Sentencing Law and Policy

California submits new plan for complying with federal prison-population order

As detailed in this Los Angeles Times article, which is headlined "Governor submits plan to cut prison population: But he also disavows the proposed solutions as being illegal," California's "Gov Arnold Schwarzenegger on Thursday gave federal judges a road map to reducing state prison overcrowding by waiving some state laws to allow sentences to be reduced and new private prisons to be built." Here are more of the particulars:

An initial plan that Schwarzenegger submitted in September was rejected three weeks ago by the three judges, who threatened him with contempt of court for failing to meet their demand for a proposal to reduce the inmate population by 40,000 prisoners over two years.

With his new proposal, the governor appeared to be trying to avoid open defiance of the judges without giving the impression that he is contradicting his opposition to their efforts in an appeal now pending before the U.S. Supreme Court. The state is arguing that it is improper for the federal courts to intrude into the state's affairs. "We're saying the court . . . doesn't have the authority to do any of this, but the court obviously disagrees with us," Matthew Cate, the governor's prisons chief, told reporters.

The governor said the new plan would open up a total of 42,000 prison beds by December 2011, some through new construction and some by sentencing changes to limit the number of inmates the state incarcerates. He heeded the judges' Oct. 21 order to identify state laws that they would need to suspend to meet their goal. But Schwarzenegger also told the judges he did not believe it would be legal for them to waive those laws....

Some of the governor's new plan echoes what he submitted previously: reduction in the inmate population through sentencing changes, which would need approval by lawmakers, and construction for which the state already has authority. But it also includes measures, accounting for more than 25,000 inmates, that the Legislature rejected during the budget fight last summer: home detention with satellite tracking devices for some inmates; permitting some felony offenders to serve time in county jails instead of state prisons; and reducing sentences for property crimes.

As I have noted before, the blog California Corrections Crisis is the must-read resource for keeping up with all the craziness in California.

Some related posts:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• "Court rejects governor's plan to solve prison overcrowding"

Documenting the health-care costs of long sentences

I often enjoy noting the fact that prisoners do get one benefit that many non-prisoners might envy: free health care.  But, as this new CNN feature highlights, the health care received free by prisoners is not free to taxpayers, and the costs of health-care for prisoners continues to rise as more and more prisoners are serving longer and longer sentences.  the CNN piece is headlined "Prison health-care costs rise as inmates grow older and sicker," and here are excerpts:

As health care sparks debate across the nation, the prison community faces its own battle against rising medical costs. The elderly constitute the fastest-growing sector of the inmate population, experts say.  It is a group that needs more frequent and costlier treatment, which states are required to provide under the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution.

An analysis of Bureau of Justice Statistics data found that the male prison population over age 55 ballooned by 82 percent in eight years, from 48,800 inmates in 1999 to 89,900 in 2007.  The definition of "elderly" varies by state.  The National Corrections Institute, a prison research organization, calls inmates over 55 elderly, and some states place inmates over 50 in that category. An inmate's body ages faster than the body of someone not in prison.

Georgia, one of the 10 largest prison systems in the country, spends about $8,500 on medical costs for inmates over 65, compared with about an average of $950 for those who are younger, corrections officials say.  Across the county, inmate medical care costs about $3 billion a year....

In the last few decades, a growing number of prisons have improved their quality of medical care, says Edward Harrison, president of the National Commission on Correctional Health Care, an accreditation organization based in Chicago, Illinois.

Elizabeth Alexander, director of the ACLU's National Prison Project, says investigations revealed that inmates were often denied access to certified doctors in the 1970s.  In some instances, inmates were providing medical and dental care to one another.  There continues to be lawsuits filed against prisons and jails for providing poor medical care, she says, but overall, the care has vastly improved.

Some states, such as Virginia and Pennsylvania, have built geriatric prison facilities that resemble mini-hospitals, equipped with medical devices and oxygen tanks.  Prisons are being licensed as acute-care settings with a crew of registered nurses, correctional health experts say.

Placing elderly prisoners into separate facilities or wings can help the state consolidate costs. Nearly 75 hospice programs exist in prisons -- up from less than 10 a decade ago, says Carol McAdoo of the National Hospice and Palliative Care Organization.  "I would argue that the health care that is rendered behind bars is better than what is received in the general population," says CEO Rich Hallworth of Prison Health Services, a private medical corrections company in Tennessee that serves 172 jails and prisons around the country.

To ease budget woes in California, one bill up for debate would allow nonviolent elderly prisoners to be released into hospice care or monitored with ankle bracelets.  In the past few years, Georgia officials say, the state has released more frail and dying inmates on medical reprieve than ever before.  Other states, including New York and Virginia, have also allowed early release of ailing elderly inmates.

But critics, including victims' advocacy groups, have scrutinized this policy.  Will Marling, executive director of the National Organization for Victims Assistance in Virginia, said most victims believe offenders will strike again after they are released.  "If a person is sentenced to life, we know they are naturally going to get old," Marling said.  "A life sentence should mean life."

Some related posts:

• Are all states going to need to create old-age prisons?
• When tough-on-crime bills come due
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• NPR story about elderly sex offender prisoners
• Aging gracefully ... in prison?
• The high costs of an aging prison population

"In California, Some Want To Be On Death Row; Life Is Better There"

The title of this post is the headline of this new NPR entry, which is itself a follow-up to this important new Los Angeles Times article discussing life on California's death row.  The full headline for the LATimes piece captures the major themes of today's must-read article: "Death penalty is considered a boon by some California inmates: Given the state moratorium on executions and an appeals process that can last for decades, inmates can expect to live a long time, and with privileges other prisoners lack." Here are excerpts from the article:

White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.   It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all....

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have "contact visits" in plexiglass booths by themselves rather than in communal halls as in other institutions.  They have about the only private accommodations in the state's 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.   "Death row inmates probably have the most liberal telephone privileges of anyone in state custody," said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.  "It's not that he thinks conditions will be better; they are better," Johnson's attorney, Michael Molfetta, said of his client's request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, "and he says he doesn't care to live beyond that."

Students who take my sentencing classes have long heard me say that I would rather be sentenced to death than to life without parole were I to be convicted of a death-eligible crime.  I often make this point when talking about wrongful convictions when suggesting that a wrongfully convicted person sentenced to death likely is likely better able to get media and the public interested in his case than a wrongfully convicted person sentenced to LWOP.  (The on-going debate in Texas as to whether Cameron Todd Willingham was wrongfully convicted seems to confirm this point.)  But this LA Times piece rightly spotlights why even the guilty might prefer a death sentence to an LWOP sentence.

And there are other benefits to death row for the guilty that are not discussed in this piece.  For example, many persons on death row are uniquely able to garner pen pals and other abolitionist supporters from European countries and also are uniquely able to garner press attention (as this LA Times article itself shows).  Put another way, a murderer condemned to death is always going to be more of a celebrity and will have a higher Q-rating than a murderer given an LWOP sentence.

Of course, some guilty murderer still surely will prefer a lower-profile LWOP fate than the higher-profile experience that comes with a death sentence.  Nevertheless, the real-world punishment dynamics discussed here are among the reasons I view LWOP sentences as generally more problematic (and, in turn, generally more "cruel and unusual" for purposes of the Eighth Amendment) than death sentences.

"Cruelty, Prison Conditions, and the Eighth Amendment"

The title of this post is the title of this new article from Sharon Dolovich appearing in the New York University Law Review. Here is the abstract:

The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel.  For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment.  Farmer’s reasoning, however, does not withstand scrutiny . As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.  With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners.  This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.

At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection.  For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm.  This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice — and thereby creates incentives for officers not to notice — despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners.

Is anyone complaining about excessive federal spending on prisons?

One need only turn on talk radio to hear lots of pundits complaining about excessive federal spending on items ranging from the arts to clunkers to health care.  But this local article, headlined "Carney gets $1B more for federal prisons," leaves me wondering if there is anyone complaining about excessive federal spending on prisons.  Here are excerpts from this local piece:

[F]unding-related problems are being seen at federal correctional institutions throughout Central Pennsylvania and across the country.

The issue hits hard in Central and Northeastern Pennsylvania, home to 20 percent of the nation’s federal correctional institutions, said U.S. Rep. Chris Carney, who has successfully petitioned the House Appropriations Committee for more than $1 billion in extra federal corrections funds in the previous and current fiscal years.

Over the past 20 years, the federal prison population has increased at twice the rate of staff levels, Carney said in a letter to key legislators seeking an increase in funding.  At the end of 2008, federal prisons were operating at 138 percent their official capacities, Carney said.

Recent numbers show the U.S. Penitentiary at Lewisburg has 1,112 inmates at its main facility, and 520 at its camp.  The official inmate capacity for the main penitentiary is 770 and 552 at the camp.  Only 88 percent of Lewisburg’s correctional positions are filled — 260 out of a possible 295. “There may be 88 percent staffing at the facility, but the inmate population is 20 percent over capacity,” said Bill Gillette, northeast regional vice president for the council of prison locals for the American Federation of Government Employees. “They are down a lot.”

Of course, I want to see all federal prisons adequately staffed and funded.  But it is the huge increase in federal prison populations that are creating these modern funding problems, and I think efforts to cut prison populations should come before any automatic decision to increase federal spending on prisons.

On this front, it would be useful if the U.S. Sentencing Commission would focus on the costs in tax dollars of the modern federal criminal justice system.  Many state sentencing commissions do cost estimates with any proposed sentencing change, and the USSC should be well-positioned to examine whether we are getting value for our tax dollar from our federal sentencing system.

"Arizona May Put State Prisons in Private Hands"

The title of this post is the headline of this interesting New York Times article.  Here is how it starts:

One of the newest residents on Arizona’s death row, a convicted serial killer named Dale Hausner, poked his head up from his television to look at several visitors strolling by, each of whom wore face masks and vests to protect against the sharp homemade objects that often are propelled from the cells of the condemned.

It is a dangerous place to patrol, and Arizona spends $4.7 million each year to house inmates like Mr. Hausner in a super-maximum-security prison.  But in a first in the criminal justice world, the state’s death row inmates could become the responsibility of a private company.

State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row.  It is the first effort by a state to put its entire prison system under private control.

The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books.  Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.

“Let’s not kid ourselves,” said State Representative Andy Biggs, a Republican who supports private prisons.  “If we were not in this economic environment, I don’t think we’d be talking about this with the same sense of urgency.”

Private prison companies generally build facilities for a state, then charge them per prisoner to run them.  But under the Arizona legislation, a vendor would pay $100 million up front to operate one or more prison complexes.  Assuming the company could operate the prisons more cheaply or efficiently than the state, any savings would be equally divided between the state and the private firm.

The privatization move has raised questions — including among some people who work for private prison companies — about the private sector’s ability to handle the state’s most hardened criminals.  While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner.

I wonder if years from now we will be debating whether there needs to be a public option for prison care.

"Court rejects governor's plan to solve prison overcrowding"

The title of this post is the headline of this report from the San Jose Mercury News.  Here are the basics on the latest twist and turn in the on-going saga of California prison reform:

A federal court Wednesday rejected Gov. Arnold Schwarzenegger's plan to solve California's prison overcrowding crisis, giving the state three weeks to devise an alternative or risk an order that seizes control of how more than 40,000 inmates are released from the prison system over the next two years.

In a seven-page ruling, a three-judge panel found the governor's plan for reducing prison overcrowding inadequate. The judges said it failed to comply with their August order requiring the state to come up with a proposal to remove about one-quarter of the more than 150,000 inmates now crammed into California's prisons.

Schwarzenegger and chief prison officials in September responded to the August order with a plan that would reduce the inmate population by only about 20,000 inmates over the next three years, less than half of what was sought by the judges. State officials maintain their plan balanced the need to reduce prison overcrowding with public safety concerns.

But 9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt, San Francisco U.S. District Judge Thelton Henderson and Sacramento U.S. District Judge Lawrence Karlton found otherwise, and ordered the state to come back with a fresh plan in 21 days. Otherwise, the judges said they would consider alternative plans from lawyers for California's inmates and issue an order that will meet their goal of getting the inmate population down to 137 percent of the prison system's capacity.

Thanks to this post at How Appealing, one can find lots of other major media coverage of this development, as well as  this link to yesterday's order of the three-judge U.S. District Court for the Eastern and Northern Districts of California.

UK advocacy group urges motherhood as a sentencing consideration

This new BBC piece, which headlined "Courts 'should consider mothers'," reports on how an advocacy group across the pond is calling for consideration of family values at sentencing:

Magistrates and judges in Wales should take account of whether women are mothers when sentencing them, says a children's charity. Barnado's Cymru said courts "need to look at alternatives to custodial sentences" when dealing with mothers. They should know more about the impact of a sentence on a child, it says.

Laura Tranter said a woman should still face the full range of sentencing "but whether or not she needs to lose ties with her children is another issue". The children's charity said children in Wales who have a parent in prison need better support.

Its report, Every Night You Cry, says that failing to address their needs has a negative impact on their behaviour, claiming that "almost two-thirds of boys with a convicted father go on to offend" if no interventions are made. The charity says there are an estimated 160,000 children in the UK who have a parent in prison, more than twice the number of children in care and six times the number of children on the child protection register.

"Incarceration American-Style"

The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:

In the United States today, incarceration is more than just a mode of criminal punishment.  It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills.  In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand.  I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.  This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

"The High Cost of Empty Prisons"

The title of this post is the headline of this op-ed in today's New York Times. Here are excerpts:

Last Wednesday, changes to New York’s notorious Rockefeller drug laws went into effect, allowing judges to shorten the prison terms of some nonviolent offenders. This measure will further reduce New York’s prison population, which has already declined, in the past 10 years, from about 71,600 in 1999 to about 59,300 today. (The state’s crime rate also dropped substantially during that time.)

Nevertheless, mainly because of opposition from the correction officers’ union and politicians from the upstate areas where most of our correctional facilities are, the state has been slow to close prisons.  It was not until earlier this year that policymakers in Albany, confronted with fiscal crisis, mustered the will to shut three prison camps and seven prison annexes — a total of about 2,250 prison beds — in a move that is expected to save $52 million over the next two years.

But the state could go further.  The prison system still has more than 5,000 empty beds in 69 prisons.  What’s more, there are other ways to lower the prison population.  For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release.  In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities.  Today, about 2,500 are enrolled.

In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew.  Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision.  Also, more prisoners with good institutional records could be given parole.  And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago....

New York can now help point criminal justice in a more sensible and constructive direction — and show other states how to save money — by downsizing its prison system.

What can and should be done about prison staff sex abuse of prisoners?

A helpful reader pointed me to this notable column by in the Washington Post, which is headlined "Chilling Findings in Report on Prison Sex Abuse."  Here is how it starts:

Prisoners don't command much respect. Those who steal, rape and murder make life miserable for the rest of us and should pay for their actions. But when society puts them away, they must be treated decently, humanely and in accordance with the law.

So a report last week from the Justice Department's inspector general was particularly troubling because it detailed crimes by an unexpected group: federal employees who work in the prisons.

Inspector General Glenn A. Fine calls it "staff sexual abuse of federal inmates." The document paints a disgusting picture of federal employees who have disgraced themselves, shamed their professions and dishonored the federal service.

As my colleague Carrie Johnson reported Friday, the inspector general found that allegations of sexual abuse and misconduct had more than doubled from fiscal year 2001 through 2008. "These allegations increased at a faster rate than either the growth in the prisoner population or the number of BOP [Bureau of Prisons] staff," the IG's report says. "BOP officials told us they believe this increase is due to the BOP's efforts during this time period to educate and encourage staff and inmates to report abuse."

I suspect that this problem is not unique to federal prison facilities, and I wonder if this new report will lead to some positive developments on this front.  I am not confident that persons involved in this kind of sex abuse are always effectively prosecuted and sentencing, though I am also not confident that a criminal justice response will be sufficient to address this problem that surely grows as prison populations grow.

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The title of this post is part of the title of this interesting-looking new paper on SSRN from Raja Raghunath, which is fully titled "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?". Here is the abstract:

The walls of the prison are not solely physical. The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment. Since its ratification, the Thirteenth Amendment - which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' - has been seen by courts as one brick in this wall. This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall - one of sufficient size to allow some needed light to shine within.

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work. Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced - which is not the vast majority of inmates compelled to work in the present day - should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time.

This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions. This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

Seeking deep throughts in reaction to "The Recession Behind Bars"

Today's New York Times includes this fascinating op-ed, headlined "The Recession Behind Bars," which is authored Kenneth Hartman, who is nearing the end of his third decade in prison following a 1980 conviction for murder that led to an LWOP sentence in California. Here are excerpts from this must-read piece:

The past 25 years were generally prosperous for California; the economy boomed and fortunes were made in the sunny San Fernando Valley.  But during this time, the lives of prisoners became much drearier.  We were forced into demeaning uniforms, with neon orange letters spelling out “prisoner,” and lost most of the positive programs like conjugal visits and college education that we had had since the ’70s.  Money was flowing outside the prison walls, but new “get tough” policies against criminals were causing our population, and our costs, to soar.

It is a quirk of California politics that it is among the bluest of states but has some of the reddest of laws.  No politician here ever lost an election for being too tough on crime or prisoners. Consequently, all through the ’80s and ’90s billions of dollars were poured into a historic prison-building boom.  Private airplane pilots tell me it’s easy to navigate at night from San Diego to Los Angeles and on up the Central Valley to Sacramento by simply following the prisons’ glowing lights. Good times in the free world meant, in here, ever-longer sentences, meaner regulations and ever-decreasing interest in rehabilitation.  “Costs be damned; lock ’em up and be done with it” became the unofficial motto of the Department of Corrections.

The last time I received a visit from my family, in early July, the air-conditioning in the visiting room had been broken for more than a month.  This matters because my prison is in the high desert north of Los Angeles....  The next day I asked one of the administrators what could be done to get the air-conditioning fixed, and he told me an amazing story. The free-world contractor who services the prison’s air-conditioning systems had refused to come out to replace the part that was broken, because the state owed the company tens of thousands of dollars in back fees and could pay only in i.o.u.’s.  There would be no cool air until the state’s budget negotiations were concluded.

Now that the economy is suffering, there is talk of reforming the prisons, of reviving the discredited concept of rehabilitation, of letting some prisoners out early.  Some people have even mentioned doing away with the death penalty because of the exorbitant cost to the state of guaranteed appeals.  For those of us who have endured a generation of policies intended explicitly to inflict pain, this has a surreal quality to it. After all, it was only a year ago that the state authorities were planning the next phase of prison expansion.  Obviously, all the passionate arguments that have been made about the moral wrongs of mass incarceration, of disproportionately affected communities, of abysmal treatment and civil rights violations were just so much hot air.  Only when society ran out of ready cash did prison reform become worthy of serious consideration. What this says about the free world is unclear to me, but it doesn’t feel like a good thing.

The talk in here contains an element of schadenfreude.  When the TV shows legislators complaining about how deep in the hole the state budget is, laughter fills the day room. Our captor turns out to be simply inept....

From my cell I can also observe the inner roadway on which prison vehicles pass.  A fleet of new, shining-white super-security transportation vans still drives by daily.  Leviathan hasn’t quite adjusted to the Golden State’s diminished firmament.

This snippet and the rest of the op-ed is perhaps more about modern sociology than modern economics or criminology.  But, whatever label readers might attach to the piece, I hope deep thoughts will follow in the comments as we reflect on work, the economy and American society this Labor Day weekend.

What should we take away from the latest private prison scandal?

The New York Times reported yesterday on the latest private prison scandal in this piece headlined "Hawaii to Remove Inmates Over Abuse Charges."  Here are some of the details:

Hawaii prison officials said Tuesday that all of the state’s 168 female inmates at a privately run Kentucky prison will be removed by the end of September because of charges of sexual abuse by guards. Forty inmates were returned to Hawaii on Aug. 17....

Otter Creek is run by the Corrections Corporation of America and is one of a spate of private, for-profit prisons, mainly in the South, that have been the focus of investigations over issues like abusive conditions and wrongful deaths. Because Eastern Kentucky is one of the poorest rural regions in the country, the prison was welcomed by local residents desperate for jobs.

Hawaii sent inmates to Kentucky to save money. Housing an inmate at the Women’s Community Correctional Center in Kailua, Hawaii, costs $86 a day, compared with $58.46 a day at the Kentucky prison, not including air travel. 

Hawaii investigators found that at least five corrections officials at the prison, including a chaplain, had been charged with having sex with inmates in the last three years, and four were convicted....

The private prison industry has generated extensive controversy, with critics arguing that incarceration should not be contracted to for-profit companies.  Several reports have found contract violations at private prisons, safety and security concerns, questionable cost savings and higher rates of inmate recidivism.  “Privately operated prisons appear to have systemic problems in maintaining secure facilities,” a 2001 study by the Federal Bureau of Prisons concluded.

Those views are shared by Alex Friedmann, associate editor of Prison Legal News, a nonprofit group based in Seattle that has a monthly magazine and does litigation on behalf of inmates’ rights. “Private prisons such as Otter Creek raise serious concerns about transparency and public accountability, and there have been incidents of sexual misconduct at that facility for many years,” Mr. Friedmann said.

But proponents say privately run prisons provide needed beds at lower cost.  About 8 percent of state and federal inmates are held in such prisons, according to the Justice Department. “We are reviewing every allegation, regardless of the disposition,” said Lisa Lamb, a spokeswoman for the Kentucky Department of Corrections, which she said was investigating 23 accusations of sexual assault at Otter Creek going back to 2006....

In July, Gov. Linda Lingle of Hawaii, a Republican, said that bringing prisoners home would cost hundreds of millions of dollars that the state did not have, but that she was willing to do so because of the security concerns. Prison overcrowding led to federal oversight in Hawaii from 1985 to 1999. The state now houses one-third of its prison population in mainland facilities.

The pay at the Otter Creek prison is low, even by local standards. A federal prison in Kentucky pays workers with no experience at least $18 an hour, nearby state-run prisons pay $11.22 and Otter Creek pays $8.25. Mr. Friedmann said lower wages at private prisons lead to higher employee turnover and less experienced staff.

Obviously, this piece reveals yet another piece of the broader stories surrounding the modern prison economy in lean budget times.  But it also raises distinct questions about the potential virtues and vices of private prison facilities that now hold around 200,000 prisoners all around the United States.  Given the size and scope of this industry, I am disappointed (though not really surprised) that we do not hear more debates and see more research on the entire private prison approach to corrections.

Interesting review of medical furloughs from Alabama's prisons

This story from today's Montgomery Advertiser, which is headlined "It's tough for terminally ill inmates to receive medical furloughs in Alabama," provides an effective review of how one state is dealing with the challenging intersection of health care and prisons costs.  Here are some excerpts:

Almost a year ago Alabama passed a law that would allow terminally ill inmates a chance to die at home and, it was hoped, save the state a little money. But the eligibility criteria for the new medical furlough are so strict that it could be a long time before the state Department of Corrections sees significant savings.

When Alabama passed its law last year, it became one of 36 states to provide a medical furlough for incapacitated or terminally ill inmates.

Ruth Naglich, associate commissioner on health services for the department, said when the bill was first proposed, 120 of the state's 25,000 inmates were identified, but that number shrank once the final law was in place. In a year's time, the state has released three terminally ill inmates, and they were just released this summer.

The first medical furlough release, Omar Rahman, was so ill that he died 30 hours after his release. He was serving a life sentence and had been in prison since 1982, according to the department's records. The other two inmates who have been furloughed are alive.

So who's not eligible? Sex offenders and those convicted of capital murder. "The number of prisoners eligible was brought down, particularly when they took out sex offenders," Naglich said.

And even if you are an inmate who is technically eligible -- no identifiable risks, no warrants in other states, no sentencing restrictions -- Naglich said the state is challenged to find somewhere to put you. "Some inmates simply don't have any family left," she said. "And if they have family left, they might not have the means or ability to care for the individual as the bill requires."...

Larry Spencer, an assistant professor of criminal justice at Alabama State University, said the drafters of the state's medical furlough program are cautious for a reason -- prisoner furloughs are risky business....  Spencer said the state has to look at a lot of different things to ensure that it is making the right call, including an inmate's criminal history, what type of adjustment the inmate made in prison and how sick he or she really is....

Naglich said there are 170 inmates who are suffering from a debilitating or terminal illness, but there are 6,000 statewide who are in some kind of chronic care clinic. She said a patient who receives dialysis three times a week and has other related illnesses costs the state between $60,000 and $65,000 a year.

An inmate with cancer might cost the state $68,000 and an inmate who has a stroke and must use a wheelchair for the rest of his or her life could cost the state an extra $45,000 to $50,000 because of extra staff, equipment and nutritional needs.

Some related posts:

• Passing prisoners (and the health-care buck) to nursing homes in Ohio
• Do prisoners get better health care than poor?
• Fascinating fights over how to pass the prison buck in California
• What should Florida and other states do with all their old sex offenders?
• Are all states going to need to create old-age prisons?
• "Elderly Offender Home Detention Pilot Program"
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• Aging gracefully ... in prison?
• The high costs of an aging prison population

Is SCOTUS partially to blame for rioting in a California prison?

Just when it might seem things could not get any worse for California's over-crowded and politically dysfunction prison system, a massive riot breaks out.  And, as this New York Times coverage of the riot reveals, it might be appropriate to blame a Supreme Court ruling for helping to create the conditions in which this riot broke out:

Rioting inmates smashed and burned a large California prison on Saturday night and Sunday morning, injuring 250 prisoners and hospitalizing 55. The 11-hour riot, at the Reception Center West at the California Institution for Men in Chino, about 40 miles east of Los Angeles, broke down along racial lines, with black prison gangs fighting Latino gangs in hand-to-hand combat, the authorities said.

No prison employees were injured, no deaths were reported, and no inmates escaped, state officials said. But 10 of the 33 prisons in the state system were put on lockdown to prevent unrest from spreading. Those 10 were in the southern part of the state.

Damage to the 1,300-inmate medium-security prison was “significant and extensive,” said a spokesman, Lt. Mark Hargrove. One housing unit was virtually destroyed by fire, Lieutenant Hargrove said. The other housing areas were so badly damaged that they were uninhabitable, he said, so some inmates were being temporarily housed in tents while others were sent to alternate prisons.

With more than 150,000 inmates, the California prison system is one of the most crowded in the nation, with many of its facilities holding more than double the number of inmates they were designed for. A federal three-judge panel ruled last week that crowding and poor health care caused one avoidable inmate death each week and that the system was “impossible to manage.”...

The Chino prison is trying to put into effect a 2005 Supreme Court decision that prohibits automatic and systematic racial segregation of prison inmates after more than three decades of racial separation in the corrections system. Lieutenant Hargrove said that inmates could now opt out of segregation and that a growing number of black, Latino and white prisoners shared cells, increasing racial tensions in the prison....

In its order last week, the federal panel directed the state to come up with a plan to reduce its prison population by 40,000 inmates within two years. Attorney General Jerry Brown, a possible candidate for governor next year, said he would probably appeal the ruling.

Barry Krisberg, the president of the National Council on Crime and Delinquency in Oakland, said the riot illustrated the many problems plaguing the state prison system, including growing cost overruns and pending cuts. “There are proposals to eliminate all programs including reducing visiting days for inmates participating in programs,” Mr. Krisberg said. “But if you isolate these men from their families and cut down even the most basic educational and counseling programs, you’re going to create more idleness, and this is what happens.”

"Mentally Ill Offenders Strain Juvenile System"

The title of this post is the headline of this article in this morning's New York Times, which provides still more evidence that crime and criminal offenders often are a reflection of public health problems.  Here is a snippet:

As cash-starved states slash mental health programs in communities and schools, they are increasingly relying on the juvenile corrections system to handle a generation of young offenders with psychiatric disorders. About two-thirds of the nation’s juvenile inmates — who numbered 92,854 in 2006, down from 107,000 in 1999 — have at least one mental illness, according to surveys of youth prisons, and are more in need of therapy than punishment.

“We’re seeing more and more mentally ill kids who couldn’t find community programs that were intensive enough to treat them,” said Joseph Penn, a child psychiatrist at the Texas Youth Commission. “Jails and juvenile justice facilities are the new asylums.”

At least 32 states cut their community mental health programs by an average of 5 percent this year and plan to double those budget reductions by 2010, according to a recent survey of state mental health offices.

Juvenile prisons have been the caretaker of last resort for troubled children since the 1980s, but mental health experts say the system is in crisis, facing a soaring number of inmates reliant on multiple — and powerful — psychotropic drugs and a shortage of therapists.

In California’s state system, one of the most violent and poorly managed juvenile systems in the country, according to federal investigators, three dozen youth offenders seriously injured themselves or attempted suicide in the last year — a sign, state juvenile justice experts say, of neglect and poor safety protocols.

In Ohio, where Gov. Ted Strickland, a former prison psychologist, approved a 34 percent reduction in community-based mental health services to reduce a budget deficit, Thomas J. Stickrath, the director of the Department of Youth Services, said continuing cuts would swell his youth offender population. “I’m hearing from a lot of judges saying, ‘I’m sorry I’m sending so-and-so to you, but at least I know that he’ll get the treatment he can’t get in his community,’ ” Mr. Stickrath said.

But youths are often subjected to neglect and violence in juvenile prisons, and studies show that mental illnesses can become worse there.

"Inmate Hides Gun In Fat Layers"

The title of this post is the headline of this local news story from Texas.  Here are the basics:

A nearly 600-pound man was able to hide a weapon for more than a day while he was in custody, police told KPRC Local 2 Wednesday. "Obviously the system broke down," former Harris County Detention Major Mark Kellar said. "The procedures didn't work as they were designed to work."

Houston police said George Vera, 25, was arrested Aug. 2 and taken to the city jail.  He spent a day there before being transferred to the Harris County Jail. After being there for 14 hours, going through intake procedures, he was taken to the showers, the final step before going to his cell. There, Vera told police he had a 9mm handgun on him, along with 2 clips.

"If a person has a weapon, narcotics, anything of danger, it should have been found before he winds up in the county jail," said Kellar.  Kellar said Vera should have been searched at least three times before getting to the jail.

Vera weighs nearly 600 pounds and the gun was allegedly hidden between fat layers. Houston Police Officers Union President Gary Blankinship said cadets are trained how to search morbidly obese people. "We teach officers to lift up and look under," Blankinship said. "The officer may not have arrested anyone this big before."

New NY Times editorial on felon disenfranchisement

Responding in part to this recent split First Circuit ruling upholding Massachusetts decision to deny the vote to incarcerated prisonder, the New York Times today has this editorial headlined "A Loss for Voting Rights."  Here are excerpts:

Voting rights advocates have had little success challenging felon disenfranchisement laws in court. Last week, the United States Court of Appeals for the First Circuit, in Boston, became the latest federal court to uphold a ban on voting by convicted felons. Despite these setbacks, the cause is important. Voting rights advocates should keep fighting in the courts, state legislatures and Congress.

In 2000, Massachusetts changed its laws to prohibit felons in prison from voting. Until then, it was one of only three states that let felons vote from behind bars. Even with the change, Massachusetts remains one of just 13 jurisdictions that disenfranchise felons while they are incarcerated but not after they are freed....

The United States aspires to be a nation in which the government rules by the consent of the governed people. Prisoners do not cease to be people.

Felon disenfranchisement is also bad prison policy. In recent years, the prison system has all but given up on trying to rehabilitate prisoners. Allowing felons to vote is good preparation for making them free, law-abiding citizens.

"Prison consultants help inmates get good digs"

The title of this post is the headline of this article about "a type of prison consultant increasingly popular among white-collar wrongdoers."  Here's more from an interesting piece:

From Martha Stewart to Michael Vick, prison consultants are often hired by celebrities, white-collar miscreants and disgraced politicians to lobby for good prison placement, mitigate sentence length and offer crash courses in prison culture.  Last week's arrests of 44 people in a wide-ranging corruption probe that netted public officials and religious leaders in New York and New Jersey may soon produce a batch of new clients.

The Federal Bureau of Prisons is aware of the work of prison consultants, but the agency treats all requests from prison consultants as it would any request from the general public, said spokeswoman Felicia Ponce.  Consultants say that they never promise good placement and that lobbying for it is only one aspect of what they do for their clients.

"It's like going to a foreign country that you've never been to before — different language, people's mannerisms," said Tim Miller of the San Diego-based Dr. Prison consultant service.  "When people are entering into the system, we help them look at themselves in ways they may not see themselves."

Miller says his firm first assesses a client's "prison demeanor" and then tailors advice accordingly. Often, former powerbrokers are told they can no longer order others around and shy people are urged to learn to play cards or talk sports so they don't seem anti-social.  Clients are counseled, he said, to always stick with their own race — regardless of how open-minded they might be in the outside world — and are coached to never let anyone cut in front of them in the food line. They're warned that dorm environments are more volatile than single cellblocks and that most altercations take place in the TV room....

Herbert Hoelter said he is on retainer as a professional favor to Madoff's lawyer, Ira Sorkin, but is not being paid by the disgraced financier he describes as indigent.  A trained social worker and pioneer in sentencing consulting, Hoelter co-founded in 1977 the Maryland-based nonprofit National Center on Institutions and Alternatives, which has represented Stewart, Vick, Michael Milken and Ivan Boesky.

Several other consultants learned the trade the hard way: by serving time themselves. "Many lawyers think their job is done the day of sentencing, that's when my job typically begins," said John Webster, founder of the Nashville-based National Prison and Sentencing Consultants. Webster, a former attorney, started his company in 2002, shortly after his release from a 13-month stint in federal prison for lying to the FBI while representing a client in a New Jersey securities fraud case.

"The true punishment of a federal prison camp is the sheer boredom," said Webster, who charges a flat rate of $3,500 for what he calls "complete prison preparation," or a per-diem rate for cases that involve travel or investigative work. White-collar offenders "have to understand where they're going and the kinds of people they'll be around," Webster said.  "They're no longer the captain of the ship or the leader of the pack."

Larry Levine of the Los Angeles-based companies Wall Street Prison Consultants and American Prison Consultants says his 10 years of hard time for narcotics and possession of counterfeit securities, among other charges, guarantee that his advice is genuine.  His firm offers a primer called "Fed Time 101," covering everything from inmate etiquette to suing a Bureau of Prisons employee. .