Saturday, August 07, 2010
"Private Prisons, Public Functions, and the Meaning Punishment"The title of this post is the title of this new article by Mary Sigler now available on SSRN. Here is the abstract:
As the prison population in the United States soars, states and the federal government have come to rely increasingly on private prisons. In 2007, private detention facilities housed more than seven percent of incarcerated adults in federal and state prisons. The primary impetus for the private-prison boom of the 1980s was the belief that for-profit corporations could deliver correctional services more efficiently than could the state. One recent study found that private prisons may reduce the cost of housing inmates by as much as fifteen percent.
Some critics have questioned the validity of these findings; others contend that if private prisons achieve any cost savings, they come at the expense of inmate well-being. That is, in order to turn a profit, private prison operators skimp on personnel training and staffing; offer only minimal educational programming and vocational training; and save space by housing inmates in cramped quarters. In addition, public accountability for prison conditions is undermined to the extent that public officials must rely on reports of abuse and mistreatment from within the private prisons themselves. Finally, the profit motive creates perverse incentives to extend inmate sentences and promote criminal justice policies that yield more and longer prison sentences regardless of whether they are in the public interest.
While these important policy considerations may be reason enough to worry about the proliferation of private prisons around the world, this paper defends the position that an even more basic consideration concerns the nature and justification of legitimate punishment. In a liberal democratic polity, punishment is an inherently public function. It is inflicted for public wrongs in the name of the people themselves. Outsourcing punishment to nonpublic agents thus represents the abdication of a core state responsibility. Moreover, because retributive considerations dominate the public’s conception of criminal justice, punishment is meaningful not primarily as a means to an end. Rather, punishment constitutes justice. Delegation through privatization attenuates the meaning of punishment – for punisher and punished alike – treating justice as a mere commodity. To be sure, state-run prisons routinely rely on private providers for food service, waste management, and even medical care. But these services are commodities that have practical rather than social significance; what matters is that they are competently provided, not the identity of the provider. Central to punishment, however, is the relationship between punisher and punished, for it transforms otherwise socially objectionable conduct – such as the deprivation of liberty – into a legitimate instrument of social control. Accordingly, the institution of punishment must be, and must be seen to be, the work of public agents.
Monday, August 02, 2010
Investigative report indicates California's prisoner rights poorly regardedA helpful reader altered me to this lengthy article from the Sacremento Bee, headlined "The Public Eye: California prisoners' rights often trampled," that reports on how guards have abused prisoners through disciplinary hearings. The piece, which ran on Sunday's front page, also included the graphic (reprinted here) with lots of interesting data on charges against prisoners in five of the larger states in the nation. Here is how the Sacremento Bee report gets started:
The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what. Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.
Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers –- lieutenants he supervised –- "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."
Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.
By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.
Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.
Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.
Saturday, July 31, 2010
A must-read take on American justice courtesy of now-free Lord Conrad BlackAs detailed in this news report, "media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto's National Post." This first-person column is available at this link under the headline "Conrad Black: My prison education," and here are choice excerpts from this weekend's must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years....
t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.
I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.
And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.
And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.
Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.
Tuesday, July 27, 2010
"An Open Letter to Lindsay Lohan from the ACLU"The title of this post is the descriptive heading given to this page at the ACLU of Southern California. I praise the ACLU for trying to turn LiLo's experiences into a teachable moment, and here are excerpts from the letter:
We know that going to jail is scary. But we can assure you that your experience at the women’s facility in Lynwood, outside Los Angeles, is likely to be starkly different from the thousands of others serving time and awaiting trial in the Los Angeles jails. Based on the ACLU’s decades of experience as an official court-appointed monitor of the jails, and the stories of countless women with whom we’ve spoken, the facility where you are staying is an overcrowded detention facility where women are needlessly humiliated for so long that they come to expect sub-human treatment....
We know from the more than 4,500 complaints we receive annually that the women’s facility is a lot nicer than the Men’s Central Jail -- where rats roam the tiers, and violence is as routine as sunshine in California. We’ve seen men with broken legs and black eyes. It‘s not uncommon for a prisoner to be thrown up against the wall or punched, simply for asking a deputy a question....
Lindsay, even though it’s going to be difficult for you to be incarcerated even for a few weeks, rest assured that your celebrity is something that we who frequently visit Los Angeles’s jails see as an opportunity to draw attention to conditions in the jails. You will have a window into the world of Los Angeles jails, and we hope you will use it to talk to the press about conditions here.
Monday, July 26, 2010
Heading off to hear about how Ohio should reinvest in justiceI am about to head off-line for the day to attend a conference at which the Council of State Governments' Justice Center will present its first findings as part of Ohio's involvement in CSG's Justice Reinvestment project. This AP article, which is headlined "Ohio's probation system called costly, ineffective," previews what I am going to be hearing about through the day:
Ohio's probation system is a jumble of overlapping and fragmented agencies without common rules for improving the way the state treats offenders under supervision, according to a report to be released today.
The study also says that offenders who commit minor drug and property crimes are often supervised for years, while inmates who pose a high risk to public safety are released from prison without supervision.
The study by the Council of State Governments Justice Center also confirms something that Ohio officials have known for years: A large number of offenders cycle through prisons with sentences of just a few months each, placing a costly burden on an already-strapped agency.
One reason for the cycling is that the minimum sentence for lower-level felonies is six months in Ohio; it is one year in many other states. The Ohio study, to be unveiled at a daylong symposium, found that only four of every 10 inmates serving short sentences have a low risk of offending again. Two of every three are property-crime or drug offenders and have two or fewer prior convictions.
Sunday, July 25, 2010
"Jail Source: The Inmates Are Sick of Lindsay Lohan"The title of this post is the headline of this new People magazine piece that provides a LiLo update for sentencing fans. Here are the particulars:
As far as reports go, Lindsay Lohan is eating the same meals as regular inmates at the Century Regional Detention Facility. But that doesn't mean she's being entirely treated like the others.
"She's not treated like if it was anyone else going to jail," Maria Medina, a relative of an inmate at Lohan's jail tells PEOPLE. "Like, if they even want to bring her new clothes or bring her anything, they put the whole facility on lockdown. It happens all the time."
Medina, 40, says residents at the jail, based in Lynwood, Calif., find it unfair that someone they're not even allowed to see is exerting so much control over their stay. "All the inmates are sick of Lindsay," Medina says. "It's almost like Lindsay Lohan's here, but she's not. Like if she even moves, they put the whole facility on lockdown. It happens all the time. For example, just yesterday [Friday], Lindsay had to go to the mini-clinic, and the whole place was on lockdown again."
Los Angeles Sheriff's spokesman Steve Whitmore denied Medina's claim. "It's business as usual. Lindsay's getting no special treatment," he told PEOPLE on Saturday. He also said there is no such thing as "lockdowns."
As far as Lohan is concerned, she's now apparently in a much better state of mind than earlier this week. "[Lindsay's] doing well, she's doing fine," Lohan's lawyer Shawn Chapman Holley tells PEOPLE. "Her outlook is definitely more positive."
Despite speculation that Lohan was given exemptions when it came to visitation limits, Holley told reporters her client is playing by the rules, saying,"[Her family's] not allowed any more visits this week."
Whitmore earlier this week told PEOPLE that Lohan received her visits during the week to avoid disrupting other families visiting on the weekend with ensuing TV crews and photographers.
Wednesday, July 21, 2010
Just another (average?) week in incarceration nation...
with Lindsay Lohan entering jail apparently for only two weeks, and Lord Conrad Black getting to go free on bail from federal prison after having already served well over two years. Anyone want to make predictions on likelihood of recidivism for these two notable defendants?
Tuesday, July 20, 2010
Effective review of New Jersey's recent significant prison population declinesThanks to The Crime Report, I saw this effective local article from New Jersey discussing the Garden State's significant reduction in its prison population over the last decade. The piece is headlined "N.J.'s inmate population declines, officials credit less crime, prisoner re-entry programs," and here are excerpts:
In Kentucky, authorities started a controversial program to release inmates early to alleviate prison overcrowding. In California, federal judges ordered prisons to shed 46,000 inmates in a case heading to the U.S. Supreme Court.
But in New Jersey, the prison population fell 14.8 percent from 2000 to 2009 without any need for such drastic actions, according to new federal statistics. New Jersey is one of only six states to reduce the number of prisoners over the decade.
With 25,263 inmates in the system as of this month, state prisons still hold more people than they were designed for. And 600 additional inmates will be double-bunked this year to save money. But officials say the overall population shrank because crime was cut, drug courts diverted many people from jail, and programs helped inmates prepare for life on the outside.
"It’s a pretty impressive reduction," said Marc Mauer, executive director of the Sentencing Project, a research and advocacy organization. "We’re not just talking about a tinkering. It comes about through conscious changes in criminal justice policy."
New York is the only state whose prison population declined faster than New Jersey’s, by 16.4 percent. Maryland, Michigan, Delaware and Illinois also cut their inmate numbers.
But while the total number of state prison inmates in the country dropped last year for the first time since 1972, most states struggle with increasingly large and expensive prison populations. West Virginia packed its prisons with 65.1 percent more inmates from 2000 to 2009. Minnesota, Arizona, Florida and Kentucky had increases from 45 to 60 percent.
"It’s hard to find a state not having a problem," Mauer said. State officials, researchers and experts said New Jersey’s progress reflects a multi-faceted approach to the issue — before sentencing, in prison and after incarceration....
One big reason for the reduction in inmates is that fewer people are going to prison in New Jersey. In 2000, 12,845 were sent to state prison. In 2009, there were 11,948.
The state’s overall crime rate fell 17.1 percent from 2000 to 2008, the last year Uniform Crime Report statistics are available. Violent crime dropped 13.2 percent in that period....
Offenders who commit nonviolent drug-related crimes can enter drug court programs to avoid prison time and receive treatment... The state recently loosened mandatory minimum sentences for drug crimes, a primary reason for prison population increases. Some people caught dealing drugs within 1,000 feet of a school will no longer be automatically sent to prison for one to three years....
Smaller inmate populations can’t come fast enough for states facing severe budget deficits. In New Jersey, where the deficit was $11 billion, each inmate costs about $49,000 a year.... New Jersey closed Riverfront State Prison in Camden last year, saving at least $43 million annually. The state also stopped using a Kearny facility to house civilly committed sex offenders. Overall, the corrections budget dropped $67 million, to $1.08 billion, this year.
"Are Lindsay Lohan, other celebs glorifying jail time?"Today's question of the day comes via this lengthy article with the same headline as my post title in the Detroit Free Press. Here is how the piece it begins:
Lindsay Lohan is scheduled to go to jail today. While it may not sound like a big deal -- yet another train-wreck celeb in trouble -- it may actually have a cumulative effect on fans, especially young people. Social experts suggest that being pelted with image after image of celebrity after celebrity in trouble does have societal implications.
"Things like reality TV and other things have almost glorified going to jail," said Arthur Robin, head of psychology at Children's Hospital of Michigan. "Yes, it's still something young people view very negatively, but probably not as negatively as 50 years ago."
The accelerated news media obsession with locked-up celebrities, politicians and sports stars may be desensitizing young people to jail, experts have said. Rather than a stiff penalty, jail has become a simple inconvenience.
Published reports suggest Lohan's first post-jail interview will be worth more than $500,000. Lil Wayne plans to drop his next album from Rikers Island. And in urban areas like Detroit, the jailings of those in the public eye could be leading youths down the wrong path.
Monday, July 19, 2010
"Five Things You Need to Know About Lindsay Lohan's Pending Jail Stint"The title of this post is the headline of this hard-hitting new piece at E! Online. Here is the piece's intro and the heading of those important "five things you need to know":
Lindsay Lohan is going to do the time — even though she remains in denial. "She's really nervous," a source close to the actress tells E! News. "She is still hoping she is not going to jail." Meanwhile, back in reality...
Lindsay is due to surrender herself tomorrow to begin serving her 90-day sentence, which will likely be shortened drastically due to overcrowding (25 percent of the original sentence is about as much as gets served these days).
After appearing in court, she will likely be shuttled to the Century Regional Detention Facility in Lynwood, Calif. And here's what you need to know about Lindsay's new digs:
1. It Has Celebrity Cachet....
2. It'll Ruin Her Diet of Kombucha and Cigarettes....
3. Michelle Rodriguez Is Not Impressed....
4. It's Girl-on-Girl....
5. It's Going to Be a Rough Ride....
Relatedly, I would like to know if readers would like me to keep blogging about the train-wreck starlet who is about to become (not-quite-) just-another number among the nearly 2.5 million persons incarcerated in the United States.
I generally enjoy blogging about celebrity cases because they provide a visible setting to discuss timely sentencing issues. Also, even silly celebrity posts tend to generate many interesting comments and can be fun as a change of pace. But I am already feeling as though I have done a bit too much LiLo blogging lately, and will only keep on this particular celebrity beat if readers think it worthwhile.
Related recent Lohan sentencing posts:
- "Lindsay Lohan New Spokeswoman for SCRAM Alcohol Testing Accessory"
- Lindsay Lohan doing her best to become technocorrections poster child
- Lindsay Lohan provides yet another opportunity to debate the (un)real aspects of celebrity sentencing justice
- Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence
Friday, July 02, 2010
"How The Recession Hurts Private Prisons"The title of this post is the headline of this Newsweek feature. Here is how the interesting piece gets started:
Baldwin, Mich., (population 1,107), will soon have more prison beds than full-time residents. On the outskirts of town, one of the country’s largest private prison companies recently spent $60 million to expand a former juvenile prison into a 1,755-bed facility meant to house illegal immigrants before deportation. This is the same town where every summer locals gather for a carnival nicknamed Troutarama at which teenage girls vie for the crown of Ms. Lake County. Thirty-two percent of Baldwin’s families live below the poverty line, in a state with a 13.6 percent unemployment rate, compared to the national unemployment rate of 9.7 percent. Baldwin residents were counting on the private prison to create jobs, but this past March, the federal government pulled back its funding on the bid. This left the Geo Group, Inc., with an empty fortress in the middle of rural Michigan, 85 miles north of Grand Rapids.
A similar scenario is playing out across the country, in states such as California, Oklahoma, and Colorado, where entire private prisons now sit vacant. The Huerfano County Correctional Facility in Colorado and the Diamondback Correctional Facility in Oklahoma temporarily shut their doors this spring after the state of Arizona stopped sending prisoners out of state in an effort to save money. Cornell Companies, one of the three largest private prison operators in the U.S., expects two of its California prisons to remain empty through 2010, while 11,600 of Correction Corporation of America’s beds were unoccupied as of early May. The empty prisons are not a result of the number of inmates dropping. In fact, according to the Pew Public Safety Performance Project, the number of inmates rose in 2007 in Arizona, Ohio, Kentucky, Mississippi, and Florida. Instead, the empty beds are because state corrections agencies are crowding prisoners into more facilities as they do in California, or trying to change legislation to make sentencing less harsh for nonviolent criminals. The private prison industry’s reliable mix of housing state and federal inmates and illegal immigrants — a model that helped to fuel two decades of growth — is no longer a surefire way to get rich. “There are only so many places you can find people,” says Martin F. Horn, a former commissioner with the New York City Department of Correction and a lecturer at the John Jay College of Criminal Justice.
Though it’s certainly not disappearing and there are signs of a potential recovery for the sector, the private corrections business is under financial pressure to change its business plan, and as that happens, prison advocates worry that the industry and it’s bottom-line approach will come to dominate other areas of the justice system. Rather than worrying about upping the number of inmates, private prison companies are tapping into overseas markets and offering a wider range of services. GEO increased its revenue by $20.2 million in the last year by opening up prisons in Australia and the United Kingdom, while also eyeing contracts in South Africa and New Zealand. Cornell runs halfway houses and youth prisons and has noticed an uptick in the demand for drug treatment, housing, or job placement programs that help prisoners reenter society. “The challenge for reentry is funding,” says James Hyman, CEO and president of Cornell Companies. “If states can’t fund programs for their star college graduates, how do they fund programs for the prisoners?”
Wednesday, June 30, 2010
Fascinating Ninth Circuit ruling on whether prisoners have medical privacy rightsThe Ninth Circuit issued an interesting ruling today concerning the medical privacy rights of a prisoner in Seaton v. Mayberg, No. 05-56894 (9th Cir. June 30, 2010) (available here). Here is how the main panel opinion starts and ends:
We address a claim to privacy rights in his medical records of a prisoner being evaluated for civil commitment....
One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests that may or may not be constitutionally protected. One who is compelled to submit to medical examination for the benefit of the public, to determine whether because of mental disease he is likely to engage in sexually predatory behavior, does not.
Tuesday, June 29, 2010
"The Case for Treating Drug Addicts in Prison"
The title of this post is the headline of this interesting new piece in Newsweek. Here is an excerpt:
Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges (although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007). But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions....
Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them. In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment. That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs. Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.
The irony here is that by lowering recidivism, the programs themselves save money in the long run. The NIDA report released last year cited a remarkable statistic: heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again. For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration, according to Human Rights Watch. Looked at another way, the programs can save the justice system about $47,000 per inmate.
So why would prisons target their own treatment programs in an effort to cut costs? Part of the reason is that pharmacological treatment — such as giving heroin addicts methadone to help them through withdrawal — requires a lot of regulation, and thus it’s expensive in the short run.... [P]oliticians may oppose treatment (at least publicly), especially if they’re worried about being seen as soft on crime. And even if they support the idea, with state budgets under a crunch, treatment can start to look expendable.
Wednesday, June 23, 2010
BJS reporting state prison population down almost 3,000 in 2009, while fed population rose over 6,800As detailed in this official press release from the Bureau of Justice Statistics, in 2009 "the number of prisoners under jurisdiction of state correctional authorities decreased by 2,941 inmates (down 0.2 percent)." This is big news because it represents "the first decline in the state prison population since 1972." But the total prison population in incarceration nation still grew because in 2009 the "federal prison population increased by 6,838 (or 3.4%) which accounted for all of the increase in the U.S. prison population." Here are more details from the BJS press release:
Twenty-four states experienced decreases in their prison populations and 26 had increases. Six states reported declines of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069). States reporting the largest increases included: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282) and Arizona (up 1,038)....
By yearend 2009, the U.S. prison population (state and federal prisoners combined) reached 1,613,656, increasing by 0.2% during the year. The increase of 3,897 prisoners was the smallest annual increase during the current decade.
As of June 30, 2009, state and federal prisons and local jails had custody over 2,297,400 inmates, a decrease of 0.5 percent since yearend 2008. This decrease resulted from the 2.3 percent decline of inmates held in local jails, which hold over a third of the custodial population each year.
Midyear 2009 incarceration rates for inmates held in custody in prisons or jails differed by race and gender. Black males, with an incarceration rate of 4,749 inmates per 100,000 U.S. residents, were incarcerated at a rate more than six times higher than white males (708 inmates per 100,000 U.S. residents) and 2.6 times higher than Hispanic males (1,822 inmates per 100,000 U.S. residents). Black females (with an incarceration rate of 333 per 100,000) were more than two times as likely as Hispanic females (142 per 100,000) and over 3.6 times more likely than white females (91 per 100,000) to have been in prison or jail on June 30, 2009.
I am not surprised that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction. One more reason to root for local control on most crime and punishment issues.
All the details of this new data run can be found in this new BJS publication, titled "Prisoners at Yearend 2009–Advance Counts."
Monday, June 14, 2010
"States start reducing solitary confinement to help budgets"The title of this post is the headline of this notable new piece from USA Today. Here are some of the details:
State prison officials are reducing the number of offenders in solitary confinement — once among the fastest-growing conditions of detention — as budget pressures, legal challenges and concerns about the punishment's effectiveness mount.
States such as Mississippi, Texas and Illinois have decreased the number of inmates in solitary confinement, a dramatic acknowledgement, analysts say, that states can no longer sustain the costs of hard-line criminal justice policies. "The whole philosophy of being just tough — locking people up and throwing away the key — has not solved the problem," said Texas state Sen. John Whitmire, Democratic chairman of the Senate Criminal Justice Committee.
Decisions to return dangerous inmates to the general prison population anger some prison officials, who say the changes could threaten the safety of corrections officers and other inmates. "The departments of correction are rolling the dice with public safety. ... This is going to blow up," said Brian Dawe of the American Correctional Officer Intelligence Network, an association of officers.
The number of prisoners in solitary confinement — typically locked away for 23 hours a day — grew 40% from 1995 to 2000 when there were 80,870 segregated inmates, a study by The Commission on Safety and Abuse in America's Prisons found. The overall prison population increased 28% during that time. Isolating prisoners, the private study found, is often "twice as costly."
What exactly happens now with the litigation over California's prison problems?I am a bit perplexed by what the Supreme Court did this morning in response to the appeal of the California prisoner litigation coming from the Ninth Circuit. Here is the full text of what SCOTUS said in its orders this morning:
09-1233 SCHWARZENEGGER, GOV. OF CA V. PLATA, MARCIANO, ET AL.: Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.
Here is how Lyle Denniston at SCOTUSblog explains this order:
The Supreme Court, having already shown it was interested in the controversy, on Monday finally agreed to rule on at least part of the state of California’s complaint about being forced by a federal court to release close to 40,000 inmates from its 33 state prisons, to relieve over-crowding and a serious health crisis. The Court will set the case for a hearing in the Term starting Oct. 4, but the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order. The Justices said they will consider that jurisdictional question when the case is called for a merits hearing on the case of Schwarzenegger, et al., v. Plata, et al. (09-1233). The case could produce a major ruling on federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996....
The Court’s order Monday in the California prison case grew out of prolonged litigation in federal court over threats to the health of both prisoners and prison staff members as a result of severe over-crowding in the state’s prisons. Two separate lawsuits by prison inmates ultimately were merged before a three-judge District Court, to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat. The state’s prisons were operating at close to twice their actual design capacity. The District Court in the end ordered California to reduce over-crowding from the peak of 196 percent of design capacity to 137.5 percent, and to do so in two years.
Earlier, the Supreme Court had declined to step into the controversy, but expressly noted that it had been assured that no prisoner release order would be ordered until the Supreme Court had had an opportunity to review it. The release order is now on hold pending final action by the Justices.
The question of jurisdiction that lingers in the case is whether the District Court satisfied the requirements specified under the 1996 federal act for any inmate release order. Under that act, a prisoner release order may be adopted only as a “last resort,” only if it has previously issued other, less-intrusive orders that had failed to remedy violations of inmates’ rights, and only if it found that state officials had had a reasonable time to comply with such prior orders. The state contends that the District Court did not have jurisdiction, because it did not give officials time enough to try to cure the over-crowding situation on their own.
Only if the Justices find that the District Court had jurisdiction would they move on to decide whether the specific order at issue was justified. The case is not likely to come up for a hearing until the winter.
So does this means there will be full SCOTUS briefing and a full "traditional" SCOTUS oral argument on both the jurisdiction issue and the merits issues over the next few months? Does this mean all efforts to reform California's prison over-crowding now can and should be put on hold while briefing and argument go forward? Does this mean these issues more likely or less likely to be a topic of political debate in California's many contested elections this Fall?
Put simply, I am confused and would be grateful for any reports from anyone in the know about what this seemingly cryptic SCOTUS order means both practically and politically.
- From the AP here, "Court to review Calif. plan to cut prison numbers"
- From Reuters here, "Top court to hear California prisoner release case"
Sunday, June 13, 2010
"Who should control California's prison budget? U.S. Supreme Court may weigh in"
The title of this post is the headline of this new article in the Los Angeles Times. It gets started this way:
A legal battle over who gets to control California's massive spending on prisons — judges or corrections officials — may be headed to the U.S. Supreme Court, with overcrowding at the state's 33 prisons at the center of the debate.
Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates. The judges' order, issued last August, cited overcrowding as the main cause of healthcare failures that amounted to cruel and unusual punishment and left inmates to die from treatable conditions at the rate of one per week.
The three-judge order brought to a head the tension over a decades-long judicial practice of intervening in prison management to correct what have been deemed unconstitutional deficiencies in state custody. Courts have empowered a phalanx of overseers and experts to mandate reforms on prisoners' healthcare, psychiatric treatment, parole rights, access to law libraries and other matters.
But as California's budget woes increasingly pit the jailers and judicial monitors in a struggle for scarce resources, the monitors have become a point of contention.
The U.S. Supreme Court is expected to decide as early as Monday whether to review the three-judge order to reduce overcrowding. Some observers of the legal tug of war over inmate treatment believe the conservative justices on the high court want to weigh in on what they may see as judicial activism. When the state appealed the reduction order, the justices suspended a two-year deadline for releasing inmates or building prisons to house them.
UPDATE on June 14: According to SCOTUSblog, the Supreme Court "
Thursday, June 10, 2010
Notable Canadian ruling on extreme prison confinement
A helpful reader from north of the border sent me this note about a notable and high-profile (and very lengthy) ruling about prisoners' constitutional rights in Canada:
I thought you may wish to write about this significant decision from a Canadian trial court about the meaning of cruel and unusual punishment in Canadian law. Your blog emphasizes American developments, but this case has an American emphasis as it relies upon expert opinion evidence provided by Craig Haney, and there is discussion as to the importation of American ‘supermax’ style imprisonment. The case is quite long [and can be found here]:
Media coverage can be found here. The media coverage is, of course, a bit sensational. From a prison lawyer perspective, the critical parts of the decision are at paragraphs 318–335 which indicate a new standard for interpreting long-term administrative segregation as constitutionally impermissible; as contrary to legitimate penological objectives.
Monday, June 07, 2010
"Bernie Madoff, Free at Last"The title of this post is the headline of this long new article in New York magazine about life in prison is like for everyone's favorite Ponzi-schemer scoundral. (Hat tip: The WSJ Blog.) This piece looks very buzz-worthy, as its start highlights:
Last August, shortly after his arrival at the federal correctional complex in Butner, North Carolina, Bernard L. Madoff was waiting on the evening pill line for his blood-pressure medication when he heard another inmate call his name. Madoff, then 71, author of the most devastating Ponzi scheme in history, was dressed like every other prisoner, in one of his three pairs of standard-issue khakis, his name and inmate number glued over the shirt pocket. Rec time, the best part of a prisoner’s day, was drawing to a close, and Madoff, who liked to walk the gravel track, sometimes with Carmine Persico, the former mob boss, or Jonathan Pollard, the spy, had hurried to the infirmary, passing the solitary housing unit — the hole — ducking through the gym and the twelve-foot-high fence and turning in the direction of Maryland, the unit where child molesters are confined after they’ve served their sentences. As usual, the med line was long and moved slowly. There were a hundred prisoners, some standing outside in the heat, waiting for one nurse.
Madoff was accustomed to hearing other inmates call his name. From July 14, the day he arrived, he’d been an object of fascination. Prisoners had assiduously followed his criminal career on the prison TVs. “Hey, Bernie,” an inmate would yell to him admiringly while he was at his job sweeping up the cafeteria, “I seen you on TV.” In return, Madoff nodded and waved, smiling that sphinxlike half-smile. “What did he say?” Madoff sometimes asked.
But that evening an inmate badgered Madoff about the victims of his $65 billion scheme, and kept at it. According to K. C. White, a bank robber and prison artist who escorted a sick friend that evening, Madoff stopped smiling and got angry. “Fuck my victims,” he said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”
Ninth Circuit allows for Bivens suit against operator of private federal prisonAddressing an issue that has the smell of a future cert grant, a Ninth Circuit panel today in Pollard v. Geo Group, Inc., No. 07-16112 (9th Cir. June 7, 2010) (available here) allows a Bivens action to go forward against the operators of a private prison. Here is how the majority opinion starts:
Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons. This appeal presents the question of whether the implied damages action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does.
A partial dissent, which flags why this ruling may be cert worthy, starts this way:
I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006). The evolution of the U.S. Supreme Court’s Bivens jurisprudence confirms that this Court should follow their lead.
Fascinating sentencing dogs that did not end up barking in Barber
The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits. More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration.
But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber. Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post.
Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute. Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements. And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.
Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer. What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor. I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government.
I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor. As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:
The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11. The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute. These considerations, and those stated below, require this respectful dissent.
Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.
SCOTUS upholds BOP's method for calculating good time credits in Barber v. ThomasSCOTUS watchers will likely be disappointed that the Justices did not hand down any of its big pending opinion this morning. But federal prisoners should be even more disappointed that the one criminal justice opinion in an argued case that was handed down this morning, Barber v. Thomas, has turned out to be a 6-3 loss for defendants. Barber could have been the most practically consequential sentencing case of the Term if it had come out the other way, but now it is perhaps most interesting for its (unprecedented) voting blocks. Here is how SCOTUSblog reports on the Barber ruling:
The third and last opinion is in 09-5201, Barber v. Thomas... The Court affirms the lower court, with Justice Breyer writing for the Court...
The vote is 6-3, with Kennedy dissenting joined by Stevens and Ginsburg...
The Court upholds the federal Bureau of Prison's method for calculating inmates' good-time credits.
The full opinion in Barber is available here, and I will have commentary on the ruling later in the day.
Saturday, June 05, 2010
"Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts"The title of this post is the title of this interesting new piece by Ira Robbins available via SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them — that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation — or “unbundled legal services” — is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. N evertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take — i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance — and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Thursday, June 03, 2010
"The Crunch in Federal Prisons"The title of this post is the headline of this effective new article from The Crime Report. The piece carries this sub-head: "More prisoners are doing federal time than ever, but Congress isn’t allocating enough funds to pay for them. Prison officials and reformers say a rethink of the system is long overdue." And here is how the piece gets started:
While cash-strapped states are responding to the nation’s economic crisis by looking for ways to reduce their prison populations, the federal prison system is heading in the opposite direction.
Last year, the 115 federal prisons added 7,000 inmates to their rolls, making a total of 211,000 inmates in federal facilities — and the figure is expected to grow. The number of federal criminal cases filed annually has increased from 69,575 in fiscal year 2005 to 76,655 in FY 2009.
To make matters more difficult, federal funding isn’t keeping up with the extra burden. At a U.S. Sentencing Commission hearing in Washington, D.C. last week, U.S. Attorney for Atlanta Sally Quillian Yates said that federal facilities are currently operating at 34 per cent above capacity. And that, she warned, will have “real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.”
The White House appears to have recognized the problem. President Barack Obama is seeking a $600 million increase in the prison system’s budget for next year. The proposal includes filling an additional 1,200 correctional staff positions and opening three new facilities.
But the question is whether a budget-conscious Congress will go along. The prison system already eats up $6.8 billion, making it the second-largest component of the Justice Department’s budget, just below the FBI.
Wednesday, June 02, 2010
Notable data from new EJI report on racial skew of key criminal justice decision-makersAs noted in this prior post, the Equal Justice Initiative have released this big new report on racial discrimination in jury selection. Though there is much of interest in this new report, sentencing fans know that juries have very little role in sentencing decision-making except in capital cases and in a few jury sentencing states. Thus, for those most concerned with sentencing law and policy, an especially significant part of the new EJI report is its brief accounting of the lack of minorities in other critical criminal justice decision-making positions. Specifically, consider these data from the EJI report:
While black employment in law enforcement has increased during the last three decades in major metropolitan departments, racial diversity remains virtually nonexistent in some smaller Southern jurisdictions. In Houston County, Alabama, where the population is 27% African American, the local police department is nearly 94% white.
State and federal prosecutors also are mostly white. Approximately 98% of district attorneys in states that apply the death penalty are white. As the chart opposite shows, African Americans are vastly underrepresented among district attorneys in each of the eight Southern states analyzed in this report. The latest data show no black district attorneys in Arkansas, Florida, or Tennessee.
Data on the racial diversity of the American judiciary reveal that it continues to be overrepresented by whites in both the federal and state courts. Nationwide, of a total of over 12,000 state and federal judges, approximately 90% are white, even though racial minorities make up more than 25% of the population nationwide.
People of color are most underrepresented in the state courts. African Americans constitute 12% of the United States population but fewer than 6% of the bench at all state court levels.
Underrepresentation among appellate judges in the states EJI studied is significant. African Americans comprise 26% of Alabama’s population but none of the state’s 19 appellate judges is black. According to the American Bar Association’s National Database on Judicial Diversity in State Courts, Alabama has the smallest percentage of black judges statewide of the studied states, followed by Tennessee.
Just 4.2% of lawyers and judges in the United States are African American, which means that, in addition to being arrested, prosecuted, and judged by whites, defendants typically are represented by white lawyers.
That Arkansas, Florida, and Tennessee all have no black district attorneys is especially notable given that all three states have African Americans populations that significantly exceed the national average. Also, I believe more than half of all prisoners in these three states are black. Consequently, even if one does not believe there is significant racial discrimination in the administration of criminal justice in these states and elsewhere, these EJI data should leave no doubt that there is significant racial disparity in the administrators of criminal justice in these states and elsewhere.
Tuesday, June 01, 2010
New NAACP report on "prison-based gerrymandering"As detailed in this press release, this morning "the NAACP Legal Defense and Educational Fund (LDF) released Captive Constituents, a report on prison-based gerrymandering." Here is more from the press release:
As the report details, most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there.
“This practice is known as ‘prison-based gerrymandering,’ and it distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the districts where prisons and jails are located,” said John Payton, LDF Director-Counsel. “Everyone should care about this anti-democratic phenomenon because it distorts our political system.”
The United States Constitution requires that election districts must be roughly equal in size, so that everyone is represented equally in the political process. This requirement, known as the “one person, one vote” principle, is undermined by prison-based gerrymandering.
Prison-based gerrymandering results in stark racial disparities as well. African Americans are nearly 13% of the general population, but are 41.3% of the federal and state prison population. But incarcerated persons are often held in areas that are far removed, both geographically and demographically, from their home communities. Thus, prison-based gerrymandering not only weakens the political strength of communities of color, it is also eerily reminiscent of the infamous “three-fifths compromise,” which enabled Southern states to amplify their political power by counting enslaved and disfranchised African Americans as amongst their constituents.
“Because incarcerated persons in the United States are disproportionately African Americans and other people of color, the current counting of prisoners at their place of incarceration severely weakens the voting strength of entire communities of color,” said Payton.
The full (and brief and colorful) NAACP report is available at this link.
Friday, May 21, 2010
Interesting talk in Oklahoma about creating a "Christian Prison"I just came across this fascinating local story from Oklahoma headlined "Christian Prison Remains On Hold: Leaders Say They Need Commitment From Prisoners." (Hat tip: Prison Law Blog). Here are the basics:
A private firm proposing a prison in Wakita with all born-again Christian staff and programming does not yet have the commitments for prisoners it needs to begin construction.
Bill Robinson, the founder of Corrections Concepts Inc., a Dallas nonprofit prison ministry that is leading the proposal, said the bonding company that is financing the project will not release funds to begin construction until states or other jurisdictions have agreed to send 285 prisoners to the 624-bed facility. "We're still working to get the adult facility done," Robinson said.
He said California has expressed an interest in sending adult inmates to Wakita, and he is in discussion with Kansas about it. Talks with Oklahoma are "in limbo."
The project has the support of city leaders in Wakita, a town near the Kansas border, and some civic leaders in the area. "We'd be very supportive of it," said John Criner, the mayor of Enid, the largest nearby city. "We can't put any money into it, but I'd be more than happy to get him a resolution supporting the project."
Criner said Enid, which is 30 miles south of Wakita, was close enough to reap indirect economic benefit from the proposed prison. Mayor Arden Chaffee of nearby Alva said the prison would have a positive effect on the area economy. "It sounds like a great idea. I just don't know if they can finance something like that, which is a Christian concept, with public money," he said.
The concept of an all-Christian private prison has drawn the attention of a Washington, D.C., civil liberties group. The group, Americans United for the Separation of Church and State, sent a letter to the Oklahoma Department of Corrections asking it not to send prisoners to the proposed prison.
Alex Luchenitser, the group's senior litigation counsel, said its chief concern is that public funds would be used for religious worship and instruction. "We think this would be clearly unconstitutional," he said. The organization also is concerned about possible civil-rights violations of prisoners, and public subsidy of an organization that hires only Christians, he said.
Robinson countered that the prison would be constitutional because inmates would go there voluntarily. He said he has legal opinions that say the prison, as a religious organization, can legally hire only people of like faith.
If constitutional challenges arise, he said, the American Center for Law and Justice, a major Christian law firm in Washington, has agreed to represent the ministry without charge....
Robinson's concept is to put inmates into a Christian environment where they can learn, work and grow spiritually during the last year or so of their incarceration. They would work at businesses that are set up in the prison, where they would learn a marketable skill and earn money for their families, for restitution to their victims, and for a nest egg when they are released. "We want to turn criminals into citizens," he said.
I am generally a fan of faith-based prisons, especially because early research suggests they are more effective at rehabilitative programming. So I hope this project gets off the ground and does not get unduly thwarted by litigation that will use up state and other resources that would be better allocated to inmate programs.
Sunday, May 16, 2010
"More Mentally Ill Persons Are in Jails and Prisons Than Hospitals"The title of this post is the headline of a notable and important new report issued this week by the National Sheriffs' Association. (Hat tip to a helpful reader who forwarded me this item from the Houston Chronicle.) This press release about the report provides this effective summary:
The full report is available at this link.
Americans with severe mental illnesses are three times more likely to be in jail or prison than in a psychiatric hospital, according to "More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States," a new report by the Treatment Advocacy Center and the National Sheriffs' Association.
"America's jails and prisons have once again become our mental hospitals," said James Pavle, executive director of the Treatment Advocacy Center, a nonprofit dedicated to removing barriers to timely and effective treatment of severe mental illnesses. "With minimal exception, incarceration has replaced hospitalization for thousands of individuals in every single state."
The odds of a seriously mentally ill individual being imprisoned rather than hospitalized are 3.2 to 1, state data shows. The report compares statistics from the U.S. Department of Health and Human Services and the Bureau of Justice Statistics collected during 2004 and 2005, respectively. The report also found a very strong correlation between those states that have more mentally ill persons in jails and prisons and those states that are spending less money on mental health services.
Severely mentally ill individuals suffering from diseases of the brain, such as schizophrenia and bipolar disorder, often do not receive the treatment they need in a hospital or outpatient setting. The consequences can be devastating – homelessness, victimization, incarceration, repeated hospitalization, and death.
"The present situation, whereby individuals with serious mental illnesses are being put into jails and prisons rather than into hospitals, is a disgrace to American medicine and to common decency and fairness," said study author E. Fuller Torrey, M.D., a research psychiatrist and founder of the Treatment Advocacy Center. "If societies are judged by how they treat their most disabled members, our society will be judged harshly indeed."
Recent studies suggest that at least 16 percent of inmates in jails and prisons have a serious mental illness. According to author and National Sheriffs' Association Executive Director Aaron Kennard, "Jails and prisons are not designed for treating patients, and law enforcement officials are not trained to be mental health professionals."
Ratios of imprisonment versus hospitalization vary from state to state, as the report indicates. On the low end, North Dakota has an equal number of mentally ill individuals in hospitals as in jails or prisons. By contrast, Arizona and Nevada have 10 times as many mentally ill individuals in prisons and jails than in hospitals.
Among the study's recommended solutions are for states to adopt effective assisted outpatient treatment laws to keep individuals with untreated brain disorders out of the criminal justice system and in treatment. Assisted outpatient treatment is a viable alternative to inpatient hospitalization because it allows courts to order certain individuals with brain disorders to comply with treatment while living in the community. Studies show assisted outpatient treatment drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life.
Thursday, May 13, 2010
A gendered execessive force case of note as we reflect on gendered judging
Perhaps because I am married to a female Princetonian, I am especially focused on how gender issues (as well as elitism issues) are starting to play out in this debate over the nomination of SG Elena Kagan to the Supreme Court. (For some basic back-story, consider this New York Times piece from a few days ago, which is headlined "Reshaping Court’s Culture, a Woman at a Time.") In other words, I am primed to be thinking about gendered judging: whether and just how women may view legal disputes differently from men.
With this background, I found especially notable some of the gendered realities surrounding this split ruling by the Sixth Circuit today on an Eighth Amendment excessive force 1983 case. For starters, there is a gendered dynamic to the underlying facts: the plaintiff is a woman, Trudy Griffin, arrested for disorderly conduct suing a male corrections officer, Darrell Hardrick, who sought to control her through a "leg-sweep maneuver" which led to a tumble during which a female corrections officer fell on the Griffin and broke her tibia.
Right out of the box, I found intriguing that the female plaintiff apparently sued only the male corrections officer. But that choice may have been greatly influenced by the fact allegation made by plaintiff Griffin that the officer Hardrick told her that "she 'was his bitch.'"
Significantly, the entire incident was captured on video, but a video with no sound (and thus there is no recording to establish or refute whether Hardrick said to Griffin that she "was his bitch"). Relying in part on the video, the male corrections officer sought and was granted summary judgment by the district court which held that "no reasonable jury could find that Hardrick had intended the unnecessary and wanton infliction of pain when he tripped Griffin." That ruling now is before the Sixth Circuit, with a panel of two men and one woman considering whether this grant of summary judgment to the male corrections officer was appropriate.
With this set-up, I suspect the astute reader can already guess the nature of the split ruling from the Sixth Circuit that prompted this post. The two male Sixth Circuit judges on the panel both voted to affirm the grant of summary judgment on behalf of corrections officer Hardrick. Dissenting, the female Sixth Circuit judge on the panel asserts that a "jury viewing the events portrayed in the video in light of the statements Griffin attributes to Hardrick could reasonably conclude that Hardrick could not plausibly have thought that the use of the takedown maneuver, although executed properly, was necessary, and that, in fact, he performed it solely to inflict pain, even if not of the degree that ultimately occurred."
I find it useful and worthwhile not only to notice these gendered realities, but also to speculate whether a Justice Kagan might see this case differently than a Justice Stevens. (And, if we want to get elitism issues into this conversation, we might also wonder whether Elena Kagan or anyone else on President Obama's SCOTUS short-list has ever been arrested for disorderly conduct or ever worked as a corrections officer.)
For a last little bit of gender-awareness, I encourage readers to note that, in telling this tale, I have intentionally not reported the gender of the district judge who granted summary judgment and turned this matter into appeal fodder in this posture. Any reader who is interested to know the gender of the district judge who granted summary judgment in this case is likely someone who thinks that gender may be, at least descriptively, of some pertinence to the craft of judging (dare I say umpiring) in at least some contexts.
Friday, May 07, 2010
"Men’s Central Jail is a modern-day medieval dungeon"
The title of this post is part of the quote that accompanies this picture from the Los Angeles County jail depicted here and in a series of photos available here from the ACLU of Southern California. Here is the full quote/caption:
“Men’s Central Jail is a modern-day medieval dungeon, a dank, windowless place where prisoners live in fear of retaliation and abuse apparently goes unchecked. The jail is not an appropriate facility for housing prisoners with mental illness, many of whom do not receive proper treatment for their mental illness,” said Peter Eliasberg, ACLU/SC managing attorney. “At the root of the many problems plaguing this toxic facility is overcrowding and the only solutions are to either reduce the jail population dramatically or close it.”
The photo-spread accompanies a new report released by the ACLU of California concerning the jail conditions. This press release, which is headlined "Overcrowded Men’s Central Jail Plagued by Violence and Hazardous Living Conditions, New ACLU Report Finds," provides this overview of the report:
A report released today by the American Civil Liberties Union shows that overcrowding and unsanitary conditions that have plagued the jail for more than 30 years still persist, along with an apparent culture of violence and fear, including prisoner-on-prisoner assaults and the use of excessive force by deputies. The picture of the jail that emerges in stark and disturbing detail in the report suggests that mentally disabled prisoners suffer some of the worst treatment, and that retaliation and a lack of transparency in conducting investigations into prisoner complaints make it difficult to assess the true extent of violence that occurs there....
With approximately 20,000 detainees, the Los Angeles County jail system is the largest and most expensive in the nation, costing nearly $1 billion a year to operate. Men’s Central Jail is nearly 50 years old and currently houses an average of 5,000 detainees. More than half are simply awaiting trial – in other words, they are presumed innocent and have yet to get their day in court.
The ACLU/SC and the ACLU National Prison Project are the court-appointed monitors of conditions within the jail.
The new report, based on the observations of ACLU jail monitors, numerous interviews with prisoners, and thousands of prisoner complaints gathered between 2008 and 2009, focuses on conditions inside Men’s Central Jail, the largest jail in the county’s system.
The full ACLU/SC report can be found at this link.
Tuesday, May 04, 2010
Norway's new prison sound far more pleasant than punishingAs detailed in this new Time magazine piece, which is headlined "Norway Builds the World's Most Humane Prison," the folks in the Land of the Midnight Sun have a different vision of incarceration than do folks in the Land of the Free. Here are the details:
Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."
Halden, Norway's second largest prison, with a capacity of 252 inmates, opened on April 8. It embodies the guiding principles of the country's penal system: that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society. "When they arrive, many of them are in bad shape," Hoidal says, noting that Halden houses drug dealers, murderers and rapists, among others. "We want to build them up, give them confidence through education and work and have them leave as better people."
Countries track recidivism rates differently, but even an imperfect comparison suggests the Norwegian model works. Within two years of their release, 20% of Norway's prisoners end up back in jail. In the U.K. and the U.S., the figure hovers between 50% and 60%. Of course, a low level of criminality gives Norway a massive advantage. Its prison roll lists a mere 3,300, or 69 per 100,000 people, compared with 2.3 million in the U.S., or 753 per 100,000 — the highest rate in the world.
Design plays a key role in Halden's rehabilitation efforts. "The most important thing is that the prison looks as much like the outside world as possible," says Hans Henrik Hoilund, one of the prison's architects. To avoid an institutional feel, exteriors are not concrete but made of bricks, galvanized steel and larch; the buildings seem to have grown organically from the woodlands. And while there is one obvious symbol of incarceration — a 20-ft. (6 m) concrete security wall along the prison's perimeter — trees obscure it, and its top has been rounded off, Hoilund says, "so it isn't too hostile."
The cells rival well-appointed college dorm rooms, with their flat-screen TVs and minifridges. Designers chose long vertical windows for the rooms because they let in more sunlight. There are no bars. Every 10 to 12 cells share a living room and kitchen. With their stainless-steel countertops, wraparound sofas and birch-colored coffee tables, they resemble Ikea showrooms.
Halden's greatest asset, though, may be the strong relationship between staff and inmates. Prison guards don't carry guns — that creates unnecessary intimidation and social distance — and they routinely eat meals and play sports with the inmates. "Many of the prisoners come from bad homes, so we wanted to create a sense of family," says architect Per Hojgaard Nielsen. Half the guards are women — Hoidal believes this decreases aggression — and prisoners receive questionnaires asking how their experience in prison can be improved.
There's plenty of enthusiasm for transforming lives. "None of us were forced to work here. We chose to," says Charlott-Renee Sandvik Clasen, a music teacher in the prison and a member of Halden's security-guard chorus. "Our goal is to give all the prisoners — we call them our pupils — a meaningful life inside these walls." It's warmth like that, not the expensive television sets, that will likely have the most lasting impact.
Friday, April 30, 2010
Interesting split Eleventh Circuit ruling on whether ADA applies to a private prisonBecause I am not an expert on the American with Disabilities Act, I cannot readily assess the merits of the split ruling by the Eleventh Circuit today in Edison v. Douberly, No. 08-15819 (11th Cir. 2010) (available here). But the majority's holding and the forceful dissent have me thinking the case implicates not just the procese issue of whether just the ADA applies to a private prison, but also whether and how private prison operators can be sued by the prisoners they manage. Moreover, this concluding sentiment by the dissent cannot help but invoke a little sympathy for the losing litigant here:
In light of the fact that Edison is legally blind, his case raises novel issues of law, and he did not benefit from the assistance of counsel during the district court proceedings, the case should be remanded with the opportunity for Edison to amend his complaint. Leaving the majority’s holding on the ADA aside, it is an injustice to leave a blind, incarcerated litigant without any legal recourse in this complex litigation because his request for counsel was wrongfully denied during the district court proceedings.
Wednesday, April 28, 2010
"Jailbirds Order Up Hot Wings"The title of this post is the headline of this fascinating article about a modern new development in the economics of prison food from yesterday's Wall Street Journal. Here is how the piece starts:
In a bid to raise cash and keep the peace in crowded jails, wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan — even a "Pizza and Wings Party Pack," complete with celery, blue cheese and a Pepsi.
The program goes beyond the old-fashioned prison commissary, with its cup-a-soups and bags of chips, and it can be quite lucrative for corrections departments. "We have to be creative in tough fiscal times," said Edwin G. Buss, commissioner of Indiana's Department of Correction.
But critics worry the service will trigger jealousies, promote unhealthy diets and coddle prisoners.
The service, launched in 2006 by food-service giant Aramark Corp., took off in the past two years amid the recession. Inmates — or, more often, their relatives — place orders on Aramark's "iCare" Web site. The company tailors its menus to each jail's rules. Prices generally run $7 to $12 for a hot meal and $20 to $100 for a junk-food box filled with beef jerky, iced cookies, vanilla cappuccino or other goodies not available in the commissary.
The Indiana state prison system is on track to make more than $2 million this year on sales from the service. In San Antonio, Texas, the Bexar County jail, which makes 45 cents on every dollar in sales, projects its revenue could hit $500,000.
Advocates say the deliveries give guards a potent disciplinary tool: Be good or you won't get your jalapeno poppers.
Revenue from the meals has saved prison programs, such as parenting classes, wardens say. And in some institutions, inmates get job-training credit for preparing the hot meals in the jail kitchen and packaging the junk-food boxes. Plus, said Deputy Chief Debra Jordan, who runs detention programs in Bexar County, given the "very humble" quality of prison food, letting an offender's mom buy him a club sandwich now and then "is an act of kindness."
Critics, however, fear the deliveries will inspire envy, violence and extortion. "It's like with kids — you don't bring cookies to school unless you've got enough for everyone," said Gordon Crews, a criminal-justice professor at Marshall University.
Wardens who have tried the program say that hasn't been a problem. Many prisons have long let well-behaved inmates order goods such as CD players, sneakers and mini-TVs. "Jails are always run better when your inmates are happy," said Capt. Richard Fisher, the jail administrator in Rock Island County, Ill.
Tuesday, April 27, 2010
"Fixing the Prison Health Care System Through Changes in Punishment"The title of this post is the title of this new piece on SSRN that might be of special interest to policy-makers and prison officials in California who are trying to get out from under various court-ordered requirements to improve prison health care conditions. Here is the abstract:
Something must be done to improve access to health care in America’s prisons. A prison sentence today imposes an illegitimate burden of poor quality medical care on prisoners. The prison system neither treats inmate fairly nor effectively, and exacerbates and spreads disease. Existing pathways to reform have failed. Legislative fixes have been mired in losing political battles. Efforts at litigating for change have been derailed by hostility both from the judiciary and legislatures. Finally, common-sense prison based remedies have been stymied by extraordinarily rare application. The best hope for improving conditions comes through a radical expansion of sentencing and early-release initiatives. These proposals limit the sentences of sick inmates at the outset, and provide for early release of sick inmates who are already incarcerated. These measures serve as a safety-valve for the overburdened prison health-care system, while avoiding the problems of other measures.
Monday, April 19, 2010
The notable contrast in Arizona and Texas prison population trendsYesterday's Arizona Republic had this long and effective article on prison populations, which was headlined "Ariz. aims to cut prison costs; in Texas, a new approach." Here is how it gets going:
While the U.S. prison population is declining for the first time in nearly 40 years, Arizona is headed in the opposite direction.
Unlike in some other states, mandatory-sentencing laws keep Arizona inmates in prison for nearly all of their sentenced time. And state lawmakers say rewriting sentencing guidelines to grant shorter prison terms is politically unlikely.
Amid a historic budget shortfall, some lawmakers are intent on finding ways to reduce the $880 million bill taxpayers foot each year for locking up convicts, nearly 10 percent of the state's $8.9 billion budget. A look at other states with similar challenges shows some ways prison populations — and costs — can be cut.
With changes made over the past five years, Texas has reduced its prison population and halted plans for a huge prison expansion. New approaches to incarceration have saved money without taking the teeth out of the criminal-justice system, says a Republican Texas lawmaker who had a hand in the changes.
"Suicide watch stepped up for Death Row inmate"
The title of this post come from the headline of this story in this morning's Columbus Dispatch. Here are the details as I am contemplate whether I should be concerned that perhaps more of my tax dollars are now being spent by Ohio officials to ensure a condemned inmate does not kill himself before the state gets to kill him tomorrow:
The next inmate to be executed in Ohio is under heightened security as the state tries to avoid another suicide attempt on Death Row. In response, a civil-liberties group suggested the new policy goes too far.
Serial rapist Darryl Durr, who is scheduled to die Tuesday by lethal injection for strangling a 16-year-old girl a suburb of Cleveland in 1988, is under a 72-hour watch at a state prison in Youngstown.
The watch has been standard procedure. But now his cell includes a Plexiglas-like door so guards can keep him under better surveillance, prisons spokeswoman Julie Walburn said. Also, his bed lacks springs, which he could use to harm himself, and he can't have physical contact with visitors.
Mental-health staff members will evaluate whether Durr, 46, can have certain personal items, including shoestrings, or leave his cell for recreation, Walburn said.
The moves follow the March 7 suicide attempt of Lawrence Reynolds, an inmate who overdosed on an antidepressant hours before he was to be sent from Youngstown to the Southern Ohio Correction Facility in Lucasville, site of the state's death chamber.
Thursday, April 15, 2010
NY Times editorial calls for sensible prisoner census countingThis morning's New York Times has this editorial headlined "A Fairer Way to Count," which focuses on how prisoners get counted. Here are excerpts:
Maryland struck a blow for electoral fairness this week with a new law requiring that prison inmates be counted at their home addresses when legislative districts are redrawn after the 2010 census. Other states should follow.
Counting inmates as residents — prison-based gerrymandering — inflates populations and exaggerates the power of the mainly rural districts where prisons tend to get built. It undercuts the power of the mainly urban districts where the inmates come from, their families live, and to which they return after release....
Lawmakers in Maryland acted after learning how the prison count had distorted their political landscape. In one state legislative district, nearly a fifth of the population are inmates, most of whom hail from elsewhere in the state. In one county commission district, inmates account for 64 percent of the population.
Studies have shown that many states have districts that would probably be illegal had they not been padded with inmates who often come from hundreds of miles away. More than a half dozen states seem poised to follow Maryland’s example. That is an important start. The best solution is for the Census Bureau to begin counting inmates at their homes beginning with the 2020 census.
Monday, April 12, 2010
"Non-violent offenders clogging state prisons"The title of this post is the headline of this commentary in a local Pennsylvania newspaper. Here is how it starts:
Pennsylvania's prison system continues to be impacted by costly overcrowding, while 20 other states are reducing their inmate populations.
Pennsylvania currently has 51,000 inmates in a system designed to accommodate 43,000. To ease the overcrowding, Pennsylvania has begun sending 2,000 inmates to prisons in Virginia and Michigan at a cost of about $42 million a year. At the same time, the commonwealth is planning to build four new prisons estimated to cost $800 million.
In contrast, New York's inmate population has decreased by 13 percent. New York officials are considering closing one or more prisons. This is attributed to alternative sentencing, intensive drug treatment, and mental health programs.
Michigan has reduced its inmate population by 8 percent. It has closed eight prisons and has 3,260 fewer inmates than it had three years ago. This is attributed to drug and alcohol counseling, and job training, all outside the prison.
What makes Pennsylvania so different from New York and Michigan? In the 1980s and 1990s, tough-on-crime laws such as mandatory minimum sentences were designed to remove drug dealers and violent felons from society. As it has turned out, however, Pennsylvania now has the second-longest sentences for non-violent crimes. Yet the major restorative benefit from incarceration occurs in the first year.
Mandatory minimums have stripped discretion from judges. The majority of Common Pleas judges surveyed a few years ago argued that mandatory minimum sentences for nonviolent crimes were not an effective deterrent. In October 2007 the Pennsylvania House formed a committee of legislators, judges, district attorneys, and public defenders to study mandatory minimum sentencing structures. The findings (available at Web site http://pcs.la.psu.edu) uncovered a number of "unintended consequences."
The Department of Corrections has stated that Pennsylvania's state prisons are exploding with non-violent offenders, which include low-level drug users, drunk drivers, parole violators and shoplifters. The time for studies has ended. The time for reform is now.
Tuesday, April 06, 2010
"Aging Prisoners, Increasing Costs, and Geriatric Release"The title of this post is the subtitle of this terrific and timely new publication from the Center on Sentencing and Corrections at the Vera Institue of Justice. Here is how the Center summarizes the piece (which is authored by Tina Chui):
Correctional facilities throughout the United States are home to a growing number of older adults with extensive, costly medical needs. This report examines statutes related to the early release of geriatric inmates in 15 states and the District of Columbia and concludes that these provisions are rarely used, despite the potential of reduced costs at minimal risk to public safety. The author identifies factors that help explain the discrepancy and provides recommendations for addressing it.
Here is part of the piece's executive summary:
This report is based upon a statutory review of geriatric release provisions, including some medical release practices that specifically refer to elderly inmates. The review was supplemented by interviews and examination of data in publicly available documents.
At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release. However, the jurisdictions are rarely using these provisions. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.
This report offers recommendations for responding to the disparities between geriatric release policies and practice, including the following:
- States that look to geriatric release as a cost-saving measure must examine how they put policy into practice. For instance, they should review the release process to address potential and existing obstacles.
- More analysis is needed to accurately estimate overall cost savings to taxpayers—and not just costs shifted from departments of corrections to other agencies.
- More effective monitoring, reporting, and evaluation mechanisms can improve assessments of the policies’ impact.
- Creative strategies allowing older individuals to complete their sentences in the community should be piloted and evaluated.
- Finally, to protect public safety, states should consider developing relevant risk- and needs-assessment instruments, as well as reentry programs and supervision plans, for elderly people who are released from prison.
Should Sherrif Joe Arpaio be praised or pilloried for "Pedal Vision"?This local story provides the details on the latest innovation coming from Arizona's (in)famous Sheriff Joe Arpaio. Here are the fascinating details:
Sheriff Joe Arpaio Maricopa County is implementing a new inmate program at Tent City Jail called “Pedal Vision.” The program uses inmate-powered cycles to generate electricity for televisions.
Reports say Arpaio’s recent visit to Tent City inspired the idea, when he saw that many of the inmates were overweight. The stationary bikes are customized so that as an inmate pedals, a connected television is powered once the cycle generates 12 volts of electricity.
One hour of pedaling equals one hour of television viewing for the inmates, according to Arpaio. Arpaio said the inmates will only be able to watch television in the television room if they choose to pedal.
"I started with the females because they seemed more receptive to the idea," Arpaio said. "The only exercise the females get right now is speed-walking around the tents yard and few are doing that. This gives them a reason to get moving and a way to burn up to 500 calories an hour. They won't be charged a monthly gym fee but they will have to sign a contract." Sheriff Arpaio debuted the pilot program on April 1.
Though Sherriff Joe is (justifiably?) notorous for some of the "get-tough" innovations he tries out on local prisoners, I am inclined to praise him for "Pedal Vision." The program seems to encourage improved physical fitness and also sound pretty "green" too. However, given Sherriff Joe's reputation and past programs, I have an inkling not everyone will be eager to praise him now for this latest innovation.
Monday, April 05, 2010
"there is no such thing as a nonviolent crime"This title of this post is a line from this remarkable op-ed from a "senior supervising psychologist" at a California prison. The op-ed is headlined "State plays dangerous game when it considers the early release of inmates," and it highlights some of the arguments and rhetoric that makes cutting prison populations so challenging. Here are excerpts:
After spending 20 years in corrections as a psychologist, I am astonished that anyone -- much less the governor -- could define any class of felons as nonviolent. The current plan to release thousands of California inmates with no or shortened parole is fatuous, if not disingenuous. It is a complete fiction to believe that any convicted felon upon release is safe for community re-entry without serious strengthened parole supervision and community-based rehabilitation.
The re-offense numbers are striking and troublesome. According to up-to-date reports readily available through the state corrections department, 57.44 percent of all paroled felons are returned to prison within three years for parole violations or for a new offense. And those are just the ones who have been caught.
Moreover, there is no such thing as a nonviolent crime. Virtually every blue-collar crime is committed by someone willing to do some kind of violence if in the doing of the crime they are discovered....
Do some inmates leave prison and lead exemplary lives? Of course. But the last thorough study revealed that out of 10,000 paroled criminals followed over many years, fewer than a dozen -- yes, a dozen -- of those multiple thousands truly turned themselves around. The rest faced post-release lives skirting the law and flirting with re-arrest by continuing their crime....
Not a pretty picture, especially when we are facing personnel reductions in police and sheriff's departments, locally and throughout the state. More felons on the street, fewer of society's "protectors" in the field. Not hard to see where that might lead.
The only credible solution if these felons are to be released is to redirect a serious portion of money saved through the release program to parole programs throughout the state to greatly reduce the number of parolees on an agent's caseload -- as has now wisely been done -- to 40 or fewer, so that supervision is close, frequent and regular. And these parolees need to be in rehab programs and forced to wear GPS devises so that at any time they can be located for random checks. Anything short of that, we're courting disaster.
I am a bit surprised to see a prison psychologist making such an aggressive argument against the notion that some crimes are nonviolent and for the idea that all felon pose a significant risk to the community upon release. Nevertheless, this op-ed provide a great example of the kind of fear-mongering that can make it so very hard for states to keep moving forward with plans to reduce prison populations.
Wednesday, March 31, 2010
"Supreme Court justices have a good time debating 'good time'"The title of this post is the headline of this CCN report on yesterday's Supreme Court argument in Barber v. Thomas (09-5201). Here's more:
Sometimes the most complicated of cases at the Supreme Court brings out the best arguments. It certainly brought out the giggles in a little-watched appeal Tuesday over federal prison terms.
The justices managed to crack themselves up -- along with the public audience -- at least a dozen times in the hourlong oral debate. Justice Clarence Thomas rarely speaks at the high court's normally sober sessions, but he especially enjoyed the gentle insults and self-deprecating jibes his colleagues showered on each other. His booming laugh could be clearly heard at times.
At issue was how the federal Bureau of Prisons should calculate "good-time credit" -- reduced sentences for inmates staying out of trouble in custody. Prisoners can earn up to 54 days of credit for each year of the sentence....
Despite the fun, the question is a serious one for the nearly 197,000 federal prisoners and their families, according to the most recent weekly population report issued by the Justice Department. Ninety-five percent of the inmates are affected by the good-time provision. Lawyers for the inmates say the savings to taxpayers under their reading of the law would amount to $953 million a year now being spent to incarcerate current prisoners.
The case is Barber v. Thomas (09-5201). A written ruling -- minus any jokes -- is expected by June.
Comically, I have been so busy the last few days, I have not yet even had a chance to read the Barber transcript yet (which is available here). For reasons hinted in this article, however, this case could prove to be the sleeper sentencing case of the Term.
Tuesday, March 30, 2010
Sentencing day at the US Supreme Court
This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).
Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:
- Does United States v. Booker apply to resentencing proceedings under 18 U.S.C. 3582(c)(2)?
- Calculation of “good time” sentencing credits
I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).
Monday, March 29, 2010
Is "medical parole" the best way to deal with California's high prison costs?The question in the title of this post is inspired by this notable new article in the Sacramento Bee, which is headlined "Watchdog proposes medical parole to cut California prison costs." Here are highlights from the interesting article:
The man in charge of upgrading the quality of health care in California's overcrowded prisons has an idea for taxpayers: medical parole. J. Clark Kelso, the federal court-appointed prison health receiver, suggests that California could stop spending millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or otherwise severely incapacitated.
"I am keenly aware, as are the courts," Kelso said, "that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs."
An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated. Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.
These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño. "These people are not even capable of realizing they're being punished," Patiño said. "Society becomes the victim, because it's paying the cost."
The 11 other severely incapacitated inmates are inside prison health centers, where their annual medical bills average $114,395 each. Kelso's office supplied these details after he and Sen. Mark Leno, D-San Francisco, announced March 17 that Leno had introduced a bill to create medical parole.
Leno said 1,300 inmates' health care costs exceed $100,000 a year, and that up to 700 prisoners could qualify for a possible medical parole under his bill.... With medical parole, Leno said, California's prison system would save by transferring medical costs to federal programs and eliminating guard costs. Prisoners are not eligible to enroll in federally funded Medi-Cal or Medicare, but parolees are.
California legislators passed a proposal similar to Leno's in 2003. Then-Gov. Gray Davis vetoed it, instead signing a bill to allow prison officials to contract space for inmates at non-prison health facilities. Davis called it "a safer, humanitarian and more cost-efficient alternative to parole." Spokesman Aaron McLear said Gov. Arnold Schwarzenegger had no comment on Leno's draft proposal. The governor has backed another proposal that would give the University of California control of the prison health care system as a way to cut the costs of treating chronically ill inmates....
But some lawmakers are skeptical. State Sen. George Runner, R-Lancaster, generally a tough law-and-order legislator, said he thinks "it's an illusion" that such large savings could be achieved with medical parole. "Part of the problem is figuring out who this group is," he said. "If someone is truly vegetative then maybe there is a reason to consider this."...
Leno said his Senate Bill 1399 would apply narrowly to certain inmates who cannot function on their own, including inmates bedridden with end-stage Alzheimer's or on ventilators or feeding tubes. He cited the example of an inmate with dementia, paralysis and no speech or bladder control whose two years of outside care has cost $350,000 a year, not counting guards. Another inmate on a ventilator, Leno said, has cost more than $500,000 in the past 18 months. Medical bills for a third inmate with end-stage cardiac disease and other complications have topped more than $1 million a year, he said.
Runner noted that California already has a "compassionate release" policy for prisoners severely incapacitated or near death. But such releases are rare....
Susan Howley, director of public policy at the National Center for Victims of Crime, said that, if California allows prison officials to grant medical parole, victims' concerns should be heard in each case. "It is especially important when you have a situation like this," Howley said, "where budget concerns are driving proposals. When you say it's because of budgets," she said, "that really rubs victims the wrong way – that justice is too expensive."
Leno said he doesn't want to minimize crime victims' suffering. But legislators are facing tough budget choices, he said, and must find ways to contain prison costs, which are consuming nearly 11 percent of the state general fund. "I, for one," Leno said, "would much rather save the jobs of 35 teachers, rather than continue to incarcerate 10 comatose inmates at a quarter of a million dollars a year."
He said 36 other states have a version of medical parole, including Texas, which is putting about 100 to 170 inmates a year into that status.
Valuable recent reviews of federal prision program realities
I often refer people to Alan Ellis, a past president of NACDL who specializesin prison matters and postconviction remedies, whenever I am asked a hard question about federal prison programs. Alan is a co-author of the Federal Prison Guidebook, and he recently sent me two of his recent writings about federal prison programs for posting here.
Alan's recent article in The Champion concerns the federal RDAP program an is titled "Changes to the BOP Residential Drug Abuse Program." It can be downloded here: Download Changes_to_the_BOP_RDAP
Alan's recent article in Criminal Justice concerns federal prison medical facilities and is titled "BOP Health Care: What You (and Your Clients) Need to Know." It can be downlaoded here: Download ABA- BOP Healthcare 3
Saturday, March 27, 2010
Important and timely new paper on judicial sentence modification and early releaseThus coming Tuesday, the Supreme Court will hear oral arguments in important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201). Though I will preview these cases in some coming posts, both cases raise questions about the role of judges and the procedures used to modify sentences and provide for early release from imposed prison terms. Given these SCOTUS plans, this new piece on SSRN from Cecelia Klingele is a timely must-read. The piece is titled "Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release," and here is the abstract:
Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally-deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how.
Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.
Wednesday, March 24, 2010
California continues to struggle with corrections costsThe San Jose Mercury News has this effective new report headlined "California finds that prison costs aren't so easy to cut." Here is how it starts:
The billions of dollars that California pours into its troubled prisons — a number fattened by court-ordered medical spending and sky-high personnel costs — have become an increasingly attractive target for leaders desperate to trim the state's $20 billion deficit.
Gov. Arnold Schwarzenegger in January called for a constitutional amendment that would cap prison spending and put the savings toward public universities. And since last summer, lawmakers have tried to wring more than $2 billion from the Department of Corrections and Rehabilitation, once budgeted for $10 billion.
But despite officials' attempts to clamp down after watching costs double over the past decade, some corrections spending is proving impervious to the budget ax. Already, hundreds of millions in expected savings have failed to materialize, partly because one big expense — more than $1.5 billion for inmate medical care this year — is under the watch of a federal receiver, not the state.
It's also because some legislators, fearing the "soft on crime" sobriquet, balked at cost-saving measures last year that might have released thousands of the state's 160,000 inmates. That alone, the Department of Finance says, has cost nearly $600 million.
Tuesday, March 23, 2010
A sentence of 15 years for trying to break into jail!?!?This local story from Florida, which is headlined "After outburst, man who tried to break into jail gets 15 years," reports on a remarkable case with a remarkable (final?) sentencing chapter. Here are the basics:
Obscenities and claims of injustice marked a hearing Monday for a Cocoa man sentenced to the maximum 15 years in prison for violating probation in a manslaughter case by trying to break back into the Brevard County Detention Center.
Circuit Judge George Maxwell and court deputies called for order as the 25-year-old Sylvester Jiles broke into a profanity-laced tirade andwas led out of the courtroom. " You have no right to disrupt this courtroom and I admonish you to not do it again," Maxwell told Jiles when he was brought back to complete the sentencing. "You've got a family that loves you and there's another family involved. Outbursts like that can lead to people getting hurt, something you seem to not have learned."
Several of Jiles'supporters stormed out and picked up the outburst in the hallway, where they added racial slurs and continued to yellat the judge, the manslaughter victim's family and media until they stepped onto an elevator to exit the building.
Jiles originally was sentenced to eight years of probation under a plea deal in the 2007 shooting death of 19-year-old Dustin Prouse. On Aug. 31 of last year, three days after his release, he returned to the jail and begged deputies to take him back because he feared for his life.
Officials said they told him to file a police report, but he scaled one fence and was attempting to scale a second one, topped with razor-sharp wire, when he fell and suffered deep cuts. Court documents filed after the incident said Jiles violated his probation by trespassing on jail property and resisting an officer....
When Jiles heard he would serve the maximum, minus credit for time served, he became upset because the judge wouldn't allow him to speak. The judge said he heard Jiles' testimony during a January hearing.
Jiles apologized when he was returned to the courtroom. "I just wanted to say I'm not saying I'm the shooter. I only pled guilty to it," he said. "I'm not going against your sentence, sir. You say 15 years. It is what it is."
Monday, March 22, 2010
Notable NYU event on solitary confinementI am pleased to see here that an important prison issue which I fear gets too little attention, solitary confinement, will be the focus of a panel discussion hosted by New York University’s Wagner’s Students for Criminal Justice Reform on Tuesday March 23, 2010. As detailed here, the panel discussion is titled “Segregation and Solitary Confinement: Cruel and Unusual Punishment?”, and the panel includes a host of leading experts on the topic. Folks can RSVP here, and this text describing the issues to be covered comes from the event's promotionional materials:
More than 25,000 people are confined in solitary confinement in the United States. An additional 50,000 to 80,000 are kept in restrictive segregation units, many of them in isolation.
Prison officials say people are placed in isolation because they are the most violent, dangerous prisoners and that this practice protects other vulnerable populations. Opponents of solitary confinement assert that these policies are a form of cruel and unusual punishment and torture. People subjected to these conditions lack human contact, which can have a severe negative impact on a person’s mental state, leading to serious mental illnesses, such as depression and in some instances — death.
Wednesday, March 17, 2010
New Pew report indicates that state prison populations declined in 2009As detailed in this New York Times article and this piece from Stateline, a new report from the folks at Pew indicates that "state prison populations, which have grown for nearly four decades, have begun to dip ... largely because of recent efforts to keep parolees out of prison and reduce prison time for nonviolent offenders." Here is more from the NYT piece:
State prisons held 1,403,091 people as of Jan. 1, nearly 6 percent fewer than a year before, the report said. Prison populations have fallen in 27 states in that period, while they have risen in 23.
“It’s too early to tell whether this is a tap of the brakes or a shift into reverse,” said Adam Gelb, the director of the public safety performance project of the Pew Center on the States in Washington, which produced the report. Still, Mr. Gelb said, seeing the state prison numbers dip for the first time since 1972 “took us a little bit by surprise,” he said.
In the same period, the population in federal prisons increased by nearly 7 percent.
The results broaden the conclusions in a report issued this month by the Sentencing Project, a research and advocacy group in Washington that looked at efforts to reduce the prison populations in Kansas, Michigan, New Jersey and New York. That report found that all four states had achieved reductions, with New York reaching a 20 percent reduction and New Jersey 19 percent over a decade.
Marc Mauer, the executive director of that group, said the reduction was actually overdue, since crime rates have declined for some 15 years. “That’s the puzzling piece — why did this take so long?” he asked. The lag, he said, was partly the result of longer sentences and partly because of tough standards in many states for revoking parole.
The Pew report noted that while the squeeze on state and local budgets had contributed to efforts to reduce prison populations, “financial pressures alone do not explain the decline.” At least part of the fall-off resulted from changes like California’s decision to reduce the number of low-risk people on parole returning to prison because of technical violations, and Texas’ decision to step up its residential and community-based treatment programs. “If you had to single out the most common reform that we’re seeing,” Mr. Gelb said, “it’s various strategies to hold parole violators accountable, short of jamming them back into a $25,000-a-year, taxpayer-funded prison cell.”
The full 10-page Pew report, which includes a state-by-state accounting of prison population changes, can be accessed at this link.