Sunday, April 30, 2017
"Purpose-Focused Sentencing: How Reforming Punishment Can Transform Policing"
The title of this post is the title of this essay authored by Jelani Jefferson Exum recently posted on SSRN. Here is the abstract:
Today’s discussions about police reform have focused on changing police training and procedures. As accounts of deaths of African-Americans at the hands of police officers have played out in the news and social media, demands for racial justice in policing have become more prevalent. To end what I have coined as “the Death Penalty on the Street,” there have been calls for diversity training, training on non-lethal force, and, of course, community policing. While it is perfectly rational for the response to excessive police force to be a focus on changing policing methods, such reforms will only have limited success as long as attitudes about black criminality remain the same. Though we would like to hold them to a higher standard, police officers are merely human, so they carry with them the same biases and prejudices that any of us can hold. Studies have shown that, in general, Americans are -- regardless of our race -- biased against blacks, especially young black men. African Americans are more likely seen as criminals, and most of us overestimate the amount of crime attributable to the black population. Therefore, in order to truly address the problem of racial injustice in policing, we must address the racial biases held by our society that play out in our criminal justice system. Though perhaps not the obvious place for this revolution to start, sentencing reform has the potential to change the face of the punishment in our country, thus transforming the (usually black) face of whom we see as deserving of punishment by the police and the courts.
This Essay proposes “purpose-focused sentencing” as a means of remedying the over-incarceration of blacks, thereby combatting attitudes about crime and black criminality, and in turn, affecting how police see and treat blacks. The goal is to reduce the racial disparity in incarceration, not solely through an overall lessened reliance on prisons and jails, but also by assessing and identifying appropriate sentences to fulfill criminal justice purposes. Once those purposes -- deterrence, rehabilitation, incapacitation, and retribution -- are identified and assessed, there will not be room to justify disparities in sentencing attributable only to the race of the defendant. All sentences, regardless of the peculiarities of an individual defendant, must be tailored to a specific result, rather than imposed at the whim of a particular judge or in accordance with legislation that has no basis in an identified sentencing goal. As a result, we will see prisons and jails being used much more exclusively (to the extent that incarceration is used at all) for violent, repeat felons, which statistics tell us are not where our racial disparities lie today. When punishment is more closely aligned with what the offender has done, and what our goals of punishments are given that behavior, we can begin to combat the stereotype that the dangerous criminal is most likely black.
Once sentencing no longer feeds into the heightened public view of blacks as criminals, the spillover effect will be that the new wave of police officers will not see blacks this way either. And if they do, society certainly will not view this biased police violence against blacks as reasonable. This Essay offers a solution that will take years, if not generations, to implement; and it will perhaps take even longer for it to completely transform the face of policing. However, the proposal is a long-term approach that will immediately begin to move criminal justice in the right direction and encourage honest conversations about what we are trying to do in our system and how our current methods of punishment are only perpetuating racial injustice.
April 30, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
Wednesday, April 26, 2017
Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities
The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:
A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).
The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics. The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years. It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.
Changes in sentencing guidelines are a major contributor to the inmate population decline. In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before. The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines. Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population.... In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine. Sentences were reduced by about 25 percent, and the changes were also made retroactive....
Other factors contributing to the decreasing prisoner population:
• Federal prosecutions for all crimes have declined over the past five years. Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts. Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports. However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.
• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates. The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague. A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases. Many of those cases are still under review by the lower courts.
April 26, 2017 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
"Penal Incapacitation: A Situationist Critique"
The title of this post is the title of this recent paper authored by Guyora Binder. The piece appears to have come out on SSRN earlier this year, but I just now came across it. Here is its abstract:
Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence.
This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.
Tuesday, April 25, 2017
"Designed to Break You: Human Rights Violations on Texas' Death Rows"
The title of this post is the title of this new report released yesterday by the Human Rights Clinic of the University of Texas School of Law. Here is part of its executive summary:
This report demonstrates that the mandatory conditions implemented for death row inmates by the Texas Department of Criminal Justice (TDCJ) are harsh and inhumane. Particular conditions of relevance include mandatory solitary confinement, a total ban on contact visits with both attorneys and friends and family, substandard physical and psychological health care, and a lack of access to sufficient religious services. Investigation into these conditions reveals that current TDCJ policy violates international human rights norms and standards for confinement. Conditions on death row at TDCJ’s Polunsky Unit must be remedied posthaste.
In 1999, Texas reintroduced the practice of mandatory solitary confinement for every individual convicted of capital murder. Solitary confinement involves total segregation of individuals who are confined to their cells for twenty-two to twenty-four hours per day, with a complete prohibition on recreating or eating with other inmates. An average cell is no bigger than 8 feet by 12 feet, and contains only a sink, a toilet, and a thirty-inch-wide steel bunk with a thin plastic mattress. Inmates are rarely provided with adequate blankets and often suffer from ongoing physical pain due to the mattress provided. The majority of cells include a small window, but inmates are only able to see out by rolling up their mattress and standing on it. This fact paired with the lack of adequate outdoor recreation time means that daily exposure to natural light is rare. Every individual on Texas’ death row thus spends approximately 23 hours a day in complete isolation for the entire duration of their sentence, which, on average, lasts more than a decade. This prolonged solitary confinement has overwhelmingly negative effects on inmates’ mental health, exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the first time. In addition to the detrimental effects of isolation, the practice of setting multiple execution dates means that many prisoners are subjected to the psychological stress of preparing to die several times during their sentence.
Inmates on death row experience severe barriers to accessing medical care, in part due to being housed in solitary confinement and being less able to effectively self-advocate. Inmates are not offered regular physical or psychological check-ups, and must rely on the guards to communicate and facilitate any healthcare appointments. Such requests for care are, at best, responded to within a few days, but can go several weeks without a response and are often ignored or forgotten about. In terms of psychological healthcare -- an issue of great importance given that a large majority of inmates on death row suffer from some form of psychological illness -- only inmates who were already taking psychiatric medication are able to meet regularly with psychiatrists. Of those inmates who are eventually given access to psychological care, they are generally only prescribed some form of psychiatric medication, thus exacerbating the unmet need for some form of counseling or non-pharmaceutical therapy. Inmates with mental illness who do not necessarily want or need prescription drugs are essentially provided with only two options: take unwanted medication, or forgo psychological healthcare entirely.
Another major issue of concern is the lack of access to religious services on death row. The extent to which inmates are able to access religious text is limited, as Christian bibles are the only material available from the prison chaplain. Although Christian inmates can request such materials, they are rarely given access to ministers until the holiday season. For inmates of different faiths, such as Islam or Judaism, the situation is more difficult as they must solely rely on outside sources for their religious materials. They are provided with no access to practice their chosen faith, and are often met with contempt when seeking such access. This has created a harsh environment for inmates who do not adhere to Christianity, and has enabled a discriminatory system on the basis of religion on Texas’ death row.
This report, prepared by the Human Rights Clinic at the University of Texas School of Law, concludes that current conditions in TDCJ facilities constitute a violation of Texas’s duty to guarantee the rights to health, life, physical integrity, and dignity of detainees, as well as its duty to prevent cruel, inhuman or degrading treatment of its inmates. These duties are recognized by human rights instruments such as the Universal Declaration of Human Rights, and the American Declaration on the Rights and Duties of Man. The Inter-American Commission on Human Rights and other human rights bodies have repeatedly issued opinions decrying the inhumane conditions present at the Polunsky Unit. Particularly, international human rights bodies had considered that the prolonged and mandatory use of solitary confinement is “disproportionate, illegitimate, and unnecessary”.
Monday, April 24, 2017
Marshall Project highlights tens of thousands imprisoned for minor parole violations
The Marshall Project has this interesting new report on technical parole violations and their consequences headlined "At Least 61,000 Nationwide Are in Prison for Minor Parole Violations." Here is how it starts:
Among the millions of people incarcerated in the United States, a significant portion have long been thought to be parole violators, those who were returned to prison not for committing a crime but for failing to follow rules: missing an appointment with a parole officer, failing a urine test, or staying out past curfew.
But their actual number has been elusive, in part because they are held for relatively short stints, from a few months to a year, not long enough for record keepers to get a good count. To help fill the statistical gap, The Marshall Project conducted a three-month survey of state corrections departments, finding more than 61,250 technical parole violators in 42 state prison systems as of early 2017.
These are the inmates who are currently locked up for breaking a rule of parole, rather than parolees who have been convicted of a new crime; the number does not include those in county and local jails, where thousands more are likely held. (The eight remaining states — Alabama, Connecticut, Louisiana, North Carolina, Oklahoma, South Carolina, Tennessee, and Virginia — said either they did not keep current state-level data or it would be too costly to generate.)
The total, 61,250, seems small, given the 2.3 million people behind bars in this country. Imprisoning fewer technical violators would make only a dent in the effort to reduce mass incarceration. “But still,” said Marc Mauer, executive director of The Sentencing Project, “the numbers aren’t trivial.”
To Mauer and other experts on what drives prison and jail populations, the fact that tens of thousands of people are incarcerated for infractions such as traveling without permission or frequenting a bar that serves alcohol is significant in itself. That may be all the more true in seven states — Arkansas, Georgia, Illinois, Kentucky, Missouri, New York, and Pennsylvania — which, according to the Marshall Project data, have more technical parole violators in their prisons than the other 35 states combined.
Sunday, April 23, 2017
Making the case that older punishments may not be so much crueler than current ones
Columnist Ross Douthat has this notable new New York Times commentary headlined "Crime and Different Punishments." Here are excerpts:
The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain. During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere — in distant prisons and execution chambers, under professional supervision, far from the baying crowd.
All of this made a certain moral sense. But the civilizing process did not do away with cruelty and in some ways it could exacerbate it. With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture. During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned. Meanwhile, the lowest rate of failure (albeit out of a small sample size) belonged to that old standby: the firing squad.
Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero. But botched injections are not the only ways in which we pile cruelties on the condemned. Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse — mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape — on top of their formal years-long sentences.
It is not clear that this method of dealing with crime succeeds at avoiding cruel and unusual punishment so much as it avoids making anyone outside the prison system see it. Nor is it clear that a different system, with a sometimes more old-fashioned set of penalties, would necessarily be more inhumane....
I would rather face the firing squad than be strapped down and injected into eternity, and I would choose a strong dose of pain and shame over years under the thumb of guards and inmates and the state.
We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice. But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.
Notable recent work from the Prison Policy Initiative on prison wages and medical co-pays in prisons
A helpful reader made sure I did not miss some recent pieces from the Prison Policy Initiative on prison wages and medical co-pays in prisons that ought to be of interest to readers.
The piece on wages, "How much do incarcerated people earn in each state?," provides a 50-state survey of wages paid to incarcerated people. Here is a snippet:
One major surprise: prisons appear to be paying incarcerated people less today than they were in 2001. The average of the minimum daily wages paid to incarcerated workers for non-industry prison jobs is now 87 cents, down from 93 cents reported in 2001. The average maximum daily wage for the same prison jobs has declined more significantly, from $4.73 in 2001 to $3.39 today. What changed? At least seven states appear to have lowered their maximum wages, and South Carolina no longer pays wages for most regular prison jobs -- assignments that paid up to $4.80 per day in 2001. With a few rare exceptions, regular prison jobs are still unpaid in Alabama, Arkansas, Florida, Georgia, and Texas.
The piece on medical co-pays, "The steep cost of medical co-pays in prison puts health at risk," highlights the hours it would take a low-paid incarcerated worker to earn enough for one co-pay. Here is an excerpt:
The excessive burden of medical fees and co-pays is most obvious in states where many or all incarcerated people are paid nothing for their work: Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas. Texas is the most extreme example, with a flat $100 yearly health services fee, which some officials are actually trying to double to $200. People incarcerated in these states must rely on deposits into their personal accounts -- typically from family -- to pay medical fees. In most places, funds are automatically withdrawn from these accounts until the balance is paid, creating a debt that can follow them even after release.
Co-pays that take a large portion of prison wages make seeking medical attention a costly choice. Co-pays in the hundreds of dollars would be unthinkable for non-incarcerated minimum wage earners. So why do states think it’s acceptable to charge people making pennies per hour such a large portion of their earnings? Some might argue that incarcerated people have nothing better to spend wages on than medical care. But wages allow incarcerated people to buy things they need that the prison does not provide: toiletries, over-the-counter medicine, additional clothes and shoes, as well as phone cards, stamps, and paper to help them maintain contact with loved ones. Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.
Wednesday, April 19, 2017
Highlighting books that suggest how the "age of mass incarceration may actually be abating"
The quoted portion of the title of this post from the headline of this new piece by Chuck Lane in the Washington Post. The piece serves as a kind of mini-review of the two most important recent books on mass incarceration, John Pfaff's "Locked In" and James Forman's "Locking Up Our Own". Here are excerpts:
“Locking Up Our Own,” a remarkable new book by Yale Law School professor and former D.C. public defender James Forman Jr., tells the poignant but neglected story of how newly enfranchised black communities coped with this dilemma as a crime wave swept through urban America in the 1980s and 1990s, driving the murder victimization rate among blacks to an astonishing high of 39.4 per 100,000 population in 1991.
African American mayors, police and prosecutors responded to the pleas of beleaguered constituents with rhetoric, and policy, that were no less “tough on crime” than that of their white counterparts. Black leaders often framed crime-fighting as an issue of salvaging the civil rights revolution. “What would Dr. King say?” about the violence plaguing predominantly black cities, they would ask rhetorically — and then crack down on mostly youthful offenders, which inevitably involved “locking up our own.”...
This was an era, Forman reminds us, during which activist-attorney Johnnie Cochran regularly attended rallies against drug dealing in Los Angeles, calling for PCP dealers to be punished “harshly,” and Eric Holder, then the District’s top prosecutor, supported aggressive, often pretextual police stops and searches of cars in predominantly black sections of the city, in a desperate effort to get guns off the street....
He adds historical nuance to the story of “mass incarceration” told in Ohio State University law professor Michelle Alexander’s influential 2010 book “The New Jim Crow.” This makes Forman’s book the second important corrective this year to Alexander’s. The first, “Locked In” by Fordham University law professor John Pfaff, deployed statistical evidence to show that the United States’ highest-in-the-industrialized world incarceration rate did not result from the war on drugs, contrary to a theme of Alexander’s book that has been repeated so often Pfaff dubs it “the Standard Story.”
Even if everyone in state and federal prison on a drug conviction were released tomorrow, the U.S. incarceration rate would still be about quadruple what it was in 1970. That is because, Pfaff demonstrates, most people in prison are there for violent crimes such as homicide or aggravated assault.
Punishment for these offenses drove incarceration rates higher, Pfaff shows, but not, as is often supposed, because of laws imposing harsh mandatory- minimum sentences. The key factor was discretionary prosecutorial decisions; at least from the early 1990s on, prosecutors in the nation’s 3,000-plus counties charged arrestees with felonies at a higher rate even as the crime rate itself declined. Ultimately, more punitive exercise of prosecutorial discretion fed a steady net influx of convicts to state prisons....
The most recent evidence indicates that the age of mass incarceration is abating; it has been, oddly enough, since just prior to the publication of “The New Jim Crow.”
The Pew Charitable Trusts has reported, based on Justice Department data, that the U.S. incarceration rate declined from a peak of 1 in 100 adults in 2007 to 1 in 115 in 2015. Keith Humphreys, of Stanford University, has shown that racial disparities, though still large, may be diminishing. The incarceration rate for blacks fell steadily between 2000 and 2014, while that of whites rose slightly.
The challenge now is to accelerate the de-incarceration trend while sustaining low levels of crime. A troubling uptick in urban homicide last year may have helped elect President Donald “American Carnage” Trump. Certainly his harshest, most racially tinged anti-crime rhetoric both stimulated fear and exploited it. His attorney general, Jeff Sessions, has called emphasized punishing crime rather than consent decrees against allegedly abusive local police.
Under the circumstances, Forman and Pfaff’s emphasis on local politics, and county- and state-level prosecutorial discretion, is paradoxically hopeful. Federal policy makes headlines, but in the vast majority of cases, criminal justice takes place at the grass roots. And in recent years, that is the level at which the most promising reform efforts have occurred. Those efforts can and should continue, whatever might happen next in Washington.
I really like this commentary's use of the term "abating" to describe what the current decade has wrought with respect to incarceration levels. The Merriam-Webster dictionary defines abate as "to decrease in force or intensity," and that is what we are experiencing with incarceration in modern years in the United States. Incarceration continues on a mass scale in the US, but the force and intensity of our commitment to using ever more incarceration in response to social disorder has decreased.
A little video on prison population flow dynamics
A helpful reader alerted me to this newly-posted video produced by SPAC, the Illinois Sentencing Policy Advisory Council. This short animation is intended to help viewers understand how admissions and length of stay "interact and impact prison capacity flows." As explained to me via email, the video covers a relatively simple point in a relatively simple way, but should still helps explain important prison population concepts that many people struggle to fully appreciate.
Wednesday, April 12, 2017
Effective coverage of the considerable challenges of sentencing reform in Louisiana
Over the last month, The Advocate has done a fine job covering debates over sentencing reforms in Louisiana, and the most recent of the article (listed last below) prompted me to collect come of this reporting in this space:
Tuesday, April 11, 2017
Looking at the latest data on private prison populations in the US
The Pew Research Center has this new "Fact Tank" post titled "U.S. private prison population has declined in recent years." The piece effectively reviews a lot of private prison data, and here are excerpts:
After a period of steady growth, the number of inmates held in private prisons in the United States has declined modestly in recent years and continues to represent a small share of the nation’s total prison population.
In 2015, the most recent year for which data are available, about 126,000 prisoners were held in privately operated facilities under the jurisdiction of 29 states and the federal Bureau of Prisons. That’s an 83% increase since 1999, the first year with comparable data, according to the Bureau of Justice Statistics (BJS). By comparison, the total U.S. prison population increased 12% during that span.
In more recent years, however, both the private and overall U.S. prison populations have declined at modest rates. The private prison population has shrunk by 8% since its peak in 2012, while the overall prison population has fallen by 5% since its peak in 2009. (The state private prison population peaked in 2012 with 96,774 prisoners, while the federal private prison population reached its peak a year later in 2013, with 41,159 prisoners.)...
Since 1999 — the first year BJS began collecting data on private prisons — inmates in privately run facilities have made up a small share of all U.S. prisoners. In 2015, just 8% of the nearly 1.53 million state and federal prisoners in the U.S. were in private facilities, up slightly from 5% in 1999.
State inmates make up the majority of the U.S. private prison population, as well as the overall U.S. prison population. In 2015, state prisoners made up 72% of the U.S. private prison population and 87% of the overall U.S. prison population.
In 2015, nearly three-quarters (73%) of all state prisoners in private facilities were held in the Sun Belt region of the U.S., including Texas, which has the largest private state prison population in the country. (Texas also has the second-largest state population overall.) The Lone Star State’s private prison population peaked at 20,041 in 2008, or 21% of all state inmates in privately run prisons at the time. By 2015, Texas’ private prison population had dropped to 14,293.
Florida had the second-largest private prison population (12,487) in 2015, while Georgia and Oklahoma had the third- and fourth-largest with 7,953 and 7,446, respectively. Arizona had the fifth-largest state private prison population (6,471) in 2015, a drop since the state’s peak of 8,971 in 2009.
The number and share of private prisoners under federal jurisdiction have grown since 1999. That year, 3,828 federal prisoners were being held in private prisons, comprising just 6% of the total private prison population. By 2015, the number of federal prisoners in private facilities had jumped to 34,934, accounting for 28% of the U.S. private prison population. At the same time, the share of prisoners in private facilities under state jurisdiction shrunk from 94% in 1999 to 72% in 2015.
In 2015, nearly 18% of all federal prisoners were being held in private prisons, a jump from 3% in 1999. By comparison, prisoners held in private prisons have made up less than 10% of the state prison population since 1999....
In February, Attorney General Jeff Sessions reversed a directive from the Obama administration to phase out work with private prisons at the federal level. The original Obama directive was motivated by a 2016 audit, which found that federal “contract” prisons had more safety and security incidents than comparable government-run prisons.
Sunday, April 09, 2017
"Mass incarceration, public health, and widening inequality in the USA"
The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang. Here is the summary:
In this Series paper, we examine how mass incarceration shapes inequality in health. The USA is the world leader in incarceration, which disproportionately affects black populations. Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear. Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries. Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.
The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:
For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.
When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study. Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”
But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail. The reason? The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise. What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care. Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not. Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.
The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me. (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)
Friday, March 24, 2017
Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules
The middle title of this post quotes the title of this new AP article and provides a bit of context. For more explanation, here is more from the AP article:
Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.
They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.
It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.
The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press. The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”
The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.
Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.
The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.
[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”
Thursday, March 23, 2017
"How long should Louisiana keep old, ill criminals in prison?"
The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:
Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.
What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.
Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.
The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.
These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.
The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.
These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.
Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.
In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....
Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....
One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....
Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....
While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.
Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.
Tuesday, March 21, 2017
Ruling 6-2, SCOTUS holds in Manuel that Fourth Amendment claim can be brought contesting pretrial confinement
The one criminal ruling handed down by the Supreme Court this morning, Manuel v. City of Joliet, No. 14–9496 (S. Ct. March 21, 2017) (available here), has a majority opinion authored by Justice Kagan than gets started this way:
Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U. S. 103, 111 (1975). And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U. S. 266, 274 (1994) (plurality opinion); id., at 290 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).
Justice Alito wrote the chief dissent (which is joined by Justice Thomas), and it gets started this way:
I agree with the Court’s holding up to a point: The protection provided by the Fourth Amendment continues to apply after “the start of legal process,” ante, at 1, if legal process is understood to mean the issuance of an arrest warrant or what is called a “first appearance” under Illinois law and an “initial appearance” under federal law. Ill. Comp. Stat., ch. 725, §§5/109–1(a), (e) (West Supp. 2015); Fed. Rule Crim. Proc. 5. But if the Court means more — specifically, that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts — the Court stretches the concept of a seizure much too far.
What is perhaps most remarkable about the Court’s approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim. If a malicious prosecution claim may be brought under the Constitution, it must find some other home, presumably the Due Process Clause.
Monday, March 20, 2017
Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster
A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard, No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:
Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.
Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.
Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs. His dissent concludes this way:
To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.
What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.
Sunday, March 19, 2017
Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state
The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts:
Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.
We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....
Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.
The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.
Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician. But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994. Even if a judge's sentence includes parole, it still won't happen. Yet since then, hundreds of defendants have been sentenced to life with chance of parole.
No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing. He found out when he received a letter last December from The Republic. He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...
Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years. The sentence has not existed since the law was changed in 1993. But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.
Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it. He took the issue to the Arizona Supreme Court, which oversees all state courts.
Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”
Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides. “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence. “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...
Several prisoners contacted by The Republic were unaware they were not really eligible for parole. “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic. Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...
Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.
Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death. Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.
The two sentences sound very similar. And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result. But they are substantially different. Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner. It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison. And if denied, the prisoner could re-apply after six months to a year.
But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those. In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019. But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.
Thursday, March 16, 2017
"Technological Incarceration and the End of the Prison Crisis"
The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf. Here is the abstract:
The United States imprisons more of its people than any nation on Earth, and by a considerable margin. Criminals attract little empathy and have no political capital. Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens. No principled, wide-ranging solution has yet been advanced, however. To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.
The alternative to prison that we propose involves the fusion of three technological systems. First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined. Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers. Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.
The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States. We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.
In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons. As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly. If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.
Wednesday, March 15, 2017
Noting how prisons serve as a kind of public works program in rural areas
This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:
While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system. As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663. Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.
The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas. Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.
People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers. Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....
Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up. My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....
It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.
Tuesday, March 14, 2017
Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case
The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:
This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence. Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e). When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e). He did not appeal that sentence. When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus. McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.
For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice. See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013). Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them. We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e). We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.
Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"
The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:
Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.
This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.
Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.
While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....
With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.
All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.
And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.
Monday, March 13, 2017
A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"
The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:
The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women. The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.
Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.
Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....
Women in the federal system are more likely to be incarcerated for a nonviolent offense. Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons. Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society. We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....
While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever. As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.
We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison. As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters. For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.
Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform. This latest commentary suggests that inkling is proving accurate.
Sunday, March 12, 2017
"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"
The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:
Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform." The book concludes that police, legislators, and judges are not to blame for Mass Incarceration. Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”
Locked In’s data-driven thesis aligns neatly with the academic consensus. If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration. The only problem is that it probably isn’t right. While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data. With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators. This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration. It also says something profound about prosecutorial power.
Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny. When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.
Friday, March 10, 2017
"Why Prison?: An Economic Critique"
The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:
This Article argues that we should not imprison people who commit crimes. This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system. Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.
Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses. It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs. The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently. It concludes that there exist economically superior alternatives to prison available right now. The alternatives are practicable. They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.
This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:
Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost. And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap. Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective. But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns. That question is outside the ambit of this paper. The alternative system can also be criticized on practicability grounds. But upon close investigation, such criticisms lose much of their force.
Wednesday, March 08, 2017
Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay
As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:
Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....
As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.
“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.
The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.
Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.
Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:
Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....
Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing. Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty. Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts. Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.
If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity. That is why I would grant a stay of execution, allowing the Court to examine the record more fully.
Sunday, March 05, 2017
"Women in Prison: Should they be treated differently from men?"
The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:
The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men. Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say. But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women. They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.
Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system. For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse. The justice system, women's advocates say, needs to think creatively about how to help female prisoners. Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.
Friday, March 03, 2017
Making the case for fixing private prisons in the Trump era
Lauren-Brooke Eisen has this notable new commentary in Fortune headlined "How President Trump and Jeff Sessions Can Fix America’s Private Prisons." Here are excerpts:
Last week, Attorney General Jeff Sessions ... issued a memo reversing the Obama administration’s decision to phase out its use of private prisons at the federal level. This memo followed the release of a U.S. Justice Department report in August concluding that privately-operated prisons experienced more safety and security incidents than facilities operated by the Federal Bureau of Prisons did.
Since Sessions appears determined to move forward regardless, now is the right time to evaluate how to improve upon how the Justice Department contracts with private corporations to run some of its prisons. With a businessman in charge of the White House, this provides an opportunity to change private prisons for the better. A good first step would be to restructure contracts to make private facilities more accountable, effective, and strategic in their use of resources....
Although the new attorney general’s shift in policy only affects a little more than 21,000 inmates out of 126,300 inmates housed in state and federally contracted private prison facilities across the country, it points to the Trump administration’s likely reliance on the private prison industry over the next few years. Currently, the federal government primarily uses private prisons to house non-citizens convicted of crimes, and most face deportation upon release. The president’s recent executive actions cracking down on unauthorized immigration will likely swell the private prison rolls even more, further expanding the industry....
With an expansion of for-profit prisons on the horizon, it is more important than ever that the government restructure contracts with the private prison industry to boost performance and change incentives. Conducting field research for my upcoming book, I found that it is rare for contracts with private prison companies to demand fresh thinking, recidivism reduction, and outcomes that outperform the public sector. Most contracts require the private operator to simply replicate the government prison system’s procedures.
Rather than repeat this approach, both the federal government and state governments should write contracts to ensure that economic incentives focus on reducing recidivism and improving outcomes for the nation’s inmates, not just warehousing as many people as possible....
In 2013, former Republican Gov. Tom Corbett’s administration announced it would cancel all the state’s Department of Corrections contracts with private community corrections companies and rebid them on a performance basis. Providers were then evaluated on and paid according to their success at reducing the recidivism levels of those who had just been released from prison. The state could cancel a contract if the recidivism rate increased over two consecutive year-long periods. After these contracts were implemented, the recidivism rate for private facilities fell 11.3 percent in just the first year.
Restructuring contracts around the nation’s public policy goals would ensure that private operators provide more educational programming, job training classes, and work with their inmates to ensure they are set up for optimal success once they are eventually released. Providing incentives to private firms to exceed baselines — such as improved recidivism rates — is an effective carrot, versus creating penalties for basic contract breaches like failing to receive basic accreditation or meet minimum standards.
Reimagining how private prisons operate and are held accountable does not need to be an academic exercise. Building the proper incentives into their contracts has the power to move the for-profit prison industry away from focusing on cost-cutting and filling its beds to make an extra dollar. Imagine a world where private prison operators earned bonuses if their inmates received top-tier educational programming and vocational skills classes instead of guaranteed bed occupancies. It’s possible that private prisons could begin marketing themselves to directors of corrections as leaders in recidivism reduction and reentry preparation.
Private prisons are here to stay under the new administration. Let’s at least make them work better.
Thursday, February 23, 2017
AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons
As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:
Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population. "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21. "I direct the Bureau to return to its previous approach."
The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime. The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.
For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.
Wednesday, February 22, 2017
"The Constitutional Law of Incarceration, Reconfigured"
The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN. Here is the abstract:
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well.
In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.
But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Tuesday, February 21, 2017
US Sentencing Commission releases big new report on "Recidivism Among Federal Drug Trafficking Offenders"
The US Sentencing Commission today released the second major report emerging from a huge assessment of federal offenders released from prison in 2005. This USSC webpage provides this background and highlights from this 149-page data-rich report:
This report, Recidivism Among Federal Drug Trafficking Offenders examines a group of 10,888 federal drug trafficking offenders who were released in calendar year 2005. These 10,888 offenders, who were all U.S. citizens, represent 42.8 percent of the 25,431 federal offenders who were released in calendar year 2005 and analyzed in the Commission’s 2016 report, Recidivism Among Federal Offenders: A Comprehensive Overview. In the future, the Commission will release additional publications discussing specific topics concerning recidivism of federal offenders.
Chapter One summarizes the group studied in this report as well as its key findings. It also explains the methodology used in the report. Chapter Two provides an overview of the statutes and guidelines most often applicable to federal drug trafficking offenses, and reports the demographics and recidivist behavior of drug trafficking offenders as a whole. Chapters Three through Seven provide detailed information about offenders as classified by the drug types studied in this report: powder cocaine, crack cocaine, heroin, marijuana, and methamphetamine. Chapter Eight concludes by reviewing the report’s findings.
Some highlights of the Commission’s study are that:
Over the eight-year follow-up period, one-half (50.0%) of federal drug trafficking offenders were rearrested (see bar chart). Of those drug trafficking offenders who recidivated, the median time to rearrest was 25 months.
In general, there were few clear distinctions among the five drug types studied. One exception is that crack cocaine offenders recidivated at the highest rate (60.8%) of any drug type. Recidivism rates for other drug types were between 43.8% and 50.0% (see table).
Nearly one-fourth (23.8%) of drug trafficking offenders who recidivated had assault as their most serious new charge followed by drug trafficking and public order offenses.
Federal drug trafficking offenders had a substantially lower recidivism rate compared to a cohort of state drug offenders released into the community in 2005 and tracked by the Bureau of Justice Statistics. Over two-thirds (76.9%) of state drug offenders released from state prison were rearrested within five years, compared to 41.9% of federal drug trafficking offenders released from prison over the same five-year period.
A federal drug trafficking offender’s Criminal History Category was closely associated with the likelihood of recidivism. But note that career offenders and armed career criminals recidivated at a rate lower than drug trafficking offenders classified in Criminal History Categories IV, V, and VI. (Related data and policy recommendations are discussed in the Commission's 2016 Report to the Congress on Career Offender Sentencing Enhancements.)
A federal drug trafficking offender’s age at time of release into the community was also closely associated with likelihood of recidivism.
February 21, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
Tuesday, February 14, 2017
Noting central place of Texas in (incomplete) consensus disfavoring increased use of incarceration
Today's New York Times has this extended commentary about incarceration authored by Tina Rosenberg running under the headline "Even in Texas, Mass Imprisonment Is Going Out of Style." Here are excerpts:
It promises to be a bleak four years for liberals, who will spend it trying — and, most likely, failing — to defend health care, women’s rights, climate change action and other good things. But on one serious problem, continued progress is not only possible, it’s probable. That is reducing incarceration. In an era of what seems like unprecedented polarization and rancor, this idea has bipartisan support. The Koch brothers and Black Lives Matter agree. The American Civil Liberties Union and the American Conservative Union Foundation agree. Bernie Sanders and Newt Gingrich agree.
Here’s what they agree on:
• The United States went overboard on mass incarceration in the 1980s and 1990s.
• This has ruined a lot of lives — of those incarcerated, yes, but also others among their families and communities.
• The evidence says that harsher sentences don’t prevent crime and may even lead to more crime.
• Jailing people is really, really expensive.
• Prison brings no help and much harm to the 80 percent of prisoners who are addicted to drugs or mentally ill.
• There are alternatives to imprisonment that keep Americans safe.
(There are also crime and justice issues that these liberals and conservatives do not agree on, such as the death penalty, the merits of private prisons and, of course, guns.)
Even all this agreement is no guarantee of progress in Washington. President Trump’s policies on crime are whatever slogans get the crowd roaring. Attorney General Jeff Sessions has a D-plus record on this issue as a senator. He supported reducing the disparity in sentencing for cocaine and crack possession. He did vote for the Prison Rape Elimination Act — kudos for that, I suppose. But last year, Mr. Sessions, along with a few other Republican senators, blocked the major bill on this issue, the Sentencing Reform and Corrections Act, from coming to a vote. So the administration can be expected to be unhelpful, with Congress a question mark.
While Washington’s actions are important, however, federal prisons hold only one in eight imprisoned Americans. So mass incarceration is really a state issue. And in the states, momentum is heartening. After quintupling between 1974 and 2007, the imprisonment rate is now dropping in a majority of states. Overall, it fell by 8.4 percent from 2010 to 2015, while crime dropped by 14.6 percent, according to research by the Pew Charitable Trusts.
California slashed its incarceration rate by 27 percent between 2006 and 2014 after a court order. New York cut its rate by 18 percent, largely because of reform of the Rockefeller drug laws that mandated long sentences for possession. New Jersey’s rate dropped by 24 percent.
More remarkable — and probably more persuasive to other states and to Congress now — is the shift in red states, where incarceration rates have been the highest. In the last decade, they have dropped substantially in South Carolina, Mississippi, Georgia and, notably, in lock-’em-up Texas....
The cost of prisons was a huge issue. In 2007, the Texas Legislative Budget Board projected that the state would need more than 17,000 new prison beds over five years, a building project that would cost $530 million, never mind the operating costs. That pushed the ultraconservative House speaker, Tom Craddick, to a breaking point. Jerry Madden, the Republican chairman of the House Corrections Committee, said in an interview that Craddick took him aside. “Don’t build new prisons,” Craddick told him. “They cost too much.”
Madden was an engineer and took that approach, asking: What is proven to work to keep people out of prison? How much of that do we need to buy in order to not build more of them? For ideas, he and his staff talked to research and advocacy groups, including the liberal coalition and the conservative Texas Public Policy Foundation, which gave birth to and houses Right on Crime.
That there was a conservative research group to consult was in itself remarkable. “No one in conservative think tanks worked on criminal justice, other than to advocate for more prisons and more incarceration,” said the foundation’s director, Brooke Rollins, who had been Gov. Rick Perry’s policy director. But in 2004, Rollins got a call from Tim Dunn, an oilman who helps fund the foundation and serves on its board. Dunn has put millions of his own money into pushing the Texas legislature further to the right. Texas Monthly called him “probably the most influential person many Texans have never heard of.”
“Conservatives are wrong on crime,” he told a startled Rollins. “Scripture would not call us to build prisons and forget people.” Dunn believes that crime victims want restitution and repentance, while the prison system merely incapacitates. On his personal website, he wrote that “nonviolent crimes should be recompensed in a way that gets people back into the work force and adding to communities as quickly as possible,” and that Texas should “focus on restoring victims and communities damaged by crime.”
At Dunn’s urging, Rollins hired Levin part time to work on a conservative approach to criminal justice reform. “We found the conservative and liberal think tanks agreed on 70, 80 percent of the stuff,” said Madden. And it’s those areas of agreement that were put in the bill. The reforms passed nearly unanimously — and although Perry had previously vetoed narrower reforms, this time he signed them. (He now endorses the Right on Crime agenda.) Reforms continue today: 16 bills passed in the last legislative session, including one allowing people to erase their criminal records in some circumstances....
The state now has drug courts, veterans’ courts and mental health courts. “They are there to provide help, but at the same time, structure,” said Madden, who is retired from the legislature. “You have a problem and we’re going to help you with your problem.” Many inmates were in prison for technical violations of their probation or parole. Now those violations often bring rapid sanctions and supervision instead of a return to prison.
The rate of incarceration in Texas state prisons fell by 17 percent from 2007 to 2015, according to the coalition, and the juvenile incarceration rate fell by nearly three-quarters. Recidivism is dropping steadily. At the same time, the crime rate has dropped by 27 percent.
Texas still has much to do. It ranks sixth or seventh in the nation in imprisonment rates. Some 8,900 people are in the state jail system for crimes that are neither violent nor sexual. Many are there for drug charges, but they often can’t get treatment in jail. Thousands of people are sent back to prison each year for technical revocation of parole or probation. As for juveniles, 22,000 are in the adult system, where they are at high risk of sexual assault and suicide....
The fall in crime rates — itself a reason incarceration has dropped — has made reform politically possible. Conservative leadership in states like Texas gives everybody cover. And Americans support criminal justice reform by large majorities. One telling example: in his re-election campaign in 2014, Gov. Nathan Deal of Georgia, a Republican, highlighted his reforms that lowered the rate of incarceration among African-Americans by 20 percent. Twenty years ago, a Republican in Georgia would have boasted about the opposite.
If crime rates begin rising again, could hard-line thinking once more prevail? Yañez-Correa doesn’t think so. “Many legislators want to work on these issues jointly because other issues are so polarized,” she said. “People on both sides are genuinely interested and devoted.”
This story is important and encouraging, but it fails I think it connect fully with the import and impact of Prez Trump campaigning on a "law and order" platform and his eagerness to make much of the uptick in murder and other violent crimes in some big cities in recent years. The folks over at Crime & Consequences and many others are quick and keen to link any and every increase in crime to recent decreased use of incarceration, and that perspective is certainly some element of how Prez Trump and AG Sessions think about crime and punishment issues.
I remain hopeful that, especially at the state level, there is continued interest in, and bipartisan support for, an array of "smart on crime" alternatives to incarceration for a range of less serious and less dangerous offenders. But I do not think that Prez Trump and AG Sessions, arguably the two most important criminal justice policy-makers for the next few years, subscribe to all or even most of what is listed above in the commentary as points of agreement. And that is a very big deal that must always be front and center as one considers the future of criminal justice reform at both the federal and state level.
February 14, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7)
Poll shows strong commitment to rehabilitation and prison alternatives for youth
A new poll released today by Youth First shows that 78 percent of Americans favor keeping young people out of prisons and instead prefer community-based alternatives that are proven to lead to better outcomes.
At a time when partisan polarization is dominating the political landscape, the poll finds that Americans from a wide range of backgrounds and all political stripes support shifting the youth justice system’s focus from incarceration and punishment to prevention and rehabilitation. Youth First, a national advocacy organization working to end the unconscionable practice of youth incarceration and reform the youth justice system, commissioned the poll which was conducted by GBA Strategies.
“Youth prisons are notoriously dangerous, ineffective, and outdated – and there is a clear consensus that it’s time to change the system,” said Liz Ryan, President of Youth First. “We know that kids can be rehabilitated without being locked up, if given the opportunity. States across the nation should unify behind this growing movement to close youth prison facilities and focus on solutions that actually work.”
The survey of over 1,000 adults found that:
· 89 percent support design treatment and rehabilitation plans that include a youth’s family in planning and services.
· 83 support providing financial incentives for states and municipalities to invest in alternatives to youth incarceration, such as intensive rehabilitation, education, job training, community services, and programs that provide youth the opportunity to repair harm to victims and communities.
· 69 percent support increasing funding to provide more public defenders to represent children in court.
· 70 percent support requiring states to reduce racial and ethnic disparities in the youth justice system.
Respondents cut across partisan affiliations, with 81% of Democrats, 83% of Independents, and 68% of Republicans supporting reform efforts.
Friday, February 10, 2017
Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests
A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement. Here is the start of the opinion and a key paragraph from its heart:
We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement. For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative. However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.
Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....
In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty. Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row. The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.
Wednesday, February 08, 2017
New report details stability of California crime rates during period of huge sentencing reform
This new Fact Sheet produced by the Center on Juvenile and Criminal Justice tells and interesting and important story about crime in California. The main prose of the report provides the data highlights:
Newly released Federal Bureau of Investigation (FBI) statistics for the first six months of 2016 show California’s reported urban crime rate remained stable from 2010 through 2016, despite the implementation of large-scale criminal justice reforms during that period.
• Total urban crime fell in the first half of 2016 compared to the first half of 2015.
The first six months of 2016 saw a decline in California’s urban crime rate compared to the first six months of 2015, though trends in specific crime categories were wide-ranging. During this period, reported crime declined 3 percent overall, driven by a 4 percent reduction in property offenses. Burglary, arson, and theft decreased, while vehicle theft increased, resulting in approximately 7,400 fewer property offenses in early 2016. At the same time, violent crime rose 4 percent, with total violent offenses increasing by approximately 2,800 from early 2015 to early 2016.1
• The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.
Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A). Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent (see Table 1).
• Historically low urban crime rates have persisted through an era of justice reform.
Crime rates have remained low and stable through several major criminal justice reforms, particularly Public Safety Realignment and Proposition 47. Realignment, which was enacted in 2011 through Assembly Bill 109, shifted responsibility for those with nonviolent, non-sexual, and non-serious convictions from the state to the county in an attempt to reduce prison populations. In 2014, California voters passed Prop 47, which reduced six minor drug and property felonies to misdemeanors, prompting the resentencing and release of thousands from jails and prisons across the state. Though each policy was met with some initial concerns over public safety, a seven-year view of the data suggests that no visible change in crime resulted from Realignment (CJCJ, 2015). More data are needed before drawing conclusions about Prop 47’s effect on crime (CJCJ, 2016).
Tuesday, February 07, 2017
"How States Can Take a Stand Against Prison Profiteers"
The title of this post is the title of this paper newly posted to SSRN and authored by Catherine Elizabeth Akenhead. Here is the abstract:
In recent years, state corrections departments have faced pressure to provide better prison conditions, while simultaneously cutting costs. Many critics have touted the emergence of privatized prison services as a cost-effective resolution. However, those services shift the costs on to some of the poorest and most vulnerable consumers, prisoners and their families. This Note explores how private companies providing prison banking services to state correctional facilities use unfair practices to increase profits. The umbrella of prison banking services includes deposits into inmate trust accounts, which allow prisoners to purchase necessities, as well as prepaid debit release cards, which are used to return money to prisoners upon release. This Note describes how certain private companies retain a monopoly on these services, and are awarded contracts based on the amount of commission paid to state correctional facilities.
As a result of paying those commissions and having no incentive to cut costs, private companies drive up their prices and charge consumers exorbitant rates to make deposits or to utilize prepaid cards. These practices are disproportionately affecting prisoners’ families who provide their incarcerated loved ones with monetary support, as well as released inmates struggling to get back on their feet post-incarceration. Statistically speaking, both of these groups are more likely to be low-income and least able to manage additional financial strain. This Note proposes state-level legislation to better protect consumers from these abuses and outlines five key provisions that, if adopted, will serve to prevent private companies from increasing their profit margins at the expense of vulnerable consumers.
Monday, February 06, 2017
The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison
This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent. The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:
A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening. The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.
Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said. The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.
Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.
Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire. Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.
Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time. Apparently that is not an issue for the folks at DRC," Schmidt said.
Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder. Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty.
I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.
Setting my DVR for "Solitary: Inside Red Onion State Prison"
HBO is premiering a notable new documentary tonight, "Solitary: Inside Red Onion State Prison." Here is how HBO describes the movie:
Located on an Appalachian mountaintop in Wise County, Va., Red Onion State Prison is a “supermax” facility built to house individual inmates in 8’x10’ solitary-confinement cells, 23 hours a day, for months, years and sometimes decades. Directed by Kristi Jacobson, Solitary: Inside Red Onion State Prison explores life on both sides of the bars, raising provocative questions about punishment in America today.
Drawing on unprecedented, unrestricted access, Solitary: Inside Red Onion State Prison was filmed over the course of one year, chronicling a new reform program intended to reduce the number of solitary-confinement inmates. The recently initiated “Step-Down Program” has allowed more than 350 inmates a chance to return to the general population. But all too often, after months of solitary isolation, prisoners are ill-equipped to deal with the stresses of being a part of the regular prison population – let alone life on the outside.
This unflinching, immersive documentary features intimate interviews with several inmates who reflect on their violent childhoods, open up about the dangers of prison life and articulate their struggles to maintain sanity in the unrelenting monotony and isolation of confinement. Interwoven with these stories are observations of corrections officers, who describe the toll their stressful jobs can take in a community with few employment opportunities.
Solitary: Inside Red Onion State Prison captures the chilling sounds and haunting atmosphere of daily life at Red Onion, focusing on the effect of loneliness and isolation on the prisoners’ mental health.
The filmmaker website has this little blurb to describe the movie:
SOLITARY is a daring exploration of the lives of inmates and corrections officers in one of America's most notorious supermax prisons, built to hold inmates in 8x10 cells, 23-hours-a-day, for months, years and sometimes decades. With unprecedented access, the film captures a complex, unexpected and deeply moving portrait of life inside.
Friday, February 03, 2017
Oklahoma Governor's task force urging significant sentencing reform to deal with surging prison population
As reported in this lengthy local article, "faced with a rapidly growing prison population in a state with the second-highest incarceration rate in the nation, a task force created by Oklahoma Gov. Mary Fallin issued a report Thursday calling for dramatic decreases in sentences for nonviolent drug dealers and manufacturers." Here is more:
Without reform, Oklahoma is on pace to add 7,218 inmates over the next 10 years, requiring three new prisons and costing the state an additional $1.9 billion in capital expenditures and operating costs, the report said. But task members said those costs can be averted and the prison population can be reduced 7 percent over the next decade through a combination of sentence reductions and other reforms, including increased funding for alternative mental health and substance abuse treatment programs.
Oklahoma currently has 61,385 individuals in its overcrowded prison system. That includes 26,581 incarcerated in state facilities and private prisons, 1,643 awaiting transfer from county jails and 33,161 on some form of probation, parole, community sentencing or GPS monitoring, said Terri Watkins, spokeswoman for the Department of Corrections.
Oklahoma's prison population, which is at 109 percent of capacity, has grown 9 percent in the past five years and is now 78 percent higher than the national average. Only Louisiana has a higher rate, the report said.
Oklahoma's female incarceration rate remains the highest in the nation, a distinction the state has held for 25 years, task members said. The state's female population grew 30 percent between 2011 and 2016 and Oklahoma now incarcerates women at a rate more than 2 1/2 times the national average.
In a 38-page report that contains 27 recommendations, the governor's task force on justice reform recommends a number of dramatic changes to stave off a looming state financial crisis, including sharply reducing sentences for nonviolent drug dealers and manufacturers. The report also calls for sweeping changes in the parole system, including allowing many inmates to become eligible for parole after serving a fourth of their sentences. Currently, inmates typically serve about a third of their sentences before becoming eligible for parole for most nonviolent crimes.
Many of the task force's recommendations would require legislative action. The task force is recommending that the penalty for possession of methamphetamine, heroin or crack cocaine with intent to distribute be lowered to zero to five years for nonviolent first-time felony drug offenders, said Jennifer Chance, the governor's general counsel and a member of the task force. It is recommending that the penalty for manufacturing be lowered to zero to eight years.
Possession of methamphetamine with intent to distribute currently carries a sentence of two years to life in prison for a first-time felony drug conviction, while possession of crack cocaine with intent to distribute carries a term of five years to life and heroin seven years to life.
Oklahoma's criminal justice system has exacerbated the state's prison crowding crisis by repeatedly sentencing more nonviolent offenders — particularly drug offenders — to longer terms than neighboring states like Texas and Missouri, the report says. Many states have been far ahead of Oklahoma in reforming their justice systems, the task force found. "Since 2010, 31 states across the country have decreased imprisonment rates while reducing crime rates," the report states.
Reducing Oklahoma prison sentences for nonviolent drug crimes is critical to reversing those trends because nearly a third of all Oklahoma prison admissions are for drug crimes and those prison sentences are often lengthy, the task force said.
Chance said most of the 21 task force members were in agreement with the group's findings, but acknowledged that the two district attorneys on the panel, David Prater and Mike Fields, have strong disagreements with some of the report's recommendations. Prater is the chief prosecutor for Oklahoma County, while Fields is the chief prosecutor for Canadian, Garfield, Blaine, Grant and Kingfisher counties and president of the Oklahoma District Attorneys Association....
If the state cuts prison sentences for drug manufacturing, distributing and trafficking without dramatically increasing funding for drug addiction treatment programs, Prater predicted it will lead to more home and auto break-ins and other crimes. "This is such a dishonest report," Prater said. "It's going to make Oklahoma a much more dangerous place."
Prater said the report's backers like to point to Texas as a state that has simultaneously reduced its incarceration and crime rates through similar justice reforms, but he noted that Texas appropriated $241 million up front in 2007 to pay for a package of prison alternatives that included more intermediate sanctions and substance abuse treatment beds, drug courts and mental illness treatment slots. Unless Oklahoma dramatically increases upfront funding for substance abuse treatment and parole supervision programs, the state's experience is more likely to parallel that of Utah, Prater said.
That state drastically cut sentences without providing sufficient funding for community programs and police officers and judges there have complained about offenders repeatedly being released out on the street with little or no supervision, he said. Critics of Utah's reform efforts have cited the January 2016 slaying of Unified police officer Doug Barney as a reason for re-evaluating changes that were made. Barney's shooter, Corey Henderson, went through the revolving door of prison and many have argued he shouldn't have been out of jail when Barney was killed....
The Oklahoma Attorney General's Office was noncommittal about the report. “The Attorney General's Office was invited to take part in the Oklahoma Justice Reform Task Force, and members of our team were in attendance," Lincoln Ferguson, spokesman for Atty. Gen. Scott Pruitt, said in a prepared statement. "The AG's office takes no position on the merits or demerits of the proposal.”
The full report is an interesting read and is available here at this link.
Thursday, February 02, 2017
One corrections officer dead as Delaware prison riot comes to end
As reported here, the "day-long hostage standoff inside Delaware’s largest state prison for men ended early Thursday after state police stormed the building, finding one corrections official dead and rescuing another who was being held hostage." Here is more:
The standoff began Wednesday at around 10:30 a.m. when inmates at the James T. Vaughn Correctional Center in Smyrna, about 40 miles south of Wilmington, took four corrections department workers — and possibly some fellow prisoners — hostage inside one of the facility’s buildings.
Prisons across the state were locked down due to the standoff there. Dozens of inmates were released in Smyrna as the situation progressed, along with two corrections officials who were being held, the Department of Correction said in a statement overnight. It was not immediately clear how many of the inmates held in the seized prison block were hostages as opposed to hostage-takers.
The Delaware State Police entered the building shortly after 5 a.m. Thursday, according to the corrections department. A Department of Correction employee who was being held was “safely rescued and is being examined at a local hospital,” where she is alert and talking, the agency said in a statement.
Police found the remaining hostage, a corrections officer who was not immediately identified, unresponsive when they entered, and he was pronounced dead at 5:29 a.m. Authorities said they would release more information later Thursday at a news conference.
Gov. John Carney (D), in a statement Thursday, said “I’m praying hard for the fallen officer’s family.”
“This serves as a tragic reminder that members of law enforcement risk their lives every day on behalf of the people of Delaware,” he said. “We will stand by the fallen officer’s family and fellow law enforcement officers during what is an extremely difficult time.” Carney said officials were now focusing on trying to learn “what happened and how this happened,” and vowed to “make whatever changes are necessary to ensure nothing like it ever happens again.”
The hostage-takers had said their rebellion was a direct response to President Trump’s policies. “Everything that he did. All the things that he’s doing now,” they said during the second of two manifesto-like phone calls to a local newspaper. “We know that the institution is going to change for the worse.”
The inmates demanded education “first and foremost,” a “rehabilitation program that works for everybody” and a comprehensive look at the prison’s budget and spending, according to audio of the calls posted online by the News Journal in Wilmington, Del.
The Vaughn prison is the largest adult male correctional facility in the state, housing about 2,500 minimum, medium and maximum security inmates, according to the Department of Correction website. It is the landing place for people who have not yet been convicted of a crime and those who have been sentenced to death. Executions are carried out there, according to the website, although the death penalty in Delaware has been struck down by the state’s Supreme Court.
Inmate complaints about treatment within the prison, substandard medical care and poor record-keeping have increased in the past year, Stephen Hampton, an attorney from Dover who has represented prisoners in civil rights cases, told the Associated Press.
Tuesday, January 31, 2017
"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"
The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:
Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences. This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.
Most people serving life sentences were convicted of serious crimes. Their incarceration was intended to protect society and to provide appropriate punishment. But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.
Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety. Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems. Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.
Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population. Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%. By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences. Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO
January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, January 25, 2017
"Following the Money of Mass Incarceration"
The title of this post is the title of this notable new report and infographic from the folks at the Prison Policy Initiative. Here is part of the text of the report:
The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence.
In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report:
• we provide the significant1 costs of our globally unprecedented system of mass incarceration and over-criminalization,
• we give the relative importance of the various parts,
• we highlight some of the under-discussed yet costly parts of the system, and then
• we share all of our sources so that journalists and advocates can build upon our work.
Our goal with this report is to give a hint as to how the criminal justice system works by identifying some of the key stakeholders and quantifying their “stake” in the status quo. Our visualization shows how wide and how deep mass incarceration and over-criminalization have spread into our economy. We find:
• Almost half of the money spent on running the correctional system goes to paying staff. This group is an influential lobby that sometimes prevents reform and whose influence is often protected even when prison populations drop.
• The criminal justice system is overwhelmingly a public system, with private prison companies acting only as extensions of the public system. The government payroll for corrections employees is over 100 times higher than the private prison industry’s profits.
• Despite the fact that the Constitution requires counsel to be appointed for defendants unable to afford legal representation, the system only spends $4.5 billion on this right. And over the last decade, states have been reducing this figure even as caseloads have grown.
• Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons.
• Feeding and providing health care for 2.3 million people — a population larger than that of 15 different states — is expensive.
This report and infographic are a first step toward better understanding who benefits from mass incarceration and who might be resistant to reform. We have no doubt that we missed some costs, and we did not include some costs because they are relatively small in the big picture or are currently unknowable. But, by following the money, one can see that private prison corporations aren’t the only ones who benefit from mass incarceration.
Some of the lesser-known major players in the system of mass incarceration and over-criminalization are:
• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.
• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.
• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.
A graphic like this shows the relative economic cost of different parts of mass incarceration, but it can also obscure the fact that we don’t have a single monolithic system. Instead, we have a federal system, 50 state systems, and thousands of local government systems. Sometimes these systems work together, although often they do not; and looking at just the national picture can obscure the importance of state and local policy decisions. For example, while state government spending makes up the majority (57%) of corrections costs, local governments make up almost a third (32%). Local governments are largely enforcing state law, and local discretionary arrest and bail policies can have tremendous influence on both the state budget and justice outcomes. For example, more than half ($13.6 billion) of the cost of running local jails is spent detaining people who have not been convicted.
To be sure, there are ideological as well as economic reasons for mass incarceration and over-criminalization. But at this moment, when crime is near record lows and there is increasing attention to the role of privatization in the justice system, we need a far more expansive view of how our criminal justice system works, whom it hurts, and whom it really serves. If we are to make our society safer and stronger, we’ll need to be making far smarter investments than we are today.
Tuesday, January 24, 2017
"Orange is the New Black: Inequality in America's Criminal Justice System"
The title of this post is the title of this great event taking place on my own Ohio State University campus tomorrow afternoon. And that title should cue most everyone into the reality that the event is a speech to be delivered by Piper Kerman. Here is how the event is being described:
Bringing her message to Ohio State in this free talk and Q&A presented as part the university’s COMPAS program, Piper Kerman will speak about her own experiences in prison and shed light on the wide-ranging collateral damage of America’s criminal justice practices—particularly on family stability, women, children, and minorities.
Piper Kerman is the author of Orange Is the New Black: My Year in a Women’s Prison (Spiegel & Grau), a bestselling book that has been adapted by Jenji Kohan into an Emmy and Peabody Award–winning original series for Netflix. A hit TV show wasn’t Piper Kerman’s goal when she wrote her memoir about her 13 months in the Danbury Federal Correctional Institution, but its success has led to a life of advocacy for criminal justice reform.
The United States has the highest incarceration rate in the world. There are 2.2 million people in the nation’s prisons and jails—a 500% increase over the last 40 years disproportionately affecting people of color. During this time the number of incarcerated women has increased by more than 700%. Though many more men are imprisoned than women, the rate of growth for female imprisonment has outpaced men by more than 50% between 1980 and 2014. According to sentencingproject.org, there are now 1.2 million women under the supervision of the criminal justice system.
Kerman is the recipient of Harvard's Humanist Heroine Award (2015), as well as the Constitutional Commentary Award from The Constitution Project (2014) and John Jay College's Justice Trailblazer Award (2014). She has testified before Congressional Committees and been invited to present on reentry issues at The White House. She has lectured to hundreds of audiences across the US ranging from justice reform groups, corrections professionals, universities, policymakers, and business leadership events.
A series of year-long conversations on morality, politics, and society, Ohio State’s COMPAS program hopes to promote sustained reflection on the ethical challenges that unify various projects within the university’s Discovery Themes Initiative.
Two Governors dealing with prison overcrowding problems in distinct ways
I covered some midwest prison stories here yesterday, and today brings these interesting state prison reform stories from the south and west:
From Alabama here, "Gov. Robert Bentley says new prisons top priority this year"
As of September, Alabama had about 23,000 prisoners in facilities designed for about 13,000, an occupancy rate of about 175 percent. Overcrowding is not a new problem but makes it harder to deal with other pressing concerns.
In October, the U.S. Justice Department announced it was investigating the state's prisons. U.S. District Judge Myron Thompson is conducting a trial on claims that mental health care for inmates fails to meet constitutional standards. A trial on similar claims about medical care is expected later this year.
Department of Corrections Commissioner Jeff Dunn told lawmakers in November that prison violence was rising and the number of corrections officers had dropped by 20 percent in five years. Bentley and Dunn say the plan to build four new prisons, called the Alabama Prison Transformation Initiative, would be the most cost effective way to alleviate the overcrowding, under-staffing and other problems.
From Nevada here, "Sandoval wants to streamline parole process to fight prison overcrowding"
Nevada Gov. Brian Sandoval is pursuing creative solutions to a potential prison overcrowding challenge that could see capacity exceeded by 700 inmates by the end of the next budget without prompt action. “Our goal is to not construct a new prison,” Mike Willden, chief of staff to Sandoval, said in a budget briefing last week.
Prison construction is not cheap, and it has to be paid with state general funds. In 2007, the Legislature approved $300 million for prison construction projects. Sandoval’s solution rests primarily with the Division of Parole and Probation and the Parole Commission, which will be given new resources to speed up parole for as many as 300 to 400 eligible inmates....
At the Prison Board meeting, it was reported that one-third of paroled inmates being returned to prison were there for parole violations only. Crowding is a problem within the prison system.
Corrections Director James Dzurenda said at the meeting that 13,742 inmates were housed in the system — well over capacity if only regular housing beds were used. But the department has converted large areas of prisons, created for other purposes, into dormitory-style beds.
In addition to seeking to expedite paroles, the Department of Corrections has a capital construction project worth about $6 million to add 200 beds at the Southern Desert Correctional Center. A third element of the plan, if needed, sets aside about $12 million to temporarily house some Nevada inmates out-of-state while the parole efforts get up to speed, Willden said.
State lawmakers will get a first look at the corrections and parole budget proposals at a hearing Jan. 31, a week ahead of the start of the 2017 session on Feb. 6. Sandoval said in his budget that his goal is to reduce prison inmate recidivism by 10 percent through education programs and intervention services and resources, particularly in the areas of behavioral health, drug addiction and workforce training.
Monday, January 23, 2017
Rounding up some diverse prison stories from the industrial midwest
A handful of new stories about prisons emerging from a handful of industrial midwest states recently caught my eye and prompts this round-up:
From Indiana here, "Chief Medical Officer Of Indiana Prisons Held Overlapping Position"
From Michigan here, "Prison food contractor hit with $2M in penalties"
From Ohio here, "Pagans, Wiccans, Satanists can now practice religion in Ohio prisons
From Pennsylvania here, "'New normal:' With crime rates down, Pa. set to close 2 prisons"
The last of these listed stories seems like the biggest news, especially for those hoping state will be able to lead the way on reducing modern mass incarceration.
Saturday, January 21, 2017
"Mass Incarceration: Where Do We Go From Here?"
The title of this post is the title of this notable new report produced by the New York City Bar Association’s Task Force on Mass Incarceration. Here is how its introduction gets started:
The devastating consequences of mass incarceration have drawn unprecedented attention over the past few years. Journalists, academics and public interest groups have published extensive research, written compelling articles and lobbied politicians on both sides of the aisle to take concrete steps to reduce both our nation’s prison population and the terrible toll mass incarceration continues to inflict on vulnerable communities. As we show in this Report, progress has been made in the year since our Task Force was established, but much remains to be done. There also is considerable uncertainty about whether successful past initiatives will be carried forward by the Trump administration.
This Report therefore aims, in section II below, to chronicle past successes (as well as frustrations) at both the federal and state/local levels in reducing the country’s prison population and the harmful consequences and burdens of mass incarceration. Then, in section III below, we look ahead to areas for potential further action, again at the federal and the state/local levels. We close with a plea to public officials to use the information and initiatives highlighted here to recognize the enormous economic and social costs of over-incarceration, to emulate the promising examples of progress and reform recounted here, and to be creative in seeking to reduce the public cost and burden of our overreliance upon incarceration while still maintaining public order and safety in all communities.
Wednesday, January 18, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 1"
The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series. Here is how the Marshall Project editors set up the series:
The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform. The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective. This is the first of three commentaries.
The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration." Here is how it gets started:
Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.
Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.
Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.
The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.
Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.
Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose. Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.
We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.
Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.
January 18, 2017 in Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
Monday, January 16, 2017
After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency
Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency." I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit. Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:
Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.
“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.
As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.
Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.
Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...
At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.
About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.
When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”
Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit. Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.
“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history. You have to look at their conduct [in prison].”
Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years. At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions. She did that, and included several hundred petitions received through Sept. 15, after her cutoff date. She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”
I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.
UCLA Prison Law & Policy Program launches Prison Law JD, a new listserv for connecting new folks to prisoners' rights lawyers.
The UCLA Prison Law & Policy Program has just launched Prison Law JD, a new listserv designed for law students and young lawyers interested in prisoners’ rights. It will be used to share job and fellowship announcements and other information of interest, and for discussion and mutual support. There is already an active listserv connecting practicing prisoners’ rights lawyers around the country, which has enabled the building of a strong and supportive national community of people doing this work. Prison Law JD aims to build out this community to include the next generation of prisoners’ rights advocates.
If you know any law students or young lawyers who might want to join, please invite them to contact Sharon Dolovich at dolovich @ law.ucla.edu.
"Prison Work Programs in a Model of Deterrence"
The title of this post is the title of this new paper authored by A. Mitchell Polinsky now available via SSRN. Here is the abstract:
This article considers the social desirability of prison work programs in a model in which the function of imprisonment is to deter crime. Two types of prison work programs are studied — voluntary ones and mandatory ones. A voluntary work program is socially beneficial: if prisoners are paid a wage that just compensates them for their disutility from work, the deterrent effect of the prison sentence is unaffected, but society obtains the product of the work program. But a mandatory work program is superior to a voluntary work program: if prisoners are forced to work without compensation, the deterrent effect of the prison sentence rises, allowing society to restore deterrence and save resources by reducing the probability of detection or the sentence length, and also to obtain greater output than under the optimal voluntary work program. In an extension of the basic analysis, however, in which prisoners vary in their disutility from work, a voluntary work program may be superior to a mandatory work program because prisoners with relatively high disutility from work can elect not to work.
Friday, January 13, 2017
New ACLU report details unique harms of solitary confinement for prisoners with physical disabilities
The American Civil Liberties Union has released this big report to spotlight particular problems for a particular prison population subject to solitary confinement. The ACLU report is titled "Caged In: Solitary Confinement's Devastating Harm on Prisoner's With Physical Disabilities," and here is how the report is summarized at this webpage:
This report provides a first-ever national ACLU account of the suffering prisoners with physical disabilities experience in solitary confinement. It spotlights the dangers for blind people, Deaf people, people who are unable to walk without assistance, and people with other physical disabilities who are being held in small cells for 22 hours a day or longer, for days, months, and even years. Solitary confinement is a punishing environment that endangers the well-being of people with physical disabilities and often violates the Americans with Disabilities Act. The report’s revelations about the particular harms of solitary on people with physical disabilities shows the urgent need for far better accounting of the problems they face and the development of solutions to those problems.