decision about any inmate, shouldn't you use the indicted behavior as a guide, rather than the adjudicated charge, which is a fiction of the plea bargain.

Posted by: Supremacy Claus | Nov 8, 2013 7:06:44 PM

Supremacy--

“In making any decision about any inmate, shouldn't you use the indicted behavior as a guide, rather than the adjudicated charge, which is a fiction of the plea bargain.”

Track one is triggered by a problem that we think about in two different ways. First the person in question committed a crime that had certain elements, which when taken together are thought to be wrong. Secondly, that person’s crime was the core part of a criminal offense. In addition to elements that are wrong, it has certain attributes that are bad. Conduct that is a crime, but not a criminal offense is called a “strict liability crime”.

Before the fact we threaten to penalize people who commit crimes. At that point the problem is not fully knowable. Threatened penalties are strategies that are used to forestall conduct of that kind. We also warn people that they will be punished in a particular way if their conduct was also a criminal offense. Punishment is a strategy that is used to underwrite certain social norms.

After the fact, in accord with a finding of guilt or plea, we keep our word by imposing the threatened penalties and punishing offenders as they were warned.

Since we are usually concerned about conduct that is both a crime and criminal offense, I think punishing offenders is more important because that enforces a set of social norms that help sustain social order over the long term. Penalties are transitory and of limited value, at best. For these reasons I don’t think that plea bargains are a big deal. Do what works. Do what is necessary to underwrite social norms that have lasting value.

Track two is triggered by a confirmed risk that the offender has a substantial probability of committing another crime. This risk is confirmed by the fact that the person in question already committed one or more criminal offenses and has additional risk disposing characteristics. Plea bargains do not affect risk determinations.


Posted by: Tom McGee | Nov 9, 2013 2:23:17 PM

Supremacy--

"Rehab is a joke. The rewards of crime are far too great to be influenced by anything in the repertoire of the system."

Rehabilitation as a strategy for reducing risk does work in some types of cases. For example, I headed an NIMH financed research project at one time that got positive results and that is just one example.

I agree that setting rehabilitation as an objective is far to ambitious for all cases. Selectivity and cost-effectiveness is the key.

Posted by: Tom McGee | Nov 9, 2013 2:43:31 PM

I am person engaged in helping released prisoners re-enter the community, get a job, and adjust to life on the outside again. I totally agree with Taris's comments, that most of the rehab comes from the former inmate, from the inside out. I have also wondered why when people are going in for parole, why they don't ask the CO's who deal with them every day. Most well trained CO's can TELL YOU, who they believe will succeed back on the outside, and which one's won't. I know that this could never happen, but I'm just making the statement cause it is most likely true. With effort, focus, and a HUGE helping hand up, I believe that a large majority of released inmates could make it. But, as a community, we typically don't care what happens to them, let alone allocate any meaningful resources to help and sustain them (takes 1-2 years to truly readjust), and we throw them back out into the streets of hell, the "graduate school of crime", and expect different results. THAT IS THE DEFINITION OF INSANITY... doing the same thing over and over and expect different results. GOTTA STEP OUT OF THE CYCLE if a difference is desired. But, I start with the first premise, most people don't care about former inmates. Most people would rather help starving veterans, starving poor, starving unemployed people, before they would help a former starving inmate. We live in a have-have-not society, with everyone running around like the Emperor with No Clothes on, admiring their own navels, whether it's worshiping sports, sexiness, beauty, beer, or anything other then their own neighbor.

Posted by: Dee Delaney | Nov 11, 2013 10:42:42 AM

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