Sunday, April 21, 2013
Do recent California prison reforms demonstrate Plata ruling was a success or a failure?There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons. Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post. The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:
On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels. Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.
By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility. In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....
California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system. But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.
Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....
The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”
Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.
The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....
A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.
In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.
California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.
Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”
Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.
Thursday, April 18, 2013
"What if NY invested more in dairy farms and less in prisons?"The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:
There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.
One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy. That group's called "Milk Not Jails."...This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact. She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.
"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says. "And oftentimes we would take bus trips up to the farm where we received our produce from. And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."
Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives. "I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility. And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town. That's absolutely real for people."
Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders. "There's all this spin-off economic activity that goes hand-in-hand with agriculture. You have processing, you have distribution, you have tourism. We can't say the same thing for prisons. They don't have that kind of economic growth opportunity."...
"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community." That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs.
Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie. Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.
"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says. "What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."
"Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN. Here is the abstract:
The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians. The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources. The role of the federal, state, and local governments in the PIC has been to allocate resources. This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.
The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks. When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs. The result was the privatization of prisons, private companies handling the management of federal and state inmates.
This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.
This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players. Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources. Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.
Some related posts about private prisons:
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- Private prison fares poorly in audit by Ohio officials
Wednesday, April 17, 2013
"Ending Mass Incarceration: Charting a New Justice Reinvestment"The title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S." The full 36-page report is available at this link, and this webpage provides an overview of the contents. Here are some of the basics:
Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.
The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.
The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.
As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.
As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.
April 17, 2013 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Monday, April 15, 2013
Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable
The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.
As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here). The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on. I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.
At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:
Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011). But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.
We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences. Indeed, that is precisely how the district court approached Douglas’s original sentence in this case. Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency. District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.” We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.
And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:
I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.
Prior posts concerning Cameron Douglas's federal sentencings:
- Does having celebrity "a-listers" ask for leniency help a defendant's cause at sentencing?
- Cameron Douglas sentenced to five years for federal drug offense
- "Did Michael Douglas' Son Get Celeb Treatment With Reduced Sentence?"
- Should we care that Cameron Douglas, though sentenced to 5 years in prison, will likely be out in 2012?
- Stiff sentence given to Cameron Douglas for drug possession while in prison
- Celebrity federal drug sentencing appeal prompts doctors' brief urging treatment over punishment
- Celebrity witness for high-profile (and interesting) federal sentencing appeal
April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Interesting coverage of media coverage of crime and prison punishments
Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories. I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility."
As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States. Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."
With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:
"Dark shadows: In Washington, murder turns out to be color-coded" by Clay Shirky
Sunday, April 14, 2013
"New Utah law allows organ donations from prisoners; nearly 250 sign up"The title of this post is the headline of this new article via NBC News. Here are excerpts:
Joanne Ford was a designated organ donor for decades, years before she was sentenced to time in Utah’s Draper Prison for possession and distribution of methamphetamines. But it wasn’t until two weeks ago that the 48-year-old inmate was guaranteed the right to honor her wishes if she happened to die while incarcerated.
Utah’s governor, Gary R. Herbert, signed the first state law on March 28 that explicitly permits general prisoners to sign up for organ donation — and cracks the door to the controversial option of allowing death-row inmates to donate as well.
“I think, why not?” says Ford, who is among 247 Utah prisoners who’ve signed up to donate their organs. “If you have healthy organs, why would you not be able to help someone else?”
Whether to accept organs from prisoners has long been a thorny issue. Ethics experts say it pits questions of coercion of a vulnerable population against the desperate need for organs in a country where nearly 118,000 people are waiting for hearts, kidneys, livers and other life-saving transplants, according to the United Network for Organ Sharing.
In most states, accepting organs from inmates who die while in custody is permitted only rarely and under strictly controlled circumstances. No state allows donation of organs from executed prisoners....
Utah state Rep. Steve Eliason, who pushed the law through the legislature, said he was inspired by the 2010 death of Ronnie Lee Gardner, a murderer who wanted to donate his organs but was prohibited from doing so. “How disappointing is that, there’s somebody who maybe wants to atone for his sins in some way,” says the Republican from Sandy, Utah. “It’s a waste of perfectly good organs that could help others.”
Eliason first proposed a bill allowing prisoners to donate organs last year, but time ran out before it could be fully considered. The next time, it passed unanimously....
Now that the law has passed, records of inmates who want to donate have been sent to Intermountain Donor Services, the agency that manages organ donations in Utah. They’ve been added to the state donor registry. “Any time we can expand the donor pool or make people aware of organ donation, we’re supportive of that,” says Alex McDonald, a spokesman....
[E]very organ donor can save the lives of up to eight people and tissue donors can help more than 50 people, transplant experts say.... The Utah law does not discriminate between general population prisoners and death-row inmates, Eliason noted. “Any prisoner is able to do this,” he says....
Some may wonder whether people in need would accept organs from prisoners, but Lori Haglund of Salt Lake City says there’s no question. Her son, Brock Butler, had a progressive liver disease. He died in September, a week before his 21st birthday, after spending three years on a waiting list for a liver. “We were acutely aware of what we were asking someone to be giving,” says Haglund, 51. “For anyone who would be willing, it gives them a chance to give something back.”
Joanne Ford agrees. Although she may have damaged her organs, particularly her liver, with drug use, she still hopes she may one day help others. “There still may be one or two things that could still possibly be used,” she says. Donating her organs after death would be one way to atone for her actions — in addition to prison time. “I feel like I owe society a big debt,” she says. “I caused a great damage out there. I feel good about this.”
Weekend crime and punishment headlines from California
California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction. Here are just some of the headline from the state which caught my eye this weekend:
Tuesday, April 09, 2013
Guest post on federal sentencing data and costs of incarceration for child porn offenses
Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me this "accounting" of the latest year-end federal sentencing data:
"Yesterday, the U.S. Sentencing Commission published its Annual Report to Congress, and Sourcebook of Federal Sentencing Statistics for fiscal year 2012. Increasingly, this part of the Commission’s work is becoming of central importance to its mission. Indeed, the stats reveal something rather startling, if not outright shocking, about the cost of incarceration.
"Since United States v. Booker, the federal government has spent nearly $30 BILLION on incarceration, which exceeds the GDP of many countries including North Korea. Of this, over $2 BILLION was spent on incarcerating child pornography offenders; 12,115 have been sentenced (not all to imprisonment, but most) under the guidelines since 2006. What makes this rather startling is looking at other major offense categories. For example, in the same period of time, over four times as many people have been sentenced for fraud offenses (54,813), however, the total cost of incarcerating those individuals was almost a billion dollars LESS! ($2.1 billion for child pornography; $1.3 billion for fraud). In other words, incarcerating 12,115 child pornography offenders cost the public fisc $2.1 billion, while incarcerating nearly 55,000 fraud offenders cost (only) $1.3 billion.
"So, why the big difference in cost? Easy. The increasingly longer sentences imposed on child pornography offender than for any other major offense category. What that translates into is that the actual annual cost per offender is far higher for child pornography offenders than for any other major offense category. We spend nearly $25,000 incarcerating child pornography offenders than fraud offenders, who cost only $3,500 per year. Fraud is comparatively cheap because a substantial number do not receive any term of incarceration, and those that do often serve less than a year. Here is a chart showing the AVERAGE sentences over the past 6 years for all major offense categories. A quick glance shows how out of the ordinary child pornography offenses are, or more accurately, how obscenely out of whack they are.
"After spending $2 Billion over the last six years, it’s far past time to rein in this madness. The Commission’s recent report on Federal Child Pornography Offenses effectively disavowing the sentencing guideline for non-production offenses is an enormous leap in the right direction. We simply cannot afford to continue being fiscally foolish on child pornography sentencing; these data put the magnitude of the madness in sharp relief. Hopefully Congress acts quickly to grant the Commission’s wish to have 'enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.'
"[NOTE ON CALCULATION METHODS: the statistics were derived from table 13 and the BOP’s recent cost of incarceration estimate from FY 2012. I simply took the total number sentenced each year (06-12), multiplied that by the MEDIAN sentence in months from each (to be conservative in my estimate; the mean or average would have resulted in much higher figures) and divided that by 12 to get the number of “Inmate Years” for a category. I then multiplied the Inmate Years by $26,359, which is the average annual cost of incarceration per BOP. This gives you the Total Cost FY06-12 for a category, e.g. $2,118,989,027 for Child Porn. The Total Sentenced FY 06-12 is just exactly what it says. Per Inmate, Per Year Cost is just the total cost divided by the total sentenced, then that number divided by 7 (7 years inclusive of FY2006-2012).]"
April 9, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack
Sunday, April 07, 2013
Federal judge decides California still cannot run its prison without monitoringAs reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story:
Treatment of 32,000 mentally ill inmates in California prisons remains seriously deficient, with staff and facilities shortages and a high number of preventable suicides, a federal judge declared Friday in rejecting Gov. Jerry Brown's request to end more than 17 years of court monitoring.
Brown's insistence that prison mental health care now exceeds constitutional standards, after billions of dollars of expenditures, conflicts with evidence from an ongoing series of prison inspections, said U.S. District Judge Lawrence Karlton of Sacramento.
"Systemic failures persist in the form of inadequate suicide-prevention measures, excessive administrative segregation of the mentally ill (in isolated lockups), lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," Karlton said.
He said the inmate suicide rate, which had been declining for several years, has soared since 2009 to nearly 24 per 100,000 inmates, or 60 percent above the national average. More than 70 percent of the suicides might have been prevented with adequate treatment, Karlton said....
Friday's decision is a signal that the population-reduction order is still needed and will be upheld, said Michael Bien, a lawyer for mentally ill inmates who sued the state in 1991. After finding constitutional violations, Karlton appointed a monitor, called a special master, to inspect the prisons and report on mental health care in January 1996. The judge's refusal to end the monitoring "allows us to get back to the real work of fixing a dangerously flawed mental health care system that's shamed California for more than 20 years," Bien said....
Karlton said the evidence, from experts on both sides as well as the court-appointed monitor, showed that the prisons have not implemented their own suicide-prevention plans, keep too many mentally ill inmates in high-security lockups and are understaffed by more than 20 percent.
Friday, April 05, 2013
Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"I am very pleased to have seen from this new Politico article that Attorney General Eric Holder last night stressed the need for national criminal justice reform at the end of a major speech delivered at the 15th Annual National Action Network Convention. The full text of the lengthy speech is available at this link, and here is some of the context for the potent quotable stressed above:
[W]e must also move to improve our nation’s criminal justice system — and to promote public safety, deterrence, efficiency, and fairness at every level. We’re providing increased support for programs offering quality legal representation to those who cannot afford it, in accordance with the Supreme Court’s decision in Gideon v. Wainwright — a landmark ruling, handed down 50 years ago last month, which held that every defendant charged with a serious crime has the right to an attorney.
We’re also asking larger questions about the mechanisms of our criminal justice system as a whole – and, where appropriate, exploring ways to recalibrate this system and ensure that it’s as fair and effective as possible.
Already, this urgent need has driven the Administration to advocate — successfully — for the elimination of the unjust 100-to-1 sentencing disparity between crack and powder cocaine. As we speak, it is propelling us to become both smarter and tougher on crime by facilitating more effective policing at the state and local levels; broadening the impact of innovative prevention, intervention, enforcement, and reentry programs; using intelligence-based strategies to target federal law enforcement resources and assistance to the areas where they’re most needed; and seeking new ways to help crime victims — especially victims of sexual assault — to make their lives whole again.
Our reform efforts are also driving us to engage allies like the Department of Education — and others — to confront the “school-to-prison pipeline” that transforms too many educational institutions from doorways of opportunity into gateways to the criminal justice system. They are informing essential programs like the Department’s Defending Childhood Initiative and the National Forum on Youth Violence Prevention — which are helping to rally federal leaders, state officials, private organizations, and community groups to examine how we can better understand, address, and prevent youth exposure to violence — as victims or as witnesses. And these efforts are inspiring us to forge new partnerships like the Federal Interagency Reentry Council — a group I first convened in 2011, which brings together leaders from 20 federal agencies to address barriers that formerly incarcerated individuals face in rejoining their communities, to promote best practices, and to confront these and related issues as more than just criminal justice problems.
The sheer number of Americans contending with these challenges is staggering. Well over two million people are currently behind bars in this country. As a nation we are coldly efficient in our incarceration efforts. One in 28 children has a parent in prison. For African American children, this ratio is roughly 1 in 9. In total, approximately 700,000 people are released from state and federal prisons every year. Nine to 10 million more cycle through local jails. And 40 percent of former federal prisoners — along with more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release.
Now, there’s no question that incarceration has a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes a significant economic burden — totaling nearly $83 billion in 2009 alone — along with human and moral costs that are impossible to calculate. As a nation — and as a people — we pay a high price whenever our criminal justice policies fall short of fairly delivering outcomes that deter and punish crime, keep the American people safe, and ensure that those who pay their debts to society have the chance to become productive, law-abiding citizens.
This is why — as we look toward the future — we must promote public safety and deterrence while at the same time ensuring efficiency and fairness. I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that — in recent years — black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes. The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups — like the American Bar Association — to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and — where appropriate — to explore ways to give judges more flexibility in determining certain sentences. Too many people go to too many prisons for far too long for no good law enforcement reason. It is time to ask ourselves some fundamental questions about our criminal justice system. Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works. We need to ensure that incarceration is used to punish, to rehabilitate, and to deter — and not simply to warehouse and forget.
I am so excited to now see that our nation's top law enforcement officer is now expressly saying, without reservation and in no uncertaint terms, what I have long believed about the big government waste in our massive modern criminal justice systems: "Too many people go to too many prisons for far too long for no good law enforcement reason." I hope that, in addition encouraging that "ask ourselves some fundamental questions about our criminal justice system," that he will actively take the many possible steps within his power to get some of the people in prison for too long to ensure those who are now being just warehoused are no longer forgotten.
New ACLU of Ohio report documents "contemporary debtors’ prisons"As reported in this local article, headlined "Poor unfairly jailed for failing to pay fines, report says," a new report by the ACLU of Ohio makes a set of provocative assertions about crime, punishment and modern economic realities. Here are the basics:
The ACLU of Ohio's report is titled "The Outskirts of Hope" and is available at this link. Here are a few paragraphs from the report's introduction:
Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.
Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”
While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.
The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan....
Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director. The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said....
The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling. Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.
Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed. “It is not a good deal for the taxpayers. (The defendants) aren’t not paying because they don’t feel like it. They’re not paying because the literally have no money,” Brickner said. Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.
The resurgence of contemporary debtors’ prisons sits squarely at this intersection of poverty and criminal justice. While this term conjures up images of Victorian England, the research and personal stories in this report illustrate that debtors’ prisons remain all too common in 21st century Ohio. In towns across the state, thousands of people face the looming specter of incarceration every day, simply because they are poor.
Taking care of a fine is straightforward for some Ohioans — having been convicted of a criminal or traffic offense and sentenced to pay a fine, an affluent defendant may simply pay it and go on with his or her life. For Ohio’s poor and working poor, by contrast, an unaffordable fine is just the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time. The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines. The U.S. Constitution, the Ohio Constitution, and Ohio Revised Code all prohibit debtors’ prisons. The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay. Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors’ courts across the state continue this draconian practice. Moreover, debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them.
The Outskirts of Hope documents how contemporary debtors’ prisons work in Ohio and profiles some of the real people who have been impacted by this system. The constant threat of incarceration has left an imprint on each of these individuals’ lives, interfering with their families, health, employment, and housing. By shining a light on this dark practice in Ohio, this report hopes to move our state towards the promise of greater justice and fairness for those with the fewest resources.
April 5, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack
Thursday, April 04, 2013
"Pretrial Detention and the Right to Be Monitored"The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:
The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.
This paper develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.
Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.
Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint." I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.
April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, April 02, 2013
Protests scuttle private prison group's plans to get name on university stadiumAs reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return. But, as highlighted in this new Huffington Post piece, the deal is off:
It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.
But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.
"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.
Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."
The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.
Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.
The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...
The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....
In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...
It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.
Some recent and older related posts:
- "A Company That Runs Prisons Will Have Its Name on a Stadium"
- "Billions Behind Bars: Inside America's Prison Industry"
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
Tuesday, March 26, 2013
New York Times editorial urges "Shrinking Prisons, Saving Billions"While on the road, I missed this notable New York Times editorial from this past weekend. Here are excerpts:
The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year. Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009. A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.
Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages. California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties. Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.
Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s. But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....
States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.
Monday, March 25, 2013
"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:
This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.
The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence. It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.
In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.
Friday, March 22, 2013
A moving memorial to Colorado prison chief Tom Clements from the Vera Institute of JusticeAs reported in this new article, headlined "Colorado Parolee Killed in Texas Chase Likely Guilty of Slaying Prisons Chief," it looks like the person responsible for the murder of head of the Colorado prison system earlier this week may have already faced the ultimate punishment for the crime. But that reality does little to make up for the senseless loss; this new item posted at the Vera Institute of Justice blog, headed "In Memoriam: Tom Clements, Vera partner and friend," provides a sense of how great a loss this is. Here are excerpts:
The Vera Institute of Justice mourns the loss of Tom Clements, Executive Director of the Colorado Department of Corrections, who was shot and killed at his home on March 19, 2013. The Vera family is shocked and saddened at this tragic news, and our hearts go out to Director Clements' family, friends, and colleagues. Many of us had the opportunity to work with Tom—some of us for many years. Most recently, he was a key leader and partner in Vera's European-American Prison Project, an initiative funded by the Prison Law Office which aims to advance an international dialogue around what works in corrections and stimulate reform efforts in the United States. Just last month, as part of this project, several Vera staff members had the privilege of spending a week travelling with Tom and the Colorado delegation, along with our other partners in the project, to tour prisons in Germany and the Netherlands.
"We are heartbroken by this news," said Michael Jacobson, president and director of Vera, who was on the European trip last month. "Tom was a thoughtful and dynamic leader, not only of his agency but as an important and influential national voice in the field of corrections. In addition, he was simply a lovely, warm, generous and thoughtful man."
Director Clements is deservedly recognized for his openness to smart and efficient corrections reform, which he brought to Colorado, where he came to help transform its system. Clearly, he was a great asset to the state. In just two years, he made significant progress in reducing the use of segregation, improving reentry, working with challenging populations such as gang members, and tackling the needs of the mentally ill and elderly incarcerated persons. After the trip to Europe, Tom and his team were eager to start planning and implementing ways to better prepare offenders to reenter the community, for instance with a mother-child unit and strategies to encourage inmate savings.
Most importantly, Tom was a deeply kind and thoughtful person whom we were fortunate to have had the opportunity to know. He will be deeply missed. According to Peggy McGarry, who directs Vera’s Center on Sentencing and Corrections, "Tom Clements was exactly the kind of gentle, kind, and good person who you want in charge of prisons. He only wanted what was best for those in his care—with no desire to control or hurt anyone. His smile was warm and reassuring, his intelligence quick and apparent. It is beyond comprehension that anyone would want to hurt this good man."
[In this post], we share some of the thoughts and remembrances of our colleagues who worked with Tom on the European-American Prison Project. We will add to this list as other colleagues contribute to it.
Wednesday, March 20, 2013
Talk of reforming prison realignment in CaliforniaAs reported in this new AP piece, "Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons." Here is more:
The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms. The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.
"Republicans recognize that we must close the worst realignment loopholes," said Assembly Minority Leader Connie Conway, R-Tulare.
The bills' chances are uncertain in a Legislature controlled by Democrats. The measures were proposed nearly 18 months after Gov. Jerry Brown's prison realignment took effect, sending inmates convicted of lower-level crimes to county jails instead of state prisons....
A related bill was rejected last week on a party-line vote in the Assembly Public Safety Committee. The bill, AB2 by Assemblyman Mike Morrell, R-Rancho Cucamonga, would have sent paroled sex offenders back to state prisons, instead of county jails, if they fail to register as sex offenders.
The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding. Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.
"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out."
Other bills in the Republican package would impose prison instead of jail time for criminals who remove their GPS-linked tracking devices; send all sex offenders who violate their parole back to prison' and have state parole agents, rather than county probation agencies, supervise all released sex offenders. The proposals come amid rising concerns over the consequences of Brown's realignment law that took effect in October 2011.
The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before realignment; counties are housing more than 1,100 inmates serving sentences of five years or more in jails designed for stays of a year or less; and inmate advocacy groups are beginning to sue counties over the same type of poor housing and treatment conditions that led to years of litigation and billions in additional costs for the state.
"Manhunt after head of Colorado Department of Corrections killed answering doorbell"The title of this post is the headline of this disturbing breaking news from Colorado. Here are the basics:
The head of the Colorado Department of Corrections was fatally shot when he answered the doorbell at his home Tuesday night, authorities say.
Sheriff's Lt. Jeff Kramer says Tom Clements was shot to death around 8:30 p.m. in the town of Monument, which is north of Colorado Springs. It is unclear if his wife and two daughters were home at the time of the shooting and police are searching for the gunman....
In a letter to DOC employees, Governor John Hickenlooper confirmed that the 58-year-old had been killed, KDVR.com reported. "We have no more details than that," Hickenlooper wrote. "I am so sad. I have never worked with a better person than Tom, and I can’t imagine our team without him. … As your Executive Director, he helped change and improve DOC in two years more than most people could do in eight years."
Tuesday, March 19, 2013
BOP director puts numbers of federal correction costs for FY2011Via this new Federal Register entry, the Director of the Bureau of Prisons announced the latest annual determination of the average cost of incarceration. Here is the heart of the announcement:
28 CFR part 505 allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates. We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.
Under § 505.2, the Director of the Bureau of Prisons determined that, based upon fiscal year 2011 data, the fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2011 was $28,893.40. The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2011 was $26,163.