Friday, November 23, 2012

First California prisoner released under reformed three-strikes has lots of voters to thank

It is poetic that the reform of California's three-strikes law approved overwhelmingly by state voters earlier this month produced the first resentencing and prisoner release just before the Thanksgiving long weekend.  Here are the details from this local report headlined "Revised California 3 Strikes law: Man becomes first to be re-sentenced under Prop. 36":

A man sentenced to 25 years to life in prison under California's "three strikes" law in 1996 was re-sentenced Wednesday to about 15 years, and released based on credit for time served.

Kenneth Glenn Corley, 62, became the first person to be re-sentenced under Proposition 36, passed earlier this month by California voters.  When Corley was convicted of drug possession for sale, he had two felony "strikes" for burglary and attempted burglary and was given the mandatory 25-years-to-life sentence on Oct. 8, 1996.

He was re-sentenced Wednesday by San Diego Superior Court Judge David Danielsen. "Many prosecutors in the state, including our office, were already working to address the unintended consequences of the 'three strikes' law,'" said San Diego County District Attorney Bonnie Dumanis. "Now that Prop. 36 has passed, the work we have already done to review these cases should make the process of assessing the petitions go more smoothly."

Justin Brooks, with the California Innocence Project, told 10News, "No violent offenses; it's basically a guy who had a drug addiction and committed a lot of property crimes and got sentenced to prison for the rest of his life."  Brooks has been working on Corley's case for nearly two years.  He has lined up a job for Corley and even arranged for him to live in a local halfway house....

Prosecutors, defense attorneys and San Diego Superior Court officials are preparing for 200 to 300 requests from state inmates seeking reductions in their prison sentences.  A judge will need to determine if the offender poses an unreasonable risk to public safety before permitting a re-sentencing....

Proposition 36 modified the law to require a sentence of 25 years to life only if the third strike was a serious or violent felony, or upon a conviction for another qualifying factor, such as use of a deadly weapon or intent to inflict injury. It is retroactive to the extent that it allows certain inmates whose third strikes were nonviolent, non-serious felonies and are serving life terms to seek a new sentencing hearing.... Under the three strikes law, 8,800 prisoners have been sentenced to life in prison, and 3,000 of them are eligible for release under Prop. 36.

I suppose the only disturbing part of this story is that shoppers in California now need to worry about one more shopper in line for the big Black Friday sales.

November 23, 2012 in Campaign 2012 and sentencing issues , Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (11) | TrackBack

Wednesday, November 14, 2012

Brewing "Miller fix" for juvenile murder sentencing in Michigan

As reported in this new local piece, headlined "Juvenile lifers: Michigan lawmakers quietly propose new sentencing hearings, possibility of parole," legislators in a state up north are getting to work on a response to the Supreme Court's Miller ruling making mandatory LWOP unconstitutional for juve murderers.  Here are the details:

A bipartisan group of state lawmakers has quietly introduced a series of bills that would redefine the way juvenile murder convicts are sentenced in Michigan and provide current inmates with a chance at parole.

The U.S. Supreme Court in June ruled that sentencing minors to life in prison without the possibility of parole is an unconstitutional form of cruel and unusual punishment, prompting calls for legislative action in Michigan and other states with mandatory sentencing guidelines that apply to juvenile offenders.

House Bills 6013-6019 were introduced last week during the opening days of the state Legislature's lame-duck session, which may be busy, and will need to be reintroduced if they are not passed by the end of the year.  "Similar packages of legislation have been introduced before but in the wake of the U.S. Supreme Court decision on Miller v. Alabama in June, now is the time to address mandatory sentences here in Michigan," state Rep. Mark Meadows, D-Lansing, said in a statement Tuesday.

Michigan is home to more than 350 inmates serving mandatory life sentences without parole for serious crimes they committed as minors.

HB 6014, sponsored by Rep. Joe Haveman, R-Holland, would give the state parole board jurisdiction over juvenile lifers who already have served at least 15 years for crimes they committed before age 16 or at least 20 years for crimes they committed between ages 16 and 18.  The bill directs the parole board to consider mitigating circumstances -- including accomplices, emotional state, family life and prior criminal records -- in determining whether the offender should be granted release....

Supreme Court Justice Elena Kagan, in a written opinion for the 5-4 majority, did not explicitly state whether the high court ruling applies to offenders already serving mandatory sentence.  Reformers believe it does and some states have accepted that position.  Michigan Attorney General Bill Schuette argues it is not retroactive.

The Michigan Court of Appeals heard arguments for resentencing last month and may still decide the retroactivity issue.  But Appeals Court Judge Michael J. Talbot expressed a reluctance to legislate from the bench, urging lawmakers to rework state laws in anticipation of pending and future cases.

HB 6015, also sponsored by Haveman, allows prosecuting attorneys in future cases to request a post-trial hearing to determine whether juvenile offenders convicted of serious crimes should be sentenced to life without the possibility of parole or life with the possibility of parole.  The legislation also allows prosecuting attorneys or prisoners currently serving mandatory terms to request similar resentencing hearings, at which judges must consider mitigating factors.

November 14, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 13, 2012

"The Conservative War on Prisons"

1211-dagan-teles_hiliteThe title of this post is the headline of this terrific feature article by David Dagan and Steven Teles appearing in the latest issue of Washington Monthly.  The sub-heading provides insights into the many themes of the important piece: "Right-wing operatives have decided that prisons are a lot like schools: hugely expensive, inefficient, and in need of root-and-branch reform. Is this how progress will happen in a hyper-polarized world?"  Here is how this new must-read article gets started:

American streets are much safer today than they were thirty years ago, and until recently most conservatives had a simple explanation: more prison beds equal less crime.  This argument was a fulcrum of Republican politics for decades, boosting candidates from Richard Nixon to George H. W. Bush and scores more in the states.  Once elected, these Republicans (and their Democratic imitators) built prisons on a scale that now exceeds such formidable police states as Russia and Iran, with 3 percent of the American population behind bars or on parole and probation.

Now that crime and the fear of victimization are down, we might expect Republicans to take a victory lap, casting safer streets as a vindication of their hard line.  Instead, more and more conservatives are clambering down from the prison ramparts.  Take Newt Gingrich, who made a promise of more incarceration an item of his 1994 Contract with America.  Seventeen years later, he had changed his tune.  “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential,” Gingrich wrote in 2011.  “The criminal-justice system is broken, and conservatives must lead the way in fixing it.”

None of Gingrich’s rivals in the vicious Republican presidential primary exploited these statements.  If anything, his position is approaching party orthodoxy.  The 2012 Republican platform declares, “Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.”  What’s more, a rogue’s gallery of conservative crime warriors have joined Gingrich’s call for Americans to rethink their incarceration reflex.  They include Ed Meese, Asa Hutchinson, William Bennett — even the now-infamous American Legislative Exchange Council.  Most importantly, more than a dozen states have launched serious criminal justice reform efforts in recent years, with conservatives often in the lead.

Skeptics might conclude that conservatives are only rethinking criminal justice because lockups have become too expensive.  But whether prison costs too much depends on what you think of incarceration’s benefits.  Change is coming to criminal justice because an alliance of evangelicals and libertarians have put those benefits on trial.  Discovering that the nation’s prison growth is morally objectionable by their own, conservative standards, they are beginning to attack it — and may succeed where liberals, working the issue on their own, have, so far, failed.

This will do more than simply put the nation on a path to a more rational and humane correctional system.  It will also provide an example of how bipartisan policy breakthroughs are still possible in our polarized age.  The expert-driven, center-out model of policy change that think-tank moderates and foundation check-writers hold dear is on the brink of extinction.  If it is to be replaced by anything, it will be through efforts to persuade strong partisans to rethink the meaning of their ideological commitments, and thus to become open to information they would otherwise ignore.  Bipartisan agreement will result from the intersection of separate ideological tracks — not an appeal to cross them.  This approach will not work for all issues.  But in an environment in which the center has almost completely evaporated, and in which voters seem unwilling to grant either party a decisive political majority, it may be the only way in which our policy gridlock can be broken.

Long-time readers know I have been talking about the prospects of a "new right" on crime and punishment issues all the way back in January 2005 when I asked in this post, "Is there a 'new right' on criminal sentencing issues?".  As some may also recall, in this 2008 Harvard Law & Policy Review piece, I wrote that "progressives can and should be aggressively reaching out to modern conservatives and libertarians in order to forge new coalitions to attack the many political and social forces that contribute to mass incarceration."  I am so very pleased to see that more and more folks are highlighting and stressing the broader political and social importance of these developments.

A few of my (too?) many recent and older related posts: 

November 13, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Sunday, November 11, 2012

"Exclusion and Control in the Carceral State"

The title of this post is the title of apaper by Professor Sharon Dolovich, which is now available here via SSRN.  Here is the abstract:

Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.

Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable.

Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices — the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender’s free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human — a process referred to as “making monsters” — and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction, all people who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as “incorrigible” may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.

November 11, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Sunday, November 04, 2012

Timely New York Times piece on felon disenfranchisement

Today's New York Times, the last one before the latest "most important election ever," has this effective editorial headlined "Wrongly Turning Away Ex-Offenders."  Here are excerpts:

The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies.  They will bar about 5.85 million people from voting in this year’s election.

In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life.  Nationally, nearly half of those affected have completed their sentences, including parole or probation.

Policies that deny voting rights to people who have paid their debt to society offend fundamental tenets of democracy.  But the problem is made even worse by state and local election officials so poorly informed about the law that they misinform or turn away people who have a legal right to vote....

A 2005 study by the Sentencing Project, a Washington research and advocacy group, found that 37 percent of public officials surveyed in 10 states either misstated a central provision of the voter eligibility law or were unsure about what the law said. Disenfranchisement and restoration policies represent a kind of “crazy quilt” of strictures that differ not just among states, but among counties, cities and towns as well.  Some states even ban people convicted of misdemeanors from voting.  With so much confusion among those who administer the laws, it is no surprise that people who are legally entitled to vote either don’t try out of fear that they would be committing a crime or are wrongly turned away.

November 4, 2012 in Collateral consequences, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, October 31, 2012

"The Imprisoner’s Dilemma: A Cost Benefit Approach to Incarceration"

The title of this post is the title of this paper by David Abrams and available on SSRN.  Here is the abstract:

Depriving an individual of life or liberty is one of the most intrusive powers that governments wield. Decisions about imprisonment capture the public imagination. The stories are told daily in newspapers and on TV, dramatized in literature and on film, and debated by scholars.  The United States has created an ever-increasing amount of material for discussion as the state incarceration rate quadrupled between 1980 and 2000.  While the decision to incarcerate an individual is given focused attention by a judge, prosecutor, and (occasionally) a jury, the overall incarceration rate is not.

In this article, I apply a cost-benefit approach to incarceration with the goal of informing public policy.  An excessive rate of incarceration not only deprives individuals of freedom, but also costs the taxpayers large amounts of money.  Too little imprisonment harms society in a different way -- through costs to victims and even non-victims who must increase precautions to avoid crime.  Striking the right balance of costs and benefits is what good law and public policy strive for.

Changes to the inmate population may be made in several different ways.  One insight that I stress in this article is that the precise form of a proposed incarceration policy change is crucial to properly evaluating the impact of the change.  Therefore, I analyze several potential policy changes and their implications for sentencing and imprisonment. The calculations are informed by recent empirical work on the various ways in which imprisonment impacts overall welfare.  I find that the benefits of limited one-time prisoner releases, as well as the reclassification of some crimes exceed the costs.

October 31, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, October 26, 2012

Latest California polling data suggests hard-core sentencing will be up real late on election night

La-me-death-penaltya1-20121025-gI have an inkling (and certainly a hope) that we will know the outcome of the 2012 presidential election not all that long after 9pm EST on November 6th: the polls will by then be closed in the crucial swing states of Colorado, Florida, Iowa, New Hampshire, Ohio, and Virginia.  But this big Los Angeles Times article, which provides the latest poll numbers on the two big sentencing reform ballot initiatives in California, suggests that hard-core sentencing fans should plan for very late night watching election returns from the Golden State. the article is headlined "Support for end to California death penalty surges; Nearly half of registered voters still back capital punishment, but the margin has shrunk to 3 percentage points; Voters also favor easing the three-strikes law." Here are excerpts:

Voter support for a ballot measure to repeal California's death penalty has jumped dramatically, though not enough to ensure its passage, a new USC Dornsife/Los Angeles Times poll has found. Support for a separate measure that would ease the state's three-strikes sentencing law remained high, with more than 60% in favor of amending it.

The survey, conducted last week, showed that the gap between supporters and opponents of Proposition 34, the capital punishment measure, is now very small — only 3 percentage points — compared with last month.  Still, less than half of respondents said they would vote for the measure, which would replace the death penalty with life imprisonment without the possibility of parole.

Forty-two percent said they would vote for Proposition 34, with 45% saying no. In September, the gap was 38% to 51%, a 13-point difference.  A significant 12% of respondents said they did not know how they would vote, nearly identical to the 11% who had not decided last month.  "There is no question there has been a sharp shift," said Dan Schnur, who heads the Jesse M. Unruh Institute of Politics at USC.  The results suggest that passage is "not impossible" but still "very difficult," Schnur said.

When voters heard more information about Proposition 34, such as its financial ramifications and details of the effect on prisoners, responses flipped: 45% were in favor and 42% against — still very close to the survey's margin of error, which is 2.9 percentage points.

The latest USC Dornsife College of Letters, Arts and Sciences/Los Angeles Times poll [with crosstabs available here] questioned 1,504 registered voters by telephone from Oct. 15 to Oct. 21, before the Proposition 34 campaign launched radio and television ads. Greenberg Quinlan Rosner Research, a Democratic firm, did the survey with American Viewpoint, a Republican company. 

Proposition 34 would apply retroactively to condemned inmates, require convicted murderers to work in prison and contribute to victim restitution funds, and direct $100 million to law enforcement over four years.  It could save the state as much as $130 million a year, according to California's nonpartisan legislative analyst.  California has more than 727 inmates on death row, the most in the nation....

Natasha Minsker, campaign manager for Proposition 34, said the poll's findings prove that "this election is absolutely moving in our direction."  But Peter DeMarco, a strategist for the opposition, expressed confidence that the shift was too small to make a difference....

La-me-death-penalty-inside-20121025-g

Meanwhile, support for the three-strikes measure, Proposition 36, has held relatively steady in recent weeks, with 63% of voters in favor, 22% opposed and 15% undecided or not answering.  Last month, the initiative was leading by 66% to 20%.  "Unless the opponents can convince voters that the criminals being impacted by this measure are still dangerous, the initiative looks pretty safe at this point," Schnur said. 

The three-strikes law allows prosecutors to seek sentences of 25 years to life for any felony if offenders were previously convicted of at least two violent or serious crimes, such as rape or residential burglary. Proposition 36 would amend the law so offenders whose third strikes were relatively minor felonies, such as shoplifting or drug possession, would no longer be eligible for life terms.  Of the state's nearly 8,900 third-strikers, about a third were convicted of drug or minor property crimes.

This week, the proposition's campaign unveiled a television ad in which the district attorneys from Los Angeles, San Francisco and Santa Clara counties tell voters that the amendment would ease prison overcrowding, save the state millions of dollars and "make the punishment fit the crime."  Opponents point out that the current law already allows prosecutors and judges to spare a third-striker the maximum sentence and argue that flexibility is needed to protect the public.

I suspect that the polling on these sorts of initiatives can be subject to lots of statistical noise, so I am quite chary about making book on these latest poll numbers.  That all said, it will be big news if either of these sentencing reform initiatives pass, and huge news if they both do.  Thus, I now have yet another reason to wish Election Day 2012 was here already.

October 26, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Monday, October 22, 2012

"Effects of change in California criminal justice system difficult to discern"

The title of this post is the headline of this notable new article appearing in the Sacremento Bee.  Here are excerpts:

Critics of a year-old law shifting responsibility for thousands of convicted felons to the counties have seized on the brutal beating of a San Joaquin County woman -- allegedly by a man released from jail just days before the attack -- as evidence that the law is eroding public safety.   But criminal justice experts say that understanding the law's effects will take more time and more information than a few headline-grabbing cases can provide.

Parolee Raoul Leyva allegedly beat Brandy Marie Arreola, then 20, into a coma in April. Shortly before the attack, Leyva had been sentenced to jail for 100 days for violating the conditions of his parole. 

He was released after two days because of overcrowding in the jail.  Before the passage last year of the criminal justice reform law -- AB109 -- he would have been subject to prison time, rather than jail, for the parole violation.  Critics of prison realignment, as AB109 is commonly known, say crime rates are surging because fewer people such as Leyva are going to prison, and some may be getting out of jail early because of overcrowding.

Leyva's last prison term was for motor vehicle theft, a nonviolent offense.  Crimes classified as nonviolent are now met with jail or community supervision instead of prison. Violations of parole by nonviolent offenders also mean jail time rather than prison for the offender.

The law's enactment followed a court order to reduce the state's prison population.  The prisons were at double their capacity at the time of the order.  Since then, the prison population has dropped by more than 26,000 inmates.

"It's diminishing public safety," said Lynne Brown, director of Advocates for Public Safety, a group that represents law enforcement officers who want to repeal AB109.   Republican legislators agree, and they have called for a special session of the Legislature to change or kill the law.  They say that crime has increased in Sacramento, Stockton, Oakland and Los Angeles, according to preliminary numbers from police departments.

But police data actually show a mixed picture.  In Sacramento, Part I crimes, those that are reported to the FBI and eventually become the uniform crime rate for a city, are up by 8.1 percent this year compared with the same period in 2011. Homicides, however, decreased by 18.5 percent, according to Sacramento Police Department crime data.

Violent crime is currently down in Los Angeles by 7 percent and property crime is the same year-to-date.  In Oakland, Part I crimes have increased by 20 percent, according to the Oakland Police Department.  Some increases -- like those for rape (up 21 percent) and robbery (up 20 percent) -- are striking.  Part II crimes -- including minor assault, drug possession, vandalism and fraud – have decreased by 10 percent....

But determining the effect of a single policy on crime rates is difficult, said Joan Petersilia, professor of law at Stanford University and co-director of the Stanford Criminal Justice Center. "That is one of the hardest questions to answer in crime," Petersilia said. Factors that influence crime rates range from the economy and the unemployment rate to family life, Petersilia said.

Shrinking police forces in cities struggling with tight budgets might also have an effect, noted Barry Krisberg, director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at UC Berkeley....

Counties have responded to the law in different ways, from sending people back into the community with ankle bracelets to putting people who once would have gone to prison in jail.  Realignment in Los Angeles, which is increasing its jail population, is different from realignment in San Francisco, where the focus is on rehabilitation and reducing the jail population.  "Realignment isn't one thing," Krisberg said.  "It's 58 things."

The law did not include any method for assessing the impact of the policy change. Counties that have accepted technical assistance from the state are required to report on their realigned population, but there are no set standards for what specific data counties must report.

Researchers, including Petersilia, are working on studies funded by foundations. "The state is not collecting data on this," Krisberg said.  "I think it is scandalous."  Nuanced analysis is essential to understanding the effects of realignment, Petersilia said.  "We do a great disservice when we ask if it is working and only look at one measure."

October 22, 2012 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 19, 2012

For free health care from well-paid medical personnel, commit a serious crime in California

The snarky title of this post is prompted by this new AP story, which is headlined "High pay a costly legacy of Calif. prison receiver."  Here is how it starts:

A doctor at California Medical Facility was paid more than $410,000 last year, while a registered nurse at High Desert State Prison made nearly $236,000 -- more than twice the statewide average in both cases.  A pharmacist at Corcoran State Prison was paid more than $196,000, nearly double what is typical across the state. 

Compensation for medical providers has soared in the prison system since a federal judge seized control of inmate health care in 2006 and appointed an overseer with the power to hire and set pay levels.  As the official begins to wind down his oversight, the medical hiring and salary increases have helped lead to an improvement in inmate care, but it has increased the bill for taxpayers too. 

It has also led to criticism that the official -- called a receiver -- provided a "Cadillac" level of care for convicted felons.  A state review found that only Texas pays its state prison doctors more that California.

"The problem that we had is that the receiver was not accountable to anybody," said former state Sen. George Runner, a Republican who has frequently criticized the program. "So the receiver could just do or choose to spend whatever amount of money he thought was necessary to solve his problem, and unfortunately now the state is stuck with that," he said.

The receiver for medical care, J. Clark Kelso, said the state has been free to collectively bargain health care providers' salaries since a court order increasing their wages expired three years ago.

The receiver's goal was to correct a prison medical system that was ruled unconstitutional for its substandard care and, at one point, contributed to an inmate death each week through negligence or malfeasance.  To do that, the receivership increased salaries, created new positions at high pay and hired hundreds of employees to fill longtime vacancies.

Total spending on medical, dental and mental health care for inmates, numbering 124,700, has more than doubled over the last decade, from $1.1 billion in fiscal year 2003-04 to a projected $2.3 billion this year.  The number of medical, mental health and dental workers in the prisons more than doubled over six years, from 5,100 in 2005, the year before the receivership was created, to 12,200 last year.  More than 1,400 were administrators who don't directly treat inmates, according to a state Assembly oversight committee.

October 19, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, October 16, 2012

New report examines value of video visitation for kids of incarcerated

I received news via my electronic in-box of an intriguing new report from The Sentencing Project.  Here is how the e-mail describes the report (with a link within):

On any given day, approximately 2.6 million children have a parent in jail or prison because of the harsh criminal justice policies that have made the United States the world's leading jailer.  A growing number of correctional facilities are moving to video visitation because it can be managed by fewer staff than traditional visitation, reduces the chances of contraband being introduced into facilities, and can potentially generate revenue.

In our new report, Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?, Dr. Susan D. Phillips addresses the question of whether video visitation may also provide benefits for children who are separated from their parents by incarceration.  Our conclusion is that it depends on the particular policies and practices of a given institution.

Video visitation holds the most potential for benefiting children if: 

  • It is used as an adjunct to, rather than a replacement for, other modes of communication, particularly contact visits; 
  • Children can visit from their homes or nearby sites; 
  • Facility policies allow for frequent visits; and 
  • Fees are not cost prohibitive.

October 16, 2012 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (3) | TrackBack

Friday, October 12, 2012

NPR piece spotlights Ohio success with sentencing reforms and reducing recidivism

I am very pleased to see that my state is getting well-deserved national attention for its recent success with sentencing and corrections reforms.  Specifically, NPR's Talk of the Nation had this lengthy segment earlier this week on Ohio's reforms under the heading "Programs Keep Inmates From Returning To Prison." Here is how the NPR site sets up the discussion:

States pay tens of thousands of dollars a year to house each inmate. Some states are rethinking the way they spend that money. In Ohio, sentencing reform, increased support for former inmates, and rehabilitation and education programs for current prisoners have helped keep prisoners from returning.

October 12, 2012 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 10, 2012

New report assails subjecting youthful offenders to solitary confinement

Us1012_reportcoverAs detailed in this press release, two prominent rights groups have a big new report on the use of solitary confinement for young offenders.  Here are details via the press release:

Young people are held in solitary confinement in jails and prisons across the United States, often for weeks or months at a time, Human Rights Watch and the American Civil Liberties Union (ACLU) said in a report released today.

The 141-page report, “Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States,” is based on research in both US jails and prisons in five states ­– Colorado, Florida, Michigan, New York, and Pennsylvania – and correspondence with young people in 14 others. The isolation of solitary confinement causes anguish, provokes serious mental and physical health problems, and works against rehabilitation for teenagers, Human Rights Watch and the ACLU found.

“Locking kids in solitary confinement with little or no contact with other people is cruel, harmful, and unnecessary,” said Ian Kysel, Aryeh Neier Fellow with Human Rights Watch and the ACLU and author of the report. “Normal human interaction is essential to the healthy development and rehabilitation of young people; to cut that off helps nobody.”

The report is based on interviews and correspondence with more than 125 young people in 19 states who spent time in solitary confinement while under age 18, as well as with jail and/or prison officials in 10 states.

Human Rights Watch and the ACLU estimate that in 2011, more than 95,000 young people under age 18 were held in prisons and jails. A significant number of these facilities use solitary confinement – for days, weeks, months, or even years – to punish, protect, house, or treat some of the young people held there....

The New York City Department of Corrections, for example, reported that in fiscal year 2012, which ended in June, more than 14 percent of all adolescents were held in at least one period of solitary confinement while detained. The average length of time young people spent in solitary confinement at Rikers Island was 43 days. More than 48 percent of adolescents at Rikers have diagnosed mental health problems....

The solitary confinement of young people under age 18 is itself a serious human rights violation and can constitute cruel, inhuman, or degrading treatment under international human rights law, Human Rights Watch and the ACLU said. Conditions that compound the harm of solitary confinement, such as denial of educational programming, exercise, or family visits, often constitute independent, serious human rights violations.

A number of corrections officials have begun to recognize and speak against the use of solitary confinement, saying that it is costly, ineffective, and harmful.

There are alternative ways to address the problems – whether disciplinary, administrative, protective, or medical – that officials typically cite to justify using solitary confinement, while taking into account the rights and special needs of adolescents, Human Rights Watch and the ACLU said. Youth could be housed in specialized facilities organized to encourage positive behavior. And punishment should be proportional to the infraction, using any short-term isolation as a rare exception.

The federal and state governments should ban placing youth in solitary confinement, Human Rights Watch and the ACLU said. They should also prohibit housing adolescents with adults or in jails and prisons designed to house adults, and strictly regulate and monitor all forms of isolation of young people.

October 10, 2012 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, October 07, 2012

"Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy"

The title of this post is the title of this lengthy paper by Professor Peter Schuck, which is available via SSRN. Here is the abstract:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used).  At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system.  The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use).  The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

October 7, 2012 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Private prison fares poorly in audit by Ohio officials

As reported in this local article, headlined "State audit rips private prison on health, security," Ohio officials were not too happy about what they found during an audit of private prison facilities. Here are the details:

Conditions at the privately owned and operated Lake Erie Correctional Institution are “ unacceptable” and “won’t be allowed to continue,” a state prison official said yesterday after the release of a critical audit.

An internal audit by the Ohio Department of Rehabilitation and Correction found that the prison in Conneaut, Ohio, in Ashtabula County, met only two-thirds of state operating standards for prisons. It houses about 1,500 inmates. In addition to numerous health, sanitation and security problems, staff members and inmates at the private prison told auditors they had “safety concerns” and do not feel secure.

The state sold the Conneaut prison last year to Corrections Corp. of America of Nashville, Tenn., for $72.7 million. The state pays CCA $44.25 per inmate per day to house, feed and clothe them and provide programs, plus a $3.8 million annual fee for maintenance. The company is obligated to run the prison at a savings of $3 million per year compared with state operation....

State prisons spokeswoman JoEllen Smith said the audit findings are “unacceptable, and CCA knows how strongly Ohio thinks that. It’s not unusual for management change to create issues that need refinement, but these results go beyond that and won’t be allowed to continue.” She said the state has put in place an improvement plan and expects to see results.

Steve Owen, spokesman for Corrections Corp. of America, said in a statement: “We have built our 30-year reputation on not just meeting but exceeding the expectations of our government partners, and we take it very seriously when we do not meet those expectations. ... CCA is taking concrete corrective steps to ensure that this facility meets not only the ODRC’s goals but our own high expectations for our facilities.”

Chris Mabe, head of the Ohio Civil Service Employees Association, said the audit confirms the union’s concerns about private-prison operations. The prison is not unionized. “There’s things they can’t do cost-effectively and they can’t do safely,” Mabe said. “When you incarcerate people to make money, it’s no-win at the end of the day.”

Some related posts: 

October 7, 2012 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

Upcoming Sandusky sentencing generates little suspense, but lots of stories

Jerry Sandusky is scheduled to face sentencing this Tuesday.  At this stage, the case holds has seemingly limited suspense; I cannot imagine this serial child molester now could or would get anything less than a functional (if not an actual) life sentence. Still, the high-profile nature of the defendant and his crimes ensures that there will be plenty of press stories about the sentencing.  For example, here are some stories from the AP and UPI appearing in many papers today:

I doubt I will be eager to blog much about this high-profile state sentencing, in part because we can count on the mainstream press to give it plenty (too much?) attention. But perhaps readers can convince me via comments that there is something especially worthy of special blog attention as the Sandusky sentencing day approaches.

October 7, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Thursday, October 04, 2012

Updated edition of a terrific federal sentencing and prison resource

FpgWhenever I am asked questions about federal prison realities, I always urge folks to seek more information from Alan Ellis, who has literally written the book (actually, a number of books) on these matters.  My faith in Alan Ellis as the go-to resource was confirmed this past week when I received in the mail the latest, greatest, updated edition of the Federal Prison Guidebook authored by him (now along with J. Michael Henderson and Todd Bussert, who also has this blog covering these matters).

This webpage not only provides information about the book and ordering, but also reprints a selection of a few of the innumerable practice pointers in this terrific federal sentencing and corrections resource. And here is how the page explains the book's scope and contents:

Federal prison placement, profiles, and tips. How to ensure that your client gets into the best possible prison and is released at the earliest opportunity.

Although it is Bureau of Prisons policy to place an individual in the least restrictive facility within 500 miles of the inmate's release residence, many inmates end up far from their families in harsher conditions than necessary. It doesn't have to be that way.

You can take three steps to ensure that your clients do their time in the best possible facilities. First, learn how the BOP classifies its facilities, and the characteristics of each type of facility. Second, understand how the BOP decides what type of prison is appropriate. Finally, learn how to increase the odds of a favorable placement.

For assistance with all three steps, turn to Alan Ellis and Michael Henderson’s Federal Prison Guidebook.

In addition, this detailed brochure concerning the book from the publisher provides even more information about this valuable resource.

October 4, 2012 in Federal Sentencing Guidelines, Prisons and prisoners | Permalink | Comments (1) | TrackBack

Wednesday, October 03, 2012

Intriguing political spat over federal plans to purchase of Illinois prison

As reported in this new ABC News report, headlined "GOP Chafes at Justice Dept. Move to Buy Illinois Prison," an interesting political fight is breaking out over federal prison spending plans. Here are the basics:

Top Republican leaders on Capitol Hill are lashing out at the Obama administration after Attorney General Eric Holder informed congressional appropriations leaders Tuesday that despite congressional objections, the Justice Department is moving forward with a plan to purchase the maximum-security prison in Thomson, Ill.

“Americans would rather their tax dollars be spent preventing attacks from terrorists, than spent bringing them into their cities and towns as the Obama administration has repeatedly tried to achieve,” Senate Minority Leader Mitch McConnell, R-Ky., said in a statement Tuesday, calling it an “election-eve purchase.”

The Obama administration had viewed the facility as a potential location to hold high-security terrorism suspects before the administration’s efforts to close the Guantanamo Bay detention camp in Cuba failed.

Citing 38 percent overcrowding rates in federal prisons, Holder says in the letter to Chairman Frank Wolf, R-Va., of the Appropriations Subcommittee on Commerce, Justice and Science that no Guantanamo Bay suspects would reside at the desperately needed Thomson facility.

Still, Republicans cast the decision as a unilateral move by the administration, one that Congress has opposed.  “The unilateral decision to purchase the Thomson Prison – even though Congress has repeatedly opposed the Obama administration’s effort to use taxpayer funds to do so -- underscores the administration’s desire to move forward and bring these detainees to U.S. soil,” Speaker of the House John Boehner, R-Ohio, said Tuesday.

The Justice Department will buy the prison from the state of Illinois for $165 million. Holder noted that building a new facility could cost as much as $400 million. The funds for the purchase will be obtained from DOJ seizures in asset-forfeiture cases.  The Thomson prison could hold up to 2,800 inmates, according to Justice Department officials. “The administration is acutely aware of BOP’s need for the facility and the department’s inability to reach a resolution of the matter with you. Under these circumstances, the administration has decided to proceed with the purchase,” AG Holder wrote Tuesday to Rep. Wolf.

“Thomson is still desperately needed to reduce our current high level of overcrowding.  And Thomson is specifically needed to house inmates particularly those appropriate for “administrative maximum,” Holder wrote in his letter, making reference to the highest security level in the Bureau of Prisons, “administrative maximum.”

A Government Accountability Office report released in September noted that Bureau of Prisons facilities are severely overcrowded with double- and triple-stacked bunk beds. “According to BOP and our observations, the growth of the federal inmate population and related crowding have negatively affected inmates housed in BOP institutions, institutional staff, and the infrastructure of BOP facilities, and have contributed to inmate misconduct, which affects staff and inmate security and safety,” the GAO report noted.

The lengthy GAO report about federal prison overcrowding referenced here, which I keep meaning to blog about, is titled "Growing Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure" and is available at this link.

Recent related posts on federal prison overcrowding:

October 3, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, October 02, 2012

Big new report examines New York's use of solitary confinement

Nyclu_boxedin_cover_0A helpful reader alerted me to this new report coming from the New York Civil Liberties Union titled "Boxed In: The True Cost of Extreme Isolation in New York's Prisons." This NYCLU webpage, from which the report can be downloaded, provide a summary of its scope and contents. Here is how that summary starts:

This report, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons, is the product of an intensive, year-long investigation that involved communication with more than 100 people who have spent significant amounts of time — in one case, more than 20 years — in extreme isolation. The authors interviewed prisoners’ family members and corrections staff, and analyzed thousands of pages of Department of Corrections and Community Supervision (DOCCS) records obtained through the state’s open records laws.

The report is accompanied by a website — www.nyclu.org/boxedin — featuring excerpts of prisoners’ letters about life in extreme isolation, a library of DOCCS data and records, statistical analyses and a video featuring the voices of family members whose loved ones have been held in extreme isolation.

Over the past 20 years, New York has spent hundreds of millions of dollars to build and operate an extensive network of extreme isolation cells, which DOCCS calls “Special Housing Units” or “SHUs” —and prisoners call “the Box.”  New York has nearly 5,000 SHU beds located in 39 prisons across the state, including two dedicated extreme isolation prisons — Upstate and Southport Correctional Facilities — that combined cost about $76 million a year to operate.

New York practices a unique brand of “solitary confinement.”  About half of the 4,500 prisoners in solitary confinement spend 23 hours a day in an isolation cell completely alone.  The other half are confined in an isolation cell the size of a parking spot with another prisoner, a practice that forces two strangers into intimate, constant proximity for weeks, months and even years on end.  The NYCLU uses the term “extreme isolation” to capture the practice of subjecting one or two people in a cell to the conditions most commonly understood as solitary confinement.

Based on a year of study and analysis, the NYCLU found that:

  • New York’s use of extreme isolation is arbitrary and unjustified. Extreme isolation is too frequently used as a disciplinary tool of first resort. Corrections officials have enormous discretion to impose extreme isolation. Prisoners can be sent to the SHU for prolonged periods of time for violating a broad range of prison rules, including for minor, non-violent misbehavior.
  • Extreme isolation harms prisoners and corrections staff. It causes grave emotional and psychological harm even to healthy and mentally stable inmates. For the vulnerable, particularly those suffering from mental illness, extreme isolation can be life-threatening. The formal and informal deprivation of human necessities, including food, exercise and basic hygiene, compounds the emotional and psychological harm. Prisoners in extreme isolation often lack access to adequate medical and mental health care. For corrections staff, working in extreme isolation has lasting negative consequences that affect their lives at work and home.
  • Extreme isolation negatively impacts prison and community safety. The psychological effects of extreme isolation can fuel unpredictable and sometimes violent outbursts that endanger prisoners and corrections staff. Prisoners carry the effects of extreme isolation into the general prison population. They also carry them home. Nearly 2,000 people in New York are released directly from extreme isolation to the streets each year. While in the SHU, prisoners receive no educational, vocational, rehabilitative or transitional programming, leaving them less prepared to successfully rejoin society.

October 2, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Sunday, September 30, 2012

Ohio reducing prison population, but judges still unhappy with sentencing reforms

This new AP article, headlined "Fewer Ohio inmates, but judges want law fixed," highlights that sentencing judges dislike limits on their discretion even when these limits require lower sentences. Here are excerpts:

A law that has helped Ohio reduce its inmate population is being criticized as too restrictive by judges seeking more leeway in sentencing.

Enacted a year ago this Sunday, the law aims to save the state millions of dollars by shrinking the number of inmates and also by reducing the number of offenders who might to return to prison as repeat offenders. One result of the change is that Ohio’s inmate population has remained under 50,000 since January, levels not seen since 2007.

Ohio is also one of several states making significant progress reducing the number of repeat offenders, according to a national report released last week. Kansas, Michigan, Mississippi, Ohio, Oregon, Texas and Vermont all saw the number of repeat offenders drop between 2005 and 2007, according to the study by Washington-based Council of State Governments’ Justice Center.

One way Ohio has lowered its inmate population over the past year is by prohibiting judges from sentencing first-time offenders to prison if the cases fall into a series of categories, such as convictions involving low-level felonies or if the crime was not a violent offense.

But judges aren’t always happy about that. In some cases, they can’t find local treatment facilities or aren’t aware of them, or they say the offender has a history of skipping out of halfway houses or similar settings. In other cases, judges make it clear they think prison is warranted, despite the law....

Thanks to the law, the number of offenders convicted of property, drug possession and drug trafficking crimes decreased from 37 percent of total admissions to 29 percent of admissions, according to prison records. In addition, the number of offenders admitted each month for failing to pay child support has dropped from 39 per month in 2011 to 31 per month from January through August, records show.

Prisons director Gary Mohr called the first-year results promising but said much remains to be done. “If I believed that we were going to stop at these numbers, I’d be pretty darn disappointed,” Mohr said in an interview last week. “This gives us a sense of hope that we can continue to get a whole lot better.”

Ohio has about 49,500 inmates in 28 prisons built to hold about 39,000 prisoners. A year ago, the state estimated the inmate population would rise to 54,000 in four years without action. The goal is to shrink Ohio’s prison population to about 47,000 inmates by 2015.

This similar local article, headlined "Sentencing reform: Fewer convicts going to prison," provides this additional evidence that folks have varied perspectives on Ohio's recent sentencing reform efforts:

With promises of big taxpayer savings and fears of more strain on local governments, state lawmakers and the governor overhauled Ohio’s sentencing laws last year. The goal was to send fewer nonviolent, low-level felons to prison, and shorten the length of time other prisoners would spend behind bars, and save tens of millions of dollars in the process.

The law took effect a year ago today. As predicted, fewer felons are going to prison and more are being put on probation, both around the state and in Stark County. What those changes mean depends on who you ask:

— “We’re pleased with the results of House Bill 86 thus far and we see those results even increasing as we move forward the next couple of fiscal years,” said Linda Janes, Ohio Department of Rehabilitation and Correction chief of staff.

— “We have not seen what I would call earth-shattering changes,” said Stark County Common Pleas Judge Lee Sinclair.

— “I think it’s awful,” said Stark County Common Pleas Judge Frank Forchione, repeating an opinion he has voiced from the bench.

September 30, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Thursday, September 27, 2012

New Amnesty International report assails California's use of solitary confinement

As reported in this Los Angeles Times piece, which is headlined "Report decries suicides, isolation cells in California prisons," a new report released today by Amnesty International details problems with California's use of segregated isolation. Here is part of the story behind the report:

California has more inmate suicides than any other state, a total that is rising even as its prison population falls. Almost half those deaths occurred in the system's segregation cells.

According to an Amnesty International report to be released Thursday, conditions within the state's security housing "breach international standards on humane treatment."

"It would crush you," said Tessa Murphy, an Amnesty International observer who was given unusual access to the isolation units at Pelican Bay and two other California prisons last November.

But California officials rebutted Amnesty's findings, insisting the state's security units "follow the national standard. They are clean. They are secure," said Terri McDonald, who is in charge of prison operations for the California Department of Corrections and Rehabilitation. She cited the constant monitoring of those units — the result of federal lawsuits over poor medical and mental healthcare in the state system. "We have not been inhumane," McDonald said.

There currently are more than 3,100 inmates living in California's maximum security segregation units, and thousands more in similar administrative segregation units. The windowless, 7- by 12-foot cells at Pelican Bay exceed international space standards for a single inmate. The only way in or out is through a perforated steel door that looks out onto a concrete wall.

Except for an unknown number of prisoners who have cellmates, Amnesty International reported that there was no contact with other inmates and little interaction with the guards — who monitor them via closed circuit cameras, open doors with remote switches and push food through slots.

Segregated prisoners do not have access to rehabilitation programs, the report said. They are permitted to exercise 90 minutes a day, inside a concrete enclosure through which a slice of sky is visible 20 feet overhead.  Group therapy consists of inmates in individual holding cages lined up before a therapist; physicians examine ill inmates through the closed cell door.

According to state officials, the average stay in solitary confinement is 6.8 years — although California is set to begin a trial program next month that would allow compliant inmates out of isolation after four years. But Amnesty International reported that at least 500 prisoners have spent more than 10 years in isolation. Seventy-eight inmates have been segregated for more than 20 years. "There is no question … the conditions are among the worst in the nation," Murphy said.

The full AI report is titled "USA: The edge of endurance: Prison conditions in California's security housing units," and it is available via this link.

September 27, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

Tuesday, September 25, 2012

"What Happens When the Amish Go to Prison?"

The title of this post is the headline of this recent Slate piece, which is especially timely in the wake of last week's high-profile convictions of a large group of Amish beard-cutters on federal hate-crime charges.  Here is how the piece starts:

Sixteen members of a breakaway Amish sect were convicted of hate crimes in Ohio on Thursday.  The jury found them guilty of violently shaving the hair and beards of disfavored members of the community, and they now face up to 20 years in prison.  How do American prisons accommodate the old-fashioned religious practices of Amish people?

They don’t, for the most part.  State and federal prison systems don’t have special regulations for the tiny number of Amish serving extended sentences, many of them for sex offenses.  The Amish reject most modern technology and dress.  In prison, however, their cells have electric lighting and climate control, they wear orange jumpsuits, and they are transported between the prison and the courthouse in vans, just like other inmates. Prison administrators generally require prisoners to keep their beards trimmed, but wardens sometimes allow exceptions for religious reasons.

U.S. prisons are required to accommodate religious beliefs under the Religious Land Use and Institutionalized Persons Act, but inmates’ religious freedoms are tempered by security and cost concerns.  Striking this balance has proven challenging for judges.  In the case of facial hair, for example, courts have struck down outright beard bans, but agreed with wardens that excessively long or unkempt facial hair prevents guards from quickly identifying inmates.  Prisoners who require special meals have also met with mixed responses.  An inmate can demand a halal meal, but it is often just the prison’s vegetarian meal, because the facility refuses to pay the added expense of halal butchering.

Amish inmates who are forced by the state to use electricity or wear brightly colored clothing aren’t violating their religious beliefs in quite the same way as, for example, an Orthodox Jew who is fed non-kosher food.  Amish are allowed to use modern technology under certain circumstances: Amish farmers often rent lighted stalls at farmers’ markets, and members of liberal communities hire drivers to transport them to supermarkets for weekly shopping.  The prohibition has more to do with excessive engagement with modern technology.  Amish people are not supposed to wire their homes or own automobiles, because those behaviors might distract them from the values of community, humility, and simplicity, and violate what they view as one of the Bible’s most central commandments: “Be not conformed to this world.”

Recent related posts:

September 25, 2012 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (2) | TrackBack

Monday, September 24, 2012

New report from Vera Institute reviews recent changes to prison populations and expenses

Late last week I received this e-mail informing me of a notable new publication that should interest all sentencing fans:

The fiscal crisis of the past several years has put the nation’s reliance on prisons under intense scrutiny. To reduce costs and improve public safety, states have begun to enact policies based on the large body of research showing that many offenders can be effectively handled within the community using evidence-based practices.

A new report from Vera’s Center on Sentencing and Corrections, in partnership with the Pew Center on the States’ Public Safety Performance Project, examines whether, in light of recent state-level policy changes and ongoing budget deficits, the expected shifts in population and spending from prisons to community corrections between 2006 and 2010 have been realized. The findings of Realigning Justice Resources: A Review of Population and Spending Shifts in Prison and Community Corrections are based on survey responses from 36 state prison agencies and 35 community corrections agencies; follow-up interviews with 24 states; a review of recent sentencing and corrections legislation; and an analysis of population counts from the Bureau of Justice Statistics at the U.S. Department of Justice.

Although Vera’s study demonstrates that there is not always a discernible relationship between population and spending shifts from one part of the system to another, several states — such as, Michigan, Rhode Island, South Carolina, Wisconsin, and Virginia — have successfully implemented policies that curb both prison populations and spending.  The authors suggest that economic, political, and structural factors both within and outside the control of policymakers may have stymied many states’ ambitions.  More time and research may be needed to observe the true impact of policy changes on correctional populations and spending.

The full 36-page report is available for download here, and a summary fact sheet can be foud here.

September 24, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 23, 2012

Newt Gingrich urging Gov Jerry Brown to sign law to allow resentencings for juve LWOP in California

I am pleased and intrigued to see that Newt Gingrich, now that he is off the Presidential campaign trail, is back to his "Right on Crime" advocacy for a more sensible and softer sentencing system.  In this op-ed written with Pat Nolan, he urges Governor Jerry Brown to sign California's Senate Bill 9 ("The Fair Sentencing for Youth Act"), which authorizes resentencing opportunities for juveniles sentenced to life imprisonment without parole.  Here are excerpts from the potent op-ed:

We did some dumb things as teenagers that might have caused a lot of harm.  You probably did, too.  Fortunately, we didn’t hurt anyone too badly, but we cringe now at how clueless we were about the possible consequences of what we did.

Teenagers often don’t make very good decisions.  Our laws take this into account in many ways: We don’t let young people drink until they are 21, and they can’t sign contracts, vote or serve on juries until they are 18.

But there is one area in which we ignore teens’ youth and impulsiveness: our criminal laws. Our laws often ignore the difference between adults and teens, and some youngsters are sentenced to life in prison without parole (LWOP).  Despite urban legends to the contrary, this law has no exceptions: A teen sentenced to LWOP will die in prison as an old man or woman. No exceptions for good behavior, no exceptions period.  No hope.

You might expect that these LWOP sentences are limited to the “worst of the worst,” but that is not the case. A young teen can be a bit player in a crime, e.g., act as a lookout while his buddies go in to steal beer from a convenience store....  About 45 percent of the inmates serving LWOP for a teenage crime were not the person who caused the death.  Yet they will die in prison of old age, with no chance for release.

But should these youngsters die in prison for something they did when they were so young? Wouldn’t it be better to re-evaluate them after serving a long stretch in prison and consider whether they have matured and improved themselves?

We are conservative Republicans, and we believe that some people are so dangerous that we must separate them from our communities.  That is what prisons are for.  But sometimes we overuse our institutions.  California’s teen LWOP is an overuse of incarceration.  It denies the reality that young people often change for the better.  And it denies hope to those sentenced under it.

Of course, not every young person going through the system turns his or her life around. But wouldn’t it be better to at least consider whether these inmates have matured and improved themselves after a long stretch in prison?  SB 9, which is now on Gov. Jerry Brown’s desk, would allow the court to give this narrow group of inmates convicted of a crime while a teen a chance to apply for parole -- after serving 25 years in prison. That is no “easy stretch.”

And even then, they will not be automatically released.  They must show the parole board that they have participated in programs that prepare them to support themselves and stay on the straight and narrow when they are released.  They must convince the parole board that they are remorseful and have changed so they no longer pose a threat to the community.  Only then might they be given a parole date.

Jesus told us to “Do unto others” as we would have them do unto us.  Shouldn’t we give the kids and grandkids of others the same second chances that we would want for our own families?

An inherent principle of justice is that the punishment should never exceed the harm done by the crime. It is wrong to condemn these inmates to die in prison for being the teenage accomplice to the terrible acts of another.  We urge Gov. Brown to sign SB 9, and thereby restore the chance for these inmates to transform their lives and become good citizens.

This new article from the Los Angeles Times, headlined "Political lines drawn on life sentences for teen killers," reports on some of the others coming out for and against this intriguing legislation:

In a letter to the governor, [Nancy] Pelosi contended that "civilized societies are increasingly prohibiting life-without-parole sentences for juveniles, recognizing that juveniles do not possess the same mental development as adults.”

Brown is hearing plenty from the other side as well. California Assembly Republican leader Connie Conway earlier this month sent the governor a letter seeking veto of the "unnecessary" bill. "California already has a carefully balanced statutory scheme that appropriately balances the need to hold the most serious juvenile murderers accountable for their crimes, while recognizing different levels of maturity and culpability based on the age of the offender, and retains judicial discretion," she wrote.

Indeed, some victim advocates contend that because judges already rejected the possibility of allowing eventual parole for the state's 309 inmates sentenced as minors, there is no reason to revisit the issue. They have political support from lobbyists for prison guards and prosecutors.

The battle lines are not universally inclusive. Mothers Against Murder, for instance, has refused to take an official stance on the bill even though its membership includes families of those killed by juveniles. "We tend not to take a stand due to our respect for different families' wishes," said Executive Director Margaret Petros.

Related recent posts:

September 23, 2012 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, September 18, 2012

Another day of prison (over)populations headlines

Just about any morning I could fill this blog with stories about overcrowded prisons, but this morning these three headlines from three major news sources really caught my eye:

September 18, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Monday, September 10, 2012

New report examines what ACA can mean for corrections and public safety

I often tell my students that all legal and public policy issues always somehow are really sentencing and corrections issues in some way.  (The 2000 election and the fights in Bush v. Gore are my favorite example: if not for broad felon disenfrachisement laws in Florida, it seems unlikely the popular vote in that state would have been so close.)  For that reason (and others), I was pleased today to get this notice from The Sentencing Project about a new publication examining the impact and import of the Affordable Care Act for certain criminal justice matters:

Many people in correctional institutions have faced barriers obtaining needed physical and behavioral health care services.  This is largely due to high rates of unemployment and narrow Medicaid eligibility criteria.  As documented in our new report, The Affordable Care Act: Implications for Public Safety and Corrections Populations, federal heath care reform legislation could change this in three key ways:

Expanded Health Care Coverage — The Affordable Care Act gives states the option of expanding Medicaid eligibility and makes prevention, early intervention, and treatment of mental health problems and substance use essential health benefits. In states that opt to expand Medicaid coverage, the Federal government will cover 100% of expenditures for the newly eligible population from 2014 to 2016, with the amount of federal funds decreasing yearly to 90% by 2020 and thereafter.

Reducing Recidivism — Because of the role mental health and substance abuse problems play in behaviors that lead to incarceration and recidivism, the Affordable Care Act could help states reduce the number of people cycling through the criminal justice system.

Addressing Racial Disparities — The new legislation may contribute to reducing racial disparities in incarceration that arise from disparate access to treatment.

The Affordable Care Act: Implications for Public Safety and Corrections Populations, by Dr. Susan Phillips, introduces key provisions of the Affordable Care Act as they relate to correctional populations, and includes links to organizations that are closely following the implementation of the act.

September 10, 2012 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, September 04, 2012

Federal district court concludes sex-change operation medically necessary for transgender prisoner

42911660-robert-kosilekAs effectively reported in this new post at the WSJ Law Blog, "a federal judge in Boston has ordered Massachusetts authorities to provide a taxpayer-funded sex-change operation for a transgender prisoner."  Here is more about the ruling from the WSJ Law Blog (which also provides this link to the opinion):

Chief U.S. District Judge Mark Wolf said he based his ruling on the recommendations of doctors at the commonwealth’s Department of Correction who prescribed sex-reassignment surgery as “the only form of adequate medical care” for Michelle Kosilek, who used to go by “Robert.”

Kosilek is serving life in prison without the possibility of parole for the 1990 murder of his wife.

Judge Wolf, describing his 126-page order as “unprecedented,” said that denying Kosilek the surgery was a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Prison officials opposed the operation, saying they couldn’t provide security for Kosilek were he to receive a sex change — an argument Judge Wolf described as “pretextual.”...

Specialists have diagnosed Kosilek with severe gender identity disorder, and since 2003 he has been receiving female hormones. Kosilek lives in the general population of an all-male prison in Norfolk, Mass. Despite the hormone treatment and psychotherapy, Kosilek has attempted to castrate himself and twice tried to commit suicide, according to court documents....

A spokeswoman for the Massachusetts Department of Correction, Diane Wiffin, said, ”We are reviewing the decision and exploring our appellate options.” A lawyer for Kosilek, Frances Cohen of Bingham McCutchen LLP, said she was “pleased and gratified that we got such a thoughtful and full decision from the chief judge.”

The ruling in this case is sure to engender lots of talk-show discussion, but I encourage readers of this blog to take the time to at least read the introduction to the opinion (which itself runs 23 pages) before expressing any views on the merits of the decision.  Everyone should, of course, read all 126 pages of the full opinion before reaching any firm conclusion about the ruling and whether and how an appeal to the First Circuit might proceed.  But I will be content to hear comments after a review of the introduction, which should be sufficient to allow at least informed initial judgments about whether this is just another example of Reagan-appointed federal judges going all crazy activist in a high-profile health care case.

September 4, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (24) | TrackBack

Ninth Circuit opinion provides distinct perspective on "he said/she said" regarding prisoner rape allegations

The Ninth Circuit released an interesting opinion today in Wood v. Beauclair, No. 10-35300 (9th Cir. Sept. 4, 2012) (available here), which gets started this way:

Plaintiff-Appellant Lance Conway Wood is a state prisoner in Idaho. Wood allegedly engaged in a romantic, but not sexual, relationship with a female prison guard, Sandra de Martin. Wood alleges that both during and after the relationship, Martin perpetrated sexual acts on him without his consent.  He filed a civil rights complaint under 42 U.S.C. § 1983 alleging constitutional violations of the First, Fourth, and Eighth Amendments.

The district court granted summary judgment to defendants on Wood’s Eighth Amendment claims finding that the romantic relationship between Wood and Martin was consensual and, therefore, Wood implicitly consented to Martin’s sexual conduct.  Having consented, the district court held, Wood could not state an Eighth Amendment claim.  Wood appeals.

The appeal involves sexual abuse of prisoners by those supposed to protect them, the prison guards.  Unfortunately, this is a serious problem in our prisons today but when prisoners seek redress for their abuse, often the state argues it has no liability because the prisoner consented to the sexual conduct.  As we explain more fully below, because of the enormous power imbalance between prisoners and prison guards, labeling a prisoner’s decision to engage in sexual conduct in prison as “consent” is a dubious proposition.

September 4, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Sunday, September 02, 2012

New York claims success with prison shock camps

As detailed in this AP article, New York is citing to evidence of success at reducing its offender recidivism rate through the use of shock incarceration programs.  Here are the details:

New York corrections officials say they have graduated 45,000 inmates from military-style boot camp over the past 25 years and data shows that most don't commit new crimes. Established around the country in the 1980s as an alternative to regular prison, the so-called "shock camps" got mixed reviews and several states dropped them.  New York kept three camps going with a model they say is effective and cutting down the rate of repeat offenses and saving money.

Only prisoners convicted of nonviolent crimes who volunteer and sign contracts go to the camps.  Many drop out or are kicked out before completing the six months of mandatory physical training, manual labor, education and drug counseling, scrutinized by drill instructors.  The prize for completing the course is a shortened sentence....

Some observers say the lower recidivism is predictable because it's a self-selected and motivated group of inmates who prove capable of finishing the program.  They also note that the lower recidivism, far lower in the first year, starts rising after that.  "Our view is that it's somewhat mixed, but there are definitely some positive elements to it," said Jack Beck, who directs the visiting project for the Correctional Association of New York.  "The regimentation is so different from what these individuals will experience on the outside, it's very hard to translate those experiences into something when they return home."

New York has 1,087 inmates at the shock camps, Moriah in the Adirondacks, Lakeview in western New York's Chautauqua County, and Monterey in the Finger Lakes region.  All are minimum-security without fences and set in rural areas.  Before the state shut the Summit camp southwest of Albany in 2011 to save money, there were 1,284 offenders in the shock program.  The system has some 56,000 inmates in 60 correctional facilities, down from a peak 71,600 in 1999.

Revisions in drug sentencing laws and diverting more inmates to treatment programs have reduced the available pool for shock programs.  Initially intended for prisoners up to age 23, they have been opened to inmates up to age 50 with less than three years left on their sentences.

Corrections spokeswoman Linda Foglia said they estimate having saved $1.34 billion because of the shortened incarceration for 45,135 shock graduates, including 3,355 females, over the past 25 years.  Meanwhile, New York data show 7 percent of those who completed the program from 2007 to 2009 returned to prison within one year, compared to 19.9 percent of all inmates released from state prison.  Recidivism data after three years show a 26.4 percent return rate for those who completed shock in 2007, compared with 42 percent for all releases that year....

A 2003 National Institute of Justice research review said boot camps proliferated nationally starting in the late 1980s, with 75 adult programs by 1995.  Five years later, one-third had closed and there was a 30 percent population drop in remaining state programs. While "almost universally successful improving inmates' attitudes and behavior during the course of the program," the review said those changes did not translate to reduced recidivism, with limited exceptions.  Boot camps that lasted longer, like New York's six months, and offered more intensive treatment and post-release supervision, did better.

As this article highlights, slowly but surely we are learning more about what kinds of correctional programs are more likely to reduce recidivism among various offender populations.

September 2, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Wednesday, August 29, 2012

Prison videoconference visitation program expanding in New York

This New York Daily News article, headlined "Videoconference prison visit program set to quadruple in size this fall," reports on the latest technocorrections development in the Empire State. Here are the details:

The fledging program of prison visits via closed-circuit TV — the first one in the state — is set to more than quadruple in size this fall, the Daily News has learned. “The research shows that people will do better when they’ re released if they stay connected with their families,” said Elizabeth Gaynes, executive director of the Osborne Association, a nonprofit that has been conducting the meetings known as televisits for the past two years.

The program has been confined so far to Albion women’ s prison, allowing children to meet with their mothers. It will soon expand to the male-only Auburn, Clinton and Chateaugay facilities, with videoconference rooms added in Manhattan and the Bronx, the state Corrections Department confirmed. “We see it as a complement, if you will, to our visitation process,” said spokesman Peter Cutler. “It’ s been successful, and we’ re confident it’ ll be expanded even further.”

Visiting New York’ s remote prisons, some located more than a 10-hour bus ride away from the city, can be daunting and expensive. A free bus service was discontinued last year, further reducing options to relatives of some 56,000 inmates. Cutler said that those buses were often nearly empty, and that visits dropped by only 5% since they were canceled.

On a recent afternoon, laughter emanated from inside a cheerfully decorated room as Sindy Villanueva, 33, who’s serving a 4.67-to-12-year sentence, chatted with her 9-year-old daughter, Selena Estevec. “Just because we’ re separated from them doesn’ t mean we can’ t be a part of their lives,” Villanueva said....

Families talk on a large-screen TV that looks very much like a computer Skype window. But because most of New York ’s prisons lack Internet connections or cell service (cell phones are considered contraband), facilitating the hookup requires infrastructure work.

The practice of video-streamed visits have been growing around the country in recent years, with some states charging for the service. Last month, Washington, D.C., switched all visitations to televised ones, drawing criticism from some advocates and inmates’ relatives. Corrections officials in New York insisted they intend to keep televisits free — and the prisons open to physical visits.

Gaynes, of the Osborne Association, which assists incarcerated people and their families, said that many clients love the opportunity to see more of their kids, even if it’s through a TV screen. “They’ re like any mother or parent,” she said. “ They worry about their children.”

August 29, 2012 in Prisons and prisoners, Technocorrections | Permalink | Comments (16) | TrackBack

Tuesday, August 28, 2012

California struggles with prison realignment plans and alternative programming

The Fresno Bee has this effective report on the implementation challenges for California's prison realignment in the wake of the Supreme Court's Plata ruling.  The piece is headlined "California jail overhaul assessed after 6 months," and here are excerpts:

The overhaul of California's criminal justice system last year was billed as a way to get more felons into treatment and out of the vicious cycle of crime, prison and more crime. So far, this has hardly been the case.

Most offenders who qualify for rehab services instead of incarceration under the state's new realignment policy are still being sentenced to time behind bars, reports show.  Only a fraction are ordered to programs that include mandatory drug counseling or job training.

Additionally, the majority of these offenders, because of the way the new policy works, don't get supervision after their release from custody.  This supervision was common before the realignment began.

These shortfalls are adding to concern that the restructured criminal justice system, nearly a year after its October start, may not live up to promises of rehabilitating criminals. "Inmates are going to be coming out of custody unprepared, and they're going to be more likely to reoffend," said Fresno County Sheriff Margaret Mims.  "This defeats the whole purpose of realignment."

The realignment shifts responsibility for most nonviolent felons from the state to counties. (Violent offenders still go to state prison.) Gov. Jerry Brown saw it as a way to relieve the state's overcrowded prison system and, on this front, it's been a success. The prison population has shrunk by more than 15 percent.

Counties, it was expected, would do a better job of managing low-level criminals than the state, by offering treatment services tailored to local needs.  During the first six months of realignment, about 72 percent of the nearly 15,000 statewide offenders newly sentenced to counties instead of the state were given straight jail time, according to a recent report by the Chief Probation Officers of California....

"I think judges are still stuck in the old mind-set where they say, 'Hey, this guy deserves a harsher sentence,' " said Allen Hopper, who has studied the realignment and works as criminal justice director at the American Civil Liberties Union of Northern California.  Six percent of the state's low-level offenders were sentenced to probation programs during the first six months of realignment, while 21 percent were sentenced to a combination of jail and probation, according to the recent report....

State officials overseeing the realignment said they are not in a position to comment on how judges are doing with the sentencing.  They said it is a matter for each county to work out. But California Department of Corrections and Rehabilitation spokesman Jeffrey Callison said that the new policy encourages counties to make use of alternatives to jail.

In Fresno County, the Probation Department, like other probation programs across the state, has begun to beef up its alternative services, from drug rehab to vocational assistance to daily check-in centers.  "We would like to get a shot at these offenders and get them into a program," said Fresno County Chief Probation Officer Linda Penner.  "We feel strongly that a period of intervention, some sort of program, is meaningful."

Penner noted that the policy of realignment is not even a year old, and she's optimistic that its effectiveness will improve with time.  "It's still pretty early," she said.  "As programs strengthen and more alternatives are out there, I expect judges are going to have a higher comfort level and we'll see more people in programs."

Among other lessons, this report and the broader post-Plata story in California reveals that it is critical to change attitudes and culture as well as the legal rules in order to have a real shot at even modest success with major sentencing reforms.

August 28, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, August 23, 2012

"Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics"

The title of this post is the title of this notable new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding.  The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993.  At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms.

This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented.  The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes.  The Article proceeds in four parts.

Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation.  Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation.  It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime.  Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms.  Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement.  Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered.  Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.

August 23, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"Mass killer's Norwegian prison cell has treadmill, computer access"

Norway prisonThe title of this post is the headline of this notable Fox News report providing a remarkable perspective on how some other nations treat their most notorious criminals.  Here is how the lengthy story begins:

Accused mass murderer Anders Behring Breivik's Norwegian prison cell is more spacious than most New York City apartments.   The confessed killer, who will receive his sentence Friday for killing 77 people in a bombing and shooting rampage at a youth camp, was transported Wednesday to Norway's Ila Prison, just outside Oslo.

The high-security prison offers Breivik not one, but three 86-square-foot cells.  One cell functions as a bedroom, another as an exercise room, complete with treadmill, and the third is a study, where Breivik can use a laptop computer.

Officials at Oslo's Ila Prison say the goal is to eventually transfer Breivik to join other prisoners at section of the jail that offers access to a school that teaches from primary grades through university-level courses, a library, a gym, and allows inmates to work in the prison's various shops and participate in leisure activities.  It's all about a philosophy of humane prison treatment and rehabilitation that forms the bedrock of the Scandinavian penal system. "I like to put it this way: He's a human being.  He has human rights.  This is about creating a humane prison regime," said Ellen Bjercke, a spokeswoman for Ila Prison.

Since Breivik's guilt is not in question, the key decision for the Oslo district court Friday is whether to declare him insane after two psychiatric teams reached opposite conclusions on his mental health.  If found to be mentally fit, Breivik would face a sentence of "preventive detention." Unlike a regular prison sentence -- which can be no longer than 21 years in Norway -- that confinement option can be extended for as long as an inmate is considered dangerous to society.  It also offers more programs and therapy than an ordinary prison sentence.

If declared insane, the confessed killer will be the sole patient of a psychiatric ward that Norway built just for him at the prison, with 17 people on staff to treat him. It cost between 2 million and 3 million kroner ($340,000-$510,000), according to Norway's Health Ministry. The facility, featuring a 100-square-foot cell with a bathroom, would offer Breivik some recreational and educational options with therapists from a psychiatric hospital, but not the breadth of options available to prison inmates. Bjercke estimated the cost of keeping Breivik there at 7 million-10 million kroner a year ($1.2 million-1.7 million).

While in isolation, Breivik has access to TV and newspapers and a computer, but no Internet connection.  He has three cells instead of one in "compensation" for not having access to activities offered to other inmates, Bjercke said.  In addition, prison staff and a priest come see him more often than other inmates, so that he has someone to talk to. "Isolation is torture," Bjercke said.

August 23, 2012 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (39) | TrackBack

Wednesday, August 22, 2012

"Meaningless Opportunities: Graham v. Florida’s 'Meaningful Opportunity for Release' for Juvenile Offenders and the Reality of De Facto LWOP Sentences"

The title of this post is the title of this forthcoming Comment by Mark Freeman available now via SSRN. Here is the abstract:

In 2010 the United States Supreme Court decided Graham v. Florida, which held that LWOP sentences for juvenile, non-homicide offenders were unconstitutional. This Comment argues that de facto LWOP sentences, lengthy term of years sentences that exceed a juvenile's natural life expectancy and effectively guarantee the offender will die in prison, are also unconstitutional for juvenile non-homicide offenders.

Part II provides a brief overview of the Supreme Court’s Eighth Amendment jurisprudence and how lower courts have responded to Graham.  Part III explains why de facto LWOP sentences for juveniles who commit non-homicide crimes will fail the Supreme Court’s traditional Eighth Amendment tests and argues for a categorical ban against these sentences.  Part IV discusses the practical implications of this Comment and whether juvenile offenders will see any meaningful change if courts adopt a categorical ban.  Part V concludes that courts should embrace the spirit of Graham’s holding and provide a meaningful opportunity for juvenile offenders to experience life outside of prison before they die.

August 22, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Thursday, August 16, 2012

Texas eager to (and right to) brag about its "smart on crime" parole reforms

Texas paroleThis new Houston Chronicle piece, headlined "Texas says rise in paroles gives state bragging rights: Officials say reforms are 'smart on crime' and save money," provides a lengthy report on the successes Texas officials can and should claim have flowed from its recent criminal justice reform efforts. Here is how the interesting piece starts and ends:

Texas continues a steady march away from its Old West image of being tough on crime to one that state leaders now call "smart on crime" and even fiscally "right on crime." Nothing makes that more apparent than the Texas Board of Pardons and Parole's newly released bragging rights: More prisoners were paroled this past fiscal year than any other year in the past decade, and fewer parolees are being sent back.

The board's report this week boasts 24,342 offenders were approved for parole from Sept. 1, 2010, to Aug. 31, 2011. This represents 31 percent of all who applied and an approval rate that is six percentage points higher than 10 years ago.

At the same time, the number carted back to prison this past fiscal year after their parole was revoked plummeted by 44 percent from a high of 11,374 in 2004.

Instead of fearing accusations of appearing too lenient, state authorities are smiling. "We are pleased with our continuing increase in granting parole," said Rissie Owens, chairwoman of the state's pardons and parole board. "The use of our parole guidelines to assess the likelihood of a successful parole outcome has been cited as a national model for its positive impact on returning more offenders to productive lives."

The Association of Paroling Authorities International has praised Texas' system which many other states are copying, said board spokesman Harry Battson....

The parole department's report showed the highest release rate occurred in one of the worst crime categories: violent aggravated sexual assaults. Nearly 42 percent of those candidates considered for parole were released in the last fiscal year.

However, Battson, the parole department spokesman, stressed that the actual number of violent sex offenders released is relatively small and they are nearing the end of their sentences. This category accounted for 1,849 of the 24,342 released.

The data give positive feedback that even though more parolees are being released, they are committing fewer crimes. The number of new crimes dropped 3 percent last year compared to the previous year.

August 16, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, August 15, 2012

Fascinating story of cowboy fun and games for prisoners in Angola

0802_prison_slateBecause so many of the stories about sentencing and corrections in Louisiana are depressing, I am very pleased a helpful reader alerted me to this interesting new piece up at CNN.  The piece is headlined "When the Game Means Freedom," and it is part of a series called "Gaming Reality." Here are extended excerpts which explain why this piece (and gaming culture) should be of interest to sentencing fans:

On October 20 in a small town in Louisiana, there will be a rodeo, complete with the prerequisite boots, bulls and Marlboro-man doppelgangers. But this particular rodeo will take place not at a fairgrounds, but at the Louisiana State Penitentiary, also known as "Angola."  The riders are untrained inmates who have earned the right to participate -- and feel up to 6 seconds of freedom atop an angry bull -- in a highly calculated and wildly effective prison reward system....

Burl Cain [is] Angola warden..., [and] in 2004 Cain was charged with giving a makeover to America's largest and bloodiest maximum-security prison, home to 5,300 violent offenders. It was a Goliath-sized task.  Angola was stained with a long history of gang violence and one particularly gruesome incident back in the 1950s when prisoners cut their Achilles tendons to protest poor lockdown treatment....

Cain's play-by-play at Angola reads like a deck of game-mechanics cards.  To change behavior, he introduced a progression system that was notched with "appointments" -- challenges inmates had to conquer to in order to get a reward.  Rise to the challenge and you could earn the right to own a pet, to take a job, even the freedom to roam the grounds.

To reach the highest level, known at Angola as becoming a Trustee, can take up to 10 years.  It's not an easy game, but it's one that the majority of its players are highly motivated to play.  Today, Angola is a thriving prison environment that has successfully "rehabbed" many hardened criminals into productive Trustees.  Prisoners have a sense of ownership, achievement, status and some healthy envy -- not to mention an award-winning prison newspaper.

Of course, this is not a new concept.  Prisons have long used incentive systems to motivate inmates.  But Cain's implementation is unique.  His approach has flourished because he evaluated his target audience and recognized that the traditional reward system was broken.  Cain realized that his audience -- many of them men facing life or double-life sentences -- might not be motivated by standard rewards like additional phone time, longer visitation hours or upgraded quarters.

But they would be motivated by an incentive that offered them meaning -- something they could be proud of.  Cain believed the opportunity to be a champion could infuse meaning and pride back into the prison experience while motivating inmates to be better men. Which brings us back to the rodeo.

At a certain point in the climb to Trustee status, inmates earn the opportunity to participate in the Angola Rodeo, held each spring and fall in an arena that holds more than 7,500.  The day consists of 11 events, including bull riding.  The beast in question is a 2,000-pound Brahma bull, and most times the inmate rider has never been on the back of a bull before.  All is not fair in prisons and rodeos....

It's not as unprofessional as it might sound.  Seasoned rodeo clowns are always present in the arena to distract angry animals, and a team of emergency medical personnel is waiting in the wings.  Still, the whole enterprise is speared with controversy, for obvious reasons. Precautions aside, inexperienced inmates are facing off with agitated, unpredictable animals in a costly, injury-ridden event.  Change the name and tweak the specifics, and the Angola Rodeo could easily become the plot of the next bestselling dystopian thriller. "The Hunger Games," anyone?

And yet, the rodeo is a powerful motivator for inmates, for two reasons.  The first is pride. Prisoners are willing to face serious injury for the chance to be cheered on by thousands of onlookers.  The event represents both an earned right and a true challenge to overcome.

The second, overarching incentive is meaning.  It's huge.  It's the reason why we as people respond to games and game-like scenarios.  Games, especially those with powerful incentive systems, lead us up a ladder and allow us to grasp at something intangible.  Much like the Greeks filled stone stadiums to watch gladiators, people are tuning in to the new reality TV show, "Louisiana Lockdown," to see Angola's prisoners succeed or fail. Audiences aren't just responding to the rodeo itself, they're responding to the game mechanics that are driving the inmates' right to participate in the rodeo.

It's a testament to how more people are embracing gamification, which applies game-design thinking to real-life situations to make them more fun and engaging.  You don't need an app or a product or a business to use game mechanics.  You just need a person or a group of people with a behavior that you'd like to change....

Angola is living proof that game mechanics have come a long way from motivating us to water virtual crops in FarmVille.  As inmates become Trustees and take their shot at fleeting glory atop rampaging bulls, game mechanics are becoming a commonplace, mainstream approach to solving even the most intractable of problems.

August 15, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, August 14, 2012

Interesting report on marketing technology to a confined consumer

Businessweek has this notable new piece discussing some private companies' shrewd efforts to tailor technology products to inmate populations. The piece is headlined "The Apple of the U.S. Prison System," and here are excerpts:

The surge [in US prison populations in recent decades] has been good for a constellation of corrections contractors, including JPay, which handles money transfers, e-mail communications, and video visitations for more than 1.4 million inmates in hundreds of prisons across about 35 states. So good that the decade-old business last year expanded into selling inmates its own line of “prison-proof” MP3 players — what it dubs the JP3. “We’re looking for products that an inmate would want to buy and a corrections facility would accept,” says founder and Chief Executive Officer Ryan Shapiro, 35.  “Music was a no-brainer because inmates don’t have enough music and they all love music.”

Shapiro is aiming to make JPay, a 200-employee Miami business that became profitable in 2006, the Apple (AAPL) of the U.S. penal system. To understand why he thinks Apple or another tech behemoth can’t easily snuff him out, here’s a quick review of prison rules: Corrections facilities generally forbid devices that can be turned into weapons, be used to communicate freely with the outside, or conceal contraband.  Hand a violent prisoner an iPad and the risks become fairly clear.

Shapiro says JPay’s player, which retails for around $40 at kiosks the company installs in common areas inside prisons, is virtually indestructible. Inmates use it to browse a library of more than 10 million songs, “just like on iTunes,” and download them for $1.99 a pop. The three most popular artists are Usher, Tre Songz, and Kenny Chesney.  “We take outside applications, redevelop them for prisons specifically, and then deploy them,” Shapiro explains. “The prison doesn’t pay for any of [our services]; it’s the end user who pays.”

JPay didn’t pioneer its new line of business. Keefe Group, a St. Louis-based supplier of food and personal-care products to prison commissaries, launched its own music download service for prisoners in 2009.  While the 37-year-old company didn’t respond to interview requests, a press release posted on the company’s website says it sold more than 1 million downloads in just over a year.  On its own website, a rival correctional facilities supplier, Union Supply Group, headquartered in Rancho Dominguez, Calif., says it started selling digital music to offenders in 2003 and has available more than 5 million tracks “approved” by correctional partners. Shapiro won’t say what JPay has sold or how much it scores in annual revenue but asserts that the company is “way in front of [Keefe] when it comes to money transfer or the media business.”

Shapiro, who holds a bachelor’s degree in economics from the University of Colorado, Boulder, learned about the inconveniences of transferring money to a prisoner’s account when a friend’s mother was sentenced for embezzling.  He says inmates “understand you have to charge in order to be able provide a service … Look at our Facebook (FB)page. Look at how many times someone says: ‘I love JPay.’”

Next up for the business: a mini tablet it plans to start selling by yearend called the JP4. “It’s got an e-mail application, music, e-books — it’s got anything you can imagine,” says Shapiro.  “Think about education, think about games; it’s endless where we could go.  We think it’s as big, if not bigger, than the money-transfer business.”

August 14, 2012 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 13, 2012

California facing crunch time in prison population reduction plans

This new article in the Los Angeles Times, which is headlined "California unlikely to meet prison crowding reduction requirement," reports on the difficult corrections issues facing the Golden State a year after Plata.  Here are the details:

California's progress in relieving its teeming prisons has slowed so much that it probably won't comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.

Three federal jurists have given the state until Friday to come up with a schedule for identifying prisoners "unlikely to reoffend or who might otherwise be candidates for early release" and to detail other ways to hasten the emptying of double-bunked cells. In the interim, the judges have ordered California to "take all steps necessary" to meet their existing deadline for population cuts.

A recent flurry of legal motions that provoked the judges' Aug. 3 order shines the first light on shortcomings in California's plan for fixing its prison system — one so overburdened, with healthcare so poor, that the U.S. Supreme Courtsaid incarceration there was tantamount to "cruel and unusual punishment."

In May 2011, the high court gave California two years to comply with the three judges' determination that prisons should not be overcrowded by more than 137.5%. State officials concede they are unlikely to reach that target by the June 2013 deadline and have told the judges they intend to ask for a new cap of 145%. That would mean about 118,000 prisoners, which is about 6,000 more than the court wants, in quarters built for 81,500.

The officials say they can comply with the spirit of the order — improved medical care and humane living conditions — if not the letter. "Reducing the inmate population is not the goal of the court," said corrections agency spokesman Bill Sessa. "It is a means to an end, which is providing better healthcare that was compromised by overcrowding." He said the goal of improved healthcare would be achieved next year, when the state opens a new 1,700-bed prison hospital in Stockton to house critically ill and long-term-care patients, which will also further reduce crowding.

Since October, Gov. Jerry Brown's realignment program has diverted tens of thousands of low-level felons to county jails and probation programs rather than put them in state lockups. A Times analysis of prison population reports and projections for the last year shows the number of inmates fell faster than analysts predicted but then leveled off.

August 13, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, August 12, 2012

Texas continues to lower its (still high) incarceration rates

TexasToday's Austin Amerincan-Statesman has this lengthy story discussing trends in Texas's prison population levels.  Here are extended excerpts:

In July, Texas' prison system posted its lowest head count in five years, even as the state's overall population continued to grow at a fast clip.

Instead of 156,500 prisoners behind bars in Texas' 111 state prisons a year ago, the lockups now hold just over 154,000 — a drop of about 2,500, according to state statistics. Texas, which historically has had one of the highest incarceration rates per capita of the 50 states, is now in fourth place, down from second two years ago.

Whether the declining prison population is the start of a long-term decrease or a short-lived dip is a matter of debate that will be settled only by time. Still, experts say, prison population declines are occurring in other states, too.

"It's real. It's happening, not only in Texas, but around the country," said Tony Fabelo, an Austin-based criminal justice consultant who coached Texas officials during the 1990s as the state tripled the size of its prison system and is now advising other states on how to decrease their prison populations. "The challenge is to sustain the outcomes to see how far you can go in downsizing prisons. I have my doubts, but it's an interesting time for criminal justice," Fabelo said.

Instead of sending more and more lawbreakers to prison, judges in Texas and other states are increasingly sentencing them to alternative treatment and rehabilitation programs that have proven more effective — and that cost much less. For taxpayers, that could mean safer communities and fewer expensive prisons to operate. For criminals, that could mean more effective programs to help them escape drug and other addictions and become law-abiding citizens again.

A decrease in crime rates, changes in demographics and an aging state population also have a role in emptying Texas' prison beds, experts say.

Not since the early 1990s, when then-Gov. Ann Richards, a Democrat, shook up the historical punishment culture of Texas prisons by opening new drug-treatment prisons focusing on rehabilitation, has such a dramatic trend emerged, some experts say. Only this time, conservative Republicans are driving the reforms that began in 2007, as fiscal conservatism gained the upper hand over tough-on-crime policies.

National prison rates

"Policies in various states are finally catching up with what we know works," said Marc Levin, director at the Austin-based Center for Effective Justice and a leader in the national Right on Crime campaign, which promotes community-justice solutions. "For most nonviolent offenders, community-based initiatives are much cheaper and have much better outcomes," Levin said. "In this time of tight budgets and programs that work, this is the conservative thing to do."...

More reforms are expected when the Legislature convenes next year, with proposals to change drug sentencing to provide more treatment rather than prison time and a push to fund a 2011 law that allows Texas counties to limit the number of felons they send to state prisons in exchange for more state funding for local corrections programs.

"We're definitely going to be looking at what works and what doesn't — and we know that treatment and rehabilitation and community justice programs work," said Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, an architect of many of the reforms. "Prisons should be reserved for the worst of the worst, the violent criminals, murderers, child molesters we should definitely be afraid of. We have a lot of other inmates in there that could probably be housed someplace else, at less cost," Whitmire said....

Despite the enthusiasm in Texas and nationally for community-based alternatives to prison, there are limits [in part because] alternatives to prison don't work for everybody. Sharon Padilla's family highlights that dilemma.

The 34-year-old former Austinite, now living and working in Houston, served three years in Texas prisons for cocaine possession, after flunking out three times on probation with several stints in jail. "I went through programs one after the other, but nothing took," Padilla said. "Prison didn't do much, except it got me off the street.  Drug court got in my business big time, and I had to get my head straight. But it took myself to want to do it."

August 12, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, August 09, 2012

"Engendering Rape"

The title of this post is the title of this new article on SSRN discussing prison rape policies and reform efforts. Here is the abstract:

This article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization.

The selective blindness of prison rape discourse to counterstereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counterstereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counterstereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counterstereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

August 9, 2012 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (9) | TrackBack

Monday, August 06, 2012

Notable report on "decarceration laboratory" taking place in California

Today's New York Times has this interesting new article, headlined "In California, County Jails Face Bigger Load."  The piece discusses how one big county in the largest state in the US has been responding to the Plata ruling, which has required California to reduce its prison populations to remedy  the Eighth Amendment problems created by severe overcrowding.  Here is an excerpt:

Ordered by the United States Supreme Court to reduce severe overcrowding in its prisons, California began redirecting low-level offenders to local jails last October in a shift called realignment. Its prison population, the nation’s largest, has since fallen by more than 16 percent to 120,000 from 144,000; it must be reduced to 110,000 by next June.

Counties with already tight budgets are scrambling to house the influx of newcomers in facilities that were never designed to accommodate inmates serving long sentences, like a man who began serving 15 years for fraud recently in the Fresno jail.

Fresno County — a sprawling agricultural area surrounding the city, which is also facing financial problems and became a punch line for Conan O’Brien recently — is adding 864 beds to its chronically overcrowded jail. Under a longstanding federal consent decree that requires the Sheriff’s Department to release inmates when the jail reaches capacity, 40 to 60 people are let go early every day.

In a move watched by other states also facing prison overcrowding, California is handing its 58 counties money and leeway to decide how to handle the new arrivals. Liberal communities like San Francisco are using a greater share of the state money on programs and alternatives to incarceration. But most counties, particularly here in the conservative Central Valley, have focused on building jail capacity.

That troubles organizations on both sides of the political spectrum. Sheriff Keith Royal of Nevada County, the president of the California State Sheriffs’ Association, said members were worried about their capacity to provide “adequate treatment” in jails and about “litigation at the location level.” The American Civil Liberties Union warned that instead of making fundamental improvements to the criminal justice system, many counties risked simply repeating the state’s mistakes by reflexively putting people behind bars....

Allen Hopper, a lawyer with the A.C.L.U. who co-wrote a study on the shift to jails, said the population at county jails could be significantly reduced by overhauling pretrial procedures. Many inmates, who present no risk, remain in jail simply because they cannot afford bail, he said, adding that alternatives like electronic monitoring and day reporting could free up jail space and save counties money.

But in counties where elected officials are afraid of appearing soft on crime, such alternatives are particularly sensitive. “Everything is political,” said Sheriff Margaret Mims of Fresno County. Sheriff Mims said she had become “less optimistic” about the shift to jails because of rising crime in the county, including burglaries and car thefts. Though law enforcement officials acknowledge that rising crime cannot be linked directly to the realignment policy, they say people engaging in nonviolent offenses like property crime no longer fear being sent to prison.

Despite Fresno County’s conservative attitude toward crime, the policy shift has fueled a debate about alternatives to incarceration by grouping various agencies in the committee overseeing the change, said Emma Hughes, a criminologist at California State University, Fresno, who is working as a consultant for the county.

Linda Penner, the chief probation officer and chairwoman of the realignment committee, said that having secured money to reopen two jail floors, the committee had the political room to approve the $848,000 for the rehabilitation program. “Do I think we’re all getting on the same page in reckoning with the fact that we have to create alternatives to detention?” she said. “Yes.”

This piece, and other like reports on what has been going on in California over the past year since the Plata ruling, confirms my belief that it will likely take a lot of time and a lot of sophisticated reseach before we will be able to reach any confident conclusions concerning the true impact of the Plata ruling and the ways in which California's political and legal system has responded.

August 6, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, August 05, 2012

New York Times editorial laments "Too Many Prisoners"

I am pleased to see this new editorial from the pages of the New York Times.  It is headlined "Too Many Prisoners," and here are excerpts:

The Justice Department in its recent annual report on federal sentencing issues wisely acknowledged that public safety can be maximized without maximizing prison spending. As it noted, the growing federal prison population, now more than 218,000 inmates, and a prison budget of almost $6.2 billion are “incompatible with a balanced crime policy and are unsustainable.”

The department calls for reforms “to make our public safety expenditures smarter and more productive.”  Yet it fails to address sentencing changes that should be made, which would significantly reduce the problem of overincarceration in federal prisons.

Last fall, the United States Sentencing Commission issued a comprehensive report that said mandatory minimum sentences are often “excessively severe,” especially for people convicted of drug-trafficking offenses, who make up more than 75 percent of those given such sentences.  Mandatory minimums have contributed in the last 20 years to the near tripling of federal prisoners, with more than half the prisoners now in for drug crimes....

The Justice Department report does not mention mandatory minimum sentences or their major contribution to overincarceration in federal prisons.  And it fails to urge Congress to make repealing mandatory minimums a high priority, as it should.  It does not mention releasing older prisoners, which the Federal Bureau of Prisons has the power to do.

Nor does it mention adjusting its own policies on drug cases so it would put away fewer offenders not considered dangerous.  About 25,000 people were convicted of federal drug offenses last year, almost the same number as during the Bush administration in 2008 — a substantial proportion in low-level roles of drug trafficking, according to the Sentencing Commission.

Recent related posts on DOJ's Annual Letter to US Sentencing Commission:

August 5, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, August 03, 2012

Split Second Circuit panel rejects varied constitutional attacks on NY parole practices

An interesting split circuit panel ruling comes today from the Second Circuit in Graziano v. Pataki, No. 11-116 (2d Cir. Aug. 3, 2012) (available here).  Here is how the majority per curiam opinion gets started:

Plaintiffs-Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, “Plaintiffs”) filed this class action against Defendants-Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, “Defendants”) on behalf of themselves and all other New York State prisoners convicted of violent felony offenses.  Plaintiffs allege that they have been denied parole as a result of an “unwritten policy” to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause.  Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants’ motion to dismiss Plaintiffs’ complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure.

Here is how the dissenting opinion by Judge Underhill, a district judge sitting by designation, gets started:

The allegations in this case are staggering: According to plaintiffs, the former Governor of New York and the head of the State Parole Commission conspired to convert hundreds of indeterminate sentences into determinate sentences of life in prison without the possibility of parole.  The complaint alleges that the defendants adopted an unwritten policy to deny parole to all prisoners convicted of class A-1 felonies, no matter their record of rehabilitation or fitness for release. They did so to advance their own “political and economic agenda.”  First Amended Compl. ¶ 2.  Their purported scheme circumvented the commands of both legislators and judges; the legislature instructed the Parole Board to consider eight factors when determining whether offenders are ready to rejoin their communities and judges imposed open-ended sentences believing that the Parole Board would do so.  But the Governor’s purported policy flouted these directives.  It allegedly turned parole hearings into sham proceedings -- inmates could present evidence and call witnesses, but they would waste their breath because the policy tied the commissioners’ hands.  As a result, the Governor and the Parole Board consigned hundreds of people to life in prison.

At least, that is what the complaint requires us to assume.  But the majority downplays these factual allegations in the complaint and reframes the plaintiffs’ legal claim for relief.  Because, when viewed in the proper light, the complaint states a plausible claim for a violation of substantive due process, I respectfully dissent.

August 3, 2012 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, August 02, 2012

Audit spotlights clear costs and uncertain benefits of educating Utah inmates

I would never urge anyone to seek a prison stay just to get the benefits of free room, board and medical care all provided at taxpayer expense.  Still, this local story discussing an audit of the monies spent on inmate education in Utah provides a stark reminder that one way to get access to significant taxpayer-funded government benefits is to be incarcerated.  The story is headlined "Educating Utah inmates costs more than other adults, with payoff uncertain," and here is how it starts:

Providing inmates with educational services is viewed as one way to keep them from returning to prison, but a newly released audit says the Utah State Office of Education is spending more money per student providing academic services to inmates than it does on traditional adult education clients and has little data to show how academic achievement boosts job prospects or reduces recidivism.

The audit also found some inmates take hundreds of hours of classes with little to show for it, while others continue in educational programs even after earning a diploma or certificate — resources auditors said could be used to help other inmates or funneled into other programs.

In one program, an inmate student achieved only one level gain after more than 1,000 "contact" hours. Another inmate student who received a diploma, notching a high GPA, had more than 3,000 contact hours but still tested at a first grade level in math, which allowed the inmate to continue receiving educational services.

Better monitoring is needed, an auditor told the Legislative Audit Subcommittee on Wednesday. "We question the value of a diploma awarded with a high GPA when the student continues to function at such low levels," auditors said in the report. "Programs should not be designed to take longer, simply because an inmate has more time available. Not only is there a disparity of contact hours between jail, prison, and traditional adult education, but some inmate programs have what appears to be an excessive number of contact hours."

Lawmakers asked auditors to look at the effectiveness and efficiency of high school education programs — adult high school education, adult basic education and English language classes — offered at Utah’s jails and prisons. They also asked the Utah Department of Corrections to prepare a report on the impact of education programs on recidivism, a study that is still in process.

Last year, 21 local school districts, under direction of the Utah State Office of Education, provided educational services to some 5,268 inmates at 23 jails and both state prison locations. The amount spent on the programs in 2011: $5.4 million, money that came primarily from the USOE’s adult education budget and the Utah Department of Corrections’ education fund.

August 2, 2012 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, August 01, 2012

Commentary links drug war realities to latest DOJ letter to US Sentencing Commission

Phillip Smith writing at Drug War Chronicle has this notable new commentary reacting t0 the Justice Department's recent letter to the US Sentencing Commission (discussed here).  The commentary is headlined "DOJ to Sentencing Commission: Fewer Prisoners, Please," and here are excerpts:

In a congressionally mandated annual report to the US Sentencing Commission on the operation of federal sentencing guidelines, the US Department of Justice (DOJ) said continuing increases in the federal prison populations and spending are "unsustainable" and called on the commission to work with other stakeholders to reduce federal corrections costs.  But the report failed to address the single largest factor driving the growth in the federal prison population: the huge increase in the number of federal prisoners doing time for drug offenses.

According to data compiled by Drug War Facts and based on Bureau of Justice Statistics reports, in 1980, there were some 19,000 federal prisoners, with some 4,500 having a drug offense as their most serious offense.  By 2010, the number of federal prisoners had increased tenfold to more than 190,000, and a whopping 97,000 were doing time for drug offenses, also a tenfold increase.  The percentage of drug offenders increased during that period from roughly 25% of all federal prisoners in 1980 to 51.7% in 2010....

With budgets flat, criminal justice spending has to get more bang for the buck, the DOJ letter said. "We must ensure that our federal sentencing and corrections system is strong but smart; credible, productive and just; and budgetarily sound," the letter said.  "But maximizing public safety can be achieved without maximizing prison spending.  The federal prison population — and prison expenditures — have been increasing for years. In this period of austerity, these increases are incompatible with a balanced crime policy and are unsustainable....

It is clear what is driving the growth in the federal prison population and the federal corrections budget: drug war prisoners.  While the Obama administration DOJ is to be credited with taking some steps that move in the direction of reducing the number of prisoners and the corrections budget, such as supporting the partial reform of the crack/powder cocaine sentencing disparity, its failure to directly address the consequences of policies of mass imprisonment of drug offenders means that it is missing the elephant in the room.

While spotlighting a critical reality about the real budget/prison costs of the federal drug war in light of lean budget times, this commentary relies on some old data.  According to the BOP weekly population report (available here), there are now 218,186 federal prisoners, which likely means there are surely now many more than 100,000 defendants doing federal time (and getting food, housing and medical care at federal taxpayer expense) for drug offenses.

August 1, 2012 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, July 31, 2012

Chief Justice Roberts says DNA collection from arrestees will soon get SCOTUS review (and perhaps approval)

101020113910_dna-apAs reported in this New York Times article, Chief Justice John Roberts yesterday officially granted a stay of a Maryland decision blocking state officials from collecting DNA samples from people charged with certain felonies. The short opinion explaining the ruling by Chief Justice Roberts includes these notable passages:

Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary.  In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault.  When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape.  A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests.  425 Md. 550, 42 A.3d 549 (2012).  Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.  These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented.  In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:

New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.

New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.

Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.

New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.

July 31, 2012 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Monday, July 30, 2012

Ralph Nader urges Obama and Romney to discuss "the prison-industrial complex"

I have a wide array of mixed feelings about Ralph Nader as a politician and policy advocate, but I have no reservations endorsing his advocacy for more political discourse about mass incarceration and the drug war.  This Nader advocacy appears in this lengthy new opinion piece headlined "Obama/Romney: Start debating the prison-industrial complex."  Here are excerpts:

Ever visit a major prison?  The vast majority of Americans have not, despite our country having by far a higher incarceration rate per capita than China or Iran.  Out of sight is out of mind.

Imagine the benefits of the average taxpayer touring a prison. The lucrative prison-industrial complex would definitely not like public exposure of their daily operations. Prison CEOs have no problem with a full house of non-violent inmates caught with possession of some street drugs (not alcohol or tobacco)....

Indeed, for the giant Corrections Corporation of America (CCA), times are booming. CCA builds their prisons or buys or leases public prisons from financially strapped governments. Barron’s financial weekly can always be expected to give us the Wall Street perspective. In a recent article titled “Ready to Bust Out,” writer Jonathan R. Laing is bullish on CCA stock....

Mr. Laing writes that CCA has cost advantages over the public-prison sector, paying lower non-union wages and using more automated technology.  Besides, the company is a tough bargainer when it buys or operates public prisons.  One CCA condition is that the facility must have 1,000 beds, can’t be more than 25 years old, and get this, “the contract must guarantee a 90 percent occupancy rate.”  A guarantee backed by taxpayers no less, unless, that is, the clause works to put more prisoners in jail for longer sentences.

The Barron’s article adds that CCA is counting on “the old standby of recidivism to keep prison head counts growing, filling its empty beds.” To the impoverished rural communities where these prisons are located, it’s about needed jobs....

The same perverse incentives apply to the self-defeating trillion-dollar war on drugs (see http://www.drugpolicy.org/).  History has demonstrated that driving addictions into illegal undergrounds creates vicious underworld crimes.  In Mexico, the so-called drug cartel is getting close to destroying local governments in many regions.  In the U.S., half a million people are behind bars for nonviolent drug offenses, the vast majority arrested for mere possession, not production or sale. That is nearly one in four of all prisoners. There are twenty million marijuana arrests every year in the U.S.!

Drug addictions are treated as crimes instead of as health problems, which we do with tobacco and alcohol addictions.  Gross racial disparities persists, starting with black teenagers having to go to jail for a drug offense six times more often than a comparable white youth, both with prior clean records (http://www.nyclu.org/content/commission-must-reform-inhumane-drug-laws)....

Right/Left convergence is emerging.  Last April, for instance, David Keene, former Chair of the American Conservative Union and Grover Norquist, president of Americans for Tax Reform, joined with the NAACP and other liberals to highlight escalating levels of prison spending and its impact on our nation’s children and poorly performing schools. Connecticut spends $40,000 a year to imprison a juvenile offender compared to less than $12,000 a year to educate a young person.

Other similar convergences over hugely disparate sentencing as with crack and cocaine are forming, making both economic and humane arguments. More young black men are locked up than are in college, according to the Justice Roundtable.

Still, there hasn’t been enough reform pressure even to pass outgoing U.S. Senator Jim Webb’s legislation simply to create a National Criminal Justice Commission Act. This legislation is now stuck in Senatorial limbo.  Start up the prison tours.  Have some led by articulate, former convicts who are pushing to reform our cruel, costly and ineffective prison system.  It is so easy to do much better, if we want to.

July 30, 2012 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 26, 2012

Every Greek prisoner now has to get out of the fancy new pool

As reported in this AP article, "Greece’s largest maximum security prison won’t get to keep its waterfall-adorned, barbecue-equipped pool." Here is why:

The Justice Ministry on Tuesday ordered the destruction of a 7.4-meter (24-foot) long pool in the yard of Korydallos prison’s psychiatric wing, saying the structure was built without permission and did not comply with health and safety standards.

The pool’s existence at the jail near Athens was reported by a newspaper Sunday. The ministry said the structure, reportedly built last year, includes a small rock waterfall and a poolside barbecue installation.

Greece’s Prison Officers Association said the pool was built using money the group raised and was restricted to staff and inmates at the psychiatric wing. Korydallos houses some 2,300 inmates, with about 300 receiving some form of psychiatric care.  The association expressed disappointment over the order to destroy the pool, which it called part of an attempt "to change things for the better — viewing inmates at those facilities as human beings and not numbers."

Overcrowding at Greek prisons has worsened since the start of the country’s major financial crisis in late 2009, according to the Justice Ministry and the prison officers association, due to a spike in violent crime and prosecutions for tax-related offenses.

In addition to finding this story comparatively intriguing and also amusing, I think it is notable that the Greek equivalent of our prison guards' union expressed disappointment over the destruction of this fancy prison facility.

July 26, 2012 in Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, July 23, 2012

Notable crime and sentencing reform talk in latest speech from AAG Lanny Breuer

A few helpful readers made sure I did not miss this prepared speech delivered today by US Asistant Attorney General Lanny Breuer Speaks to the National District Attorneys Association Summer Conference. Here are just some of the scrime-and-punishment highlights from a speech that should be read in full.:

This morning, I submitted, along with a colleague, the Criminal Division’s annual report to the U.S. Sentencing Commission.   In that report, we argue that recent reductions in public safety spending mean that the remarkable public safety achievements of the last 20 years are threatened unless reforms are instituted to make our public safety expenditures smarter and more productive. In short, we are at a crossroads....

According to data from the Bureau of Justice Statistics, state and local criminal justice spending rose from approximately $32.6 billion in 1982 to $186.2 billion in 2006. Federal criminal justice spending increased even more dramatically, from approximately $4.2 billion in 1982 to $41 billion in 2006.

The net result of these reforms and investments has been a steep decline in violent crime across the country -- essentially the opposite of what occurred in the 1960s, ’70s, and ’80s.  According to the Bureau of Justice Statistics, approximately 10 million Americans were victims of violent crime in 1991, whereas less than half that many -- approximately 3.8 million -- were victims of violent crime in 2010....  The steep decline in violent crime over the past 20 years is a law enforcement success story worth dwelling on and worth celebrating.

The fiscal climate of the past several years, however, has led to significant cuts in state and local government spending, including on criminal justice initiatives.  At the Justice Department, our budget has remained essentially flat.... At the same time that federal criminal justice spending has stayed roughly flat, the number of federal prisoners has increased, and our prison and detention spending has increased along with it. This has resulted in prison and detention spending crowding out other criminal justice investments, including aid to state and local law enforcement and spending on prevention and intervention programs....

Our collective challenge, in my view, is to figure out how to control prison spending without compromising public safety, so that we can afford to fund other measures that are proven to lower crime rates, including prevention and intervention programs, and initiatives designed to assist prisoners reentering society with finding employment after they get out.  Indeed, I believe that our ability to increase the productivity of public safety spending of all kinds will largely determine whether we build on the reductions in crime that we’ve experienced since the early 1990s, or whether we see setbacks.

<P>There are no easy answers. Particularly in a time of declining public safety budgets, striking the right balance between prison and detention spending and other criminal justice spending requires thoughtful solutions.

The Justice Department recently put forward two legislative proposals that aim to maximize public safety while also controlling prison costs.

The first of these, the Federal Prisoner Recidivism Reduction Programming Enhancement Act, would allow prisoners who successfully participate in programs that have been demonstrated to reduce recidivism to earn an incentive of up to 60 days per year of credit toward completion of their sentence....

In addition, we have put forward the Federal Prisoner Good Conduct Time Act, which would increase the amount of time a federal prison inmate could earn off his or her sentence, for good behavior, by approximately seven days per year -- from roughly 47 days to 54 days....

These are just two proposals. But, as we told the Sentencing Commission this morning, federal sentencing policy should be reviewed systematically and on a crime-by-crime basis through the lens of public safety productivity.  Looked at through such a lens, it is clear that there are many areas of sentencing policy that can and should be improved.

July 23, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Federal prisoner claims need for medical care prompted escape

As reported in this AP article, a federal "inmate with Mafia ties is asking a judge to have a heart, claiming his own ticker is in such bad shape, he just had to escape from federal custody to seek help."  Here is more:

Derek A. Capozzi, convicted in a gangster-related killing in Massachusetts, said he kicked out the back of a U.S. Marshals transport van in April 2010 because he can't get the medical care he needs while behind bars.

Prosecutors said when he was on the lam for several days, he didn't seek any treatment. And when he was captured in a Dairy Queen parking lot in central Kentucky, marshals said, he had a different excuse for escape: "I'm pulling 53 years."

Capozzi is to appear before U.S. District Judge Joseph M. Hood on Monday in Lexington on a federal escape charge.  Capozzi is in prison for his role in the 1996 killing and dismemberment of 19-year-old Aislin Silva.  She was ordered killed by the leader of the Mafia-affiliated gang that Capozzi belonged to, so she wouldn't be able to cooperate with federal investigators, prosecutors said.

Capozzi claimed in court documents that several doctors have determined he needs to have his heart repaired after he was stabbed in the chest in 2008 while in a federal prison in California. "In the time leading up to his escape and subsequent to his apprehension, (Capozzi) experienced irregular heartbeats and restrictions of breath," his attorney, Steven Milner, wrote in court documents. Capozzi contends he has repeatedly been assured his heart problem will be addressed, but each time he is transferred to another state before anything is done.

The judge has not been persuaded by Capozzi's medical pleas, ruling the inmate may not argue that he tried to escape to seek medical attention....  Motions filed Friday indicate Capozzi intends to plead guilty but reserve the right to appeal the judge's rejection of his medical necessity defense.

Assistant U.S. Attorney Patrick Malloy has said Capozzi didn't seek medical help after his escape. "He hid out in a dentist's office," Malloy wrote in court documents.

July 23, 2012 in Offense Characteristics, Prisons and prisoners | Permalink | Comments (21) | TrackBack

Thursday, July 19, 2012

New Sentencing Project report highlights for-profit detention in the federal system

The Sentencing Project has just published this new report, titled "Dollars and Detainees: The Growth of For-Profit Detention." Here is how the report is previewed in an e-mail I received about it:

The report details how harsher immigration enforcement and legislation led to a 59 percent increase in the number of detainees being held by the federal government between 2002 and 2011. It specifically examines how Immigration and Customs Enforcement (ICE) and the U.S. Marshals Service (USMS) have increasingly relied on private companies to detain these individuals, as well as the complex network of facilities that house federal detainees, and the failings of private detention. Among the report's major findings:

  • Between 2002 and 2011 the number of privately held ICE detainees increased by 208 percent, while the number of USMS detainees held in private facilities grew by 355 percent.
  • In 2011, 45 percent of ICE detainees and 30 percent of USMS detainees were held by private companies.
  • Federal detainees are held in a complex network of facilities in which information on where individuals are being held, and by whom is often unavailable or incomplete.
  • The private detention industry is dominated by the same companies that are regularly criticized for their management of private prisons.
  • Concerns raised in the context of private prisons, including unsatisfactory levels of service, negative political and policy implications, and questionable economic effects, apply equally to private detention.

The full report, Dollars and Detainees: The Growth of For-Profit Detention, includes a list of the privately-operated facilities actively employed by ICE and USMS, as well as detailed graphs and data on the growth of private detention, and the lobbying activities of Corrections Corporation of America.

July 19, 2012 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack