Saturday, October 22, 2016
"Bars to Justice: The Impact of Rape Myths on Women in Prison"
The title of this post is the title of this paper newly posted to SSRN and authored by Hannah Brenner, Kathleen Darcy, Gina Fedock and Sheryl Kubiak. Here is the abstract:
This article stems from a National Science Foundation-funded interdisciplinary research project that addresses a major gap in understanding the reporting of sexual victimization in prison and the confluence of factors that contribute to the ineffectiveness of internal laws and policies. As a basis of this work, our cohort of scholars in law, social work, and psychology utilized data and personal narratives from the groundbreaking class action lawsuit, Neal v. MDOC, brought on behalf of over 800 female inmates against the State of Michigan.
In this article, we identify the most prevalent rape myths we observed from women who were involved in the Neal lawsuit and other similarly situated female inmates across the country. We focus on the impact of rape myths in contexts where prison staff perpetrate sexual violence against female inmates and in particular, how rape myths span the closed prison system-from reporting to grievance outcomes. We explore how these myths shape notions of the "ideal victim," discuss their specific impact, and explain why they matter.
We consider how, by virtue of their incarcerated status, it is impossible for women victimized in prison to meet the "ideal victim" standards, ultimately rendering their attempts at seeking justice futile. We hope that our analysis of rape myths in the prison context will inspire changes in prison law and policy by acknowledging and urging the dismantling of these often unforeseen, implicit, and informal barriers to justice.
Wednesday, October 12, 2016
Old prison problems from new school smuggling
This new Washington Post piece discusses and old prison problem and its new dimensions. The piece is headlined "Prisons try to stop drones from delivering drugs, porn and cellphones to inmates," and here are excerpts:
Prison inmates, a remarkably ingenious bunch, are disrupting long-standing methods of smuggling drugs, porn and cellphones the same way online retailers hope to one day deliver socks and underwear to American homes — through the air, with drones.
By coordinating with wingmen on the outside for shipments of contraband, inmates can bypass the need to bribe corrupt guards or persuade family members to hide forbidden items in body cavities.
Though nobody is precisely sure just how many drones are landing every day in prisons, the threat is global. Last year, there was a melee at an Ohio prison after a drone dropped heroin into the exercise yard. In April, security cameras at a London prison recorded a drone delivering drugs directly to an inmate’s window.
And in Western Maryland earlier this year, prosecutors convicted a recently released inmate and a prisoner serving a life sentence on charges of attempted drug distribution and delivery of contraband after they completed several nighttime missions netting them $6,000 per drop in product sales. It was such a lucrative scheme that the former inmate had purchased a new truck for himself with the profits....
Prison officials are dealing with this new threat even as inmates continue using older, higher-risk methods. Earlier this month, more than 50 correctional officers and inmates were charged in a smuggling scheme at Eastern Correctional Institution, Maryland’s largest prison.
Drone deliveries, while clever, aren’t all that surprising given how much time inmates spend watching television news, security officials say. They’ve likely seen stories about retailers such as Amazon (founded by Washington Post owner Jeffrey P. Bezos) pushing the concept. “We are trying to keep up with technology just like everyone else,” said Stephen T. Moyer, secretary of Public Safety & Correctional Services for Maryland. “So this is a huge challenge for all of us in corrections.”...
The threats to prisons and other facilities have given rise to start-ups selling anti-drone detection systems that use thermal imaging and other technology to spot airborne infiltrators. Some executives have jokingly compared the technology to “Star Wars” — not the movies, but the Reagan-era missile defense system.
Tuesday, October 11, 2016
"Slave Narratives and the Sentencing Court"
The title of this post is the title of this interesting new paper authored by Lindsey Webb available via SSRN (and which certainly serves as an interesting scholarly "chaser" after watching the new documentary 13th). Here is the abstract:
The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.
This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. As advocates, defense lawyers can incorporate information about conditions of confinement into sentencing narratives to support arguments for shorter sentences or against imprisonment altogether. As abolitionists, defense lawyers can juxtapose the humanity of their clients with the poor or even dire conditions of confinement in our jails and prisons — not only to influence the court’s decision about an individual client’s sentence, but to impact the court’s view of our systems of incarceration as a whole. Defense lawyers acting as abolitionists thus seek to disrupt and dismantle a system of imprisonment that disproportionately affects African American and Latino people in significant and damaging ways.
In examining how invoking conditions of confinement at sentencing engages defense attorneys as advocates and abolitionists, this Article seeks insight from a tool of abolitionists and advocates from a different time: Civil War-era slave narratives. Slave narratives exposed the hidden conditions of slavery while also seeking to humanize the enslaved people subjected to those conditions. Using slave narratives as a touchstone in a conversation about sentencing advocacy provides a new perspective on the role of storytelling in litigation and social movements, including questions of who tells the story and which stories are told, in the context of systems of control with deep disparate impacts based on race.
October 11, 2016 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)
Friday, October 07, 2016
This weekend's must-watch: 13th, Ava DuVernay's new documentary linking slavery and mass incarceration
As noted in this prior post, my screen time last weekend was devoted to my favorite bi-annual sporting event. And I suspect much of this weekend will be focused on one of my favorite annual playoffs. But the must-watch for this weekend is on a much more serious set of subjects, the US history of slavery and its echoes within mass incarceration. These are the topics covered in a new Netflix documentary, which YouTube describes in this way along providing this preview:
The title of Ava DuVernay’s extraordinary and galvanizing documentary 13TH refers to the 13th Amendment to the Constitution, which reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” The progression from that second qualifying clause to the horrors of mass criminalization and the sprawling American prison industry is laid out by DuVernay with bracing lucidity. With a potent mixture of archival footage and testimony from a dazzling array of activists, politicians, historians, and formerly incarcerated women and men, DuVernay creates a work of grand historical synthesis. On Netflix October 7.
I would be excited to watch this new documentary even if it did not receive strong reviews. But, as these reviews/headlines highlight, I am not the only one thinking this new doc is a must-watch:
From Rolling Stone here, "'13th' Review: Damning Doc on Racist Prison System Deserves an Oscar: Ava DuVernay's history-lesson indictment on "new slavery" – the mass incarceration of African-Americans – is a major wake-up call"
From Slate here, "New Slaves: I’m a criminal justice reporter, and Ava DuVernay’s new Netflix documentary about mass incarceration shocked me."
And, perhaps unsurprisingly, a notable negative review makes me even more eager to watch and re-watch this new doc:
From National Review here, "The 13th via the Un-talented Tenth: A New documentary reveals the black bourgeoisie’s political correctness."
Thursday, September 29, 2016
Notable report on "California’s Historic Corrections Reforms"
The Public Policy Institute of California (PPIC), a nonprofit nonpartisan think tank, has released this interesting new report titled simply "California’s Historic Corrections Reforms." This PPIC press release reviews the report's highlights:
California has reduced the number of offenders incarcerated in the state without broadly increasing crime rates. But so far, the state’s historic reforms have not lowered California’s high recidivism rates or corrections spending. These are the key findings of a report released today by the Public Policy Institute of California (PPIC).
After a federal court ordered the state in 2009 to shrink the size of its prison population, California embarked on a path — unmatched by any other state — of reducing incarceration and reforming its corrections system. October marks the five-year anniversary of public safety realignment, the major reform that shifted responsibility for lower-level felons from the state prison and parole systems to county jail and probation systems. The passage of Proposition 47 in 2014 led to more changes. The PPIC report, California’s Historic Corrections Reforms, assesses the impact of the reforms and their implications for the future in key areas:
- Incarceration. After reaching a peak in 2006 of almost 256,000, the total number of inmates in state prisons and county jails declined by about 55,000. The incarceration rate fell from 702 to 515 per 100,000 residents — a level not seen since the early 1990s. The prison population rapidly declined in the first year of realignment, when most lower-level felons with new convictions began serving their sentences in county jail or under probation supervision instead of in state prison. But the decline was about 10,000 inmates short of the court-mandated target of 137.5 percent of the prisons’ design capacity.
Realignment also increased the statewide jail population by about 9,000 inmates in the first year, leading to early releases because of crowding. It was not until voters passed Proposition 47 — which reduced penalties for some drug and property offenses — that the prison population fell below the court-ordered target and the jail population dropped to pre-realignment levels. Each of these reforms changed the composition of the jail population—and presented new challenges to the counties. A companion PPIC report, California’s County Jails in the Era of Reform, also released today, examines these changes.
- Crime rates. Realignment resulted in an additional 18,000 offenders on the street, but through 2014 there is no evidence to suggest that it affected violent crime. Auto thefts did increase, by about 60 per 100,000 residents. In 2014, the most recent year with comprehensive data available, crime rates were at lows not seen since the 1960s. In 2015, violent crime rose by 8.4 percent and property crime by 6.6 percent, but data are not yet available to determine if these increases are part of a national trend or specific to California. The role of Proposition 47 on crime remains unknown, but compared to other states, California’s increase in property crime appears to stand out more than its increase in violent crime.
- Recidivism. Rearrest and reconviction rates for offenders released in the first year of realignment are similar to what they were before realignment: 69 percent of offenders released from state prison are rearrested within two years, and 42 percent are convicted again. This reconviction rate — about 5 percentage points higher than before realignment — may simply reflect prosecution of offenses that in the past would have been processed administratively. California did make one significant advance: realignment effectively reduced the costly practice of returning released offenders to prison for parole violations. As a result, two-year return-to-prison rates, which had been the highest in the nation, dropped from 55 percent to 16.5 percent.
- Spending. Despite a lower incarceration rate, the state’s General Fund spending on corrections in 2016–17 is $10.6 billion — 9 percent more than the $9.7 billion spent in 2010–11, the last year before realignment. The state also gives the counties $1.3 billion in realignment funds. Since 2012, increases to the corrections budget have funded additional space to house prisoners, employee salaries and benefits, and bond repayment. The state has also invested significantly to improve delivery of health care for inmates, though prisons continue to operate under a court-ordered medical receivership. Regaining control of health care could help the state reduce costs. But to realize substantial savings, the state may need to reduce the prison population enough to close a state prison or reduce its use of private and out-of-state facilities to house prisoners.
Even with the significant decline in incarceration, California still houses about 200,000 inmates and spends at historically high levels on corrections, the report notes.
Wednesday, September 28, 2016
Terrific NPR segment about prisoners on strike throughout the US
I was lucky enough to have my drive home tonight coincide with my local NPR station's broadcast of a lengthy segment concerning US prisons and on-going strikes in a number around the nation. Among the participants in the call-in show was Beth Schwartzapfel who has been following developments and writing about them here at The Marshall Project under the headline "A Primer on the Nationwide Prisoners’ Strike: Prisoners can be forced to work without pay — the Constitution says so."
The reason I consider the NPR piece a "must-listen" is in large part because of two current prisoners were somehow able to call into the show and talk about these issues from prison for an extended period. (The currently incarcerated begin speaking around the 14:25 mark until about the 39:40 mark.
Really worth taking the time to check out for those who care about prisons and prisoners in the United States.
Monday, September 26, 2016
Florida paper devotes three-part editorial to assail state's sex offender residency restrictions
A helpful reader altered me to this remarkable three-part editorial from the Florida Times-Union that concluded over the weekend highlighting problems with residency restrictions for sex offenders:
Part 1: "Law is designed to fail: Many sexual predators are wandering the streets"
Part 2: "Designed to fail: Sexual predators are wandering the streets"
Part 3: "Designed to fail: Solutions for sexual predator residency requirements"
Ever eager to focus on solutions even more than problems, I will highlight here the closing sections of the last of these editorials:
A year ago, California stopped requiring all sex offenders meet residency restrictions, instead enforcing these laws only against high-risk offenders. Available housing for low-risk offenders increased dramatically, and the number of homeless offenders decreased. Counties here, such as Duval and Nassau, should immediately create working groups to look at the effectiveness of strict county residency restrictions en route to making changes. We should also look at novel ways to create more housing for released sexual felons.
Communities in Florida have begun to experiment. Several hotels that meet residency restrictions have been transformed into facilities to house sex offenders. In other places in the state, mobile home parks have been converted to complexes that serve those coming out of prison.
One of the more comprehensive programs, however, has been launched by a nonprofit in Eugene, Ore. An organization, Sponsors, provides both short-term and long-term housing for sexual offenders and predators upon their release. In addition, the organization is currently building an entire complex of apartments that will offer permanent housing for ex-felons, including those convicted of sexual offenses.
Other states such as Washington and Vermont have similarly enacted more humane and effective measures for housing sex offenders and predators that pair governmental agencies with nonprofits to locate housing.
It’s time we look at the possibility of creating such programs here. Homelessness is not the answer.
September 26, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (7)
Wednesday, September 21, 2016
Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration
Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:
After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration. Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.
The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.
Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts. Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.
But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.
Is it possible for victim advocates and jail reduction advocates to find common cause? To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.
One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.
As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.
Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending. But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do? And how well do risk tools take into account potential lethality?
“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not. In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....
A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not. “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation. “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”
Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.
Saturday, September 17, 2016
Interesting accounting of "The Economic Burden of Incarceration in the U.S." as approaching 6% of GDP
Via the always helpful Marshall Project, I just came across this interesting study produced this summer by folks at Washington University in St. Louis. The study is titled "The Economic Burden of Incarceration in the U.S." Here is the abstract:
This study estimates the annual economic burden of incarceration in the United States. While prior research has estimated the cost of crime, no study has calculated the cost of incarceration. The $80 billion spent annually on corrections is frequently cited as the cost of incarceration, but this figure considerably underestimates the true cost of incarceration by ignoring important social costs. These include costs to incarcerated persons, families, children, and communities.
This study draws on a burgeoning area of scholarship to assign monetary values to twenty-two different costs, which yield an aggregate burden of one trillion dollars. This approaches 6% of gross domestic product and dwarfs the amount spent on corrections. For every dollar in corrections costs, incarceration generates an additional ten dollars in social costs. More than half of the costs are borne by families, children, and community members who have committed no crime. Even if one were to exclude the cost of jail, the aggregate burden of incarceration would still exceed $500 million annually [I think the authors mean $500 billion here based on the report that follows].
Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Attica, Attica, Attica, Attica, Attica ... lessons unlearned 45 years later
For film buffs, repeating the words Attica brings to mind a great scene in one of Al Pacino's greatest movies. But, for lots and lots of reasons, Attica and the riots and attacks that took place at this famous New York Prison in September 45 years ago should be remembers for so much more. But, as this new Daily Beast commentary highlights, it is not clear that we have really embraced enduring wisdom from that sad month in upstate New York. The commentary is headlined "Attica’s Lessons Went Unlearned: Our Prisons Are Still a Disgrace," and here is how it gets started:
Forty-five years ago today, on Sept. 13, 1971, nearly 1,300 men were waking up in the yard of the Attica Correctional Facility in upstate New York, eager to begin another long day of negotiations with state officials. After first failing to get help by writing to their state senators and pleading with the commissioner of corrections, these men had begun a protest against inhumane treatment four days earlier. On this rainy, damp morning, they were now hoping that they could finalize the list of improvements to the prison they had been negotiating, as well as secure a promise of no retaliation, so that they could bring their protest to a peaceful end.
Suddenly, however, the men looked up in horror to see a helicopter rising over the walls of the prison. Within minutes, it began blanketing the yard with a thick cloud of toxic tear gas. Then, as men began choking, gagging, and falling to the ground blinded by this noxious powder that now covered their skin and filled their lungs, a phalanx of nearly 600 heavily armed and gas-masked state police rushed into the prison and began shooting these men down. Then, over the next weeks and months, behind the closed doors of Attica, these men were brutally tortured.
Today, Sept. 13, 2016, hundreds of people who live behind bars are once again in jeopardy because, on this 45th anniversary of the Attica prison uprising of 1971, they too just launched a series of human-rights protests as well as work stoppages. Like those prisoners in upstate New York more than four decades ago, prisoners from Florida to Michigan have erupted because they too endure terrible overcrowding, insufficient food, too much time locked in solitary confinement, terrible medical care, and even bruises, broken bones, and, yes, death at the hands of abusive guards.
Their mistreatment is well documented. White guards in one Florida prison, for example, recently forced a black prisoner into a chair, and while choking, kicking and punching him, they screamed “Let’s beat this n——- and teach him a lesson.” What had he done? He had dropped a cookie on the floor. In another Florida correctional facility just a few years earlier, prisoner Darren Rainey died after officers punished him by forcing him to stand in a scalding 180-degree shower for two hours. In Michigan’s prisons, juveniles and women prisoners have been raped by correctional staff, suffered medical abuse and neglect, and have been forced to eat rotten and rat-ridden food.
And yet, just as it was overlooked in 1971, this inhumane treatment has been utterly ignored by prison authorities as well as by the politicians who have the power to do something to stop it. And so prisoners are once again protesting.
For those not familiar with the events in Attica two score and five years ago, the Marshall Project has this very modern review of events there,
Tuesday, September 13, 2016
Fascinating pictures of "What It Looks Like to Be Behind Bars in Four Different Countries"
The quoted portion of this post title is drawn from the headline of this new Slate article providing something of a sneak-peak into what looks likely to be a very interesting book to look at. Here is how the Slate article begins (though everyone should really click through to see some pictures that strike me as fascinating in so many ways):
After photographing civil servants in eight countries across five continents for his book, Bureaucratics, Jan Banning thought looking at criminal justice systems around the world seemed like a logical next step. In his new book, Law & Order: The World of Criminal Justice, which will be released in the United States this fall, the Dutch photographer brings readers up close to prisons, police, and courts in Colombia, France, Uganda, and the United States.
“I’m interested in these aspects of society that are vital but not necessarily considered to be picturesque,” he said. “Basically, it’s an attempt to visually cope with the question of how we handle crime. I think it always makes tremendous sense to compare different societies as I’ve done with Bureaucratics because, of course, in comparison, the character of a specific society comes out.”
After discussing which countries to focus on with the Max Planck Institute for Foreign and International Criminal Law, Banning started his investigation with a trip to Uganda in 2010. In about two weeks, he was given access to a handful of prisons, and on subsequent visits he was able to visit 10 prisons of various security levels. Even in maximum security establishments, his guide tended to be just a single unarmed warden or assistant, which was indicative of environments he found to be “rather friendly and rather humane.”
“In the beginning, I was a bit suspicious. I thought, ‘OK, maybe this is a PR exercise and they’re just doing this for me.’ But I noticed it in all 10 prisons I was in, and some were tiny local prisons where you wouldn’t expect the personnel to have any idea of PR. So I thought that was honest,” he said. “Of course, the prisons there are still not a place where you’d love to be. They’re overcrowded, half the prison population hasn’t been on trial, and some have been sitting there without charges for five or six years.”
Uganda’s open system allowed him to get some of the more colorful photographs in the book. In the United States, his visits were much more restricted. The prisons themselves, meanwhile, tended to be a lot less visually interesting than those in Uganda, but Banning said he embraced the sterility in his photographs and thought it was important to communicate it in “a fair and relevant way.”
Proving punitiveness does not go out of style, prison populations ticking up even in states with recent track record of declines
This astute new Wall Street Journal article, headlined "Inmate Populations Rise Again in Some States: Opiate addiction and high-profile crimes spur legislators to toughen drug and parole policies," reinforces my sense that the era of mass incarceration is a very long way from being over. Here are snippet from the piece:
An epidemic of opiate addiction and a handful of high-profile crimes have set back efforts by some states to restrain their prison populations, revealing cracks ina bipartisan movement to reduce reliance on incarceration.
In Arkansas, Republican and Democratic lawmakers in 2011 passed a landmark law to reduce harsh drug sentences, as a way to curb costs from overcrowded prisons. The prison population dropped 10% in two years. Then, in 2013, a man who had been released from prison and arrested several times while on parole carjacked and fatally shot an 18-year-old man in Little Rock.
In response, state officials tightened parole policies, and authorities put parolees back behind bars for violating the terms of their release as fast as they could, said Dina Tyler, a state prison official at the time who is now a deputy director at the agency overseeing parole in Arkansas. “It was a natural reaction because something bad happened, and we don’t want it to happen again, so we’ll scoop them all up,” said Ms. Tyler.
The result: Arkansas’s prisons are more crowded than they were before the 2011 legislation. As of late August, the number of prisoners had risen to 18,243, a 25% increase from 2012. Similar reversals have occurred in a handful of other states in recent years, exposing the fragility of an effort to curb prison growth and focus resources on keeping offenders from returning to crime. “It just takes one incident to get things tracking in a different direction,” said James Austin, president of the JFA Institute, a criminal-justice research group that works for Arkansas and other states to forecast prison-population trends, referring to the 2013 Little Rock murder.
A review of prison data from 2007 to 2014, the most recent year analyzed by the U.S. Justice Department’s research arm, shows that at least five states — Arkansas, Hawaii, Kentucky, New Hampshire and Ohio — saw their incarcerated populations fall or stabilize after passing criminal-justice legislation only to see them rise again. Incarceration rates also rebounded in most of those states, and in others that passed laws targeting prison growth, including Arizona and Wisconsin, after dropping initially.
Overall, the percentage of American adults under correctional supervision declined 13% from 2007 to 2014, according to a Pew Charitable Trusts analysis of federal Bureau of Justice statistics. Prison rates dropped in most of the roughly 30 states that passed laws to curtail prison growth in that time, BJS data show. Even in states where rates increased, state officials and criminal-justice experts say such laws have helped slow prison growth, averting millions of dollars in prison costs.
Still, efforts to curtail prison growth have been hampered by uneven implementation of new laws, state officials say. Elected judges in Kentucky and Ohio, for instance, have shown a reluctance to cut sentences and divert offenders into treatment rather than sending them to prison, state officials said. Parole officials haven’t granted early release as often as lawmakers had hoped they would, they said.
The increase in opiate use also has played a role. In Kentucky, the number of jail and prison inmates climbed back to a near record this summer, the state corrections department said, after a drop following a 2011 law. That measure reduced prison time for drug possession, routing the savings into drug treatment, and linked recently released prisoners to community resources. John Tilley, Kentucky’s justice and public-safety secretary, who sponsored the overhaul as a state legislator, attributed the increase to offenders returning to prison in higher numbers and drug arrests fueled by the “heroin scourge.” Last year, Kentucky ratcheted up penalties for trafficking heroin and created a new offense for importing drugs across state lines....
The prison population in Ohio dipped after lawmakers overhauled state sentencing laws in 2011, but it has rebounded this year to nearly 51,000, just shy of the record, according to state figures. “We’ve done all these things, but because of the spike in heroin, we have this uptick,” said Sen. Bill Seitz, a Republican who has led an effort to halt prison growth.
Civil-liberties advocates said scores of new penalties in Ohio have contributed to the rise in prison population. This year, the Legislature made it easier to prosecute people for heroin-trafficking, for example, reducing the threshold for the crime from 250 grams to 100 grams. In May, after staff at the Cincinnati Zoo shot a gorilla to save a boy who had fallen into the animal’s enclosure, legislators talked a colleague out of proposing a new crime for parents who let their child wander into a situation that requires the killing of an endangered animal, Sen. Seitz said. “We try to kindly tell our colleagues we cannot continue to make everything a crime or increase penalties on everything that already is a crime without further contributing to this overcrowding,” Mr. Seitz said.
Thursday, September 08, 2016
Top Texas criminal judges wonders about value of LWOP sentencing and its lesser process
This local article from Texas reports on interesting comments by a top state judge in the state about LWOP sentences. Here are excerpts from the article:
Judge Larry Meyers, the longest-serving member of the state’s highest criminal court, has grown uncomfortable with the way Texas allows for life in prison without parole, calling it a slow-motion death sentence without the same legal protections given to defendants who face the death penalty. It can be argued, Meyers said, that the prospect of decades of prison — ended only by death from old age, medical problems or even violence — is as harsh or harsher than execution.
Even so, life without parole can be given in some capital murder cases without jurors answering two questions that must be considered before issuing a death sentence — is the defendant a future danger to society, and are there any mitigating factors such as mental disability or childhood abuse that weigh against capital punishment?
“I’m not saying the death penalty is unconstitutional. I think right now it’s about as fair as it could be,” Meyers said. “But there are two variations of the death penalty; one is just longer than the other. People are getting a (life without parole) death sentence without the same safeguards and procedures that you get when there is a death sentence.”
Larry Meyers has been a judge on the Texas Court of Criminal Appeals since 1993. Meyers, the only Democrat on the Texas Court of Criminal Appeals, plans to make changing the life-without-parole system an issue of his re-election campaign, an admittedly uphill battle after he switched from the Republican Party in 2013 over disagreements in its direction under the surging tea party movement.
His Republican opponent in the Nov. 8 election, 22-year state District Judge Mary Lou Keel of Houston, believes Meyers has strayed from his principal task as a judge. “Policy issues like this are best left to the Legislature,” Keel said. “Doesn’t he have enough work to do as a judge?”...
Life without parole, an option for capital murder cases since 2005, has been credited with helping to sharply reduce the number of death row inmates by allowing prosecutors to reserve capital punishment for the worst cases, yet ensure that other convicted murderers are permanently removed from society.
Since life without parole became an option, the population of Texas’ death row has fallen to 244 inmates, down about 40 percent, as the pace of executions has outstripped the number of new death sentences. In contrast, 782 inmates were serving life without parole for capital murder as of July 31. An additional 54 inmates are serving life without parole after repeat convictions for sexually violent offenses, including crimes against children, since the Legislature allowed the punishment for the crime of continuous sexual abuse in 2007....
Seeking life without parole is by far the simpler option. Jurors are easier to seat — death penalty opponents aren’t allowed on juries if execution is an option — and there is no punishment phase trial. The appeals process also is less rigorous, with death row inmates granted two appeals before the state’s highest criminal court, while inmates serving life without parole go through the normal process. Meyers, a 23-year member of the Court of Criminal Appeals, believes life without parole has been made too simple, providing “an easy, inexpensive way of getting the death penalty.”
It would be fairer, he said, to let jurors consider some variation of the future danger question and to allow defense lawyers to present mitigating evidence. If jurors cannot agree that life without parole is appropriate, the defendant would get a life sentence and be eligible for parole after 40 years or some other suitable time, Meyers said.
The bigger reform — what Meyers called the “smarter fix” — would be for the Legislature to end capital punishment, making life without parole the ultimate punishment and including an option for parole. The political reality in Texas, by far the nation’s top death penalty state, makes that an extremely unlikely option for legislators, Meyers admits. “But right now, as I see it, there’s just two options — both for death,” he said....
Meyers said his change of heart on life without parole didn’t come about because of appeals. Nobody is going to tell his court that they improperly received a no-parole term when the alternative is a death sentence, he said. Instead, Meyers said, his qualms arose after coming to see the sentence as a delayed death penalty — one that is particularly harsh on young people — when a typical murder conviction is often enough to lock away killers until they are no longer a danger.
When the Legislature debated life without parole in the mid-2000s, prosecutors were divided on the best course to take, but many opposed adding a “long, drawn-out” sentencing hearing to determine the difference between a no-parole sentence and parole eligibility after 40 years, said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. “You could argue that it’s not much difference. It was a lot of squeeze without much juice,” Edmonds said.
In addition, many capital murder cases are decided by a plea bargain that allows defendants to choose perpetual prison time over execution. Some prosecutors feared losing bargaining leverage to a defense lawyer who threatened, for example, to drag out a sentencing hearing for three weeks unless offered a sentence with parole for a lesser crime like murder, Edmonds said.
Life without parole raises questions about whether Texas is imprisoning people long past the point that they “will ever be dangerous,” said Kathryn Kase, executive director of Texas Defender Service, a nonprofit that provides capital murder legal representation at trial and on appeal. “We’ve got places in prisons that look like nursing homes. It makes me wonder, as a taxpayer, are these people dangerous? Why are we paying the extra cost of imprisoning them when they are geriatrics?” Kase said.
September 8, 2016 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Saturday, September 03, 2016
New York Times highlights modern rural incarceration realities
After various overseas internet struggles, I have been able to get on-line long enough to spotlight this great front-page article from Friday's New York Times about rural criminal justice headlined "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?". Here is the start of a lengthy article that merits a full read:
Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer. If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.
But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to serve 12 years in prison. “Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.
Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative. A bipartisan campaign to reduce mass incarceration has led to enormous declines in new inmates from big cities, cutting America’s prison population for the first time since the 1970s. From 2006 to 2014, annual prison admissions dropped 36 percent in Indianapolis; 37 percent in Brooklyn; 69 percent in Los Angeles County; and 93 percent in San Francisco.
But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction. Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.
Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties. The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.
“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.” He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”
But many criminal justice experts say that the size of the disparities undercuts the basic promise of equal protection under the law.
“Letting local prosecutors enforce state laws differently throws all notions of equality under the law out the window,” said Peter Wagner, executive director of the Prison Policy Initiative, which advocates reducing incarceration rates. “This data puts governors and legislative leaders on notice that if they want to put criminal justice reforms into effect, they need to look at how prosecutors use and abuse their discretion.”
Wednesday, August 31, 2016
Clemency advocate explains her view on "How to inspire criminal justice reform"
The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark." Here are excerpts from her commentary:
As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America. The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population. Today, there are over 2.2 million people incarcerated in this country.
The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.
While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order. The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.
#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions. But with no parole in the federal system, he has been fundamentally condemned to die in prison.
Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences. Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.
Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....
While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it. Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America. It screams that a person is beyond hope, beyond redemption. It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.
Recently, I went to visit Corey in prison to discuss his pending clemency petition. As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself. I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.
Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me. I no longer wanted to be just a lawyer. I wanted to use this platform to promote the greater good. Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....
Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive. And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote. We must urge Congress to pass this overdue, life-changing legislation.
But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....
Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families. Reform is desperately needed. The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing. After all, there is nothing more urgent than freedom.
Monday, August 29, 2016
Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?
The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake." Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.
That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:
In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.
“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”
“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.
Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.
Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...
“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”
Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.
Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners. But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern. Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.
The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton. Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.
Friday, August 26, 2016
Some hisorical perspective on today's debates over private prisons
Over at Bloomberg View, Stephen Mihm has this intriguing new commentary running under the headline "America's Rocky Relationship With For-Profit Prisons." Here are excerpts:
Shareholders of [private prison] corporations, along with advocates of privatization, shouldn’t shrug off the federal decision so hastily. They should remember what happened the last time that prison privatization became popular, and that proponents sought to turn incarceration into a business, claiming it was cheaper, more efficient, and could even achieve better results than public control.
This belief foundered on the reality that privately-run prisons often failed to turn a profit, and when they did, those profits often came at the expense of the inmates’ well-being. These failures and abuses eventually led to a repudiation of private prisons, with the business of punishment and rehabilitation monopolized by the state. Another shift may now be at hand....
[I]n 1825, Kentucky surrendered the entire state-run prison to Joel Scott, a textile manufacturer. Scott invested money in the prison but also managed to turn a significant profit. Emboldened by this success, other states quickly followed suit, particularly in the West and the South. In some cases, the shift to private management yielded solid results; other times, though, it ended in disaster. When California hired a crooked entrepreneur named James Estell to build and maintain its new San Quentin prison, the new penitentiary soon earned a reputation for corruption, lax management and cruelty toward prisoners.
Estell, who forced prisoners to make bricks, refused to invest in necessities -- such as a wall to keep the inmates within the prison. Convicts routinely escaped, even after the state grudgingly built a wall, and while under private control, some 47 inmates escaped each year. When the state took over the prison in 1865, that number dropped to four.
Nonetheless, with rare exceptions, the contract system continued to flourish. This was particularly true in the South, which used the convict lease system to institute a de facto slavery for a prison population that was overwhelmingly black. Throughout the region, state prisons turned over their inmates for work on railroads, turpentine plantations, roads and other projects. The incompetence and brutality of these for-profit prisons was staggering. In Texas, for example, almost a fifth of the inmates escaped in 1876, and more than 6 percent died, and another 10 percent was listed as “missing,” but were not known to have escaped. Similar scandals plagued other Southern for-profit ventures.
In the end, these abuses gave ammunition to a coalition of critics. Humanitarian reformers argued that the for-profit prisons made a mockery of the idea or rehabilitation. Federal officials who studied prison businesses discovered that prison contractors kept dying industries alive through subsidies of cheap labor. Labor unions, which hated competition from prison labor, agreed.
The first major defeat for private prisons was in 1887, when Congress passed a law forbidding the contracting of any inmates in the federal prison system. With private enterprise banned from the national penitentiaries, the battle shifted to the individual states. After a pitched battle, New York curtailed then completely banned private contractors in the prison system by 1897. Massachusetts followed suit, as did Pennsylvania.
The pro-profit prison industry fought back, but eventually state after state banned for-profit arrangements with contractors, moving prisons on to the public accounts. This shift was accompanied by the return of another, older idea: that prisons could help rehabilitate inmates, not merely punish them. If reform was the primary purpose of penitentiaries, profit necessarily became a secondary concern. The decline of the private prison was gradual and halting, but it would eventually receive federal sanction with the passage of the Ashurst-Sumners Act, which made it illegal to transport prison-made goods across state lines.
Eventually, though, the tide would turn yet again. In 1979, President Carter signed the Justice System Improvement Act, which laid the foundation for the Prison Industries Enhancement Program. This lifted the ban on interstate commerce in goods made by prisoners, and helped usher a new age of prison privatization, spearheaded by corporations such as CCA.
These companies have thrived as the nation’s prison population skyrocketed, with many inmates incarcerated for non-violent drug offenses. As unease over this situation has grown, voices on both ides of the political spectrum have begun to agitate for prison reform. And that has gone hand-in-hand, much as it did over a century ago, with growing attacks on the marriage of punishment and profit. With the federal government taking the lead, much as it did back in 1887, the U.S. might be on the cusp of another revolution in thinking about the appropriate relationship between prisons and profit.
If history is any guide, it may well take decades for the states to follow, but eventually they will.
Just some (of many) recent and older posts about private prisons:
- Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
- Justice Department says it will end use of private prisons
- Notable academic pitch: "Don’t end federal private prisons"
- "Private Prisons and the Marketplace for Crime"
- "Internalizing Private Prison Externalities: Let's Start with the GED"
- Mother Jones devotes issue to reporter's four months working as a private prison guard
- "Private Prisons, Public Functions, and the Meaning of Punishment"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
Wednesday, August 24, 2016
Should I feel guilty finding delicious ironies in reports of condemned California murderers killing themselves with smuggled illegal drugs?
The question in the title of this post is my sincere uncertainty concerning my reaction to this new lengthy Los Angeles Times article headlined "Illegal drugs are flowing into California's most guarded prisons — and killing death row inmates." Here is how the article starts and ends:
Condemned murderer Michael Jones was acting strangely and profusely sweating when guards escorted him in chains to the San Quentin medical unit that doubles as the psych ward on death row.
“Doggone, I don’t think you’re ever going to see me again,” he told a fellow inmate, Clifton Perry. Hours later, Jones was dead. Toxicology tests later found that he had toxic levels of methamphetamines in his blood.
The condemned inmates on California's death row are among the most closely monitored in the state. Death row’s 747 inmates spend most of their time locked down, isolated from the rest of the prison system under heavy guard with regular strip searches and checks every half-hour for signs of life. Still, six death row inmates died between 2010 and 2015 with detectable levels of methamphetamines, heroin metabolites or other drugs in their system, according to Marin County coroner records.
Three of them had toxic levels of drugs, including one in whose intestines were found five snipped fingers of a latex glove, each packed with methamphetamine or marijuana. He had overdosed when they burst. A 70-year-old man among the three died of acute methamphetamine toxicity. He left a stash of marijuana in his cell. State psychological reports and court files document at least eight non-fatal drug overdoses that required death row inmates to be hospitalized during this period.
Jones' death was reported as a suicide. In the psych ward, he attempted to strangle himself with an electrical cord. He was cut free by officers but died 10 minutes later. The coroner's report showed that Jones bore signs of chronic drug abuse. State corrections officials declined to discuss the case or provide data on drugs found on death row — at first citing that investigation and then citing a wrongful death claim filed by Jones’ family. The department provided a statement saying the prison has thwarted past attempts by visitors to bring drugs into San Quentin.
According to data from the U.S. Bureau of Justice Statistics and the state prison medical office, the drug-related death rate in California prisons is seven times higher than that of prisons in the rest of the country. “Drugs have considerable value inside prison and so some inmates have a very strong incentive to procure them," the statement said. "Regardless of the security level of the inmate, the presence of any contraband items is concerning to us.”
The overdoses on death row mirror the larger problem with drugs in California’s prison system as a whole. From 2010 to 2015, 109 inmates died of overdoses, according to state figures. California's prison drug trade is notoriously robust. The drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country, according to data from the U.S. Bureau of Justice Statistics and the state prison medical office.
Reports to the Legislature show that as many as 80% of inmates in some cell blocks tested positive for illegal substances in 2013. The same year, the state's prison watchdog, the independent Office of Inspector General, chastised corrections officials for making "very little or no effort" to trace the source of drugs when inmates overdose....
Because of the high security on death row, some who have worked at San Quentin suspect that the drug trade is abetted by prison staff. During his tenure as a death row psychologist, Patrick O’Reilly said in an interview that he discovered a psychiatric technician bartering alcohol and amphetamines for inmates’ prison-prescribed opiates. Similarly, the inspector general's office reported that a death row officer in 2011 was accused of buying morphine from condemned inmates. The report states she paid with ramen noodles and candy.
Outside of death row, the trade takes place on an enormous scale. This spring, federal agents busted a Southern California prison narcotics ring in which a state drug counselor allegedly smuggled $1 million of meth and heroin sealed in potato chip bags to inmates in her treatment group. The state prison guard union has long raised objections to vigorous screening of guards as they arrive and leave work, noting that the state would have to pay large amounts for the extra time that would add to each shift. The union "supports the department's efforts to keep drugs out of prison," said spokeswoman Nichol Gomez. "Anyone who brings contraband inside prisons should be held accountable. ... The majority of correctional officers take their oath seriously. "
All of the men on San Quentin’s death row are there for murder. Many arrived on death row with long histories of drug addiction. Most killed their victims during robberies or gang fights, but the population also includes psychopaths and serial killers. Until a psychiatric unit for the condemned was opened in 2014, severely mentally ill and psychotic inmates were housed with the rest of the condemned.
Former San Quentin Warden Jeannie Woodford, state prison director under Gov. Arnold Schwarzenegger, said extreme idleness and the cramped, ill-suited confines of death row complicate drug abuse. “Idleness is such a problem and it leads people to self-medicate,” Woodford said.
Although guards are supposed to randomly search cells each shift as a curb against drugs, weapons and other contraband, one former San Quentin corrections officer said staffing issues have made it impossible for guards to do all the required checks. Moreover, the amount of property that condemned inmates accumulate over decades of confinement clutters many cells. "What is said and what is done are two different things," said Tony Cuellar, a former San Quentin officer. In that environment, Cuellar said, officers "picked and chose" when to try to confront a condemned drug user.
There are soooooo many ironies in this report, I do not know where to start. In an effort to keep them straight (and to encourage comments about which irony is most remarkable), I will provide a numbered list of just some of the ironies that jump out at me:
- California has not conducted an execution of a condemned murderer in over a decade due in large part to the incompetence of prison officials and others in California in acquiring and handling drugs involved in its planned execution protocols ... and yet corrupt prison officials seem to be able to indirectly help condemned inmates access the drugs with which they are killing themselves.
- Many abolitionist have complained and litigated aggressively to try to prevent prison officials in many states nationwide from finding ways to "smuggle" into the state the drugs needed to conduct lawful (painless?) official executions ... and yet California prison officials are smuggling drugs directly to condemned inmates in ways that functionally facilitate what are essentially unlawful (painful) self-executions.
- This article suggests that we should be seriously concerned that the "drug-related death rate in California prisons — 18 deaths per 100,000 inmates in 2013 — is seven times higher than prisons in the rest of the country" ... and yet that (stunningly high) drug-related death rate in California prisons is still almost half of the drug-overdose death rate — reported to be at over 32 deaths from drug overdose per 100,000 inhabitants — according to the latest figure in the state of West Virginia.
- With a death row population of less than 1000, just a single overdose per year on California's death row is a relatively high rate ... and yet the reality that so many arrived "on death row with long histories of drug addiction ... [and murderered during] robberies or gang fights" surely suggests the real possibility that a many of those unfortunate souls now condemned to die in California have lived a lot longer on death row than they might have lived on the mean streets of California.
I could go on, but I already am starting to feel mean and crass about how I am responding to this new report from California's always notable death row.
"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"
The title of this post is the title of this important and timely new report by the Justice Policy Institute. Here is an extended passage from this effective JPI report's effective introduction:
Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?
In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration. The report summarizes the relationship of offenses to the use of incarceration and how that varies by:
How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else. The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently. For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;
How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and
The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses — such as homicide or sex offenses — can have the lowest recidivism rates, but still end up serving long prison terms.
These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime. How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.
This is a complicated political and systems reform issue. When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.
When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources — more than what we could currently “reinvest” from downsizing and closing prisons and jail.
To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration. This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.
Important "Real Clear" debate explores whether Texas "smart on crime" reforms have really been successful
A series of dueling posts over at the Real Clear Policy blog has been engaging with crime and punishment data from Texas to provide different views on whether so-called "smart on crime" reforms in the Lone Star State have proven truly effective at reducing both crime and imprisonment. The discussion is too intricate to summarize here, so I encourage readers interested in this important debate to check out these post in order:
Is Texas Wrong on Crime? by Sean Kennedy
Don't Mess With Texas' Crime Statistics by Chuck DeVore and Randy Peterson
"Smart on Crime" Doesn't Lower Crime Rates or Recidivism by Sean Kennedy
Tuesday, August 23, 2016
"Racial Origins of Doctrines Limiting Prisoner Protest Speech"
The title of this post is the title of this notable new paper authored by Andrea Armstrong and now available via SSRN. Here is the abstract:
This article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement. Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech . The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces. Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized. The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderly and prohibits prisoner solicitation for union membership. Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech.
Neither Adderley nor Jones acknowledge the racial origins of the cases. Holdings in both cases relied on race-neutral rationales and analysis and yet, the underlying concerns in each case appear tied to racial concerns and fears. Thus this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race. Today’s protesters face a demonstrably different doctrinal landscape, should they protest within the prison or jail walls. While the content of speech by a “Black Lives Matter” activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.
Sunday, August 21, 2016
Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data
A couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):
The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....
In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all. But around the turn of the millennium, the African American imprisonment rate began declining year after year....
At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.
A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.
These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans. Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years. I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).
That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States. Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration. A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":
- African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states (Iowa, Minnesota, New Jersey, Vermont, and Wisconsin), the disparity is more than 10 to 1.
- In twelve states, more than half of the prison population is black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia. Maryland, whose prison population is 72% African American, tops the nation.
- In eleven states, at least 1 in 20 adult black males is in prison.
- In Oklahoma, the state with the highest overall black incarceration rate, 1 in 15 black males ages 18 and older is in prison.
- States exhibit substantial variation in the range of racial disparity, from a black/white ratio of 12.2:1 in New Jersey to 2.4:1 in Hawaii.
- Latinos are imprisoned at a rate that is 1.4 times the rate of whites. Hispanic/white ethnic disparities are particularly high in states such as Massachusetts (4.3:1), Connecticut (3.9:1), Pennsylvania (3.3:1), and New York (3.1:1).
Saturday, August 20, 2016
Notable academic pitch: "Don’t end federal private prisons"
Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:
Yesterday, the DOJ announced that it would gradually end its use of private prisons. You can read the memo by Deputy AG Sally Yates here. She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”
Why? The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”
This is unfortunate, for two reasons.
First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons. They do save money (though how much is a matter of dispute). And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector. The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.” The Inspector General’s report doesn’t give us strong reason to question that result.
Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy? there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures. If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far. But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.
Just some (of many) prior posts about private prisons:
- Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
- Justice Department says it will end use of private prisons
- "Private Prisons and the Marketplace for Crime"
- "Internalizing Private Prison Externalities: Let's Start with the GED"
- Mother Jones devotes issue to reporter's four months working as a private prison guard
- "Private Prisons, Public Functions, and the Meaning Punishment"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
- Notable review of Kentucky's (now-ending) experiences with private prisons
Thursday, August 18, 2016
"Justice Department says it will end use of private prisons"
The title of this post is the headline of this Washington Post report on some big news emerging from the US Department of Justice this afternoon. Here is how the report starts:
The Justice Department plans to end its use of private prisons after officials concluded the facilities are both less safe and less effective at providing correctional services than those run by the government.
Deputy Attorney General Sally Yates announced the decision on Thursday in a memo that instructs officials to either decline to renew the contracts for private prison operators when they expire or “substantially reduce” the contracts’ scope. The goal, Yates wrote, is “reducing — and ultimately ending — our use of privately operated prisons.” “They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security,” Yates wrote.
In an interview, Yates said there are 13 privately run privately run facilities in the Bureau of Prisons system, and they will not close overnight. Yates said the Justice Department would not terminate existing contracts but instead review those that come up for renewal. She said all the contracts would come up for renewal over the next five years.
The Justice Department’s inspector general last week released a critical report concluding that privately operated facilities incurred more safety and security incidents than those run by the federal Bureau of Prisons. The private facilities, for example, had higher rates of assaults — both by inmates on other inmates and by inmates on staff — and had eight times as many contraband cellphones confiscated each year on average, according to the report.
Wednesday, August 17, 2016
"Overlooked: Women and Jails in an Era of Reform"
Since 1970, there has been a nearly five-fold increase in the number of people in U.S. jails — the approximately 3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. Despite recent scrutiny from policymakers and the public, one aspect of this growth has received little attention: the shocking rise in the number of women in jail.
Women in jail are the fastest growing correctional population in the country — increasing 14-fold between 1970 and 2014. Yet there is surprisingly little research on why so many more women wind up in jail today. This report examines what research does exist on women in jail in order to begin to reframe the conversation to include them. It offers a portrait of women in jail, explores how jail can deepen the societal disadvantages they face, and provides insight into what drives women’s incarceration and ways to reverse the trend.
This Vera fact-sheet provides this additional information about some of the report's various findings and themes:
Available research to help explain why women are increasingly incarcerated in U.S. jails is scarce, dated, and limited in scope. Nevertheless, general data about women in the criminal justice system provides clues about who these women are, and why they end up in jail. Like men in jail, they are disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.
The majority are charged with lower-level offenses—mostly property and drug-related—and tend to have less extensive criminal histories than their male counterparts. Unlike incarcerated men, women in jails are often primary caregivers to their young children—nearly 80 percent of women in jails are mothers, and most are single parents.
Once incarcerated, women must grapple with systems, practices, and policies that are designed for the majority of the incarcerated population: men. With limited resources, jails are often ill-equipped to address the challenges women face when they enter the justice system. As a result, many women leave jail with diminished prospects for physical and behavioral health recovery, with greater parental stress and strain, and in even more financially precarious circumstances than before becoming caught up in the justice system.
As interest in rolling back the misuse and overuse of jail increases, women frequently remain an afterthought in discussions about reform; yet the roots and trajectory of their increasing rate of jail incarceration demand further study. This report documents the existing foundation for reform that can potentially set the stage for further, well-crafted programs and practices to stem the flow of women cycling through the nation’s local jails.
Sunday, August 14, 2016
Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration
Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:
This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol. But many reformers also argue that marijuana reform is the first step in ending mass incarceration. In many respects this appears to be wishful thinking.
There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests. By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration. Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense. The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities. We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.
In other respects, though, marijuana law enforcement imposes substantial costs on the justice system. Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs. Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.
While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link. For a start, we should call attention to the parallels between marijuana and the overall drug war. In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response. This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.
The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....
There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety. The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.
For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.
One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA). I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle. With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition. If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.
In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform
August 14, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Friday, August 12, 2016
Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
This Washington Post piece, headlined "Private federal prisons — less safe, less secure," provides a useful and effective summary of the findings of a significant recent Department of Justice report. Here are the basics:
Private prisons — unsafe and insecure. That’s the picture emerging from a Justice Department Office of the Inspector General’s report that adds to a growing effort to take the profit out of penitentiaries.
The report’s central conclusion: “We found that, in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP (Bureau of Prisons) institutions and that the BOP needs to improve how it monitors contract prisons in several areas.” Those key areas are contraband, incident reports, lockdowns, inmate discipline, telephone monitoring, grievances, drug testing and sexual misconduct.
“With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined,” the OIG said. “For example, the contract prisons confiscated eight times as many contraband cellphones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”
The private facilities held 12 percent of BOP’s prison population in December, almost 22,700 low-security immigrant adult males with 90 months or less on their sentences. Three companies have the contracts — Corrections Corporation of America (CCA), GEO Group, Inc. and Management and Training Corporation (MTC).
In their responses included in the report, each of the three cited their largely homogeneous inmates as a significant factor in prison misconduct. “Our experience has been that the criminal alien population housed in contract prisons has a higher rate” of inmates who pose a security threat, said CCA, the nation’s oldest and largest private prison company. GEO said the “criminal alien” population “responds as one to any issue, real or perceived.” MTC rejected the report’s findings: “Any casual reader would come to the conclusion that contract prisons are not as safe as BOP prisons. The conclusion is wrong and is not supported by the work done by the OIG.”
Like any business, private prison companies are in business to make money. That can lead to cost-cutting and under-staffing that promotes dangerous and unhealthy conditions. “In recent years, disturbances in several contract prisons resulted in extensive property damage, bodily injury, and even the death of a correctional officer,” said Inspector General Michael E. Horowitz. “Last year, we audited one of these contract prisons and found that it was regularly understaffed in crucial areas, including correctional officers and health services workers.”
Many inmates, nearly half in some places and largely Mexican, are serving time for immigration offenses. “This is due to a new trend in the past decade of criminally prosecuting people for reentering the country rather than merely processing them through the civil deportation system,” said Carl Takei, an attorney with the American Civil Liberty Union’s National Prison Project. “The result is that people serve sometimes-lengthy prison sentences in BOP custody before … going through civil deportation proceedings.”...
Like the private companies, BOP’s response to the report cautioned against comparing the private prison populations with those in federal facilities. Nonetheless, the agency agreed to the report’s four recommendations, including increased verification “that inmates receive basic medical services such as initial medical exams and immunizations” and “periodic validation of actual Correctional Officer staffing levels.”
The full DOJ Inspector General report, which runs 86 pages and is exciting titled "Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons," is available at this link.
Sunday, August 07, 2016
"Norway Proves That Treating Prison Inmates As Human Beings Actually Works"
The title of this post is the headline of this lengthy recent Huffington Post piece drawn from a book about prisons around the world authored by Baz Dreisinger. Here are excerpts:
Bastoy is an open prison, a concept born in Finland during the 1930s and now part of the norm throughout Scandinavia, where prisoners can sometimes keep their jobs on the outside while serving time, commuting daily. Thirty percent of Norway’s prisons are open, and Bastoy, a notorious reformatory for boys converted in 1982 to a prison, is considered the crown jewel of them all....
Nothing represents the Norwegian way like its prison system, which has adopted a “principle of normality,” according to which punishment is the restriction of liberty itself and which mandates that no one shall serve their sentence under stricter circumstances than is required by the security of the community.
Criminologist John Pratt summed up the Scandinavian approach using the term “penal exceptionalism,” referring to these countries’ low rates of imprisonment and humane prison conditions. Prisons here are small, most housing fewer than 100 people and some just a handful. They’re spread all over the country, which keeps prisoners close to their families and communities, and are designed to resemble life on the outside as much as possible.
An incarcerated person’s community continues to handle his health care, education and other social services while he’s incarcerated. The Norwegian import model, as it is known, thus connects people in prison to the same welfare organizations as other citizens and creates what’s called a seamless sentence ― a person belongs to the same municipality before and after prison. Sentences here are short, averaging an estimated eight months, as compared to America, where the estimated average sentence was 4.5 years in 2012. Almost no one serves all his time, and after one-third of it is complete, a person in prison can apply for home leave and spend up to half his sentence off the premises.
And the most highly touted aspect of the humane Norwegian prison system is the fact that it seems to work. Crime rates are very low, and the recidivism rate is a mere 20 percent.
Saturday, August 06, 2016
New research suggests nature videos can help reduce prison violence
This new science article reports on notable new research on prison violence under the headline "Nature Documentaries May Help Ease Aggression in Prisons." Here are excerpts:
Violent altercations in prisons can be dangerous for inmates and prison staff alike. Now, a new small study suggests that showing nature documentaries to inmates may help to ease aggression in prisons.
The study took place in the Snake River Correctional Institution in Oregon, in a maximum-security unit housing 48 inmates. Over a year in which half of the inmates had an opportunity to watch nature videos projected in a recreation yard, those who saw the videos were involved in 26 percent fewer violent infractions than those who didn't.
"This is equivalent to 13 fewer violent incidents over the year," study researcher Patricia Hasbach, a clinical psychotherapist in a private practice, said ... at the annual meeting of the American Psychological Association. The reduction is important, Hasbach said, as most violent altercations end in injury for either inmates or staff....
The videos showed everything from oceans to African savannas. Surveys revealed that 80 percent of the inmates who saw the videos said they felt calmer after viewing them, Hasbach reported. Seventy percent said they remembered the nature videos later, in times of stress, and were able to calm themselves down. The researchers could find no downsides of the videos — everyone surveyed disagreed, for example, that the videos made them more agitated. In in-depth interviews, inmates spoke of the benefits of the nature imagery....
The researchers didn't test whether other types of videos would have had similar effects, Hasbach said, but previous research in health care settings has found nature videos to be more mentally beneficial than other content, such as daytime television, urban scenes and abstract art. Other psychological research has found that nature-based activities improve function in kids with attention deficit disorder and that outdoor activities boost self-esteem. Just the color green may boost mood and motivation during exercise.
Prison officials are now transferring the nature videos to other parts of the facility, Hasbach said, and a lower-security women's prison in Oregon is also starting the same program. Prisons in six other states have contacted the researchers for information on how to institute similar video programs in their own correctional facilities, she said.
Friday, August 05, 2016
"Behind the Olympics: Brazil's Dirty Incarceration Secret"
I thought this Ozy article, which has the headline that I am using as a post title, woud make a fiting and timely posting in light of tonight's Opening Ceremonies. Here are excerpts:
“Brazil’s prisons are illegal, and if I wanted to, I could set thousands of prisoners free,” Luis Carlos Valois declares. It is both a comment on the power of judges in Brazil to interpret the law at will, and an insight into Valois’ rebelliousness. Seated behind his huge wooden desk, with an enormous flag of Brazil posted nearby, he cuts an imposing figure. But his shaved head, muscles and tattoos make Valois resemble the Brazilian jujitsu champion he was in 1995 more than an establishment man.
OK, he concedes, he would end up behind bars himself if he really unleashed thousands of prisoners into the streets. But he’s serious about using the system to do just that. His work agitating for better prison conditions and offering lenient sentences for petty drug offenses has earned him at least one death threat and a flurry of bad press. Under Brazilian and international law, prisons in Brazil are supposed to provide inmates access to healthcare, individual cells and protection from death threats. In reality, however, prisons in Manaus are two to three times more crowded than they should be, Valois says, with scores of inmates sharing the same cell. Access to basic healthcare was described as “inadequate” in a 2014 Human Rights Watch report. Inmates sleep in hammocks or in corridors, with cockroaches and rats scuttling past. A study in Rio de Janeiro last year found 54 percent of those in pretrial detention may be innocent.
The conditions recall America’s prison system, overcrowded and rife with drug offenders. Brazil trails only the U.S., China and Russia in size of prison populations, according to Human Rights Watch. The homicide rate among the prison population — totaling half a million — reaches 150 for every 100,000, says Ilona Szabó of think tank Igarapé Institute. Additional terrifying stats: More than half of prisoners are 18 to 29 years old, many of whom are incarcerated for carrying small amounts of drugs. Those young men often remain in prison for five to 15 years. In rural locales, men and women sometimes share cells. Oh, and race: “It seems like they lock up more poor and Black people every time,” Valois says with a sigh. “Many are more afraid of someone who has stolen a cellphone than a politician who has stolen millions from the people.” (This in a nation embroiled in its own debates over the 2,000-plus people, many of them Black, killed by police in 2013, according to the Brazilian Public Security Forum.)...
Meanwhile, Brazil has increased its prison population by 74 percent between 2005 and 2012, according to the UNDP; the charitable explanation of the hard-on-crime stance is chalked up to a society fed up with violent crime and the increasing power and presence of drug gangs across Brazil. A “bullet bench” of mainly ex-military or law enforcement officers is busy whipping up popular hard-line laws lowering the age of criminal responsibility. Yet Valois drives a car that isn’t bulletproof, letting state-funded security men care for his two children instead. He is best seen as local cartoonist Jack Cartoon depicted him: with a gavel in one hand and a bunch of flowers in the other — a pacifist at heart.
Sunday, July 31, 2016
"Boot-Camp Prisons Find Their Time Running Out"
The title of this post is the headline of this new Wall Street Journal article. Here are is how it gets started:
At 5:30 on a misty morning in the Adirondacks, 180 prisoners leapt out of bed when a bugle call blasted over a loudspeaker. Fifteen minutes later, they were performing synchronized exercises while a drill instructor barked orders. “Motivated! Motivated! Motivated, sir!” the men shouted in unison between calisthenics.
These inmates are serving six-month sentences at Moriah Shock Incarceration Correctional Facility, one of the last prisons in the U.S. that seek to “shock” inmates out of criminal behavior through a military-style boot camp. Inmates at the facility typically trade multiyear sentences for six-month stints.
Such programs used to be widespread, but fell out of favor in much of the country amid debate about their effectiveness. Only a handful remain and two of them are in New York, where correction officials say their brand of military-style training reduces recidivism and saves taxpayer money through shorter sentences. “It instills self-discipline,” said Boyce Rawson, a captain at Moriah. “Inmates take personal pride in themselves as well as their platoon.”
As recently as 1995, according to federal research, there were 75 state-operated boot camps nationwide for adult offenders, 30 for juveniles and 18 in local jails, including at New York City’s Rikers Island jail complex. A 1994 federal crime bill allocated millions for such programs.
While the camps were popular with tough-on-crime politicians, reviews were mixed. One Justice Department analysis found the camps had a positive effect on inmates’ attitudes, behavior and safety while in prison. But that analysis and other studies found the programs had no notable impact on recidivism.
The programs gradually closed. The Federal Bureau of Prisons ended its boot camps in 2005. New York has closed two facilities in the past several years, leaving Moriah and Lakeview, in Chautauqua County, as the only ones left in the state. Other states have shifted their camps toward what they call more “evidence-based,” rehabilitative models.
Saturday, July 30, 2016
"Rethinking 'Death Row': Variations in the Housing of Individuals Sentenced to Death"
The title of this post is the title of this interesting report authored by a group at Yale Law School and available via SSRN. Here is the abstract:
In 2015, individuals sentenced to death in the United States were housed in varying degrees of isolation. Many people were kept apart from others in profoundly isolating conditions, while others were housed with each other or with the general prison population. Given the growing awareness of the debilitating effects of long-term isolation, the placement of death-sentenced prisoners on what is colloquially known as “death row” has become the subject of discussion, controversy, and litigation.
This Report, written under the auspices of the Arthur Liman Public Interest Program at Yale Law School, examines the legal parameters of death row housing to learn whether correctional administrators have discretion in deciding how to house death-sentenced individuals and to document the choices made in three jurisdictions where death-sentenced prisoners are not kept in isolation. Part I details the statutes, regulations, and policies that govern the housing of those sentenced to death and reviews prior research on the housing conditions of death-sentenced prisoners. Part II presents an overview of decisions in three states, North Carolina, Missouri, and Colorado, where correctional administrators enable death-sentenced prisoners to have meaningful opportunities to interact with others. Given the discretion that correctional officials have over housing arrangements, these states provide models to house capital-sentenced prisoners without placing them in solitary confinement.
Judge Jack Weinstein authors mega-opinion threatening to find sentence unconstitutional if offender not placed in certain prison(!?!?)
A number of helpful reader alerted me to this notable local story describing the latest remarkable (and legally suspect?) sentencing opinion by US District Judge Jack Weinstein. The piece is (inaccurately) headlined "Brooklyn judge says no prison for convicted child molester," and here are the reported details:
A Brooklyn federal judge on Thursday urged the U.S. Bureau of Prisons to hold a convicted child molester in a medical facility and said he would find the 15-year mandatory minimum sentence unconstitutional if the bureau doesn’t comply.
The apparently unprecedented move by U.S. District Judge Jack Weinstein, who said defendant “D.W.” — identified on the court docket as Darnell Washington — had mental problems and would be a suicide risk in the general prison population, reflected the judge’s long-standing criticism of mandatory minimums.
Weinstein said Washington, 27, of Brooklyn, a repeat offender convicted of both child pornography charges and sexual exploitation of a minor, had been abused as a child, raped during an earlier prison stint, identified as gay and was suicidal.
The judge said 15 years in a regular prison would make him “uniquely vulnerable” to abuse or solitary confinement, and amount to cruel and unusual punishment. He said the time should be served at the Federal Medical Center prison in Devens, Massachusetts, where sex-offender treatment is available, or another medical facility.
The Bureau of Prisons is not obligated to follow a judge’s preference, but Weinstein said if his recommendations were ignored and Washington was put in “general population of a medium or high security prison” he was “prepared” to find the sentence unconstitutional.
“The court is required . . . to impose a sentence of fifteen years in prison on this defendant,” Weinstein wrote in his 215-page ruling. “But, it has the responsibility and power to ensure that the sentence is carried out in a civilized way.”
Until I have an opportunity to review the 200+ page opinion in this case (which I cannot yet find on-line), I am not yet prepared to criticize Judge Weinstein's work here. Moreover, now that the judge has imposed the formal sentence, I am not sure he even has any proper jurisdictional basis to declare it unconstitutional if (and when?) prison official do not comply with his placement mandate.
UPDATE: A helpful reader sent me a copy of the full opinion in US v. DW for posting here: Download US v DW
Thursday, July 28, 2016
New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers. Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state. Here are the details (and links) via the start of the blog posting:
A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment. The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.
The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”
The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.
Currently there are more than 150 individuals serving JLWOP in Wayne County. While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan. Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black. D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.
Wednesday, July 27, 2016
John Hinkley now to be freed from a psychiatric hospital, now 35 years after his crime and verdict of not guilty by reason of insanity
As reported in this Reuters piece, "John Hinckley Jr., who wounded U.S. President Ronald Reagan and three other people in a 1981 assassination attempt prompted by his obsession with actress Jodie Foster, can be freed from a psychiatric hospital to live with his mother, a federal judge ruled on Wednesday." Here is more about this notable ruling in perhaps the highest-profile insanity case of all time:
U.S. District Judge Paul Friedman said Hinckley, 61, who was found not guilty by reason of insanity in a 1982 trial, no longer posed a danger to himself or others. He said Hinckley could be released from St. Elizabeth's, a government psychiatric hospital in Washington, as soon as Aug. 5, subject to nearly three dozen conditions. "Since 1983, when he last attempted suicide, he has displayed no symptoms of active mental illness, exhibited no violent behavior, shown no interest in weapons, and demonstrated no suicidal ideation," Friedman said of Hinckley in a 103-page opinion.
In addition to Reagan, Hinckley's attack wounded presidential press secretary James Brady, a policeman and a Secret Service agent. It helped launch the modern gun control movement, as Brady and his wife, Sarah, founded what is now known as the Brady Campaign to Prevent Gun Violence after he was left permanently disabled. The Bradys' support helped the Brady Handgun Violence Prevention Act become law in 1993, imposing federal background checks on gun purchases and a five-day waiting period.
The Hinckley verdict also led several states to rewrite their laws making it more difficult to use the insanity defense while the U.S. Secret Service tightened its protocols for presidential security.
Upon his admission to St. Elizabeth's, doctors diagnosed Hinckley with depression and psychosis - two maladies they say have been in remission for years. Friedman said Hinckley will be required to spend at least a year living with his mother, Jo Ann, 90, in Williamsburg, Virginia, about 130 miles (210 km) south of Washington, where he has been making increasingly long furlough visits for several years.
If Hinckley's treatment team approves, he may then move into his own residence by himself or with roommates, Friedman said. He also said if Hinckley's mother becomes unable to monitor him in her home, his brother or sister will be required to live there with him until the hospital determines an alternate plan. In a May story about Hinckley's life, Washingtonian magazine cited neighbors in her gated community who liked Mrs. Hinckley but did not want him living there.
Hinckley had unsuccessfully sought jobs in Williamsburg at places such as Starbucks and a Subway sandwich shop and tried to become involved in volunteer programs in the town, Washingtonian said. He eventually took a volunteer job in the library of a psychiatric facility in Williamsburg. Hinckley's behavior during his furlough visits has been unimpeachable aside from a few occasions, the judge wrote. Twice in 2011, Hinckley lied to hospital staff about where he had been.
Friedman's order imposes nearly three dozen conditions, including a requirement that Hinckley meet with his psychiatrist in Washington monthly and notify the Secret Service when he travels for the appointment. He is barred from making contact with Foster or her family, Reagan's family and relatives of the other victims, and he is required to either work or volunteer at least three days per week. He is restricted to a 50-mile radius of Williamsburg and must make information about his mobile phone, vehicle and Internet browsing history available to his treatment team and law enforcement.
The petition for release from Hinckley was supported by his doctors but opposed by U.S. prosecutors. A spokesman for the U.S. Attorney's office in Washington did not immediately respond to a request for comment, nor did Hinckley lawyer Barry Levine. Hinckley was a 25-year-old college dropout with vague aspirations of a musical career when he fired at Reagan. He had become obsessed with Foster and the Martin Scorsese film "Taxi Driver" in which she played a teenage prostitute. Hinckley began to identify with the film's main character, Travis Bickle, who planned to assassinate a presidential candidate, and spent several years trying to make contact with Foster, who was a student at Yale University in Connecticut.
On March 30, 1981, Hinckley wrote Foster a letter detailing his plans to kill Reagan in an effort to win her over. Later that day, Hinckley approached Reagan outside the Washington Hilton Hotel and opened fire. Reagan suffered a punctured lung but recovered relatively quickly. Brady's death in 2014 was attributed to his wounds but federal prosecutors said the following year they would not charge Hinckley with his murder.
Foster has refused to comment publicly on Hinckley since addressing it in 1981, and a publicist for the Academy Award-winning actress did not immediately respond to a request for comment on Wednesday.
The full 103-page opinion in US v. Hinckley is available at this link.
Some prior related posts:
- Three decades after shooting the President, John Hinckley's freedom still debated
- As fights over John Hinckley's fate continue three decades after his violent crime, what are enduring CJ legacies or lessons?
July 27, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
"Give felons and prisoners the right to vote"
The title of this post is the title of this new commentary in the Washington Post authored by Gideon Yaffe. Here is how it starts and ends:
This week, Virginia Gov. Terry McAuliffe (D) vowed to sign individual orders restoring the voting rights of more than 200,000 convicted felons living in the state. His pledge followed the Virginia Supreme Court’s ruling that the mass clemency McAuliffe issued in April overstepped his power under the commonwealth’s constitution. Republicans complained bitterly — think of all those Democratic votes from the many African Americans who stand to benefit! — and promised to scrutinize every order for errors.
But the GOP has it wrong. Not only is McAuliffe doing the right thing, but also he should push further. Prisoners, too, should be allowed to vote, no matter their crimes. While only Vermont and Maine currently grant prisoners the vote, felon disenfranchisement fundamentally undermines the democratic rationale of our criminal laws. We cannot hold citizens to account for violating our laws while denying them a say over those laws.
In a democracy, it can fairly be said that when the state does something unpleasant to you — locks you up, forces you to pay taxes, takes your property — that injury is self-inflicted. Since it’s your government, whatever it does to you is something you do to yourself. And it’s your government because you have a say over what it does: You have the vote. But when the state brings down the hammer on a disenfranchised, recidivist felon, the punishment he receives is not self-inflicted. His punishment might as well be levied by a foreign government.
Most felons — whether in prison, on probation or parole, or entirely free of state supervision — are citizens. They should not be treated like foreigners. First of all, they have no other geographic home: They cannot be deported, because citizens have a right to be here. But felons also have no other political home. Nowhere else can they live under a government whose actions are their actions. In this way, they are importantly different from immigrants, who (if they come from a place governed by the rule of law) are granted a say over the behavior of some government somewhere....
In a democracy, felon enfranchisement should not be a partisan issue. Both Republicans and Democrats ought to be held to account for their crimes by a government whose actions they can own. We should give the vote to citizens, in or out of prison, whom we wish to hold responsible for violating laws that are not just ours but also theirs.
Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims
I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust. A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like." Here are excerpts:
Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague. As a result, thousands of convicted felons are now asking courts to have their sentences reduced.
The legal rules for considering such post-conviction requests are tricky and technical. But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle. In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....
Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals. The stakes are high for the prisoners. In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.
Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence. It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence. Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.
Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working. Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.
To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request. The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means. And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.
What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.
The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit. And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem. But real people are spending potentially many extra years in prison on the basis of an unconstitutional law. That’s wrong. In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.
Monday, July 18, 2016
"Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons"
The title of this post is the title of this notable new report from the Center for American Progress. Here is an excerpt from the report's introduction:
America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure. We lock up a greater share of our citizens than any other developed nation, destroying lives and separating families at an annual cost of more than $80 billion. In addition, we do little to prepare individuals behind bars for their eventual release, yet are surprised when some two-thirds return to our jails and prisons.
The crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.
The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities — a shift often referred to as deinstitutionalization. The number of Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization was not accompanied by the public investment necessary to ensure that community-based alternatives were made available. As a result, while people with disabilities — and particularly those with mental health conditions — were no longer living in large numbers in institutions, many began to be swept up into the criminal justice system, often due to minor infractions such as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three times as many people with mental health conditions as state mental hospitals.
People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities — such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders — are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.
Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, as community-based treatment and prevention services cost far less than housing an individual behind bars. According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing — one of the most intensive, comprehensive, and successful intervention models in use today — amounts to less than $20,500 annually, just two-fifths the cost of jail.
Sunday, July 10, 2016
"Inmates in NY get an Ivy League education behind bars"
The title of this post is the headline of this lengthy CBS News piece. Here are excerpts:
Inside Building 82, down the hall from the cosmetology course, Columbia University Professor Christia Mercer is teaching philosophy. If education is said to free the mind, it is the only freedom a group of particular students in Bedford Hills, New York have. These students are inmates at the Taconic Correctional Facility in Bedford Hills.
"So having done Plato and thought about early Christianity, Roman notions of virtue, we now have a chance to really think seriously about Augustine and his views, and I think it's really pretty mind-blowing, right?" Mercer asked the class.
Perhaps more "mind-blowing" is the transformation from prisoner to pupil. Cecile Davidson is serving one to three years for grand larceny. "Right now we're working on Plato, Socrates, and just the thought, the mindset of Socrates before he went into prison," Davidson said.
"I believe Plato. I believe that if you separate the body from the soul, you can obtain that truth," said another student, Leah Faria, whose "truth" includes a second-degree murder conviction. Faria has been incarcerated 19 years and goes before the parole board for the first time in 2018....
Faria is one of nearly 900 students enrolled throughout New York state prisons in an education program, offering associates, bachelors and even Master's degrees from some of the country's most elite universities. Twenty-two colleges and universities — including Columbia, Bard, Cornell and Vassar — send professor behind walls in the empire state every week.
"It's basically pretty easy," said Columbia University Professor Mercer. Easy, because Mercer does not change the course much, even in a prison system where 50 percent of the inmates — one out of every two — didn't graduate from high school. "We did teach Aeschylus and Euripides and so on ... so I am not lowering my standards at all," Mercer said. "That would be an insult to them."
In fact, Mercer — a distinguished member of the faculty at one of the most prestigious universities in the land - admitted that even she has been schooled while behind bars, when teaching the play "Twelfth Night" by Shakespeare. "In all my years of thinking about the play, I've never heard anyone give an argument for why it was inappropriate to treat Malvolio in the way that he was treated," Mercer said. "It was just this astonishingly insightful analysis of this play in ways that I had never thought of before....
This fall, New York's education program will expand, over the objections of state lawmakers, who rebuffed Gov. Andrew Cuomo's request for more money. So instead, Cuomo teamed up with Manhattan District Attorney Cy Vance to divert $7.5 million in criminal forfeiture money to add at least 800 more students.
"This is a public safety issue. I know that data supports my decisions and therefore, I think the citizens of the state should understand that this makes sense in terms of community safety," Vance said.
According to the state, 39 percent of New York's inmates commit another crime once they get out. But with a college degree from the program, the recidivism rate slides to 16 percent - a drop of more than half. "They don't come back into our system. And that's really how we know it works," said Linda Hollmen, director of education for New York's Department of Corrections and Community Supervision.
Tuesday, July 05, 2016
Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences
The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:
Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.
Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.
There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.
But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.
Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.
As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.
“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.
Thursday, June 30, 2016
Split Iowa Supreme Court upholds state's broad felon disenfranchisement provisions
As reported in this local article, headlined "Iowa Supreme Court upholds ban on felons voting in Iowa," a divided state Supreme Court rejected a challenge to Iowa's felony disenfranchisement laws. Here is how the press report on the decision starts:
The Iowa Supreme Court ruled against an expansion of voting rights for convicted criminals on Thursday, finding that all felonies are "infamous crimes" resulting in disenfranchisement under the state constitution. The 4-3 decision upholds what critics say is one of the harshest felon disenfranchisement laws in the nation, and means the state will not see a significant shift in voter eligibility ahead of the 2016 election.
Iowa's top elections officer immediately cheered the ruling, while criminal justice reform advocates said they would begin exploring their options for constitutional and legislative reforms. "This ruling goes in line with 150 years of precedence and has been reaffirmed by the people of Iowa and their elected representatives on multiple occasions," Iowa Secretary of State Paul Pate said in a statement. Pate's office oversees elections in the state, and he was named as the defendant in the case.
The American Civil Liberties Union of Iowa, which argued the case before the court, had sought to limit disenfranchisement to a handful of felonies directly relating to elections and governance. If the court had upheld that view, thousands of Iowans with felony convictions could have had their voting rights restored ahead of this November's presidential election. "This is no way (to) run a democracy," ACLU attorney Rita Bettis said in a statement following the decision. The group now intends to draft a constitutional amendment allowing offenders to vote after completing their sentences.
The lengthy ruling from the Supreme Court of Iowa is available at this link, and the majority opinion authored by the court's Chief Justice gets started this way:
This appeal requires us to decide if the crime of delivery of a controlled substance is an “infamous crime” under the voter disqualification provision of the Iowa Constitution. The district court held the crime is an infamous crime, and a conviction thereof disqualifies persons from voting in Iowa. Following the analysis we have used in the past to interpret provisions of our constitution, we agree and affirm the judgment of the district court.
The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.
Among other interesting aspects of this ruling is the wide array of cites to recent legal scholarship appearing in both the majority opinion and the longest dissent. (I bring that fact up not only because it makes me pleased given how much time I give to reading and writing such scholarship, but also because it helps reinforce my belief that Judge Posner is way off base with some recent (and past) comments about the legal academy failing to work on projects of any interest and importance to the bench and the practicing bar.)
"The Power of Pell Grants for Prisoners"
The title of this post is the headline of this new New Yorker commentary authored by Clint Smith. Here are excerpts:
Last Thursday, the Obama Administration selected sixty-seven colleges and universities across twenty-seven states to participate in the Second Chance Pell Pilot Program, which aims to “create a fairer, more effective criminal justice system, reduce recidivism, and combat the impact of mass incarceration on communities.” The new initiative could make Pell Grants available to as many as twelve thousand people behind bars. Secretary of Education John B. King, Jr., made sure to address the aforementioned concerns around funding head on, stating that the resources allotted to the pilot program make up less than 0.1 per cent of the thirty-billion-dollar Pell Grants program, and will in no way cut into funding for current or future Pell Grant recipients who are not incarcerated.
As advocates of prison education might note, twelve thousand is a small proportion of the 2.3 million people currently in prison. But the executive action by the Obama Administration is a progressive step forward on correctional education, especially given that legislation like the Restoring Education and Learning (real) Act — which would eliminate the provision in the crime bill barring prisoners in state or federal institutions from Pell Grant eligibility — remains stalled in Congress. Social scientists have known for some time that prison-education programs are a cost-effective and successful means of reducing recidivism. A study by the rand Corporation in 2013 found that incarcerated individuals who participated in educational programs were forty-three per cent less likely to recidivate within three years than those who did not. It also found that correctional education increased the likelihood of obtaining employment once released, with those who participated in programming during their time behind bars thirteen per cent more likely to obtain a job than those who did not....
Being incarcerated does not mean being devoid of the capacity to learn, grow, and think, and it’s critical that prisons provide spaces where learning can be both cultivated and encouraged.
This is what makes the Obama Administration’s program so important. Pell Grants provide resources that assist colleges in building their capacity in prisons, by covering the cost of books, tuition, and fees. But, though certainly beneficial to those men and women who will receive the grants, there are limits to what the program offers. For example, to qualify, a person must be eligible for release within five years of enrolling, which doesn’t address the educational needs of those serving long-term or life sentences.
The benefits of prison education go beyond lowering recidivism rates and increasing post-release employment. It can also rekindle a sense of purpose and confidence. For Jackson, participating in the Boston University prison-education program, and moving closer to obtaining a bachelor’s degree, has fundamentally changed his sense of self — and increased the likelihood that he’ll stay out of prison if the parole board approves his release. The Second Chance Pell Pilot Program means that more people like Jackson will have an opportunity to take college-level classes, improving their chances of remaining out of prison and also of giving them back a sense of purpose that has otherwise been stripped away. Or, as Jackson said about his work, it’s “like you’re doing something with your life.”
Sunday, June 26, 2016
Mother Jones devotes issue to reporter's four months working as a private prison guard
Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.
This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:
In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
Here are the chapter headings and links to this remarkable piece of reporting about private prisons:Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last.... But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase:
- When the information obtained is of vital public interest.
- When other efforts to gain that information have been exhausted.
- When the journalist is willing to disclose the reason and nature of any deception.
- When the news organization applies the skill, time, and funding needed to fully pursue the story.
- When the harm prevented outweighs any harm caused.
- After meaningful deliberation of the ethical and legal issues.
To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced. There is no other way to know what truly happens inside but to go there.But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....
Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.
CHAPTER 1: "Inmates Run This Bitch"
CHAPTER 2: Prison Experiments
CHAPTER 3: The CCA Way
CHAPTER 4: "You Got to Survive"
CHAPTER 5: Lockdown
Wednesday, June 22, 2016
"Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act"
The title of this post is the title of this interesting new report from the AVID Prison Project. (AVID stand for Amplifying Voices of Inmates with Disabilities, and its website provides more on the report and on the AVID Prison Project.) Here are excerpts from the report's executive summary:
The disproportionate incarceration of people with disabilities in the United States is a serious and growing problem. As the prison population ages, more inmates are reporting physical disabilities. The U.S. has also seen a rise in the number of people with mental illness and developmental and cognitive disabilities in prison. National surveys now indicate that as many as 31 percent of inmates in state prisons report having at least one disability.
While prison is hard for everyone, incarceration is even more challenging for inmates with disabilities. Research shows that inmates with disabilities are sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal convictions. The time they serve is also harder, with more sanctions imposed and less access to positive programming than other inmates. Prisoners with disabilities are also four times more likely to report recent psychological distress as compared to inmates without disabilities. In a system intended to control and sanction behavior believed to violate the many regulations that govern prison life, inmates with disabilities who need accommodations are often overlooked, ignored, or even punished.
Very few outsiders are allowed into the prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with special federal authority to enter facilities that serve people with disabilities, have been going behind prison walls to identify issues facing inmates with disabilities.
P&As have received reports of inmates forced to drag themselves across their cell or sleep on the floor because their cane or walker was removed. Inmates with cognitive disorders, intellectual disabilities, or mental illness have sought assistance because they are unable to complete the programming required to move out of restrictive housing, forcing them to remain in segregation for years, if not decades. These same inmates may be punished for failing to follow the written rules of the prison, rules they either cannot read or cannot understand due to a disability, resulting in sanctions, loss of good time, or even additional criminal charges. Inmates in need of therapeutic diets or those who require assistance in activities of daily living often find themselves caught in an endless cycle of institutional grievances and appeals as they seek approval for accommodations in correctional policy and practice.
In recognition of the growing population of inmates with disabilities, in 2012 Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a private grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.
This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.
This report begins with a brief overview of the P&A system, describes the different types of advocacy P&As use, and outlines the ADA’s application to prisons. Next, this report details the work P&As across the country have done to advance inmates’ rights under the ADA, focusing on three main areas of prison life: (1) hygiene, health, and safety, (2) accommodations in communication, and (3) access to programming and services. A review of this work reveals that while the ADA has been in place for more than 25 years, much remains to be done to bring programs and buildings in the nation’s prisons into compliance with the requirements of the ADA. This report concludes with a series of recommendations for future action....
Ultimately, this report is intended to spur interest and action within the P&A network and other prison advocacy groups and increase focus on what has become a crisis within the nation’s prison system.
Making the case for enfranchisement to create a "prison constituency"
Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:
Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.
We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.
How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.
Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.
Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.
Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”
Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....
The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.
In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.
Thursday, June 16, 2016
"States of Incarceration: The Global Context 2016"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:
How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.
“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”
This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.
“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”
The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.
The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.
The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”
"Private Prisons and the Marketplace for Crime"
The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:
A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.
At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice. As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite. Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand. Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity. The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed. Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.
Friday, June 10, 2016
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Monday, June 06, 2016
SCOTUS talks through PLRA's exhaustion requirement
The only criminal justice opinion handed down by the Supreme Court this morning concerned the application of the Prison Litigation Reform Act in Ross v. Blake, No. No. 15–339 (S. Ct. June 6, 2016) (available here). Justice Kagan wrote the opinion for the unanimous Court in Ross, which gets started this way:
The Prison Litigation Reform Act of 1995 (PLRA) mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U. S. C. §1997e(a). The court below adopted an unwritten “special circumstances” exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA. But we also underscore that statute’s built-in exception to the exhaustion requirement: A prisoner need not exhaust remedies if they are not “available.” The briefs and other submissions filed in this case suggest the possibility that the aggrieved inmate lacked an available administrative remedy. That issue remains open for consideration on remand, in light of the principles stated below.
Because this is obviously a "modest" opinion (as was the other civil ruling SCOTUS released today), I suspect the SCOTUS press will be buzzing mostly about Texas capital case grants noted in this prior post.