Monday, October 16, 2017

"Racial Disparity in U.S. Imprisonment Across States and over Time"

The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto.  Here is the abstract:

The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014.  This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.

For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic.  Many states experienced a downturn in the black-white ratio starting in the 1990s.  Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Sunday, October 15, 2017

"Attorney hopes to import the best practices of European prisons to the United States"

The title of this post is the headline of this lengthy ABA Journal article from the October 2017 issue. Here is how it starts:

Attorney Donald Specter spent more than three decades working to protect the rights of incarcerated people before he finally saw a prison he believed in.

He was in Europe, having just won perhaps the biggest ruling of his career — a 2011 U.S. Supreme Court decision in Brown v. Plata that required California to reduce its inmate population by more than 40,000. But Specter, executive director of the Berkeley-based Prison Law Office, wasn’t there to celebrate.  He was a co-instructor on a study-abroad trip about correctional practices with University of Maryland students.

This trip included visits to prisons in Denmark, Germany and the Netherlands. Specter says he was blown away. The prisons were nothing like those he had spent his career trying to change in the United States.  For starters, they were physically different — built to resemble life on the outside. Inmates had their own rooms and, in some cases, were allowed to cook in communal kitchens.  But what struck Specter most was that the prisoners were treated differently, too.  “They still regarded the people in prison as members of the community who were going to return to the community,” he says. “That has a whole bunch of implications.”

Specter, who began his legal career as a volunteer at the Prison Law Office, had long been frustrated by the limits of litigation to bring about meaningful change.  In Europe, he began to wonder whether there might be a different way to approach his life’s work.  “By the end of the trip, [the students’] basic question was: Why do we have such lousy prisons when they can be so much better?” he says.  “I started thinking about whether the same kind of transformation could happen with people who were a little older and more experienced — hardened correctional officers and the like.”

In 2013, Specter launched the U.S.-European Criminal Justice Innovation Program, sponsoring weeklong tours of European prisons for U.S. corrections officials, judges and lawmakers. He funds the trips using fees from his lawsuits, including some of the $2.2 million his office was awarded after the high court’s ruling in Brown.  In that case, Specter represented prisoners who challenged the delivery of health care in the California prison system.  The high court affirmed an earlier appeals court ruling that overcrowding was the primary cause of the deficient system and ordered the state to reduce its inmate population.

Specter’s first overseas trip was with representatives from Colorado, Georgia and Pennsylvania and included stops in Germany and the Netherlands. Subsequent tours, including one this fall with officials from Alaska, have focused on Norway, which is known for the freedoms it grants eligible inmates.  So far, officials from eight states have participated, including the executive director, president and vice president of the Association of State Correctional Administrators, which has members who oversee 400,000 correctional personnel and 8 million inmates or former inmates.

Although the United States has the highest incarceration rate in the world — 676 inmates per 100,000 people, according to the United Nations Office on Drugs and Crime — Specter thinks Americans still have a lot to learn about how to prepare prisoners for life on the outside.  (Norway’s incarceration rate is 80 inmates per 100,000 people.)

October 15, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (3)

Friday, October 13, 2017

"The Federal Rules of Inmate Appeals"

The title of this post is the title of this new paper by Catherine Struve now available via SSRN. Here is its abstract:

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically.  This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. 

In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management practices that significantly affect inmate appeals.  And, in the 1990s, Congress enacted legislation that produced major changes in inmate litigation, including inmate appeals.

In the coming years, the most notable new driver of change in the procedure for inmate appeals may be the advent of opportunities for electronic court filing within prisons. That nascent development illustrates the ways in which the particulars of procedure in inmate appeals are shaped by systems in prisons, jails, and other facilities -- and underscores the salience of local court practices and institutional partnerships.

October 13, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Thursday, October 12, 2017

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 11, 2017

"'Cooking Them to Death': The Lethal Toll of Hot Prisons"

The title of this post is the headline of this remarkable new Marshall Project reporting discussing the modern practical problems one finds at the intersection of climate change and modern incarceration practices. The reporting includes this 20-minute documentary put together by the Weather Channel, the Marshall Project and Divided Films. And here is a bit of the written piece:

Most Americans have felt the effects of an increasingly hotter planet. In recent decades, changes in climate have brought higher average temperatures and longer heat waves. But few are as vulnerable to weather trends as incarcerated people, a point underscored in August when thousands were evacuated from Texas prisons ahead of Hurricane Harvey. While some state prison systems — plus federal prisons and military detention facilities, including Guantanamo Bay — keep temperatures within a liveable range, many do not, according to a 2015 Columbia Law School report. Prisoners often live without air-conditioning in areas where temperatures exceed 100 degrees for days at a time and the heat index, which records how hot it feels with humidity, has hit 150 degrees.

The human body is built to cool itself by sweating and dilating blood vessels, but those self-cooling mechanisms can break down. “When the humidity is really high, the sweat can’t evaporate,” said Susi Vassallo, M.D., a New York University professor in emergency medicine who studies thermoregulation. “It just rolls off your body, without cooling it.” Heat stroke victims may become delirious and start seizing and convulsing. “The cells of the body start to cook and fall apart,” said Vassallo, who has testified against prison agencies in lawsuits over heat conditions.

Although there are no national figures on how many prisoners die of heat illness, horror stories emerge every summer: inmates screaming “Help us!” out of the windows of a St. Louis jail; New Hampshire men flooding their scorching cells to cool them down; Arizona prisoners whose shoes melt in the sun.  A growing segment of the incarcerated population is especially heat-sensitive. Jails and prisons house an increasing number of people with mental illness; as many as one in five Texas prisoners are prescribed psychotropic medications, which make the body more vulnerable to heat. A similar number receive blood pressure drugs, which can cause the same problem. And the rise of longer sentences in the 1980s and 90s has produced a surge of older prisoners, who are particularly susceptible to heat illnesses.

There is a way to prevent heat stroke in prison, of course: cooling the facilities during the hottest months. But in most states, there’s little political will to do so.  On its corrections department website, Florida lists the availability of air-conditioning as one of many “misconceptions” about its prison system, along with cable television. “We couldn’t afford to do it if we wanted to,” State Sen. John Whitmire, who chairs the Texas Senate’s criminal justice committee, told an interviewer in 2011 about air-conditioning in prisons. “But number one we just don’t want to.”  Whitmire, a Democrat, did not respond to a request for comment.

Among roughly 150,000 people in Texas prisons, about four in five have no access to air-conditioning in their cells. “The retort was always that if our soldiers in Iraq could manage in un-air conditioned tents, that was good enough for prisoners,” recalls Michele Deitch, former general counsel for the state senate’s criminal justice committee. (The military now provides air-conditioning in many tents in Iraq and Afghanistan.)  But unlike soldiers, prisoners have limited ability to adapt to heat; they can’t always catch a breeze outside or access cool water.

Unable to sway policymakers or corrections officials, inmates and their families are taking their complaints to the courtroom. In the past several years, courts in Arizona, Mississippi, and Wisconsin have sided with prisoners suing officials over extreme heat. In 2012, a federal judge ordered the Louisiana State Penitentiary to lower temperatures on death row to 88 degrees; at times, the heat index had reached 109.

But Texas is the center of the legal battle.  More than 20 state prisoners have died from the heat since 1998. It’s unknown how many more succumbed to heart attacks and other ailments in which heat was a contributing factor.  The Texas Department of Criminal Justice is facing numerous wrongful death lawsuits, one of them mounted by Robert Allen Webb’s family, along with a class action suit to force cooler conditions at the Wallace Pack Unit in Navasota, about 70 miles northwest of Houston.

October 11, 2017 in Prisons and prisoners | Permalink | Comments (3)

Tuesday, October 10, 2017

"Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration"

9780231179706The title of this post is the title of this notable new book about to be published and authored by Lauren-Brooke Eisen.  Here is the book description from the press's webpage:

When the tough-on-crime politics of the 1980s overcrowded state prisons, private companies saw potential profit in building and operating correctional facilities.  Today more than a hundred thousand of the 1.5 million incarcerated Americans are held in private prisons in twenty-nine states and federal corrections.  Private prisons are criticized for making money off mass incarceration — to the tune of $5 billion in annual revenue.  Based on Lauren-Brooke Eisen’s work as a prosecutor, journalist, and attorney at policy think tanks, Inside Private Prisons blends investigative reportage and quantitative and historical research to analyze privatized corrections in America.

From divestment campaigns to boardrooms to private immigration-detention centers across the Southwest, Eisen examines private prisons through the eyes of inmates, their families, correctional staff, policymakers, activists, Immigration and Customs Enforcement employees, undocumented immigrants, and the executives of America’s largest private prison corporations. Private prisons have become ground zero in the anti-mass-incarceration movement.  Universities have divested from these companies, political candidates hesitate to accept their campaign donations, and the Department of Justice tried to phase out its contracts with them.  On the other side, impoverished rural towns often try to lure the for-profit prison industry to build facilities and create new jobs. 

Neither an endorsement or a demonization, Inside Private Prisons details the complicated and perverse incentives rooted in the industry, from mandatory bed occupancy to vested interests in mass incarceration. If private prisons are here to stay, how can we fix them?  This book is a blueprint for policymakers to reform practices and for concerned citizens to understand our changing carceral landscape.

October 10, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, October 05, 2017

Notable new series in Teen Vogue on youth incarceration

I have to admit that I am not a regular reader of Teen Vogue, no doubt in part because it has been a long time since I have been either a teen or in any way vogue. But I may become a regular reader if the magazine keeps covering the issues of juvenile incarceration, as it has been doing in this "Kids Incarcerated" series of article:

October 5, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Wednesday, October 04, 2017

Terrific series of postings looking at empirics of the drug war and mass incarceration

Over at Medium, Xenocrypt is working on "five-part series on the effects of 'The War On Drugs' on 'mass incarceration'." Two posts into this series makes it clear that serious folks should spend some serious time looking at this analysis. Here are links to the first two lengthy postings:

Why The War On Drugs Matters In Mass Incarceration, Part 1: Who Goes To Prison.

Why The War On Drugs Matters In Mass Incarceration, Part 2: The Two Dimensions Of Prison Populations.

Here is part of the conclusion of this second post:

Why do different offenses seem important when looking at “prison sentences” as when looking at “prison populations”? To try to understand that, visualize “prison populations” as two-dimensional figures. Different parts of the figure might grow in different ways — and looking at height might tell you something different than looking at area.

According to these visualizations, the 2011 state prison system had more prison terms for drugs, “public order/other”, and lower-level violent and property offenses than the 1980 state prison system, but these were mostly short. Some prison terms did grow longer, but on average mostly for murder/non-negligent manslaughter, rape/sexual assault, robbery, and burglary....

Decomposing prison population growth into admissions and time served isn’t just an intellectual or visualization exercise. As I keep saying in this series, focusing on one statistic glosses over real human consequences. Violent offenders serving longer prison terms, along with additional prison terms for “rape/sexual assault” and “other violent” offenses, really did contribute more to “the incarceration rate” per se than the War on Drugs did.

That doesn’t mean the War on Drugs didn’t happen, or that all those extra prison terms for drugs and other lower-level offenses had no effects.  By placing admissions and time served in different dimensions, we might make that distinction clearer, and more fully understand what mass incarceration has really meant.

October 4, 2017 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 03, 2017

"Most Women in Prison Are Victims of Domestic Violence. That's Nothing New."

The title of this post is the title of this new Time commentary authored by history Prof Karen Cox. Here are excerpts:

While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years — and rightly so — there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.

Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.

These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.... [T]hanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant.  In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household....

Nationally, as the Vera Institute Report shows, the overwhelming majority of female prisoners are held for nonviolent offenses and most are women of color. Among them, 86% are victims of sexual violence.

The difficulties faced by female prisoners are now attracting the attention of politicians.  On July 11 of this year, Sen. Cory Booker (D-NJ) introduced the Dignity for Incarcerated Women Act, or the “Dignity Act,” on behalf of himself and Sens. Kamala Harris, Elizabeth Warren and Richard Durbin. The bill aims “To improve the treatment of Federal prisoners who are primary caretaker parents.” To that end, the Dignity Act calls for a more generous visitation policy for incarcerated mothers.  If passed, it would also prevent restraining pregnant women by shackling them or placing them in strait jackets, among other forms of restraint.  Prisons would provide parenting classes and trauma-informed care for those who need it, as well as make basic healthcare products like tampons available.  Gynecological care would also be mandatory.

Since July, the Dignity Act has only advanced as far as the Senate Judiciary Committee where no further action has been taken. Given the stark realities of life for incarcerated women, action cannot come soon enough. Our nation can and should do better than to allow Jim Crow-like prison policies to continue unchecked.

October 3, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (3)

Sunday, October 01, 2017

Interesting look at what prison consultants advise as elites head to prison

This MarketWatch article, headlined "When the rich get sent to prison, they call these wise guys first," provides an interesting little looking into an interesting little segment of the "prison-industrial complex." Here is how the article gets started:

Former congressman Anthony Weiner cried when a judge sentenced him to 21 months in prison last week for sexting with a 15-year-old girl. Prison is tough and most felons have no idea what to expect. For a few thousand dollars, however, high-profile felons like Weiner can hire a “prison consultant” to help smooth the transition to life behind bars.

For non-violent criminals like Weiner and “pharma bro” Martin Shkreli — who’s now behind bars in a Brooklyn jail — prison “is a totally different environment than they’ve ever been, it’s crazy in there,” said Michael Frantz, director of Jail Time Consulting, who served 36 months in a federal facility for tax evasion.

“They come from a world where there’s order,” Frantz said. “They have people under them and tell them what to do. When you get into federal prison, you have no control whatsoever. In the real world, there’s order and rational thinking. In the Bureau of Prisons there’s absolutely no rational thinking.”

Weiner’s attorney didn’t respond to a question on whether he’s using a prison consultant, and neither did the lawyer for Shkreli, who was recently sent to a Brooklyn detention center while he awaits sentencing on fraud charges. But Weiner and Shkreli are just the type of convicts who typically use prison consultants. They’ve already helped the likes of Bernie Madoff and Martha Stewart.

What do these prison preppers do? A combination hand-holder, shoulder-to-cry-on, and red tape slicer, prison consultants prep future inmates for life behind bars, teach them how to make the best use of their time “on the inside,” and can even help inmates shave time off their sentences. Many of the consultants have been to prison themselves and know from personal experience how to navigate the Bureau of Prisons bureaucracy.

Prices for their services range from $500 for advocating for better medical care in prison to $20,000 for comprehensive post-prison consulting to help ex-inmates rebuild their lives by starting new businesses — in fields they’re not legally barred from working in — or writing books.

Marketwatch talked to prison consultants to find out how they would advise Weiner and Shkreli. The best part? Many of these tips work for non-criminals too.

For what it is worth, I think "absolutely no rational thinking" is big part of the reason Anthony Weiner is headed to prison.

October 1, 2017 in Prisons and prisoners, White-collar sentencing | Permalink | Comments (2)

"South Dakota Swaps Lawyers for Tablets in Prisons"

The title of this post is the headline of this Courthouse News Service article that struck me as linguistically and conceptually amusing on a number of levels. Substantively, however, I am not sure anyone should be amused by what the body of the story reports:

Sometime in the next few days, inmates in South Dakota prisons will start counting on tablet computers – not a state-funded, in-prison attorney or paralegal – to help them with their cases.  The South Dakota Department of Corrections did not renew a contract for attorney Delmar “Sonny” Walter and his paralegals, who since the early 2000s have assisted the state’s prison population with research and filing of legal documents ranging from habeas petitions to child support documents.

Corrections secretary Denny Kaemingk told the Sioux Falls Argus Leader the move will save taxpayers money. But one prisoner’s rights attorney has concerns.  “What’s someone who can’t read or write or can’t do so fully effectively or without mental illness supposed to do with a tablet?” said David M. Shapiro, clinical assistant professor of law at Northwestern University’s Roderick MacArthur Justice Center. “It’s a pennywise, pound-foolish approach.”

This past May, the state announced every one South Dakota’s approximately 3,000 inmates would receive a free tablet computer.  This allows the inmates longer phone calls, subscriptions to online movies and music, and text messaging with loved ones. Inmates also now have access to law-references websites such as Westlaw and LexisNexis. It was a change supported by Walter, the on-site attorney, but he’s doubtful the technical upgrade is a substitute for legal insight from professionals.

“The things we did made the institution run smoother,” Walter said, noting his staff did everything to help inmates -- most legal novices unfamiliar with complex documents -- with everything from knowledgeably preparing appeals to making copies to helping inmates with medication requests.  “We helped the inmates get into court in a number of ways, and now they won’t have that stuff.”

In 1999, a state judge ruled the prisons must provide “legal assistance” for inmates.  The program -- which cost the state $276,000 in 2017 -- has never been luxurious.  “In Springfield (the Mike Durfee State Prison) we were basically in a closet,” Walter said. “These inmates had maybe two to four hours a week. They often had to choose between a doctor’s appointment or researching their case.”...

He predicts the state will soon see another access lawsuit. “A book isn’t going to make you a lawyer. These people need legal assistance.”...

In the past year, falling revenue has forced South Dakota to cut back on projects and revise spending goals. In part, providing inmates with tablets was an effort to lower re-offense rates and reduce taxpayers’ burden.  Shapiro, the Northwestern law professor, argues this nickel-and-dime cost-cutting distracts from a bigger problem.  “At the end of the day, America has more people locked up than any other country on earth,” he said in a phone interview. “A reduction in incarceration would lead to genuine savings.”

October 1, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, September 29, 2017

Another look at the realities of more offenders aging and dying in prison

Long-time readers surely recall a number of articles in this space about the aging US prison population. Here is another via the Philadelphia Inquirer under the headline "More people than ever are dying in prison. Their caregivers? Other inmates."  Here is how it gets started:

“The death squad.” Or, “the executioners.” That’s what many inmates used to call the inmate-volunteers who work the Graterford state prison hospice unit, a bleak row of isolation rooms — each one-part hospital room, one-part jail cell— where inmates with terminal illnesses are placed to die.

Then, they saw how the inmates cared for dying men in shifts, undertaking the intimate tasks of feeding, cleaning and comforting them. For many, it is a calling. Over time, attitudes changed, said James, a 51-year-old inmate who volunteers to do this work. “There’s a lot of progress in this place. There is more humanity here now.”

It’s needed, given that far more people are dying in prison than ever before. In Pennsylvania, 483 state inmates have died since January 2015. That’s about 180 deaths in prison each year. From 2005 to 2014, the average was 150 deaths per year.

That increase is a byproduct, officials say, of the extraordinarily fast-growing elderly population in prison. In 2001, there were 1,892 geriatric inmates in Pennsylvania (ages 55 or older). Today, that’s more than tripled to 6,458. The leading causes of death in the state’s prisons are heart disease, cancer and liver disease. Caring for this population is extraordinarily expensive: It’s estimated that elderly inmates cost three to nine times more than young ones. Compassionate release, meanwhile, is granted to just a few inmates each year.

But since 2004, families of dying inmates at Graterford have had the small comfort of knowing they will not die alone. There is just one nurse on staff at the 23-bed infirmary, and visitors are allowed only an hour a day, but volunteers man the hospice on 24-hour vigils, sometimes caring for two or three inmates at once.

A year ago, a statewide memo ordered that all Pennsylvania prisons establish hospice programs, but there’s no set format for those programs to follow, said Annette Kowalewski, who runs the hospice program at Laurel Highlands state prison, which contains a skilled-nursing facility. Staff at five or six institutions have contacted her for guidance.

According to Brie Williams, a professor at University of California-San Francisco who studies geriatric care in prison, some type of hospice care is offered at around 80 prisons nationwide. “Hospices in the correctional setting are a critically needed response to the extraordinarily long sentences and minimum mandatory sentences that were handed down over the past decades,” she said.

September 29, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, September 28, 2017

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, September 27, 2017

Should New Jersey be more regularly championed for its profound success in reducing prison populations and crime rates?

New-jersey-clipart-toonvectors-5159-140The question in the title of this post is prompted by this local article, headlined "Why is the N.J. prison population shrinking? (It's not just about less crime...)," which highlights how and how successful the Garden State has been in reducing its prison population.  Here are excerpts from the article:

The big house is getting smaller. Fewer people are going to prison in New Jersey these days and the numbers continue to drop, according to an analysis of state Department of Corrections data over the past five years.

Those incarcerated in New Jersey — including men and women in prison, juveniles in detention, and detainees still in halfway houses — dropped this year to 19,619, from 21,123 in 2013. That marked a decline of more than 15 percent.

In fact, the state's inmate population has fallen more from its peak in the 1990s than any other state in the country, according to The Sentencing Project, a Washington-based criminal justice reform group. Since 1999 — when more than 31,000 people were behind bars in New Jersey — the number of inmates has plunged by more than a third. "New Jersey leads the nation in prison population reduction," said Todd Clear, a prison policy expert at the Rutgers School of Criminal Justice.

Crime has been going down in New Jersey in recent years. But that doesn’t really tell the story of what's happening in the state's prisons, according to Marc Mauer, executive director of The Sentencing Project. "It's not necessarily one shift that can produce a shift of this magnitude," he said, attributing much of it to the creation of the state's drug courts that focus on diverting people from prison, as well as changes in the parole system that make it less likely someone will be put back behind bars for minor technical violations of their parole.

The corrections department data underscores the impact on how the state treats drug crime. The percentage of those serving time for drug crime is down more significantly than for inmates convicted of any other offense.... According to corrections department officials, a five-year phase-in under Gov. Chris Christie of mandatory drug courts for non-violent offenders, which was expanded to all 21 counties across the state, redirected thousands from state prison and into drug treatment programs.

At the same time, they credited the so-called "ban the box" legislation prohibiting employers from discriminating against people with expunged criminal records, as well as accelerating some expungements, increasing the type of convictions that can be expunged and reducing the waiting period to expunge an entire juvenile record, have given some inmates a better opportunity of finding a job and staying out of prison....

Department of Corrections officials said with the decline in inmate population, they have consolidated facilities and closed some units, reducing overtime costs. "This practice allowed us to undertake much-needed renovations in our facilities," said spokesman Matthew Schuman. "In fact, as part of our consolidation program, we closed Mid-State Correctional Facility in June 2014."

Mid-State reopened in April 2017 as the first licensed, clinically driven drug treatment program provided by the NJDOC. At the same time, a similar substance use disorder program for female offenders became operational at Edna Mahan Correctional Facility for Women.

Unfortunately, this new article does not address what has become of crime rates and recidivism rates during this period in which New Jersey has been shrinking its prison population, but I think the data is also encouraging.  Specifically, crime data for New Jersey here and here suggests crime has gone down as much if not more in NJ than elsewhere in the country and the state even seems to be largely avoiding the crime spikes that a number of other regions have seen in the last two years.  And this local article from last years reports that the state's corrections "Chief of Staff Judith Lang ... said New Jersey’s recidivism rate has lowered from 48 percent to 32 percent" thanks in part to state investment in reentry services.

Though outgoing New Jersey Governor Chris Christie will be leaving office with very low approval ratings, the citizens of New Jersey and all those interested in criminal justice reform should praise his efforts in this arena and the broader achievements of all New Jersey policymakers and officials in recent years.  Especially if New Jersey continues to keep crime rates and prison populations low, the state will continue to be an important success story for modern criminal justice reforms that other jurisdictions should aspire to emulate.

September 27, 2017 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments"

Anti-tax icon Grover Norquist has this notable Wall Street Journal commentary under the headline "Conservatives for Criminal Justice Reform: You don’t hear about it much, but 31 mostly red states have reduced both crime and imprisonment." Here is how it starts:

Every so often I’m asked to list the conservative movement’s most important recent accomplishments.  One always ranks near the top: criminal justice reform.

With leadership from Republican governors and legislators and groups such as Right on Crime, conservatives have pushed to rein in runaway prison spending and adopt cost-conscious correctional policies that improve public safety.  Starting 10 years ago in Texas, more than half of all states have now shifted course, changing laws to ensure that violent offenders serve hard time while those who are not a danger are steered toward less expensive alternatives that can help alter the paths of their lives and make communities safer.

Taxpayers benefit.  In 2007 the Pew Charitable Trusts projected that state prisons would grow 14% over five years, costing states $27.5 billion more.  Instead, the reforms have bent the curve.  The state prison population is down 5%.  Between 2010 and 2015, 31 states reduced both crime and imprisonment, proving that fiscal discipline and safe streets can go hand in hand.

September 27, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, September 26, 2017

Thoughtful new Vox commentaries on modern incarceration and its contexts

Regular readers likely already know that they ought to be regularly reading Vox for its sharp coverage of a number of criminal justice issues.  And this week, there have already been these two must-read pieces:

September 26, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6)

Thursday, September 21, 2017

Interesting account of gender discrimination in Wyoming alternative sentencing boot camp program

In part because women are a disproportionately small share of criminal offenders, they can experience a disproportionately large share of discriminatory treatment in the operation of criminal justice systems.  An interesting example of this reality comes from this new BuzzFeed News article headlined "Women Are Spending Years In Prison Because Wyoming Won’t Let Them Into Its All-Male Boot Camp."  The piece's subheadline provide a summary of the story: "Taylor Blanchard faced up to 10 years in prison for a crime that would’ve sent men to boot camp for six months to a year. Her fight could change the fate of countless women in Wyoming."  Here are excerpts:

For the past three months, 23-year-old Blanchard had been trying to get into [boot camp] programs.  The one in her home state, Wyoming, lasts six months to a year.  People who finish it successfully can then ask a judge to transfer them into probation, a halfway house, or placement with a family member, effectively shaving years of prison time off their sentences.

Blanchard ticked all the boxes for acceptance, except for one.  The Wyoming Department of Corrections has never housed a woman in boot camp, and it wasn’t going to start with her. Which is how Blanchard ended up in Florida, shipped out of state instead of accommodated in her own. And it’s how she became the central figure in a federal lawsuit accusing the WDOC of discriminating against female inmates.

Across the country, women in prisons and jails are often housed in different conditions than their male peers.  The criminal justice system was built for men, and prison activists say that little thought has been given to providing equal services — much less special considerations — for women, even as their population has ballooned in recent decades....

Wyoming’s boot camp, formally called the Youthful Offenders Program at the Wyoming Honor Conservation Camp, is known widely among public defenders. Open to first-time offenders under 25, the program is made up of “physical training, drill and ceremony, and a paramilitary base program focusing on appearance, life skills, and behavior,” according to the state; about half of those who enter boot camp complete the program successfully.

In an interview with BuzzFeed News, [Blanchard’s court-appointed attorney, John] LaBuda called it a “really good program,” one that teaches discipline but also allows inmates to get their GED or drug and alcohol counseling, or sometimes learn a trade. But when the state first offered the program in 1987, it only housed men; that has continued for 30 years. No attorney or judge, to the state or anyone else’s knowledge, has ever tried to place a female client into the boot camp....

In July, [Blanchard’s civil] lawyers filed suit in federal court, alleging the WDOC was violating her constitutional rights by denying her an opportunity offered to men. [John Robinson and Stephen] Pevar also had the idea to turn Blanchard’s case into a class-action lawsuit. As Pevar wrote in a July email to WDOC lawyers, “Wyoming was not only violating Ms Blanchard’s rights but has been violating the rights of women for many years now who are in her situation. We needed to do something about it.” (In 2013, the ACLU settled a similar lawsuit that opened up a Montana prison boot camp to women, though the program is now ending for both men and women.)

The lawsuit’s proposed class includes current inmates at Lusk’s women’s prison who were first-time offenders under 25 at the time of their sentencing — women who were eligible to be recommended to the Youthful Offenders Program but weren’t given the chance because of the boot camp’s men-only tradition. The proposed class also includes young Wyoming women who will face the same situation in the future. But Pevar doesn’t yet know how many women actually fall under this umbrella, if a judge does approve the lawsuit as a class action. He and Robinson have requested the WDOC reveal the names of eligible women currently at Lusk, a prison with a capacity of 293 women. WDOC has not yet provided these names. Blanchard’s attorneys are also trying to get referrals from public defenders like LaBuda currently representing eligible young women.

The class could end up being 20 people or it could be 200, Pevar said, but the goal is for each woman to get put into boot camp, either immediately or by going back in front of their sentencing judges. (The WDOC would provide each woman with an independent attorney for the latter proposed process.) “We feel that's the only fair way to vindicate the Constitutional rights of the women whose lawyers didn't ask for the recommendation,” Pevar said. No monetary award for the women is involved.

In late August, the WDOC filed a motion to dismiss the suit, arguing that women have never been denied the opportunity to go to bootcamp. It’s just that they’ve never tried to go to bootcamp, it said, until Blanchard. The corrections department also argued Blanchard hadn’t exhausted all of remedies before filing suit, and that her complaint is moot because she’s already been placed in boot camp elsewhere.

September 21, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Saturday, September 16, 2017

"Parental Arrest, Incarceration and the Outcomes of Their Children"

The title of this post is the title of this paper recently posted to SSRN authored by Stephen Billings. Here is the abstract:

Parental arrest and incarceration represents a profound and traumatic experience for almost 3 million children in the U.S. and scholars in sociology and criminology consistently find negative impacts of parental incarceration on children across a range of academic and behavioral outcomes.  Unfortunately, the challenge of disentangling parental incarceration from other parenting attributes has limited causal inference in this literature.

The research presented here provides compelling evidence that parental arrest coincides with negative outcomes for children, but that the incarceration of a parent may have short term benefits for the child.  Results suggest that incarceration removes negative role models and leads to changes in a child's home environment.

September 16, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, September 15, 2017

Advocacy for the "the smart way to get 'tough' about crime"

Brandon Garrett has this new CNN commentary discussing some of the themes in his new book titled "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is hoe it starts and ends:

It is time to retire the phrase "tough on crime."  There is nothing tough about the harsh punishments that contributed to mass incarceration in this country.  In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime.  Instead of being "tough," we need to be smart.

Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration.  Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction.  Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.

And crime continues to fall.  According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities.  This year is projected to be the year with the second-lowest crime rate in 25 years.  Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.

So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up.  Even the localized crime bumps in a handful of cities seem to be subsiding.  We don't need a new war on crime when we are winning the peace....

Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners.  Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us.  Reform is working and crime is still falling.  We need to push it farther to shrink our bloated criminal justice system.  That is the smart way to get "tough" about crime.

September 15, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Thursday, September 14, 2017

Jared Kushner convening White House meeting on federal prison programming and reentry issues

As reported in this Washington Post piece, headlined "Kushner to gather bipartisan group to come up with ideas for federal prisons," an event scheduled for today in the White House suggests criminal justice reform issues are not completely dormant at the federal level. Here are the details:

President Trump’s son-in-law and senior adviser, Jared Kushner, will convene a roundtable Thursday at the White House to gather recommendations for improving mentoring and job training in federal prisons, a departure from the administration’s focus on more punitive crime-fighting measures.  A bipartisan group of about two dozen elected officials, religious leaders and business leaders were invited to the first major criminal justice-related event held by the Kushner-led Office of American Innovation, which in recent months has brought together technology executives to search for ways to make government more efficient.

Kushner’s interest in corrections policy is personal: His father, Charles Kushner, a real estate executive, was sentenced in 2005 to two years in federal prison after pleading guilty to tax evasion. Jared Kushner has said the experience gave him a glimpse of the challenges inmates and their families face in and outside of prison.  “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner told The Washington Post in a telephone interview.  “We’re not looking to train better criminals.”

The event, which had not been officially announced as of Wednesday morning, comes after a months-long push by Trump and Attorney General Jeff Sessions for more aggressive prosecution of drug offenders and illegal immigrants.  In May, Sessions jettisoned an Obama administration policy that instructed federal prosecutors to avoid charging low-level criminals with drug offenses that would trigger severe mandatory-minimum sentences, a shift projected to boost the prison population.  Those efforts are at odds with a growing consensus that the mandatory-minimum sentences that proliferated during the “war on drugs” fueled crowded, costly prisons that unduly burden taxpayers and do not improve public safety.  A number of states, including several led by Republicans, are curbing their inmate populations and even closing prisons by reducing mandatory-minimum sentences and expanding parole and probation.

Kushner’s private discussions in recent months with members of Congress and outside groups have included sentencing reform, according to participants, but Thursday’s meeting is more narrowly focused on preparing inmates to reenter society.  Neither Sessions nor his newly appointed Bureau of Prisons director, retired Army Gen. Mark S. Inch, will attend, although some Justice Department officials are expected to participate.

Criminal justice advocates invited to the roundtable said the gathering is a positive first step, and they called for expanding drug and mental health treatment, vocational training, mentoring programs and placement in halfway houses. “Regardless of what you think about who goes to prison or how long they need to be there, most people come out eventually, so let’s make sure they are better off than when they came in,” said Mark Holden, general counsel for Koch Industries, a leading conservative proponent of reducing incarceration levels.  “Of course I want to see the dialogue on criminal justice issues continue and looked at comprehensively.  We need a holistic solution.”

The federal prison population is expected to grow by 2 percent over the coming year, rising by 4,171 inmates, to a total of 191,493, and reversing the downward trend of the past four years, according to the Trump administration’s proposed budget.  Yet the proposal calls for a 14 percent reduction in federal prison jobs, including 1,850 fewer corrections officers.  Many of those positions are vacant.  The Justice Department is seeking $10 million to cover the costs of food, health care, transportation and programs for the additional inmates, but it’s unclear how much money would be allocated to education and vocational training....

Asked about federal funding, Kushner said, “We’re not at a place where we are prescribing solutions. We’re bringing people together and generating ideas. If prisoner reentry programs are successfully executed, it’s usually a good investment.”  A request for recommendations from participants before the conference said, “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

On Capitol Hill, Rep. Douglas A. Collins (R-Ga.) has introduced a bill that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by House Judiciary Chairman Bob Goodlatte (R-Va.), the measure requests $250 million over the next five years for prison education programs.

Among the elected officials slated to participate in Thursday’s program are Housing and Urban Development Secretary Ben Carson, Labor Secretary Alex Acosta, Sen. John Cornyn (R-Tex.), Sen. Sheldon Whitehouse (D-R.I.), and Republican Govs. Matt Bevin of Kentucky and Sam Brownback of Kansas.

September 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (5)

Tuesday, September 12, 2017

"Black Disparities in Youth Incarceration: African Americans 5X More Likely than Whites to be Held"

The title of this post is the title of this new fact sheet produced by The Sentencing Project. Here is some of the text to go along with its state-by-state charts:

Black youth were more than five times as likely to be detained or committed compared to white youth, according to data from the Department of Justice collected in October 2015 and recently released.  Racial and ethnic disparities have long-plagued juvenile justice systems nationwide, and the new data show the problem is increasing.  In 2001, black youth were four times as likely as whites to be incarcerated.

Juvenile facilities, including 1,800 residential treatment centers, detention centers, training schools, and juvenile jails and prisons held 48,043 youth as of October 2015.  Forty-four percent of these youth were African American, despite the fact that African Americans comprise only 16 percent of all youth in the United States.  African American youth are more likely to be in custody than white youth in every state but one, Hawaii.

Between 2001 and 2015, overall juvenile placements fell by 54 percent.  However, white youth placements have declined faster than black youth placements, resulting in a worsening of already significant racial disparity.

Nationally, the youth rate of incarceration was 152 per 100,000.  Black youth placement rate was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. Overall, the racial disparity between black and white youth in custody increased 22 percent since 2001.  Racial disparities grew in 37 states and decreased in 13.

In six states, African American youth are at least 10 times as likely to be held in placement as are white youth: New Jersey, Wisconsin, Montana, Delaware, Connecticut, and Massachusetts.

September 12, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 11, 2017

"Guideposts for the Era of Smart Decarceration"

Download (5)The title of this post is the title of this notable document produced by the Smart Decarceration Initiative and authored by Carrie Pettus-Davis, Matthew Epperson and Annie Grier. (The document was released earlier this year, but was just recently brought to my attention.)  Here is part of its executive summary:

Reducing the United States’ overreliance on incarceration requires deliberate action. Proponents of smart decarceration recognize the need for clearly articulated areas of targeted intervention — or guideposts — to inform the multifaceted nature of criminal justice reform.  An important first step as we enter the era of decarceration is to merge the collective goals and strategies of diverse and highly invested stakeholders.

Despite the expansion of efforts to reduce jail and prison populations and reform criminal justice policy and practice, a comprehensive, inclusive, and actionable approach has been relatively absent from the conversation.  Such an approach is only possible if criminal justice stakeholders agree upon the foundational objectives that can generate lasting decarceration. In this report, we offer guideposts and actionable strategies for the era of smart decarceration in America.

This document was written by leaders of the Smart Decarceration Initiative (SDI). SDI is a joint initiative of Washington University in St. Louis and the University of Chicago and is located at the Center for Social Development at Washington University’s Brown School of Social Work. SDI’s mission is to build social capacity to reduce incarceration rates in ways that are effective, sustainable, and socially just.  Smart decarceration will only be achieved when three simultaneous goals are accomplished:

• Substantially reduce the incarcerated population in jails and prisons;

• Redress race, economic, and behavioral health disparities of those involved in the criminal justice system;

• Maximize public well-being and public safety.

SDI is grounded in four guiding concepts:

1. Changing the narrative on incarceration and the incarcerated. A smart decarceration approach must soberly question the utility and function of incarceration and actively welcome currently and formerly incarcerated individuals as leaders in decarceration efforts.

2. Making criminal justice systemwide innovations. Criminal justice transformation that leads to smart decarceration will require advances in all sectors of the criminal justice system, including law enforcement, court systems, jails and prisons, and probation and parole.

3. Implementing transdisciplinary policy and practice interventions. Smart decarceration will be complex and comprehensive and will require integrating perspectives from multiple disciplines to produce substantive policy reforms and practice innovations.

4. Employing evidence-driven strategies. A smart decarceration approach must both generate new evidence for optimal reforms and use existing evidence to guide decision-making and program development. Methods must be integrated to continuously examine and assess the effects of policy and practice interventions, thus developing further evidence from which to act.

This report, Guideposts for the Era of Smart Decarceration, is a result of our efforts to build consensus and articulate priorities that stakeholders have identified as feasible and likely to produce meaningful impact in the era of decarceration. Integral to ensuring that smart decarceration is achieved is that the ideas and needs of multiple stakeholders are represented.

This report contains a set of guideposts and action steps for stakeholders identified over a three-stage process of soliciting input from 307 advocates, practitioners, reformers, and researchers. Stakeholders were engaged in this process between September 2014 and September 2016. The purpose of Phase 1 was to show where to focus decarceration efforts. Phase 2 was used to reveal the prioritization of specific action steps that could be taken to promote decarceration in ways that are consistent with smart decarceration goals and guiding concepts. Phase 3 articulated universal policy strategies to facilitate decarcerative change....

Twelve priority areas for decarceration were generated during Phase 1. These priorities included: (1) sharing data and resource allocation; (2) incorporating assessments of risks and needs; (3) implementing evidence-driven innovations; (4) reorienting responses to severity of the crime; (5) resetting norms and narratives; (6) incorporating multiple and new perspectives; (7) responding to behavioral and physical health needs; (8) improving reentry; (9) reducing collateral consequences; (10) building diversionary systems; (11) curtailing sentencing; and (12) narrowing the funnel to incarceration....

September 11, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Saturday, September 09, 2017

"America must listen to its prisoners before we make a major mistake"

The title of this post is the title of this extended Washington Post op-ed authored by Heather Ann Thompson. Here is how it starts and ends:  

Forty-six years ago, on Sept. 9, 1971, almost 1,300 men erupted in one of the 20th century’s most dramatic prison protests. Their goal? To be treated as human beings even as they served their time in one of New York state’s most notorious penal institutions, the Attica Correctional Facility.  These were men being fed on 63 cents a day, treated brutally by prison doctors and forced to labor whether they were sick or well.  They finally had reached the breaking point.

One year ago, on Sept. 9, 2016, thousands of prisoners, this time men and women from across the United States, marked the anniversary of Attica by engaging in another dramatic series of protests for the very same reasons that Attica’s incarcerated had rebelled in 1971.  Conditions were terrible.  Overcrowding was severe, food was maggot-ridden, and prisoners were still being forced to labor....

On this 46th anniversary of that day when almost 1300 men stood together to tell the nation of the horrors of their confinement at Attica, and this first anniversary of that day when thousands of men and women again stood together, at equally enormous risk, to remind us all that conditions are still brutal in our nation’s penal institutions, we must listen to what they were trying to tell us: Everyone behind bars remains a human being and, therefore, no crime committed, nor punishment rendered, justifies abuse.

And should we forget this basic truth — one that was understood, accepted and stands as the very foundation of the Universal Declaration of Human Rights adopted by the United Nations in 1948 — the men and women who endure our nation’s penal facilities will, inevitably, remind us again.

As those who struggled for better conditions and suffered so much in Upstate New York in 1971 oft said, “Attica is all of us.” Indeed it is.

September 9, 2017 in Prisons and prisoners | Permalink | Comments (1)

Thursday, September 07, 2017

Just how should California implement Prop 57's call for prison releases?

The question in the title of this post is prompted by this local article headlined "Prop 57: Debate rages on about which inmates should be released early." Here are excerpts:

Ten months after California voters approved a proposition allowing thousands of prison inmates to apply for early release, a debate is still raging over who ought to be freed.

Proposition 57 left it to prison officials to clearly identify which crimes deemed nonviolent would qualify and how an inmate’s criminal history would affect eligibility. The public could weigh in during a 45-day comment period this summer — and boy, did they. More than 8,500 people threw in their two cents, in writing and at a public hearing in Sacramento last week. Now, the California Department of Corrections and Rehabilitation is sorting through bulging email boxes and stacks of letters from crime victims, inmates, prosecutors and reformers.

Meanwhile, under emergency regulations, prison officials have already notified prosecutors across California of more than 1,800 inmates who have applied for early parole. No figures are available until later this month on the number of inmates whose applications have been denied, approved or have actually been released. But a snapshot of the situation in two urban counties in Northern California shows relatively few people are being granted early parole, though it is impossible to tell if the trend will continue....

Ken Scheidegger, legal director of the Sacramento-based Criminal Justice Foundation, ... opposed Proposition 57 and is concerned about the early releases. “People got the idea a few years ago that prisons were full of harmless people,” Scheidegger said. “That is a widespread popular misconception.”

But proponents note that Proposition 57 was the third time since 2012 that voters overwhelmingly opted to ease California’s tough-on-crime laws to enhance rehabilitation, stop the revolving door of crime and prevent federal courts from indiscriminately releasing inmates to reduce prison crowding. “Prop. 57 is not a ‘get out of jail free’ card,” said Benee Vejar, an organizer with the civil rights group Silicon Valley De-Bug. “It’s asking for an early parole hearing and another chance.”...

The Department of Corrections and Rehabilitation has until Sept. 20th to develop the regulations, but it can ask for a 90-day extension. The debate over the Proposition 57 regulations is being fought along similar battle lines as the fight over the initiative itself.

Advocates, including Human Rights Watch, want prison officials to consider as many people as possible for early release. Law enforcement officials want to restrict who is eligible and change how the decisions are made. Both sides are calling for more rehabilitation programs. The state recently boosted the prison system’s rehab budget by $137 million. “We cannot repair the criminal justice system on the cheap,” said Rosen, the Santa Clara County district attorney. “If we want to improve the outcomes from prison, then we will need to change the experience of being in prison.”

The ... opponents’ chief complaint is that the initiative promised voters that only nonviolent inmates would be eligible for release. But under the existing regulations, certain violent offenders are eligible once they have completed their prison term for the violent felony, but are still serving time for a nonviolent felony they were also convicted of. The Legislative Analyst’s Office also raised questions about the provision. On the other hand, Proponents want to expand the pool of inmates. Currently, about 4,000 inmates with third strikes whose last offense was nonviolent are barred from applying for early parole. Yet according to the CDCR’s own public safety risk evaluations, nonviolent third-strikers are more than three times more likely to qualify as low risk than the currently eligible prisoners.

But opponents claim crime will rise under Proposition 57, a warning they have sounded since 2011 when Gov. Jerry Brown and the Legislature began scaling back the emphasis on incarceration in response to a federal court order about prison crowding and inhumane health care. Opponents point to the fact that violent crime in 2016 rose in the state — by 4.1 percent — unlike in the country as a whole. However, proponents note California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before the reforms began....

Law enforcement officials also complain about the process. Among their concerns: Early parole applications are subject to a paper review, rather than a parole hearing; prosecutors only have 30 days to prepare a recommendation; only inmates may appeal the board’s decision; and police are cut out entirely. “My rank and file are on the front lines — they’re the ones who have to encounter these individuals once they’re on the streets,” San Jose police Chief Eddie Garcia said.

September 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, August 28, 2017

Helpful new Sentencing Project fact sheet on "Private Prisons in the United States"

The fine folks at The Sentencing Project have this fine new two-page fact sheet providing state-by-state data on the use of private prisons.  Here is some of the text that accompanies the charts in the publication:

Private prisons in the United States incarcerated 126,272 people in 2015, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 45%.

States show significant variation in their use of private correctional facilities.  For example, New Mexico and Montana incarcerate over 40% of their prison populations in private facilities, while states such as Illinois and New York do not employ for-profit prisons.

Data compiled by the Bureau of Justice Statistics (BJS) show that in 2015, 28 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation.

According to BJS data, 21 of the states with private prison contracts incarcerate more than 500 people in for-profit prisons.  Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 14,293.

Since 2000, the number of people in private prisons has increased 45%, compared to an overall rise in the prison population of 10%. In five states, the private prison population has increased 100% or more during this period.  The federal prison system experienced a 125% increase in use of private prisons since 2000 reaching 34,934 people in private facilities in 2015.

Despite the significant growth in private prisons since 2000, the number of people housed in these facilities has declined 8% since reaching a national peak population of 137,220 in 2012.  Since 2000 six states — Arkansas, Kentucky, Maine, Michigan, Utah and Wisconsin — have eliminated their use of private prisons due to concerns about safety and cost-cutting.  An additional six states saw reductions of 40% or more in the use of private prisons during this period.

August 28, 2017 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, August 27, 2017

SCOTUS fills out Fall docket with little prisoner lawsuit fee-award case

As reported here by Amy Howe via SCOTUSblog, the Supreme Court this past Friday issued an unusual mid-summer cert grant a full month before their usual late September "long conference."  Here are the basics:

[I]n a relatively unusual summer order, the justices [on August 25] added a new case, involving the interpretation of a federal law governing the award of attorney’s fees to prisoners who prevail in civil rights cases, to their docket for the fall.   [This] grant came in a case filed by an Illinois prisoner, Charles Murphy, who was awarded over $300,000 after he prevailed in a lawsuit alleging that corrections officers had badly beaten him, causing permanent damage to his eye.  A provision in the Prison Litigation Reform Act indicates that, when a prisoner like Murphy is awarded money in a civil rights lawsuit, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendants.”  The dispute now before the Supreme Court centers on exactly what the phrase “not to exceed 25 percent” means: Does 25 percent of the money awarded to the prisoner have to go toward his attorney’s fees, before the defendants must also contribute to the fees, or can the district court require a smaller portion of the attorney’s fees to come out of the prisoner’s award?

In Murphy’s case, the district court awarded attorney’s fees of approximately $108,000. It ordered Murphy to pay 10 percent of his award — approximately $30,000 — to his attorney, with the roughly $78,000 remaining to come from the corrections officers. But on appeal, the U.S. Court of Appeals for the 7th Circuit reversed the district court’s ruling on the attorney’s fees award.  It interpreted the phrase “not to exceed 25 percent” to mean that 25 percent of the prisoner’s award was required to go to attorney’s fees; under this construction, the corrections officials would have to pitch in only if the prisoners’ attorneys were still owed money after that.  The court of appeals therefore ordered Murphy to contribute approximately $77,000 (rather than roughly $30,000) of his award to his attorneys; this left corrections officials on the hook for only approximately $31,000 (rather than the $78,000 that they owed under the district court’s order).

Murphy took his case to the Supreme Court, where he urged the justices to step in and resolve a conflict between the 7th Circuit’s interpretation and those of several other circuits that would give district courts discretion to decide how much of a prisoner’s award should go to his attorneys.  The 7th Circuit’s rule, he argued, “leaves prisoners whose constitutional rights have been violated with smaller net recoveries than Congress intended them to receive.”

Opposing review, the corrections officers ... effectively conceded that the courts of appeals are divided on how to interpret the phrase “not to exceed 25 percent.”  But, they emphasized, the conflict is not as widespread as Murphy suggests, because only two courts of appeals “have squarely held that the PLRA gives district courts discretion to choose any portion of the judgment up to 25% to apply to a fee award.”  And in any event, they added, the issue arises relatively rarely, because virtually no prisoners in PLRA cases are even represented by attorneys, much less prevail and receive money damages....

The [SCOTUS] calendar for October arguments is full, bolstered by two cases in which the justices are hearing oral arguments for the second time and two other cases — involving the Trump administration’s “travel ban” and a challenge to Wisconsin’s redistricting maps — that are being argued earlier than they might normally have been. But the court still has 12 days of arguments (for a total of up to 24 arguments) to fill in the November and December sittings, with only 17 hours’ worth of arguments before today’s grant.  [This] grant should allow Murphy’s case to be briefed in time for oral argument in December, bringing the total of November and December arguments to 18.

Though I suppose it is useful for SCOTUS to settle a circuit split on this little fee issue, I find it more than a bit intriguing and ultimately frustrating that a rare dispute over how much a prisoner must pay his lawyer is now going to get more SCOTUS attention than far-more-common disputes over, say, how much time a juve offender can gets under Graham and Miller Eighth Amendment precedents or whether and how guideline enhancements based on acquitted conduct may be problematic in some cases given Apprendi/Booker Sixth Amendment jurisprudence.  It seems a clear circuit split on a little issue that impacts a handful of prisoners still has a better chance of garnering SCOTUS review than challenging sentencing issues that can impact thousands of cases every year.

August 27, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

Wednesday, August 23, 2017

"Can a General Conquer the Federal Prison System?"

The question in the title of this post is the headline of this new extended Marshall Project piece looking at the challenges facing the newly appointed head of the federal Bureau of Prisons. Here is how it gets started:

The federal Bureau of Prisons faces a sea of troubles: Escalating medical costs, a prison population with little access to job training programs or computers, an institutional culture averse to change. In steps Mark S. Inch, the retired two-star general selected by Attorney General Jeff Sessions last month to run the Bureau of Prisons.

Inch retired from the Army in May after more than three decades in the military, mostly as a police officer. While some prison advocates are wary of a leader from an organization disgraced by the abuses at Abu Ghraib, others say a military man may have the courage and discipline to move a stodgy federal prison system toward reforms that have been stalled for years.

“He would provide strong leadership, demand accountability, transparency, and I believe he would be a general who has the ability to think outside the box,” said federal prison consultant Jack Donson, who does not know Inch but worked for the Bureau of Prisons for more than two decades.

In a statement after appointing Inch, Sessions called the retired general “uniquely qualified” because of his policing background and his time overseeing Army Corrections over the past two years.  He replaces Thomas Kane, a 40-year veteran of the federal prison system who had been acting director since early 2016.

The Bureau of Prisons houses more than 187,000 inmates and employs more than 39,000 workers spread out across 122 correctional facilities, six regional offices, a headquarters, two training centers, and 25 residential reentry management offices.  The BOP also has contracts with 11 private prisons.

Outside the military, not much is known about Inch, especially among those who have worked in the federal prison system, prisoner advocates and corrections officials.  Will Inch be an ally for better prisoner education? Will he limit the amount of time prisoners are held in isolation?  Will he rely on controversial for-profit prisons to house new inmates?Inch hasn’t said.

Prisoner advocacy groups have asked Justice officials if any hearings will be held to examine Inch’s background and priorities.  They were told no.

August 23, 2017 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1)

Tuesday, August 22, 2017

Looking at US prison history while charting "How to End Mass Incarceration"

The quoted title of this post is the headline of this lengthy Jacobin commentary authored by Roger Lancaster, which starts with an extended review of prison history in the United States.  I recommend the full piece, and here is a how it gets started:

The United States has not always been the world’s leading jailer, the only affluent democracy to make “incapacitation” its criminal justice system’s goal.  Once upon a time, it fashioned itself as the very model of what Michel Foucault called “the disciplinary society.”  That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals.  Today, it is a carceral state, plain and simple.  It posts the highest incarceration rate in the world — as well as the highest violent crime rate among high-income countries.

Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration.  Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism.  But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?

While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration.  Only then will we be able to see a clear path out of the current impasse.

August 22, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Sunday, August 20, 2017

Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits

I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18.  The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case.  The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response.  Here are snippets:

For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span.  Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual....  [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....

[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old.  Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age.  Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.

It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit.  But it is totally within Defendant’s own power to shorten the sentence imposed.  Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75.  It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.

August 20, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (25)

Friday, August 18, 2017

Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences

As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:

Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.

Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.

The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.

Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.

Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....

The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.

It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.

August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, August 16, 2017

"Let Prisoners Learn While They Serve"

The title of this post is the headline of this new New York Times editorial.  Here are excerpts:

Criminal justice officials across the country are struggling to break the recidivism cycle in which prisoners are released only to land right back behind bars.  These prisoners are among the most poorly educated people in the country, and that fact holds the key to a solution.  Decades of research has shown that inmates who participate in prison education programs — even if they fail to earn degrees — are far more likely to stay out of prison once they are freed.

That prison education programs are highly cost effective is confirmed by a 2013 RAND Corporation study that covered 30 years of prison education research.  Among other things, the study found that every dollar spent on prison education translated into savings of $4 to $5 on imprisonment costs down the line.  Other studies suggest that prisons with education programs have fewer violent incidents, making it easier for officials to keep order, and that the children of people who complete college are more likely to do so themselves, disrupting the typical pattern of poverty and incarceration.

Findings like these have persuaded corrections officials in both Democratic and Republican states to embrace education as a cost-effective way of cutting recidivism. But Republican legislators in New York — which spends about $60,000 per inmate per year — remain mired in know-nothingism and argue that spending public money on inmates insults taxpayers.  They have steadfastly resisted Gov. Andrew Cuomo’s common-sense proposal for making a modest investment in prison education programs that have already proved highly successful on a small scale in New York’s prisons....

Prison education programs were largely dismantled during the “tough on crime” 1990s, when Congress stripped inmates of the right to get the federal Pell grants that were used to pay tuition.  The decision bankrupted many prison education programs across the country and left private donors and foundations to foot the bill for those that survived.

Despite limited and unreliable funding, these programs have more than proved their value.  New York lawmakers who continue to block funding for them are putting ideology ahead of the public interest.

August 16, 2017 in Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Monday, August 14, 2017

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Thursday, August 10, 2017

"Why are we sentencing children to life in prison without parole?"

The question in the title of this post is the headline of this new Newsweek commentary authored by Vincent Southerland and Jody Kent Lavy.  Here are excerpts from the start and end of the commentary:

The barbaric practice of sentencing children to life in prison without the possibility of parole remains one of the most radically inhumane aspects of our criminal justice system.

For those of us who work daily to abolish this practice, the good news is that there are several recent U.S. Supreme Court decisions that deem this brand of sentencing unconstitutional and attempt to limit its use.

The bad news is that despite these decisions and a national trend moving away from this practice, several outlier states and counties refuse to comply with the Supreme Court’s most recent mandate, which effectively banned life without parole for all children capable of rehabilitation.

The shameful news is that the United States is the only country in the world that sentences children to life in prison without the possibility of parole, and that children of color -- African American children in particular -- and children who have been abused and traumatized are disproportionately handed these sentences.

Taken together, these facts lead to a simple conclusion: The time has come to put an end to life without parole sentencing for children....

By tackling our most extreme sentences for children, and acknowledging that this harshest of punishments is imposed disproportionately on children of color coming from some of our most vulnerable communities, we must come to terms with the fact that race and socioeconomic status play a huge role in determining how much compassion the justice system will show a young person.

This should not be the case -- all children are created equal, and there is no such thing as a throwaway child. Our sentencing policies should reflect those truths.

State lawmakers would be well served to join the national trend abandoning the practice of sentencing children to life in prison without a hope of release.  It is imperative that together we work toward a justice system that offers the mercy that all children deserve.

August 10, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Tuesday, August 08, 2017

Too bad AG Sessions is not trying to take prison populations back to the 1980s or even the 1950s

Fe26824f81_the-wayback-machineIt has become popular to lament the various actions of Attorney General Sessions by saying he is taking us back to the 1980s.  Here is a smattering of critical commentary in this vein, the latest of which was published a few days ago in Reason:

Today, though, this Crime Report piece details a claim that AG Sessions has his wayback machine set even longer ago.  The piece is headlined "Sessions Takes DOJ ‘Back to the Fifties,’ Says New John Jay President," and here is how it gets started:

Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.

Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades — “I’d say to the fifties” — John Jay is well-positioned to step up, said Mason, who served as an Assistant Attorney General under President Obama.

Without commenting on which decade AG Sessions wants us to be living in, I just thought all this critical discussion of earlier eras provided an appropriate moment to remind everyone how much less the US relied on imprisonment in the 1950s and even the 1980s.

As detailed in this BJS document, back in 1955 the national prison population was just over 185,000, with about 20,000 in federal prison and the other 165,000 in state prisons. In 1985, the national prison population was just over 465,000, with nearly 30,000 in federal prison and the other 435,000 in state prisons.  And as this BJS report detailed, at the end of 2015, the national prison population was just over 1,525,000, with nearly 200,000 in federal prison and the other 1,325,000 in state prisons.  (There has been significant growth in the US population over the last 60 years, so the US incarceration rate has not increased quite as much as total incarceration levels.)  Of course, the Justice Department policies and practices along with changes in state policies and practices in the 1980s played a significant role in the increase in prison populations, and that is the foundation for the considerable hand-wringing about a return to 1980s-era criminal justice thinking.  

August 8, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

"The Practical Case for Parole for Violent Offenders"

The title of this post is the headline of this notable new New York Times op-ed authored by Marc Morjé Howard.  Here are excerpts:

The American criminal justice system is exceptional, in the worst way possible: It combines exceptionally coercive plea bargaining, exceptionally long sentences, exceptionally brutal prison conditions and exceptionally difficult obstacles to societal re-entry. This punitiveness makes us stand out as uniquely inhumane in comparison with other industrialized countries.
To remedy this, along with other changes, we must consider opening the exit doors — and not just for the “easy” cases of nonviolent drug offenders.  Yes, I’m suggesting that we release some of the people who once committed serious, violent crimes....
[S]entencing reform — mainly consisting of reduced penalties for drug-related crimes — has received bipartisan support at both the federal and state levels. But this isn’t enough. We should also bring back discretionary parole — release before a sentence is completed — even for people convicted of violent crimes if they’ve demonstrated progress during their imprisonment.
Other democracies regularly allow such prisoners to be granted reduced sentences or conditional release. But in the United States the conversation about this common-sense policy became politicized decades ago. As a result, discretionary parole has largely disappeared in most states and was eliminated in the federal system. Prisoners whose sentences include a range of years — such as 15 to 25 years, or 25 years to life — can apply to their state’s parole board for discretionary parole, but they almost always face repeated denials and are sent back to wither away behind bars despite evidence of rehabilitation. (Inmates who have served their maximum sentence are released on what is called mandatory parole.)
Rejection is usually based on the “nature of the crime,” rather than an evaluation of a person’s transformation and accomplishments since they committed it. The deeper reason for the rejection of discretionary parole requests is simple: fear. Politicians and parole board members are terrified that a parolee will commit a new crime that attracts negative media attention.
But this fear-driven thinking is irrational, counterproductive and inhumane. It bears no connection to solid research on how criminals usually “age out” of crime, especially if they have had educational and vocational opportunities while incarcerated.  It permanently excludes people who would be eager to contribute to society as law-abiding citizens, while taxpayers spend over $30,000 a year to house each prisoner.  And it deprives hundreds of thousands of people of a meaningful chance to earn their freedom.
But are prisoners who have served long sentences for violent crimes genuinely capable of reforming and not reoffending?  The evidence says yes.  In fact, only about 1 percent of people convicted of homicide are arrested for homicide again after their release. Moreover, a recent “natural experiment” in Maryland is very telling.  In 2012, the state’s highest court decided that Maryland juries in the 1970s had been given faulty instructions. Some defendants were retried, but many others accepted plea bargains for time served and were released.  As a result, about 150 people who had been deemed the “worst of the worst” have been let out of prison — and none has committed a new crime or even violated parole....
Until recently the political situation was favorable to bipartisan criminal justice reform.  But the election of a self-described “law and order candidate,” the doubling of the stock prices of private-prison companies and the return of the discredited war on drugs gives an indication of the direction of the current administration.
But whenever a real discussion about reform does come, policy makers should look beyond the boundaries of the United States.  To be clear, I am not suggesting that all long-term prisoners should be released nor that the perspectives of crime victims should be ignored.  Serious crimes warrant long sentences.  But other democracies provide better models for running criminal justice and prison systems.  Perhaps we could learn from them and acquire a new mind-set — one that treats prisons as sites to temporarily separate people from society while creating opportunities for personal growth, renewal and eventual re-entry of those who are ready for it.

August 8, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Friday, August 04, 2017

Sizable set of Senators inquire about BOP's continued failure to use compassionate release

As reported in this article from The Hill, headlined "Senators push federal prisons to expand compassionate release," a notable group of legislators sent a notable letter yesterday concerning the work of the federal Bureau of Prisons. Here are the details:

A bipartisan group of senators are calling on federal prison officials to follow through on recommendations to expand the use of compassionate release.

In a letter Thursday, Sen. Brian Schatz (D-Hawaii) and 11 other senators asked acting Federal Bureau of Prisons (BOP) Director Thomas Kane and Deputy Attorney General Rod Rosenstein to take a serious look at a prison bureau program that allows federally incarcerated people to appeal for early release if they present certain “extraordinary and compelling” reasons.

The lawmakers, who include Sens. Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), John Cornyn (R-Texas) and Cory Booker (D-N.J.), pointed to a 2013 report in which the Department of Justice inspector general recommended expanding the compassionate release program to deal with the increasingly large number of aging inmates with serious medical conditions.

Though the senators said the BOP adopted new policies following that report to expand its criteria, none of the 203 elderly inmates who applied under medical reasons in the 13 months following the report were approved.  Last year, the U.S. Sentencing Commission expanded and clarified the criteria for age and family circumstances that make an inmate eligible for compassionate release and encouraged the BOP to file a motion for release if an inmate meets the new policy.

In light of these changes, the senators asked Kane and Rosenstein how many compassionate release requests received in the last three years have been granted and denied, how many petitioners have died waiting for a response, what steps the bureau has taken to follow the commission’s directives and what action the bureau can take to increase its use of compassionate release.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Thom Tillis (R-N.C.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Dick Durbin (D-Ill.) and Tammy Duckworth (D-Ill.) also signed the letter.

A few prior related posts:

August 4, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16)

Sunday, July 30, 2017

Spotlighting BOP's continued curious failure to make serious use of "compassionate release"

Mike Riggs has this notable new piece at Reason headlined "Congress Wants to Know Why the BOP Won't Let Elderly Prisoners Go Home to Die: 'Compassionate release' is an excellent tool that the BOP refuses to use." Here are excerpts:

For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called "compassionate release."... In 2013, the BOP Office of Inspector General encouraged the BOP to send these kinds of prisoners home. In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations [and now] Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

  • the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission

  • a detailed explanation as to which recommendations the BOP has not adopted, and why the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why

  • how much time elapsed between each request and a decision from the BOP

  • the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America's prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems. "In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years," BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. "One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population."...

Shelby's letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee. "Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there's no good reason they should stay locked up or die behind bars because bureaucrats can't or won't let them go home to their families," Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. "It's time for someone to get to the bottom of why the BOP's answer is always no on compassionate release."

July 30, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Monday, July 24, 2017

"Nine Lessons About Criminal Justice Reform: What Washington can learn from the states"

The title of this post is the headline of this extended essay by Bill Keller published last week at The Marshall Project. I recommend the piece in full, and here are excerpts focused on some of Bill's most sentencing-specific lessons:

“Reform” is one of those ambiguous words that mean different things to different people.  I think of reform as something that aims to reduce the numbers of Americans who are removed from society and deprived of their freedom, and to do it without making us less safe.  In 1972, when I was starting my newspaper life at The Oregonian, 93 out of 100,000 Americans were in state or federal prisons.  By 2008 the incarceration rate had grown nearly six-fold, to 536 per 100,000, and it has hovered in that vicinity ever since. That’s not counting the hundreds of thousands held in county jails on any given day or those confined in the juvenile justice system or immigrant detention.

Every year about 650,000 of those prisoners are released back into the world.  We know that most of them will be unemployed a year later, and that two-thirds of them will be rearrested within three years.  We have a corrections system that fails to correct.

Here are a few lessons Washington can learn from the states.

Lesson 1: It is possible to reduce incarceration and crime at the same time. ...

Lesson 3: Probably the most effective way to reduce incarceration is not to lock people up in the first place — at least not so many, and not for so long....

Lesson 4: While the front end is important, don’t neglect the back end....

Lesson 5: Be wary of reformers who suggest you can cut incarceration drastically by releasing low-level, nonviolent offenders. ...

Lesson 6: Prison reform doesn’t necessarily mean a huge windfall for taxpayers. ...

Lesson 8: Many states are finding that incentives work better than mandates.

July 24, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)

Sunday, July 23, 2017

"North Dakota’s Norway Experiment: Can humane prisons work in America? A red state aims to find out."

The title of this post is the headline of this interesting new Mother Jones piece.  Here are a few excerpts from a piece that justifies a full read:

Scandinavian prisons tend to elicit eye rolls from law-and-order types weaned on the punitive American model.  Yet a growing number of state corrections officials are coming to the realization that our approach is ineffective, costly, and cruel.  Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute of Justice, cites the nation’s staggering recidivism rate — 77 percent of inmates released from state prisons are rearrested within five years.  “Once you realize that this system isn’t working well,” he says, “it’s fairly easy to pivot to: ‘How do we do something different?'”...

North Dakota has advantages as a laboratory for correctional reforms. Like Norway, it is sparsely populated and relatively homogeneous — race-based prison gangs hold little sway here.  Another advantage, Don Specter told me, is simply that the state government is sufficiently small that it can be responsive to the exertions of a visionary leader.  Yet [North Dakota prisons chief Leann] Bertsch and [deputy Karianne] Jackson have no illusions about transforming their system into a corrections utopia overnight.  “You have to pace yourself,” Bertsch says.

The Norwegian principle of “dynamic security” posits that warm relationships between inmates and staff reduce the potential for violence. American prisons typically try to create safe conditions by means of oppressive rules, random searches, and the threat of additional punishment. Transitioning from one approach to the other requires a profound paradigm shift and the ability to sell front-line prison workers on a brand new mindset.  “How do you get somebody who thinks they’re in law enforcement to figure out you need to be more of an empath, more of a social worker, a friend, and a mentor?” Jackson asks.

The correctional officers I met at the state penitentiary, ex-military all, weren’t outwardly hostile to the idea of cultivating relationships with prisoners, but it clearly didn’t come naturally to them.  For that reason, perhaps, the brass created a mandate: Guards in the segregation unit must have at least two conversations per shift with each of the inmates under their supervision.  “It’s worth a shot,” a corrections officer named Josh Hedstrom told me.  “Because what we were doing before wasn’t working.”

July 23, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!

This local story out of Tennessee is hard to believe, but it does not appear to be fake news.  The story is headlined "White County Inmates Given Reduced Jail Time If They Get Vasectomy," and here are excerpts:

Inmates in White County, Tennessee have been given credit for their jail time if they voluntarily agree to have a vasectomy or birth control implant, a popular new program that is being called “unconstitutional” by the ACLU.

On May 15, 2017 General Sessions Judge Sam Benningfield signed a standing order that allows inmates to receive 30 days credit toward jail time if they undergo a birth control procedure. Women who volunteer to participate in the program are given a free Nexplanon implant in their arm, the implant helps prevent pregnancies for up to four years. Men who volunteer to participate are given a vasectomy, free of charge, by the Tennessee Department of Health.

County officials said that since the program began a few months ago 32 women have gotten the Nexplananon implant and 38 men were waiting to have the vasectomy procedure performed.

Judge Benningfield told NewsChannel 5 that he was trying to break a vicious cycle of repeat offenders who constantly come into his courtroom on drug related charges, subsequently can’t afford child support and have trouble finding jobs. “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves,” Judge Benningfield said in an interview.

First elected in 1998, Judge Benningfield decided to implement the program after speaking with officials at the Tennessee Department of Health. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win, win,” he added.

Inmates in the White County jail were also given two days credit toward their jail sentence if they complete a State of Tennessee, Department of Health Neonatal Syndrome Education Program. The class aimed to educate those who are incarcerated about the dangers of having children while under the influence of drugs. “Hopefully while they’re staying here we rehabilitate them so they never come back,” the judge said.

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal. “It’s concerning to me, my office doesn’t support this order,” Dunaway said....

On Wednesday, the ACLU released this statement on the program: "Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

There are many thing so very remarkable about this story, but I am especially struck by how many jail inmates are willing to undergo a life-changing procedure simply to avoid 30 days in jail. Anyone who doubts the coercive pressures of even a short jail stay (say because of an inability to make bail) should be shown this story.

July 23, 2017 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19)

Saturday, July 22, 2017

Senators Kamala Harris and Rand Paul make the case for bail reforms

In this New York Times op-ed, the notable pair of Kamala Harris and Rand Paul explain the reasoning behind their new bill to reform bail practices.  The piece is headlined "To Shrink Jails, Let’s Reform Bail," and here are excerpts:

Our justice system was designed with a promise: to treat all people equally.  Yet that doesn’t happen for many of the 450,000 Americans who sit in jail today awaiting trial because they cannot afford to pay bail.

Whether someone stays in jail or not is far too often determined by wealth or social connections, even though just a few days behind bars can cost people their job, home, custody of their children — or their life.  As criminal justice groups work to change sentencing and mandatory minimum laws, we must also reform a bail system that is discriminatory and wasteful.

Excessive bail disproportionately harms people from low-income communities and communities of color.  The Supreme Court ruled in Bearden v. Georgia in 1983 that the Constitution prohibits “punishing a person for his poverty,” but that’s exactly what this system does. Nine out of 10 defendants who are detained cannot afford to post bail, which can exceed $20,000 even for minor crimes like stealing $105 in clothing.

Meanwhile, black and Latino defendants are more likely to be detained before trial and less likely to be able to post bail compared with similarly situated white defendants.  In fact, black and Latino men respectively pay 35 percent and 19 percent higher bail than white men.

This isn’t just unjust. It also wastes taxpayer dollars.  People awaiting trial account for 95 percent of the growth in the jail population from 2000 to 2014, and it costs roughly $38 million every day to imprison these largely nonviolent defendants.  That adds up to $14 billion a year.

Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime.  But research has shown that low-risk defendants who are detained more than 24 hours and then released are actually less likely to show up in court than those who are detained less than a day....

Our bail system is broken. And it’s time to fix it.  That’s why we’re introducing the Pretrial Integrity and Safety Act to encourage states to reform or replace the bail system.  This should not be a partisan issue.

First, our legislation empowers states to build on best practices.  Kentucky and New Jersey, for instance, have shifted from bail toward personalized risk assessments that analyze factors such as criminal history and substance abuse. These are better indicators of whether a defendant is a flight risk or a threat to the public and ought to be held without bail.

Colorado and West Virginia have improved pretrial services and supervision, such as using telephone reminders so fewer defendants miss court dates and end up detained.  These nudges work.  Over the second half of 2006, automated phone call reminders in Multnomah County in Oregon, resulted in 750 people showing up in court who otherwise may have forgotten their date.

Instead of the federal government mandating a one-size-fits-all approach, this bill provides Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.

Enabling states to better institute such reforms also honors one of our nation’s core documents, the Bill of Rights. In drafting the Eighth Amendment, which prohibits excessive bail, the founders sought to protect people from unchecked government power in the criminal justice system.

Second, our bill holds states accountable. Any state receiving support must report on its progress and make sure that reforms like risk assessments are not discriminatory through analyses of trends and data.  This will show that it’s possible to demand transformation, transparency and fairness.

Finally, this bill encourages better data collection. Data on the pretrial process is notoriously sparse. By collecting information on how state and local courts handle defendants, we can help guarantee that reforms yield better outcomes.

July 22, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, July 20, 2017

OJ Simpson granted parole after serving nine years in prison for Nevada robbery convictions

As reported in this Los Angeles Times article, "O.J. Simpson was granted parole Thursday for convictions connected to a robbery in a Las Vegas about a decade ago. He could be out of jail as early as October. Here is bit more about perhaps the highest profile justice-involved individual:

The ruling came after a hearing in which Simpson testified that he longed to be reunited with his family and children and that he has no interest in returning to the media spotlight.

During the hearing, Simpson was assured by one of his victims that the former football star and actor already has a ride waiting for him when he gets out. “I feel that it’s time to give him a second chance; it’s time for him to go home to his family, his friends,” Bruce Frumong, a sports memorabilia dealer and a friend of Simpson’s, told the Nevada Board of Parole.

Frumong was threatened and robbed by Simpson and some of his associates in a Las Vegas hotel in 2007, and his testimony in that case led to Simpson’s imprisonment. But, Frumong told the board, “if he called me tomorrow and said, ‘Bruce I’m getting out, would you pick me up?….’” At that point, Frumong paused, turned to Simpson and addressed the former USC gridiron star by his nickname: “Juice, I’d be here tomorrow. I mean that, buddy.”

The board went into recess late Thursday morning after hearing more than an hour of testimony from Simpson; his oldest daughter, Arnelle Simpson; and Frumong, who each asked for Simpson’s release. The panel returned about a half hour later and unanimously voted to grant parole....

The commissioners asked Simpson a series of questions about how he had conducted himself in prison, what he thought his life would be like outside of prison and whether he felt humbled by his convictions. Simpson said on several occasions he was “a good guy” and indicated that he mostly wanted to spend time with his family — bemoaning missed graduations and birthdays — and that the state of Nevada might be glad to be rid of him. “No comment,” one of the commissioners said to some laughter.

He expressed regret at being involved with the crime, but drew some pushback from commissioners who took issue with his version of events, in which he said he didn’t know a gun had been brandished in the hotel room during the robbery. But Simpson held to his version, repeatedly apologizing and expressing regret that he had left a wedding in Las Vegas to go recover memorabilia he said was his. “I am sorry things turned out the way they did,” Simpson said. “I had no intent to commit a crime.”

July 20, 2017 in Celebrity sentencings, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16)

"The Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases"

The title of this post is the title of this interesting empirical paper authored by Stephanie Holmes Didwania that was recently posted on SSRN. Here is the abstract:

This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence — when one is charged — by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence.

To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.

July 20, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Wednesday, July 19, 2017

Bipartisan discussion of female incarceration issues at "Women Unshackled" event

My twitter feed was full of reports and links to a big criminal justice reform event yesterday which was given the title "Women Unshackled."  This Washington Post article, headlined "Officials from both parties say too many women are incarcerated for low-level crimes," reports on the event, and its coverage starts this way:

Democratic and Republic officials at a conference Tuesday said too many women are being incarcerated for nonviolent offenses, a troubling trend both groups said they were committed to tackling.

From Democratic Sen. Kamala Harris (Calif.) and Rep. Sheila Jackson Lee (Tex.) to Republican Rep. Mia Love (Utah) and Oklahoma Gov. Mary Fallin, there was bipartisan agreement that most of the women in jails and prison would be better served by drug rehabilitation and mental health services, rather than harsher sentences. They noted that most women in the criminal-justice system are victims of domestic abuse or sexual violence. And because most incarcerated women have small children, locking them away can destroy an already fragile family.

The discussion came during a day-long conference called “Women Unshackled,” presented by the Justice Action Network and sponsored by the Brennan Center for Justice at the New York University School of Law, the Coalition for Public Safety and Google.

Some additional coverage of the issues and individuals involved in this event can be found in these recent press pieces:

July 19, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, July 15, 2017

"The Political Economy of Mass Incarceration: An Analytical Model"

The title of this post is the title of this paper recently posted to SSRN authored by Peter Temin. Here is the abstract:

This paper presents a model of mass incarceration in the United States, which has the largest proportion of its population imprisoned among advanced countries.  The United States began to differ from other countries in the 1970s in response to changes in judicial policies.  Although the Kerner Commission recommended integrating the black community into the larger American community, judicial policies went in the opposite direction.  The model draws from several accounts of these changes and demonstrates that the United States has moved from one equilibrium position to another.  It is driven by two equations, one for incarceration and one for crime. It explains why the growth of prisoners has ceased in the last decade and what would be needed to return to the original equilibrium.

July 15, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 13, 2017

Urban Institute releases "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons"

Logo-simpleThis morning the Urban Institute released online here a big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." As explained in an email I received, this "online feature examines the causes and consequences of rising time served in America’s prisons [t]hrough visualizations, analysis of trends and demographics, and stories told by people who have served long prison terms." An executive summary can be found at this link, and here are excerpts from it:

People are spending more time in prison, and the longest prison terms are getting longer.  Since 2000, average time served has risen in all 44 states that reported complete data to the National Corrections Reporting Program.  In states with more extensive data, we can trace the rise back to the 1980s and 1990s. In nearly half the states we looked at, the average length of the top 10 percent of prison terms increased by more than five years between 2000 and 2014.

The increase in time served has been sharpest among people convicted of violent offenses.  These changes have an outsized effect on prison populations because people convicted of violent offenses make up more than half the people in state prisons and the majority of people with long terms.

Longer terms are growing in number and as a share of the prison population.  In 35 states, at least 1 in 10 people in prison have been there for a decade or more.  This is even higher — nearly 1 in 4 people — in states like California and Michigan.  In at least 11 states, the number of people who have served at least a decade has more than doubled since 2000.

These trends aren’t accidental, and that they vary so much across states suggests that the growth in time served is driven by state-level decisionmaking.  States grappling with expanding prison populations must include those serving the longest prison terms in their efforts to curb mass incarceration.

Incarceration affects some people and communities more than others, and these patterns are often more pronounced among those who spend the most time in prison.  In 35 of the 44 states we looked at, racial disparities in prisons were starkest among people serving the longest 10 percent of terms.  In recent years, racial disparities have decreased among people serving less than 10 years, but 18 states actually saw an increase in disparities among people serving longer terms.

Nearly two in five people serving the longest prison terms were incarcerated before age 25, despite research that shows the brain is still developing through age 24 and that people tend to age out of criminal behavior.  Thousands have been in prison for more than half their lives.  One in five people in prison for at least 10 years is a black man incarcerated before age 25.

A growing share of women in prison have served more than 10 years.  In Michigan, for example, 8 percent of women in prison had served at least a decade as of 2000; by 2013, that number was 13 percent.  In Wisconsin, this figure rose from 1.8 to 6.5 percent over the same period.  In light of this trend, more research is needed to understand how women are uniquely affected by long-term incarceration.

More than one in three people serving the longest prison terms is at least 55 years old.  More people serving longer terms means that more people are growing old in prison, yet prisons are typically ill-equipped to address the needs of the elderly and disabled.

July 13, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Sunday, July 09, 2017

"Death Row Dogs, Hard Time Prisoners, and Creative Rehabilitation Strategies: Prisoner-Dog Training Programs"

The title of this post is the title of this recently published article authored by Paul Larkin. Here is the abstract:

More and more prisons have witnessed the success of Prisoner-Dog Training Programs (PDPs) in the last few years.  PDPs entail a prisoner training an animal (usually a dog) to be a service animal for the disabled or a well-behaved household pet.  PDPs at state and federal prisons have turned out to be a win-win-win.  The animals involved in the program are typically those at risk of being euthanized, giving those animals a second chance at life; the community benefits because people adopt well-behaved and trained animals; and the prisoner-trainers learn what it means to contribute to society in a material way, to develop emotional connections, and to care for others.  At first glance, these programs seem perfect—which begs the question: Why are they not in every prison?

This article examines PDPs and the success of those programs in the case studies that have been conducted.  The Article suggests that in order for more successful PDPs to be launched, more data needs to be collected.  In analyzing PDPs, this Article looks at the history of criminal punishment through the lens of rehabilitation versus retribution, then proceeds to an overview of PDPs and their promising initial data.  Finally, this Article discusses the need for further examination of PDPs and their effectiveness, as well as possible mechanisms that could be used to expand their uses. Ultimately, this Article encourages the Department of Justice and Congress to lend greater support to PDPs in federal and state prisons. 

July 9, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2)

Saturday, July 08, 2017

"Criminal justice reform starts before the trial and sentence"

The title of this post is the title of this new commentary at The Hill authored by Marc Levin and Ed Chung. Here are excerpts (with links from the original): 

Recent media stories have speculated on the future of federal efforts to reform the criminal justice system. Much of the discussion surrounds the possibility of rekindling bipartisan sentencing and corrections reform legislation that was on the cusp of being enacted in the previous Congress.

While comprehensive reforms to lower federal mandatory minimum sentences remain aspirational, there are other policies on which the right and left agree that could have as much, if not more, impact in reducing the nation’s incarcerated population while maintaining public safety. 

Every day, approximately 450,000 people who have not been convicted of a crime are currently behind bars while they await adjudication of their case.  This is more than double the number of people in federal prison and two and half times the total jail population in 1980.  According to a recent analysis by the Prison Policy Initiative, “99 percent of the growth in jails over the last 15 years has been a result of increases in the pre-trial population.”  This increase was not due to a more criminalized or violent society but rather stemmed from discretionary criminal justice policies that increasingly conditioned release from jail on whether they could pay for bail. 

Money bail systems, however, are neither the most effective nor fairest way to achieve the goals of the justice system prior to trial.  For those whom a court determines to be a danger to society, allowing them to pay for their release seems like an illogical remedy where a rich dangerous person is freed but a poor dangerous person remains in jail. And, to ensure a person returns for court appearances, more effective methods have developed in recent years that combine an objective assessment of a person’s risks with appropriate human supervision and electronic monitoring.

The harms and inequities associated with money bail systems — especially when it comes to nonviolent, low-risk poor defendants — are well documented.  According to an analysis by the Arnold Foundation, keeping low-risk defendants in jail for even two or three days increases the likelihood that they will commit a new crime by 40 percent.  The impact also is felt disproportionately by those who cannot pay for even relatively modest bail and thus remain locked up.

The movement to reform bail systems has taken root in a small but growing number of both conservative and progressive states.  Connecticut last month enacted a statute that bars the imposition of financial conditions for pretrial release for most misdemeanors.  Earlier this year, New Jersey passed legislation that eliminated bail for minor crimes and instituted the use of a risk assessment tool to help courts determine pretrial supervision conditions.  Kentucky, which instituted the same risk assessment tool in 2013, will now automatically release people determined to be low-risk if they meet certain criteria.  And Washington, D.C., releases 90 percent of those arrested with conditions to report to a pretrial agency and comply with drug testing and other requirements. 

While state and local policy change is the primary means of achieving bail reform, given that pretrial detention implicates the guarantees of equal protection and due process found in the U.S. Constitution, the federal government can play a collaborative role, even if most of the people in jail awaiting trial are in local facilities.  Through its technical assistance efforts, the Department of Justice (DOJ) shares advancements made in a small number of states with a national audience and provides valuable data that reveals the impact of pretrial practices across the nation. From issuing statements of interest on bail in pending federal litigation to providing guidance on the proper use of risk assessment instruments, the DOJ must remain committed to pretrial policies that prioritize public safety over a person’s ability to pay.

Congress also has an important voice that can exemplify the bipartisan support for bail reform across the country.  The legislative branch’s bully pulpit is especially effective when emphasizing points of agreement across the political spectrum....

There is still much work to be done to reform the criminal justice system.  Fortunately, this remains a priority that transcends partisanship, even in the current political climate. It is time for our national leaders to act on the consensus developed among states, local communities, advocates, and think tanks representing different ideological perspectives like ours. 

July 8, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)