Saturday, July 16, 2011

"The Causes of Growth in Prison Admissions and Populations"

The title of this post is the title of this important new empirical paper by Professor John Pfaff now available via SSRN.  Here is the abstract:

The explosive growth in the US prison population is well documented, but its causes are poorly understood.  In this paper I exploit previously-unused data to define precisely where the growth is occurring.  In short, the growth in prison populations has been driven almost entirely by increases in felony filings per arrest.  All other possible sites of growth -- arrests, admissions per filing, convictions per filings and admissions per conviction, and even (perhaps most surprisingly) time served per admission -- have barely changed over the past four decades.  But the growth in filings tracks that of admissions almost perfectly.  This paper demonstrates the importance of felony filings and considers some of the possible explanations for their growth.

July 16, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (59) | TrackBack

Friday, July 15, 2011

"Black men survive longer in prison than out: study"

The title of this post is the headline of this Reuters article about a new study that seems sure to get significant attention.  Here are the details:

Black men are half as likely to die at any given time if they're in prison than if they aren't, suggests a new study of North Carolina inmates.  

The black prisoners seemed to be especially protected against alcohol- and drug-related deaths, as well as lethal accidents and certain chronic diseases.  But that pattern didn't hold for white men, who on the whole were slightly more likely to die in prison than outside, according to findings published in Annals of Epidemiology.

Researchers say it's not the first time a study has found lower death rates among certain groups of inmates -- particularly disadvantaged people, who might get protection against violent injuries and murder.

"Ironically, prisons are often the only provider of medical care accessible by these underserved and vulnerable Americans," said Hung-En Sung of the John Jay College of Criminal Justice in New York.     "Typically, prison-based care is more comprehensive than what inmates have received prior to their admission," Sung, who wasn't involved in the new study, told Reuters Health by email.

The new study involved about 100,000 men between age 20 and 79 who were held in North Carolina prisons at some point between 1995 and 2005.  Sixty percent of those men were black. Researchers linked prison and state health records to determine which of the inmates died, and of what causes, during their prison stay.  Then they compared those figures with expected deaths in men of the same age and race in the general population.

Less than one percent of men died during incarceration, and there was no difference between black and white inmates.  But outside prison walls, blacks have a higher rate of death at any given age than whites.  "What's very sad about this is that if we are able to all of a sudden equalize or diminish these health inequalities that you see by race inside a place like prison, it should also be that in places like a poor neighborhood we should be able to diminish these sort of inequities," said Evelyn Patterson, who studies correctional facilities at Vanderbilt University in Nashville, Tennessee....

As in the general population, cancer and heart and blood vessel diseases were the most common cause of death among inmates -- accounting for more than half of deaths. White prisoners died of cardiovascular diseases as often as expected and died of cancer slightly more often than non-prisoners.

Black inmates, by contrast, were between 30 and 40 percent less likely to die of those causes than those who weren't incarcerated. They were also less likely to die of diabetes, alcohol- and drug-related causes, airway diseases, accidents, suicide and murder than black men not in prison.

"For some populations, being in prison likely provides benefits in regards to access to healthcare and life expectancy," said study author Dr. David Rosen, from the University of North Carolina at Chapel Hill....     For Rosen, one of the main messages from the study is the need to make the world outside of prison walls safer, and to make sure people living there have adequate access to healthcare.

The underlying study appealing in the Annals of Epidemiology that is the basis of this article is available via this link 

July 15, 2011 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Saturday, July 09, 2011

Split Iowa Supreme Court endorses denial of good behavior credit for sex offender who refuses to admit guilt in treatment program

As detailed in this news report, headlined "Justices: It's OK to push inmates to admit guilt," the Iowa Supreme Court yesterday held that "Iowa sex offenders can be compelled to admit their crimes as part of prison treatment programs without triggering a violation of the inmates' right against self-incrimination." Here is more:

Four of the seven Iowa justices found that the Mount Pleasant Correctional facility didn't violate Robert Harkins' Fifth Amendment rights by denying him time off for good behavior if he refused to participate in a treatment program. The remaining justices said they would have allowed the requirement only if the state offered immunity to prevent any admissions from being used against Harkins in court.

Iowa law says state prison inmates can earn 1.2 days off their sentences "for each day the inmate demonstrates good conduct and satisfactorily participates" in any program he or she is determined by prison officials to need.

Harkins, convicted of third-degree sexual abuse in 2006, argued in court pleadings he filed himself that linking those "earned-time credits" to completion of sex-offender treatment violated his constitutional rights because the treatment required signing a contract that would have forced Harkins to "assume full responsibility" for his past offenses and behavior....

[T]he majority of justices - Thomas Waterman, Edward Mansfield, Bruce Zager and Chief Justice Mark Cady - ruled Friday that state prison officials have "important rehabilitative goals" in using the possibility of a longer prison term to compel sex-offender treatment.

"The state is not using a threatened loss of credits to try to extract testimony; instead it is attempting to administer a bona fide rehabilitation program for sex offenders who have already been found guilty under a statutory scheme that afforded them all required due process," Mansfield wrote in a 27-page opinion for the majority.

"Harkins had every right not to be a witness against himself. ... Now that he has been convicted as a sex offender, though, the State of Iowa may constitutionally establish an incentive for him to obtain treatment in prison by withholding earned-time credits if he declines to participate."

Justice Brent Appel, author of a 30-page dissenting opinion on behalf of a minority that included Justices David Wiggins and Daryl Hecht, said the case boils down to a tough choice for Harkins: "Simply put, if he chooses to remain silent by not participating in the program, he likely will be incarcerated for a substantially longer period of time."

Appel's opinion concludes that Iowa has imposed "an impermissible penalty for the exercise of (Harkins') Fifth Amendment rights" and argues that "the state may force Harkins to choose" between self-incrimination and a longer sentence "only if it provides Harkins with use and derivative-use immunity from prosecution."

I cannot yet find a copy of this ruling available on line, but I will post a link to the ful opinion once available.

July 9, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, July 07, 2011

"Would porn incite prison violence?"

The question in the title of this post is the main heading given to this new piece at Salon, which carries this subheading: "An inmate sues over a ban on explicit material, but officials say smut causes aggression. We look at the evidence." Here are excerpts:

A 21-year-old inmate is suing the governor and state of Michigan for depriving him of porn while locked up. This case follows on the heels of a suit last month by the ACLU to force a South Carolina prison to loosen its broad restrictions on reading materials, which was sensationalized in the press as a push for porn in prison, causing officials to explain that smut was a danger to inmates because it would cause aggression and violence.

Is there really evidence that it would, though?

The short answer is: No, there isn't solid proof that it would. The longer answer is, as Joseph Slade, the author of "Pornography and Sexual Representation: A Reference Guide," tells me: "No responsible academic researcher claims that evidence supports pornography's causing hostility or violence, principally because of the number of variables involved in constructing studies, the divergent definitions of pornography, and the sometimes unconscious biases of those who look for effects," he said. These studies also focus on the immediate, short-term impact. "That does not mean that there are no effects, just that they cannot be ascertained." That's exactly why in 2007, Sweden's Supreme Court ruled in favor of allowing porn in prison: Officials couldn't prove that it would "jeopardize the safety of the institution."

In a piece for the International Journal of Law and Psychiatry, researchers Milton Diamond and Ayako Uchiyama pointed out that there is a fundamental problem with assuming that people in the real world function just like the college students in these laboratory experiments: "In real life, individuals can elect to experience some pornography for minutes or hours, at a single session, or over years. In real life, individuals are free to satisfy different sexual urges in ways unavailable to students in classroom situations." (Just to further complicate things, none of these studies specifically look at the effect in prison, which is, clearly, a very unique environment with yet more variables.)

Setting all those serious caveats aside for a minute, a meta-analysis attempted to settle the debate once and for all by surveying the sizable amount of research on the effects of pornography and concluded that viewing "pictorial nudity reduces" -- yes, reduces -- subsequent aggressive behavior. At the same time, though, "consumption of material depicting nonviolent sexual activity increases aggressive behavior," but "media depictions of violent sexual activity generates more aggression than those of nonviolent sexual activity."...

So, as I said, the short answer is that there isn't evidence that porn causes aggression -- and yet prisons continue to ban explicit material on those very grounds. Considering our general disregard for science -- not to mention the fact that prisoners' sexual fantasy lives are not at the top of most people's lists of important world problems -- it's no real surprise.

July 7, 2011 in Data on sentencing, Prisons and prisoners | Permalink | Comments (4) | TrackBack

"Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates -- And Why it Should"

The title of this post is the title of this new piece by Professor W. David Ball, which now is available via SSRN.  Here is the abstract:

California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases.  The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities.  The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.

But what if state prison overcrowding is really a county problem?  I argue that state prison overcrowding is due in large part to county decisions about how to deal with crime.  Using data from 2000-2009, I will show that California’s counties use state prison resources at dramatically different rates, and, moreover, that the counties which use state prisons the most have below-average crime rates.

The contribution the Article makes, then, is twofold.  First, it reinforces that incarceration in state prisons is one policy choice among many, not an inexorable reaction to violent crime.  Counties can and do make different choices about how to respond to violent crime, including the extent to which they use prison.  Second, the Article demonstrates why localities are crucial -- and critically underexamined -- contributors to state prison populations.  Decisions are made at local levels about prosecution, investigation, plea bargaining, and sentencing, and these decisions are made by officials who are either elected locally (such as DA’s, judges, and sheriffs) or appointed locally (police and probation officers).  Local policies and policymakers affect the state’s corrections budget, even though the state has no say in designing or implementing these policies. State officials must take these local differences into account, and create incentives for counties to behave differently.

The problem is that it is difficult to distinguish between justifiable, crime-driven incarceration and optional, policy-driven incarceration.  I propose a new metric for distinguishing between these two types of incarceration, one which defines justified incarceration in terms of violent crime.  This would allow the state to manage local usage of state prison resources without either penalizing crime-ridden areas or rewarding prison-happy ones.

This Article is the first of two articles dealing with the state/county prison relationship. While this Article quantifies the ways in which the extent of local prison admissions is not necessarily a function of the violent crime rate, a second Article will examine whether, given these differences, it makes sense for the state to subsidize county commitments to prison.

July 7, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, July 06, 2011

Hunger strike among California prisoners growing

As detailed in this new article, "[i]nmates in at least 11 of California's 33 prisons are refusing meals in solidarity with a hunger strike staged by prisoners in one of the system's special maximum-security units, officials said Tuesday." Here is more:

The strike began Friday when inmates in the Security Housing Unit at Pelican Bay State Prison stopped eating meals in protest of conditions that they contend are cruel and inhumane.  "There are inmates in at least a third of our prisons who are refusing state-issued meals," said Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation....

Some inmates are refusing all meals, while others are rejecting only some, Thornton said. Some were eating in visitation rooms and refusing state-issued meals in their cells, she said.  Assessing the number of actual strikers "is very challenging," Thornton said....

More than 400 prisoners at Pelican Bay are believed to be refusing meals, including inmates on the prison's general-population yard, said Molly Poizig, spokeswoman for the Bay Area-based group Prisoner Hunger Strike Solidarity....

The group's website claims that prison officials attempted to head off the strike by promoting a Fourth of July menu that included strawberry shortcake and ice cream. According to the website, the wife of a Security Housing Unit inmate said her husband had never had ice cream there and "has never seen a strawberry."...

The strike was organized by Security Housing Unit inmates at Pelican Bay protesting the maximum-security unit's extreme isolation. The inmates are also asking for better food, warmer clothing and to be allowed one phone call a month. 

The Security Housing Unit compound, which currently houses 1,100 inmates, is designed to isolate prison-gang members or those who've committed crimes while in prison.  The cells have no windows and are soundproofed to inhibit communication among inmates. The inmates spend 22-1/2 hours a day in their cells, being released only an hour a day to walk around a small area with high concrete walls.

Prisoner advocates have long complained that Security Housing Unit incarceration amounts to torture, often leading to mental illness, because many inmates spend years in the lockup.  Gang investigators believe the special unit reduces the ability of the most predatory inmates, particularly prison-gang leaders, to control those in other prisons as well as gang members on the street.

Recent related post:

July 6, 2011 in Prisons and prisoners | Permalink | Comments (0) | TrackBack

Crime paying pretty well for doctors in California's prison system

As detailed in this AP article, headlined "Data show prison doctors at top of state pay scale," it appears that in California doctors working within the state correction system are finding ways to profit from the state's prison problems. Here are some details:

Doctors, dentists and psychiatrists with the federal receiver's office overseeing inmate medical care are the highest paid state employees in California, according to government salary data the state controller's office released Tuesday.

Two prison doctors make more than $700,000 a year.  Dozens of other prison medical personnel, some with the Department of Mental Health, make more than $300,000 a year. A top official with the California Department of Forestry and Fire Protection makes $309,000 annually.

The controller's office began requesting the data in response to the compensation scandal in the Los Angeles County city of Bell.  Residents there voted the entire city council out of office in March after learning that council members and other top officials were giving themselves enormous salaries and pensions.

The people with the top four state salaries are two doctors, a dentist and a psychologist, all working for the Department of Corrections and Rehabilitation, who were paid salaries ranging from $777,323 to $582,609....

The information is available on a website that shows salary ranges as well as actual compensation in calendar year 2010, said Hallye Jordan, spokeswoman for Controller John Chiang.  It lets users see the employees' true earnings, including overtime, bonuses, and if they cashed in vacation time or sick leave, she said.  "There are people who are making more than the maximum salary (range)," Jordan said, by the time additional income is added to their base salaries.  All five of the top-paid state employees earned more than the maximum salary listed for their position....

Nancy Kincaid, spokeswoman for the court-appointed federal receiver who controls prison medical care, said many of the prisons' health care providers do not earn the maximum salary listed for their professions.

July 6, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

"The GOP's Born-Again Prison Reformers"

The title of this post is the headline of this recent piece over at The Daily Beast.  Here is how it begins:

Back in the early 1990s, William Kennedy was a power player who toed the Republican Party line and put the likes of Ed Meese, Ronald Reagan’s tough-on-crime attorney general, on the cover of his Conservative Digest magazine.  Then some business deals went south and he was convicted of racketeering and money laundering and spent 17 years behind bars (his first night in Colorado’s Ed Meese Detention Center, of all places). Recently dozens of leading conservatives gathered at a private home in Virginia to welcome him back to society.  Kennedy insists he was the victim of prosecutorial misconduct, but a bitter irony still overwhelms him.  “I helped push the same laws that put me away all these years,” he told us in his first interview since his release in January . “I was a law-and-order conservative.  What an idiot I was.”

His is not the only transformation.  The party of Nixon’s 1968 law-and-order campaign, Just Say No, and the Willie Horton ad is now seeing a growing number of leaders tackling what once would have been political suicide: reforming the country’s overwhelmed criminal justice system.  While the recent Supreme Court decision to free tens of thousands of California prisoners due to overcrowding has upset conservatives (Justice Antonin Scalia dissented strongly, describing the potential release of “46,000 happy-go-lucky felons”), the magnitude of the decision makes it even harder to pretend the U.S. doesn’t have a problem.  And these days many conservatives are leading the charge for a solution.

Conservative governors in lock ’em up states are suddenly talking about rehabilitation and redemption, not throwing away the key.  Gov. Nathan Deal signed legislation in April that opens the door to overhauling Georgia’s sentencing laws; Louisiana’s Bobby Jindal in January announced a partnership to help fix the state’s ballooning incarceration rate — the highest in the country.  In Indiana, Mitch Daniels says he is fighting for legislation to reduce recidivism (nationally, 43 percent of offenders are back in jail within three years). And Ohio’s new Republican governor, John Kasich, is being feted by conservatives for pushing a prison reform bill through the state house in early May, calling the reform “low-hanging fruit.”  Legislation that would keep more people out of prison has also recently passed in such right-leaning states as Kentucky, Arkansas and South Carolina.

Inside the Beltway it’s the same story.  Newt Gingrich’s Contract with America once called for more prisons and tougher sentencing, but these days the presidential candidate is co-authoring passionate editorials about the need for “common-sense left-right agreement” on prison reform and “encouragement and love” for offenders who have served time.  He’s joined other conservative icons like Meese, Grover Norquist, William Bennett and NRA president David Keene to pledge their names to the Texas Public Policy Foundation’s recently launched “Right on Crime” website, designed to make the rehabilitation of non-violent offenders and the end of skyrocketing incarceration rates the new conservative cause célèbre.

July 6, 2011 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 02, 2011

Can a hunger strike by state prisoners in SHU have an impact?

The question in the title of this post is inspired by this new AP article, headlined "Pelican Bay prison inmates go on hunger strike." Here are the basics:

Dozens of inmates in an isolation unit at Pelican Bay State Prison went on a hunger strike Friday to protest conditions they describe as inhumane.

Advocates for the prisoners at the Security Housing Unit said inmates are subjected to solitary confinement and forced interrogations — the latter as prison officials try to elicit information about gangs.  "The inmates see this strike as their only shot at trying to get improvements," said Carol Strickman, an attorney with the group Legal Services for Prisoners with Children, which represents some of the striking inmates.

A lawsuit filed in 1990 accused officials at Pelican Bay of abusing inmates.  A federal judge ruled in the inmates' favor in 1995 and ended the case in March after determining the state corrections department had made sufficient reforms to protect inmates from abuse by guards.

Terry Thornton, a spokeswoman for the California Department of Corrections and Rehabilitation, said additional restrictions on those prisoners are needed to reduce the influence of gangs.  However, officials denied that prisoners in the unit are kept in solitary confinement or subject to forced interrogations.  "We encourage them to walk away from that (gang) lifestyle," Thornton said. "But it's their choice."

Several dozen inmates in the Security Housing Unit declined to eat their morning meal on Friday, advocates said.  The unit holds about a third of the 3,100 inmates at the maximum-security prison.

State prison officials confirmed the strike, though they did not immediately know how many inmates were participating.

The Security Housing Unit segregates prisoners from the general population who have been determined to be prison gang members or have committed a serious crime while in prison.  About 4,000 of the 162,000 inmates in the state corrections system are housed in such units, which exist at three other prisons in addition to Pelican Bay.

July 2, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, July 01, 2011

"California given strict deadline to reduce prison population"

The title of this post is the headline of this new Los Angeles Times article, which gets started this way:

A three-judge court that has ordered California to reduce its prison population issued strict deadlines Thursday for what will amount to a reduction of 37,000 inmates in two years.

The special panel of federal judges set June 27, 2013, as the deadline for compliance, paying little heed to the U.S. Supreme Court's call for flexibility. In May, the high court cited California's cash crisis in suggesting that officials might need more time to resolve the overcrowding problem.

The three-judge court ruled in August 2009 that conditions in state prisons violated the Constitution's ban on cruel and unusual punishment. The inmate population — then exceeding 160,000 — was twice the number for which the state's 33 prisons were built, the court said, and the crowding resulted in deprivation of medical and mental health care for many inmates. By Dec. 27, the number of prisoners must be at or below 133,600, or 14,400 fewer than were in state custody last week.

Further cuts of 9,600 by next June and 6,400 by December 2012 were also ordered. In two years, the population must be no larger than 111,000. Some reductions have already been accomplished since the original court order.

July 1, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, June 30, 2011

US Sentencing Commission voting today on making new FSA crack guidelines retroactive

As previously noted here and as indicated in this official public notice, this afternoon at a public meeting, the US Sentencing Commission will vote on whether and how to make the new reduced crack offense federal sentencing guidelines applicable retroactively to previously sentencing defendants.  The new guidelines reflect the 18-1 quantity ratio between crack and powder cocaine quantities that became the new federal sentencing standard after the Congress passed the Fair Sentencing Act of 2010.

As I have detailed in prior posts (some of which are linked below), a decision to make the crack guidelines retroactive would potentially impact the sentences of many thousands of federal prisoners, and this fact has made this issue a subject of considerable controversy.  Still, the smart money is on the Sentencing Commission voting to make the new crack guidelines retroactive with a few (but not too many) limitations on which previously sentencing defendants can get the benefit of the new lower guidelines.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporter on the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

I will be on the road and likely off-line until very late tonight, but the folks at FAMM are all over this issue, as evidenced by this new item on FAMM's homepage:

Today! Historic Sentencing Commission vote on retroactivity

At 1 p.m., the U.S. Sentencing Commission will vote on retroactivity of the crack guidelines.  FAMM's Mary Price told the Associated Press, "there is a tremendous amount of hope out there ... there is a potential that people could see their sentences reduced, some quite dramatically."  Learn more -- read FAMM's latest factsheet, "Myths and Facts on Crack Guideline Retroactivity" and other resources.  FAMM will also report live from the vote on Twitter.

June 30, 2011 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, June 24, 2011

"Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies"

Gaming_the_system-cover-full The title of this post is the title of a new report (available here) from the folks at The Justice Policy Institute. This press release provides background on the report:

Over the past 15 years, the number of people held in all prisons in the United States has increased by 49.6 percent, while private prison populations have increased by 353.7 percent, according to recent federal statistics.  Meanwhile, in 2010 alone, the Corrections Corporation of America (CCA) and the GEO Group, the two largest private prison companies, had combined revenues of $2.9 billion.  According to a report released [this week] by the Justice Policy Institute (JPI), not only have private prison companies benefitted from this increased incarceration, but they have helped fuel it.

Gaming the System: How the Political Strategies of Private Prison Companies Promote Ineffective Incarceration Policies, examines how private prison companies are able to wield influence over legislators and criminal justice policy, ultimately resulting in harsher criminal justice policies and the incarceration of more people.  The report notes a “triangle of influence” built on campaign contributions, lobbying and relationships with current and former elected and appointed officials.  Through this strategy, private prison companies have gained access to local, state, and federal policymakers and have back-channel influence to pass legislation that puts more people behind bars, adds to private prison populations and generates tremendous profits at U.S. taxpayers’ expense.

“For-profit companies exercise their political influence to protect their market share, which in the case of corporations like GEO Group and CCA primarily means the number of people locked up behind bars,” said Tracy Velázquez, executive director of JPI.  “We need to take a hard look at what the cost of this influence is, both to taxpayers and to the community as a whole, in terms of the policies being lobbied for and the outcomes for people put in private prisons.  That their lobbying and political contributions is funded by taxpayers, through their profits on government contracts, makes it all the more important that people understand the role of private prisons in our political system.”

Paul Ashton, principle author of Gaming the System, noted, “This report is built on concrete examples of the political strategies of private prison companies. From noting campaign donations, $835,514 to federal candidates and $6,092,331 to state-level candidates since 2000, to the proposed plan from Ohio Governor John Kasich to privatize five Ohio prisons followed by the appointment of a former CCA employee to run the Department of Rehabilitation and Corrections, Gaming the System shows that private prison companies’ interests lie in promoting their business through maintaining political relationships rather than saving taxpayer dollars and effectively ensuring public safety.”...

If states and the federal government are interested in providing cost-effective, proven public safety strategies, investments in private prison companies will not help achieve that goal.  Gaming the System includes a number of recommendations for criminal justice policies that are cost-effective and will improve public safety:

  • States and the federal government should look for real solutions to the problem of growing jail and prison populations.  A number of states are already utilizing innovative strategies for reducing the number of people behind bars in their state. Reducing the number of people entering the justice system, and the amount of time that they spend there, can lower prison populations, making private, for-profit prisons unnecessary, and improving public safety and the lives of individuals.
  • Invest in front-end treatment and services in the community, whether private or public.  Research shows that education, employment, drug treatment, health care, and the availability of affordable housing coincide with better outcomes for all people, whether involved in the criminal justice system or not.  Jurisdictions that spend more money on these services are likely to experience lower crime rates and lower incarceration rates.  An increase in spending on education, employment and other services not only would improve public safety, but also would enhance and enrich communities and individual life outcomes.
  • Additional research is needed to effectively evaluate the cost and recidivism reduction claims of the private prison industry.  With conflicting research on both the cost savings and recidivism reduction of private prisons, additional research is needed to determine the accuracy of such claims.  Moreover, a clearer dialogue surrounding the difficulties of comparative research between private and public facilities would also be beneficial in providing a better understanding of the implications of prison privatization.

June 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 22, 2011

Budget realities leading Ohio republicans to embrace progressive prison reforms

As detailed in this Columbus Dispatch piece, headlined "Senate prepares to vote on 'get-out-of-prison-sooner' bill: Measure would shorten inmates' sentences and save Ohio $78 million a year," the republicans in Ohio, who control all the political positions in the state, are on the verge of enacting massive sentencing and prison reforms.  Here are the details:

Ohio's criminal-sentencing overhaul is growing, with provisions added by an Ohio Senate panel yesterday requiring prisons to justify why they are keeping inmates 65 or older, provide certificates to help former inmates get jobs, and create an instant diversion program for shoplifters.

The Senate Judiciary Criminal Justice Committee voted 6-3 late last night to pass a substitute version of House Bill 86 loaded down with new amendments.  The bill will be considered by the full Senate today.

Savings are estimated at $78 million annually on prison costs, by diverting nonviolent offenders to community programs and giving inmates credit that would reduce their sentences for participating in treatment and training.  It would provide the option of treatment instead of prison for low-level, nonviolent drug offenders, allow release of inmates who have served at least 80 percent of their sentences, and equalize penalties for crack-cocaine and powder-cocaine possession.

Gov. John Kasich supports the main provisions of the bill, which he called "common-sense improvements that are badly needed."

One change approved last night would require the Ohio Department of Rehabilitation and Correction to issue a report justifying why prisoners who are 65 should still be kept in prison.  The state now houses 320 prisoners 65 or older and nearly 1,900 inmates 60 or older.

Other changes include a provision that would give inmates who have completed certain programs a "certificate of achievement and employability."  That would shield potential employers from on-the-job liability if they hire ex-offenders.

Sen. Tim Grendell, R-Chesterland, the committee chairman, said another change would permit a sort of instant diversion program for shoplifters.  They would not be arrested, but could arrange a community program with the store in lieu of jail time.  "This ought to help us some and save money in the process," he said.

June 22, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, June 21, 2011

Desperate sick man commits $1 bank robbery to get health care in prison

Throughout the modern health care reform debates, I have often joked with students that the United States has long had a single-payer health-care system for all persons in every jurisdiction, but one needs to commit a serious crime in order to get admitted to this (prison-based) single-payer system.  This joke has a serious side through this remarkable local story from North Carolina headlined "Bank robber planned crime and punishment."  Here are the details:

James Richard Verone woke up June 9 with a sense of anticipation. He took a shower. Ironed his shirt. Hailed a cab. Then robbed a bank.

He wasn’t especially nervous. If anything, Verone said he was excited to finally execute his plan to gain access to free medical care. “I prepared myself for this,” Verone said from behind a thick glass window in the Gaston County Jail Thursday morning. Verone spoke calmly about the road that led him to a jail cell he shares with a young man arrested for stealing computers....

Until last week Verone had never been in trouble with the law. Now he hopes to be booked as a felon and held in prison where he can be treated for several physical afflictions.

Verone worked for Coca-Cola for 17 years. He prided himself on keeping his nose to the grindstone. Don’t make enemies. Sell the product. Make your deliveries and stick to your schedule. When his career as a cola delivery man ended some three years ago, Verone was knocked out of his comfort zone.... Not his first choice, Verone became a convenience store clerk. But the bending, standing and lifting were too much for him. The Gastonia man’s back ached; problems with his left foot caused him to limp. His knuckles swelled from arthritis, and carpal tunnel syndrome made daily tasks difficult. Then he noticed a protrusion on his chest.

Strapped for cash, Verone looked into filing for disability. He applied for early Social Security. The only thing Verone qualified for was food stamps. The extra money helped, but he felt desperate. He needed to get medical attention, and he refused to be a burden on his sister and brothers. “The pain was beyond the tolerance that I could accept,” he said. “I kind of hit a brick wall with everything.”

A couple of months ago Verone started weighing his options. He considered turning to a homeless shelter and seeking medical help through charitable organizations. Then he had another idea: commit a crime and get set up with a place to stay, food and doctors.

He started planning. As his bank account depleted and the day of execution got closer, Verone sold and donated his furniture. He paid his last month’s rent and gave his notice. He moved into the Hampton Inn for the last couple of days. Then on June 9 he followed his typical morning routine of getting ready for the day. He took a cab down New Hope Road and picked a bank at random — RBC Bank.

Verone didn’t want to scare anyone. He executed the robbery the most passive way he knew how. He handed the teller a note demanding one dollar, and medical attention. “I didn’t have any fears,” said Verone. “I told the teller that I would sit over here and wait for police.”

The teller, however, did have some fears even though Verone never showed a weapon. Her blood pressure shot up and once Verone was handcuffed by police, the teller was taken to Gaston Memorial Hospital to be checked out. Verone said he was sorry for causing the woman any pain....

Verone says he’s not a political man. But he has a lot to say on the subject of socialized medical care. He suspects he wouldn’t be talking to a reporter through a metal screen wearing an orange jumpsuit if such an option were available in the U.S....

The man has high hopes with his recent incarceration. He has seen several nurses and has an appointment with a doctor Friday. The ideal scenario would include back and foot surgery and a diagnosis and treatment of the protrusion on his chest, he said. He would serve a few years in prison and get out in time to collect Social Security and move to the beach.

Because he only demanded $1, he was charged with larceny from a person. Still a felony, the count doesn’t carry as much jail time as bank robbery. The bearded, gray-haired man plans to represent himself in court. He’s trying not to get too confident about his knowledge of the legal system. He just wants to prepare a statement for the judge and then take whatever active sentence he is given. Verone is considering an ultimatum if the penalty isn’t great enough, he said. The crime will happen again.

The day Verone set out to commit his first felony, he mailed a letter to The Gazette. He listed the return address as the Gaston County Jail. “When you receive this a bank robbery will have been committed by me. This robbery is being committed by me for one dollar,” he wrote. “I am of sound mind but not so much sound body.”

Verone wanted to talk to a reporter to make sure people knew why he turned to crime. He figured he had nothing to lose. “I knew that a felony would not hurt me. I cannot work anymore,” he said. “That felony is going to hurt my reputation.”

June 21, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (40) | TrackBack

Monday, June 20, 2011

"Could flogging solve our prison crisis?"

The question in the title of this post come from the headline of this new Salon piece, which includes a Q&A with the author of a new provocative book titled "In Defense of Flogging." Here is how the piece starts:

America's prison system is in a state of crisis. Since the declaration of a war on drugs 40 years ago, our country has amassed the largest prison population the world has ever seen. Overcrowding and unconstitutional conditions have gotten so bad that one of the worst offenders, California, was recently ordered by the U.S. Supreme Court to either transfer 33,000 people to other jurisdictions or simply let them go. Now former police officer turned criminal justice professor Peter Moskos has devised a modest proposal that, he argues, could solve the problem of our congested prisons overnight: give prisoners the option of being flogged instead of being imprisoned.

Moskos makes a compelling 154-page argument in flogging’s favor. He points out that since physical brutality is already a part of prison life -- for example, 1 in 20 prisoners report having been sexually assaulted by other inmates or staff in the past year -- and corporal punishment is a much faster and cheaper method of retribution, prison may actually be the more inhumane and less fiscally responsible option. Although his outrageous idea may conjure up unsavory reminders of U.S. slavery, by the end of "In Defense of Flogging," Moskos might just have you convinced.

Salon spoke with Moskos about the feasibility of flogging, the reasons behind our prison population explosion -- and why so many Americans want to see prisoners suffer.

June 20, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Nebraska yet another state struggling with high prison population and its costs

As detailed in this effective local article, headlined "Prisons losing crowding battle," the Cornhusker State is struggling with prison over-population problems.  Here are some of the particulars from an article that effectively details one state's on-going struggle with crowded and costly prisons:

A deluge of new prison inmates — many convicted of sex crimes — is overwhelming the state's effort to relieve overcrowding in the state corrections facilities. The state has been ramping up a program to accelerate parole for short-term, low-risk inmates and reduce overcrowding, which has hovered around 140 percent of capacity for several months.

But record-high admissions to Nebraska prisons, along with still-transitioning rehabilitative programs, have left those efforts well short of expectations. Instead of populations falling at the nine state correctional facilities, numbers have risen in the past few months, reaching 4,482, or 141.17 percent of capacity, last week. State prison officials spoke last year of paroling more than 260 inmates by July 1, but the number of inmates on parole has risen by only 40 since March 1.

Bob Houston, state corrections director, remains confident his department can reach a goal of reducing the state's prison population by 545 inmates, or about 12 percent, over the next two years....

State officials, needing to close a nearly $1 billion budget gap this spring, were counting on faster progress to parole more short-term inmates, providing significant cost savings. A total of $6.7 million in savings was projected over the next two years by paroling 545 inmates.

It costs about $29,000 a year to house an offender behind bars, compared with $5,000 per year for intense parole supervision. Houston and others say parole, coupled with treatment, is more effective at avoiding repeat crimes. The expected reduction had another anticipated benefit: heading off construction of a $125-million-plus state prison.

When the prison population reaches 140 percent of capacity, it triggers a report to the governor, who can declare an emergency.  The figure also can be a benchmark federal judges use to order construction of new prison cells....

The growth in the number of sex offenders sent to prison appears to be a major culprit in the prison population dilemma.  Such offenders generally serve longer sentences and are paroled at a much lower frequency than other inmates, exacerbating the overcrowding problem.

In the past couple of years, sex offenders have supplanted drug dealers and drug users as the largest group in Nebraska prisons.  A sex offense was the most serious crime committed by nearly 19 percent of all state inmates.  Assault followed at 13 percent, with felony drug crimes third at 12 percent.

Officials said prison alternatives such as drug court and community corrections have reduced the number of inmates sentenced for drug crimes.  But while one in five inmates is in prison for sex crimes, only about one in 30 offenders released on parole last year, or 28 in 797, was a sex offender.

That is despite a low rate of recidivism for sex offenders.  A 2002 U.S. Department of Justice study found that 5.3 percent of men who committed rape or sexual assault had reoffended within three years of being released from prison.  Esther Casmer, the state parole board chairwoman, disagreed that the low rate of parole for sex offenders was related to any cultural fear of such criminals.

Casmer said her board is often presented with parole candidates who have either refused treatment for sex offenses or have been unable to get treatment because of waiting lists in the state prison system.  Casmer said she won't parole anyone who hasn't shown through treatment that his risk of reoffending has been reduced.

June 20, 2011 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, June 19, 2011

"Paroled lifers pose high risk of new crimes: Serious offenders often back in jail in 3 years, review finds"

Criminals__1308480457_3279The title of this post is the headline of this lengthy article appearing in today's Boston Globe.  Here are excerpts:

More than a third of the most serious criminal offenders paroled in Massachusetts over the past five years were returned to prison for committing new crimes or violating the conditions of their release, a Globe review has found, raising questions about the public risk posed by granting early release to scores of convicted murderers, as well as the state’s ability to supervise violent criminals on parole.

The Globe analysis, undertaken after last December’s fatal shooting of a Woburn police officer by a career criminal on parole from a life sentence, found that the Parole Board freed 201 prisoners serving 15 years to life from January 2006 through December 2010.

Thirty of the parolees, or 14.9 percent, were returned to prison after being accused of committing new crimes, including murder and assault and battery with a dangerous weapon, as well as less serious offenses such as assault and drunken driving. An additional 39, or 19.4 percent, were sent back because of parole violations such as failing a drug test.

The 34.3 percent reincarceration rate goes directly to the question the Parole Board could not answer after the shooting death of Woburn officer John Maguire last winter: How often do Parole Board decisions to release serious criminals go awry, resulting in new threats to the public? Was paroled lifer Domenic Cinelli’s murderous rampage an anomaly or part of a pattern?

The Globe analysis also appears to contradict a widely held belief in criminal justice circles: that lifers are less likely than other parolees to return to prison because they tend to be older and face the risk of resuming a life sentence if they violate the conditions of their release.

In fact, in 2009, Massachusetts lifers returned to prison more often than parolees convicted of lesser offenses, based on a Parole Board study that found that 22 percent of non-lifers on parole returned to prison.

Josh Wall, the newly installed chairman of the Massachusetts Parole Board, said the Globe’s findings reflect an urgent need for change in the decision-making process used by board members when considering parole applications from violent criminals. He said the board has approved parole for about one-third of the lifers who applied in recent years, but that rate is likely to drop as it adopts newly written guidelines and more rigorous standards. “People who are serving a life sentence who come before the Parole Board assure the Parole Board that they will not commit any new crimes and will obey all the conditions of parole," Wall said. “As we see, 35 percent of those lifers who received parole were unsuccessful in completing those promises. That rate is too high." Wall also said the board will begin tracking the return rate for paroled lifers and improve its collection of information on all parolees — an area in which Massachusetts is severely lacking, especially in comparison with states such as New York.... In the course of its review, the Globe found a number of Parole Board decisions that resulted in the release of repeat, violent criminals who committed serious new crimes once they were paroled....

Other paroled lifers who ended up back in prison appeared to make genuine attempts to forge new lives before they reoffended by committing less serious crimes. Mark Jones, for instance, seemed to make progress after the board paroled him in 2006, nearly 25 years after he was convicted of second-degree murder for his role in a Roxbury shooting when he was a teenager. Jones married and found work at a Home Depot and later as an ambulance driver and a cabbie, and began building a new life, primarily in Lynn. But his marriage foundered as he and his wife fought and finally separated. Jones also failed a urine test that detected marijuana use — an infraction that could have landed him back in prison.

Jones’s parole officer and the officer’s supervisor gave him another chance. But Jones and his estranged wife had another argument, this time over a car she was using, that culminated when Jones punctured the tires of the vehicle. He has been back in prison ever since. Jones, who is now 49, said he did not blame the Parole Board for returning him to prison. But he also said that, if paroled again, he would attempt to begin his freedom under the supervision of a sponsoring organization such as a church that might provide more help than a parole officer is able to give....

Some advocates say that the reincarceration rate for lifers in Massachusetts is not alarming, noting that most went back to jail for violating the terms of their release, while only 15 percent committed new crimes. “The fact that only 30 people were returned for new crimes is a fantastic number and speaks well of parole as a public safety measure," said Leslie Walker, executive director of Prisoners’ Legal Services, which provides legal services for inmates.

But Wall, a veteran prosecutor who was Governor Deval Patrick’s pick to revamp the Parole Board in the wake of the Cinelli case, said minor criminal offenses or technical violations of parole, such as failing a drug or alcohol test, can be precursors to more serious, violent crimes. “If you know the initial offense, most likely a murder, was committed while drinking, the failure to pass a urine test is more serious than it might be for a parolee whose initial offense was larceny," he said.

Overall, the rate of reincarceration for Massachusetts lifers appears relatively high, at least when compared with New York State, which has tracked murderers and other offenders on parole for decades. Only 19.1 percent of the 1,480 convicted murderers paroled from 1986 to 2006 in New York were returned to prison. In addition, only 2.6 percent were returned for committing new crimes, while 16.6 percent were sent back to prison for committing technical violations of their parole.

The reason for the difference between the states is hard to discern, complicated by the Massachusetts Parole Board’s failure to keep detailed data on recidivism. Peter Cutler, spokesman for New York’s Department of Corrections and Community Supervision, attributed the low return rate in his state to a comprehensive effort to assess every inmate’s shortcomings when they enter prison, along with mandatory treatment and job training designed to prepare them for life outside of prison.

On the other hand, the return rate for Massachusetts lifers is lower than the return rate for all state prison inmates, including those who completed shorter sentences and those released with no post-prison supervision. A recent study by the Pew Center on the States, a nonprofit public policy research organization, found that 43.3 percent of people released from the nation’s prisons in 2004 were reincarcerated within three years.

June 19, 2011 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Friday, June 17, 2011

"Five myths about incarceration"

Five-myths-145x100 The title of this post is the headline of this new piece in the Washington Postauthored by Marc Mauer and David Cole.  The piece merits a full read, but here I will spotlight the author's set-up and statement of their "five myths."

No country on Earth imprisons more people per capita than the United States.  But for America, mass incarceration has proved a losing proposition.  The Supreme Court recently found California’s overcrowded prisons unconstitutional, and state legislators want to cut the vast amounts of public money spent on prison warehousing.

Why are so many Americans in prison, and which ones can be safely released?  Let’s address some common misunderstandings about our incarceration problem.

1. Crime has fallen because incarceration has risen....

2. The prison population is rising because more people are being sentenced to prison....

3. Helping prisoners rejoin society will substantially reduce the prison population.....

4. There’s a link between race and crime....

5. Racial disparities in incarceration reflect police and judges’ racial prejudice.

I am very interested in any and all reader reactions to these "five myths."  In particular, I would like to hear any comments/arguments contending that one or more of these myths are not really myths, and I would also would like to hear any comments/arguments contending that there are other more important myths about incarceration that did not make Mauer and Cole's list.

June 17, 2011 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

"Can imprisonment rehabilitate?"

The title of this post is the title of this terrific post at Grits for Breakfast asking some of the bigger and broader questions implicated by the narrow ruling by the Supreme Court yesterday in Tapia.  Here are excerpts of this post, which ends with questions on which I would also like to hear reader comments:

Kagan [in here opinion for the Court in Tapia] identified the four stated purposes of criminal sentences — retribution, deterrence, incapacitation, and rehabilitation - but explained that federal law does not allow all of them to be considered in crafting different types of sentences.  For example, not only may rehabilitation not be considered when ordering imprisonment, but "retribution" may not be considered when ordering community supervision.  Kagan found especially "illuminating ... a statutory silence — the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs."

The opinion does not impact state courts, interpreting only a federal criminal statute, but this same issue comes up frequently in the context of drug courts, which in Texas may require longer-than-usual incarceration stints in secure lockups known as "community corrections" facilities as a condition of probation for up to two years to facilitate rehabilitation.  For that matter, the statute authorizing drug courts explicitly allows "a court [to] use other drug awareness or drug and alcohol driving awareness programs to treat persons convicted of drug or alcohol related offenses."

So while the federal statute explicitly excludes rehabilitation as a goal of incarceration on the grounds that locking someone up is "not an appropriate means of promoting correction and rehabilitation," Texas law specifically contemplates imprisonment in a secure facility in pursuit of rehabilitative goals.

The Catch-22 for Texas' stance comes in cases like Tapia's where a defendant is recommended for a treatment program but there are lengthy delays because of a shortage of treatment capacity  (Tapia, despite the court's recommendation, never actually entered the federal RDAP program).  Another version of that phenomenon: Texas' parole board frequently extends prisoners' time they're incarcerated because they've not completed this or that treatment program, even when the reason they didn't complete it is a lengthy waiting list for services, not anything the prisoner did or didn't do.  That's been an issue most particularly in DWI cases, but at various times that observation would also apply to drug treatment, sex-offender treatment, and other rehabilitative programs.

Should rehabilitation goals be considered in sentencing someone to prison?  While Kagan finds ample backing to say federal law "precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation," it's an open question — one on which I'd like to hear Grits readers' opinions — whether that's the right policy.

It's also interesting to me, though understandable, that drug treatment in a secure facility is equated in this opinion with pure "imprisonment" with no rehabilitative goals.  In Texas political debates and even in the statutes, treatment in a secure facility is considered a separate beast from straight up imprisonment — an "alternative to incarceration," in the parlance.  But the offender is still locked up while receiving treatment.  What do you think?  Is this a distinction without a difference?

Recent related posts on the Tapia ruling:

June 17, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

"Fear-mongering from the Bench: Scalia & Alito Disgrace Themselves in Brown v. Plata"

The title of this post is the headline of this sharp commentary authored by Malcolm C. Young, who is the Soros Senior Justice Fellow and Director of the Program for Prison Reentry Strategies at Northwestern University Law School’s Bluhm Legal Clinic.  Here are excerpts:

The ruling [in Plata] should have been a slam dunk, given the repeated findings of atrocious conditions, the repeated failure of state defendants to provide remedies, and the consensus among national experts that the prison population had to be reduced — and could be reduced safely.  The testifying experts, many previously hired by the state to produce commission reports, included five former or current heads of state departments of corrections.  Of those, four had never before testified for prisoner plaintiffs — but came forward, as one stated, because “the prisons aren’t safe,” and “nobody seems to be willing to step up to the plate and fix the problem.”  This was the record on which Justice Kennedy based the majority opinion.

Yet the narrow, 5–4 ruling was in fact anything but a slam dunk; and while those of us who agree with the majority may have won a battle, the war remains very much in question. Especially when you survey the weapons the other side deployed.  In a troubling display of injudicious rhetoric, dissenting Supreme Court Justices Antonin Scalia and Samuel Alito used scare tactics to describe, in frankly demagogic terms, the potential effects of the majority decision in Brown v. Plata.  In separate dissenting opinions, Scalia and Alito took potshots at the lower court’s ruling and at their colleagues’ majority opinion.  Scalia faulted the lower court’s order as too broad a remedy, asserting sarcastically that “the vast majority of inmates most generously rewarded by the release order ... will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”  Elaborating this theme, he speculated about “the inevitable murders, robberies, and rapes to be committed by the released inmates,” while Alito warned of a future “grim roster of victims.”  Together they repeated nine times that “forty-six thousand convicted criminals” will be released—“the equivalent of three Army divisions,” Alito mused darkly, conjuring up columns of soldiers shouldering rifles and marching out of prison to wreak havoc on the public....

Do the wild alarms of Justices Scalia and Alito reflect willful misunderstanding or merely a runaway sense of the theatrical?  Whatever the case, they ignore some crucial facts: that the recommended releases will result in no more than a manageable 14.5 percent increase in prisoner releases in California; that many California prisoners pose minimal risk to citizens, including over thirty-two thousand convicted of low-level, nonviolent crimes and thousands more of drug-related offenses; that seventy thousand former prisoners are returned each year for violating parole, including seventeen thousand whose violations consisted of simply breaking an administrative rule such as not reporting to their parole office; and finally that forty-seven thousand new inmates arrive at the gates each year with less than ninety days to serve in prison — “convicted criminals” who are coming home soon anyway, no matter what the courts rule.  And as for the lurid invocation of iron-pumping cons, such imagery is suggestive but false.  As evidence in the lower court amply showed, California’s prison gyms and day rooms are “crammed” with three-high bunk beds.  No one is “pumping iron” in them....

Citizens eager to alleviate unconscionable prison conditions should celebrate the decision in Brown v. Plata cautiously.  Grounded in evidence and important principles, the majority opinion concludes that “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized world.”  And yet I fear that the dissenting opinion may be the one that ultimately prevails. That is because the dissenting justices appealed to the same exaggerated but durable fear of crime — and the same intuitive but inaccurate reliance upon incarceration as a solution—that brought California before the Supreme Court in the first place.  Two starkly divergent opinions mapping starkly divergent courses for our future: it remains to be seen, in a nation beset by unprecedented mass incarceration and all the accompanying human and financial costs, which one will win the day.

Some prior posts on the Plata ruling and responses thereto:

June 17, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Illinois Supreme Court limits state efforts to take monies earned by prisoners

As detailed in this AP article, a state effort to encourage "inmates to get jobs in prison and then taking away the money they make to pay for their incarceration is absurd and unjust, the Illinois Supreme Court ruled Thursday." Here is more:

Although the state may take a percentage of prisoners' earnings and "assets" such as Social Security or pension benefits, state law does not allow confiscating all money earned at jobs worked behind bars.

The state Department of Corrections had sued convicted murderer Kensley Hawkins for the estimated $455,000 cost of keeping him locked up in a Joliet prison from 1983 to 2005. Officials sought authority to take a good chunk of the $11,000 he had in a savings account after working as a furniture assembler.

Justice Rita Garman, writing for a unanimous court, decided that two state laws seem to contradict each other allow Corrections to seek reimbursement for the cost of incarceration and may take a portion of prison wages to satisfy that cost -- in Hawkins' case, 3 percent, or $750.

But the law says the rest shall be deposited into inmates' bank accounts. Any other interpretation is "absurd, unjust," and not what lawmakers intended, Garman wrote. A prison system that takes away what inmates earn also takes away incentive to work and learn a marketable skill, Justice Lloyd Karmeier wrote in a special concurring opinion.

"Work may be its own reward for some, but probably not for most inmates in the Department of Corrections," Karmeier wrote. "Once inmates realized that the extra work necessary to generate savings would benefit only the Department of Corrections, not them, they would quickly reevaluate the utility of prison employment."...

Robyn Ziegler, of Attorney General Lisa Madigan's staff, said the opinion "provides some much-needed clarity to the law and recognizes that the state can continue to recoup costs of incarceration under other circumstances." Hawkins' lawyer, David Simonton, said the ruling proves "Illinois is serious in promoting the basic hope of its prison system -- namely, that once inmates are released they will not return to a life of crime."...

Hawkins, convicted of murder, armed robbery and other crimes in Will County in 1982, is not scheduled for release until May 2028.  But studies show inmates who work in vocational programs are 20 percent less likely to re-offend, according to the Institute for People with Criminal Records, a Colorado-based non-profit group, which filed a brief in the case.  It also pointed to a study that found of more than 20,000 inmates released to Chicago communities in 2005, 1,200 of them wound up homeless.

The full Illinois Supreme Court opinion in Hawkins is available at this link.

June 17, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, June 15, 2011

Reviewing the "political paralysis" making California sentencing reform distinctly dysfunctional

This front-page article from the San Francisco Chronicle, which is headlined "'Political paralysis' in Calif. over prison reform," highlights effectively the political forces that ultimately culminated in the Supreme Court need to affirm the major prison population reduction order in the Plata case last month. Here is how the piece starts and some notable quotables from the piece:

As California deeply cut spending for public schools, social services and health programs in recent years, state leaders also found themselves grappling with a court order to reduce the prison population by tens of thousands of inmates.

Some civil rights groups and criminal justice experts are now seizing on this perfect storm of chronic deficits and crowded prisons to push for wide-ranging changes to the state's sentencing laws that would transform California's handling of crime and punishment. The California chapters of the American Civil Liberties Union and other civil rights groups want the state to reduce drug possession and low-level, nonviolent property crimes from felonies to misdemeanors, and they want more community-based alternatives to incarceration.

Yet even modest changes have trouble getting legislative support from Republicans and Democrats alike in California -- even as bipartisan groups of policymakers in conservative states such as Texas, Mississippi and Kentucky embrace sentencing reform and alternatives to incarceration.

"There's a political paralysis here - people are afraid," said former state Sen. Gloria Romero, D-Los Angeles, whose 2007 bill to create an independent sentencing commission passed the Senate but failed in the Democratic-dominated Assembly. "I think it's a false fear, but they are afraid of being labeled soft on crime, so they legislate by sound bite. They don't take up the big issues, so years pass and we are in the same predicament."...

Last month, a bill that would have given district attorneys the power to decide whether to charge marijuana cultivation as either a misdemeanor or felony -- and save taxpayers an estimated $3.5 million a year -- mustered only 24 votes in the Assembly, with much of the opposition coming from Democrats.  And Gov. Jerry Brown's proposal to send low-level, nonviolent offenders to local jails instead of state prisons has prompted howls from the right. Republican Assemblyman Jim Nielsen of Gerber (Tehama County) warned of "blood on the streets," and Sen. Sharon Runner, R-Lancaster (Los Angeles County), said Californians need to "get a gun, buy a dog, and put an alarm system in."

"It's the politics of fear," said Sen. Mark Leno, D-San Francisco, who has had mixed results in pushing prison reforms through the Legislature.  "In times of fiscal crisis, when we are limited to a few choices, the question is how long can we afford to lock up ever more people for longer periods of time and still have funds for public education and higher education?" Leno said California's corrections budget has more than doubled as a percentage of the state's general fund spending since he entered the Legislature in 2003....

Barry Krisberg, a criminal justice expert at UC Berkeley, said the California District Attorneys Association has enormous sway over lawmakers and opposes most sentencing changes. He noted that the federal government and 23 states have sentencing commissions, which tend to increase penalties for violent crimes and decrease penalties for nonviolent offenses.

"The question is, what's wrong with us? Are we more conservative than Virginia? Are we more irrational than North Carolina?" he said.  "It's the politics, and it's the dilemma of this state. ... Unlike almost all the other states, we have been unable to get the two parties to sit down and cut a deal.  It's not the prison guards -- they are not standing in the way. It's not victims' rights groups.  It's really the District Attorneys Association."...

Politicians also fear the "Willie Horton" syndrome, Krisberg said -- a reference to the Massachusetts felon who did not return from a weekend prison furlough program and brutally raped a woman.  Then-Massachusetts Gov. Michael Dukakis' support for the program and response to the incident helped doom his White House bid.  "Democrats are scared of being used in the next campaign," Krisberg said. "The minute we made determinate sentencing (the law) through the Legislature, we made sentencing a political issue. That's been going on for 30 years, and it's hard to turn around after 30 years."

That's not the case everywhere, said Adam Gelb of the Pew Center on the States.  He said states such as Texas, Mississippi and Kentucky have taken notice of the fact "that states can reduce their incarceration rate and also have less crime."

Prior posts on the Plata ruling and responses thereto:

June 15, 2011 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Sunday, June 12, 2011

Lots to good reasoning on crime and punishment at Reason

Reason cover A few helpful readers have pointed me to a few different notable new pieces in the July issue of Reason magazine.   That issue is a special one with the over title  "Criminal Injustice: Inside America's National Disgrace."  Reasoneditor-in-chief Matt Welch provides an effective introduction to this issue, titled "The Ends Didn’t Justify the Means: Our complicity in the devastating war on crime," which starts this way:

At the first presidential debate of the 2012 campaign, former New Mexico Gov. Gary Johnson implored Republican voters to conduct a “cost-benefit analysis” of the criminal justice system.  “Half of what we spend on law enforcement, the courts, and the prisons is drug related, and to what end?” Johnson asked a South Carolina audience in May.  “We’re arresting 1.8 million a year in this country; we now have 2.3 million people behind bars in this country.  We have the highest incarceration rate of any country in the world.  I would ask people to look at this issue; see if they don’t come to the same conclusion that I did, and that is that 90 percent of the drug problem is prohibition-related.”

The ends of justice, Johnson argues, have not justified the means of prosecution.  This issue of reason is a detailed brief in support of that thesis.  A system designed to protect the innocent has instead become a menagerie to imprison them.  A legal code designed to proscribe specific behavior has instead become a vast, vague, and unpredictable invitation to selective enforcement.  Public servants who swear on the Constitution to uphold the highest principles of justice go out of their way to stop prisoners from using DNA evidence to show they were wrongly convicted.  Even before you start debating the means of the four-decade crackdown on crime and drugs, it’s important to acknowledge that the ends are riddled with serious problems.

 And here are the three major article that follow this introduction in the magazine:

The "social costs" article, authored  by Harvard sociology Professor Bruce Western, includes these important insight:

Do prisons make us safer?  By taking would-be offenders off the streets, prisons clearly have reduced crime in the short run.  In the long run, though, imprisonment erodes the bonds of work, family, and community that help preserve public safety.

Three effects are fundamental.  First, former prisoners do worse economically than if they had never been incarcerated.  We can see some evidence in a study I conducted in 2004 with the Princeton sociologist Devah Pager. We ran an audit experiment that sent trained testers to apply for more than 1,000 entry-level jobs throughout New York City.  The fake job applicants were dressed similarly, gave similar answers, and provided résumés with identical education and work experience.  At each job interview, however, one randomly chosen tester would tick the application box indicating a criminal record and submit a résumé that mentioned a prison and provided a parole officer as a reference.

White testers who were assigned a criminal record received call-backs or job offers from employers only half as often as testers with clean records. For African Americans, a criminal record reduced employment opportunities by two-thirds. Labor force data from the National Longitudinal Survey of Youth paint a similar picture of incarceration’s negative effects: Wages fall by about 15 percent after prison, yearly earnings are reduced by about 40 percent, and the pay of former prisoners (unlike compensation for the rest of the labor force) remains stagnant as they get older.

The second important effect of imprisonment falls not on ex-inmates but on their families.  About half of all prison and jail inmates are parents with children under 18.  By 2008 about 2.6 million children had a parent in prison or jail.  By age 17, one in four African-American youth has a father who has been sent to prison.

Because of their poor job prospects, formerly incarcerated fathers are less able to contribute financially to their families.  Because incarceration strains marital relations, those fathers are also less involved as parents.  Compared to otherwise similar kids whose parents haven’t been behind bars, the children of incarcerated parents are more likely to be depressed, behave aggressively, and drop out of high school.  These problems appear to be more common for boys than girls. Incarceration, it seems, is weakening the bonds between fathers and sons.

The third important effect of incarceration is cultural, shaping how the institutions of law and order are viewed in high-crime/high-incarceration neighborhoods.  The prison population is drawn overwhelmingly from low-income inner-city areas whose residents come to associate police and the courts with the surrounding social problems of violence and poverty.  Police are viewed as unhelpful, and often unaccountable, contributing to what the Harvard sociologist Robert Sampson calls “legal cynicism” in troubled, crime-ridden neighborhoods.

June 12, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

"Medicine and the Epidemic of Incarceration in the United States"

The title of this post is the title of this short "perspective" piece appearing in The New England Journal of Medicine.  Though much of the ground covered by the piece will be familiar to regular readers of this blog, I thought these passages added some new data to the usual discussions of mass incarceration:

The largest facilities housing psychiatric patients in the United States are not hospitals but jails. More than half of inmates have symptoms of a psychiatric disorder as defined by the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM­IV), and major depression and psychotic disorders are four to eight times as prevalent among inmates as in the general population — yet only 22% of state prisoners and 7% of jail inmates receive mental health treatment while in­carcerated....

Substance use and dependence are highly prevalent in the incar­cerated population.  More than 50% of inmates meet the DSM­IV criteria for drug dependence or abuse, and 20% of state prisoners have a history of injection­ drug use.  Up to a third of all heroin users — approximately 200,000 — pass through the crim­inal justice system annually.  With growing numbers of drug users in correctional facilities, the prevalence of infectious diseases has increased correspondingly.  As many as a quarter of all Ameri­cans infected with HIV and one in three with hepatitis C pass through a correctional facility each year.  Chronic noninfectious diseases are also disproportionately prevalent in correctional facilities.

June 12, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Saturday, June 11, 2011

Notable review of Mississippi's early prison reform successes

Time magazine has this extended and effective new piece headlined "Why Mississippi Is Reversing Its Prison Policy." Here are excerpts:

On Monday, May 16, Chris Epps, commissioner of Mississippi's department of corrections, sat at a long conference table, grasping a mound of financial documents....  Since the mid-1990s, Mississippi has become one of America's most aggressive incarcerators — a difficult feat, in a nation of jailers. Now, Epps is leading Mississippi on an improbable shift: dismantling the prison system. "We've got all these needs" — education, health care — "and spending all this money on corrections," Epps says. "We've got to decide who we're mad with, and who we're afraid of."

Incarceration has been America's primary weapon in the war on crime.... In 1980, according to the Sentencing Project, a Washington-based advocacy group, an estimated 41,000 people were in prison or jail for drug offenses, and by 2003, that population had grown to nearly a half-million.  Now, some 2.3 million people — about 1 in every 100 U.S. adults — are incarcerated....

Nevertheless, the incarceration boom appears to be reversing. Between 2008 and 2009, state prison populations fell slightly, by 0.3%, to 1.4 million, the first such decline since the 70s. There are several reasons for the shift.  The first is money.  The Great Recession decimated state coffers, and is forcing governments to acknowledge they can no longer afford spending $52 billion a year locking people up.  The second reason is demographics: people between 15 and 34 — prime ages for criminal activity — account for about 27% of the American population, compared to about 32% in 1990, near the violent-crime wave's peak....

Epps, who declines to identify his political affiliation — "the lord is our boss, regardless of what party he or she is in" — was a senior department official in 1995, when Mississippi's legislature caught the "truth-in-sentencing" wave sweeping the country.  The legislature didn't just follow other states in requiring people convicted of violent crime to serve 85% of a sentence before becoming eligible for parole.  Mississippi went one step further. It required all offenders, regardless of conviction, to complete the bulk of their sentence. Previously, the state's inmates could receive parole after serving one-quarter of their sentence, and most served about half. So Mississippi ordered nearly 6,000 new prison beds, backed by billions in Clinton Administration funding for "truth-in-sentencing" policies intended to break the cycle of violence.

Between 1997 and 1999, Mississippi opened seven prisons, some private....  Soon, Epps recalls, Mississippi's prisons and jails became so overcrowded that local sheriffs allowed inmates to sleep in their offices, and forced them out in the morning. "That's how bad it was," Epps says....

By 2008, Mississippi's prison population had more than doubled to 22,646, and the corrections budget had nearly tripled to $348 million.  Mississippi had the second-highest incarceration rate in America and was on track to add 5,000 prison beds in the next decade.  "I knew it was going to be a problem, that it was going to explode," Epps says, sitting in a conference room near the state's capitol, thumbing through a timeline of the spiraling costs. "We kept rolling along.  But it was too late."

The turning point came in 2008.  By summer, the Great Recession was in full effect, and Mississippi, already one of the nation's poorest states, was ailing.  Governor Barbour opened his second term unapologetically preaching austerity: "Our duty is to live within our means."  Department heads typically plead for more money.  But Epps, sensing the moment, told the legislature: "If we keep putting the nonviolent in prison, there won't be any room for the violent."  The legislature moved to allow nonviolent offenders to become eligible for parole, and the following year made people convicted of selling certain controlled substances eligible for house arrest.  "The rationale was: we still want to be tough on crime, but we had to get this budget down," he says.

Now, Epps is pushing Mississippi toward several alternatives.  The state is testing a global-positioning device that costs about $13 a day per convict to keep tabs on an individual — far less than the $41.74 cost to house and feed a prisoner.  "We're still monitoring you, which is probably better than in some of my facilities," he says.  Elderly and terminally ill inmates are being released to their families, or hospices, saving nearly $5 million.

He expects the number of people placed on house arrest to increase — as soon as Mississippi's wireless commission, which he chairs, expands Internet access to rural areas. In the coming months, he will push legislation to expand inmates' eligibility for parole — potentially lowering the prison population by 19%, to 17,000, within two years.  Projected savings: $52 million. "We can't spend enough on education," he says, "and that's a direct correlation to the number of people coming to me."

Since 2008, Mississippi has trimmed its corrections budget by about 5%, to $332 million. Reducing the prison population hasn't caused the state's violent crime rate to rise. In fact, the rate falling toward 1970s levels, and the state's recidivism rate has decreased to 30% in the last four years — well below the national average.

Mississippi's effort is being closely followed by other states.  Ohio's Senate, for instance, is considering a potentially sweeping overhaul of the state's corrections system. There is, of course, the risk that the' inability of states to invest in rehabilitation programs for ex-offenders reentering a society that still bars them from jobs and housing will ultimately cause crime, and recidivism rates, to rise. Nevertheless, Epps believes his reforms will ultimately pay-off. "I'm proud to say we're moving Mississippi into the 21st century."

June 11, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, June 10, 2011

"California To Release All Prisoners Who Seem Nice Enough"

Onion The title of this post is the amusing headline of this piece at The Onion which explains what might well be part of California's plan to deal with the Supreme Court's ruling in Plata.  Here is more:

In an effort to reduce prison populations throughout the state, California governor Jerry Brown announced today that he would release all inmates who seemed as though they were nice enough people.

“The goal of this new initiative is to gather a rough first impression of whether or not a prisoner is a decent-enough-seeming person, and to release him or her back into society based solely on that general gut reaction," said Brown, adding that prison authorities would spend an estimated 12 minutes with each inmate to chat about “this and that” and decide whether or not a prisoner seemed like the friendly sort. "Obviously, some might try to take a swing at the warden in the beginning, but if they calm down from there and maybe smile a few times, they’re probably fine." 

At press time, officials at San Quentin State Prison had determined that inmate Vincente “Lobo” Díaz came across as slightly eccentric, granted, but basically likable.

Some prior amusing sentencing-related pieces from The Onion:

June 10, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, June 08, 2011

"Short jail sentence preferable to community service, say prisoners"

The title of this post is the headline of this notable article from The Guardian, which reports on an interesting and important research report coming from the UK.  Here are the details:

Prisoners prefer to do a short stretch behind bars than complete a community sentence because they consider it less of a punishment, according to research by prison governors and penal reformers.

The majority of prisoners said they found short jail terms meant little to do and long periods in their cells.  Many were demotivated by long waiting lists for courses and limited job opportunities in prison.  But the research, commissioned by the Prison Governors' Association (PGA) and the Howard League for Penal Reform showed many offenders felt a short prison sentence was easier to complete than a community sentence, which some considered more of a punishment.

The study, carried out by Dr Julie Trebilcock of Imperial College London, was based on 44 interviews with inmates serving 12 months or under at three different prisons, and 25 interviews with staff.  The staff interviews revealed many to be upset at the damaging impact of short sentences on prisoners' lives, especially where they had lost homes or jobs and when it had led to family breakdown.

The report, No Winners: the reality of short term prison sentences, says there are two distinct groups of prisoners -- the first-timers and the revolving-door prisoners -- who have distinct attitudes and needs while inside....

The study concludes: "Some highlighted that it was hard to comply with community sentences because they had to manage their day-to-day lives and the factors that had often led them to offend (most commonly drug use). Some also stated that they had previously had poor relationships with probation officers and that it was too easy to be breached on a community sentence. This led many prisoners to state a preference for a short-prison sentence over a community sentence on the basis that they are easier to complete."

Frances Crook, of the Howard League, said the study underlined that community penalties sought to change behaviour, while overcrowded prisons were failing to offer lasting solutions to crime.  Eoin McLennan-Murray, PGA president, said the study made a convincing case, "which argues at best for the abolition of short prison sentences and at worst for a dramatic reduction in their use".

A press release with the reoprt and a link to its executive summary can be found at this webpage.

June 8, 2011 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners | Permalink | Comments (11) | TrackBack

Should Conrad Black's lord-like prison behavior impact his resentencing?

The question in the title of this post is prompted by this notable new Chicago Tribune piece headlined "Affidavits: Conrad Black lorded over captive audience in prison."  Here are the details:

Conrad Black liked to be addressed as "Lord Black" after he was granted a seat in the British House of Lords.  He may have thought the privileges of nobility extended to prison. Two workers at the Florida federal prison where Black was an inmate say he lorded over other inmates, making them perform menial tasks for him, such as ironing his clothes....

Their observations were included in affidavits the U.S. attorney's office in Chicago recently filed ahead of Black's scheduled resentencing June 24 on his two remaining convictions....  Federal prosecutors would like to send Black back to prison to complete the 6 1/2-year sentence he received in 2007 for defrauding investors and obstructing justice. Black was freed on bail last year while he appealed his conviction after serving about 29 months. Two of his fraud convictions were vacated.

Black's attorneys have advocated that his time served is a sufficient sentence for the remaining crimes.  In petitioning that Black not be returned to prison, his attorneys described him as a model inmate who tutored other prisoners who were preparing for their General Educational Development tests and volunteered to teach them American history and social economics.

The U.S. attorney's office said Black's characterization of his time behind bars was not entirely accurate.  In one of the affidavits, a unit manager at the prison said Black had an entourage of inmates "who performed services for him, acting like servants."

A prison education specialist who supervised Black as a tutor said he was an uninterested instructor.  "He projected the attitude that he was better than others in the class, both faculty and students."  She added that some inmates saluted Black each day in class.

Black's attorneys denied the government's portrayal of his prison conduct and said they will present a "full and accurate" picture of his activities later this month in court.

The Supreme Court's Pepper ruling earlier this year makes plain that Black's post-sentencing prison behavior can be considered among the 3553(a) factors at his resentencing.  But Pepper does not solve the harder question of exactly when and how post-sentencing behavior in prison should impact a resentencing, especially when there are conflicting stories about just what kind of inmate a defendant has been.

In the Black case, I doubt the dueling assertions about Conrads Black's prison behavior will have much of an impact on his resentencing.  But maybe others think a sentencing judge ought to find this kind of information especially important in this kind of case.

June 8, 2011 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Tuesday, June 07, 2011

California reports on its prison population plans after Plata

As detailed in this new AP piece, "Gov. Jerry Brown's administration responded Tuesday to a U.S. Supreme Court order to quickly slash California's prison population, saying the governor's stalled plan to shift thousands of inmates from state prisons to local jails will eventually address the overcrowding problem." Here is more:

The administration acknowledged in its response to the high court that it might not meet the court's initial goal of cutting the prison population by more than 10,000 inmates by the end of November. But it did not request a delay. "What we've said is we're going to move forward with this plan and we'll ask for more time if we need it," Corrections Secretary Matthew Cate said at a news conference.

The latest count shows California's 33 prisons housing 143,565 inmates in space designed for fewer than 80,000, meaning the prisons are at 180 percent of their design capacity.

In an order late last month, the Supreme Court gave California two years to remove more than 33,000 inmates after the justices ruled easing congestion is the only way to improve unconstitutionally poor inmate medical care.

The administration's response outlined all the steps the state has taken in recent years to reduce its prison population, including sending about 10,000 inmates to other states. But its compliance with the recent order hinges almost entirely on plans that Brown signed into law earlier this year to shift responsibility for thousands of lower-level inmates to counties.

The shift cannot take effect unless local governments get the money to provide jail cells and rehabilitation services, and funding for that remains stalled in the state Legislature. Republican lawmakers have blocked Brown's proposal for an extension of temporary tax increases that are set to expire by the end of the month....

The Supreme Court had indicated that it might consider a request for a delay in its order, which includes benchmarks in reducing overcrowding along the way, but Cate said it was too soon for that. "It would be irresponsible to say we're going to do nothing, go back to the same three judges and cross our fingers," Cate said.

Prior posts on the Plata ruling and responses thereto:

June 7, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, June 06, 2011

"Can A Test Really Tell Who's A Psychopath?"

The title of this piece is the headline of this fascinating recent NPR segment, which examines the creation and use of a test for psychopaths.  Here are some extended excerpts from the "science" part of the segment:

Canadian psychologist Robert Hare began studying psychopaths in the 1960s, and it's easy to forget now — in part because Hare's work has made the concept of the psychopath so commonplace — but a half-century ago, research on psychopaths was considered both obscure and largely irrelevant to understanding crime.

Back then, Hare says, there was a very clear consensus about where crime came from: Criminals were made, not born.  "In those days, social factors, environmental factors were the explanation for all crime," Hare says....

Hare, for one, didn't fully buy this.  He thought inborn personality was important . He says that as a psychologist, when he looked at people, he just saw incredible differences in temperament: differences in impulsivity, differences in the capacity for empathy, for feeling guilt....  Ultimately, [his research] led Hare to theorize that people with psychopathic personalities were essentially emotionally deaf.  They simply did not have the capacity to feel, in a firsthand way, emotions like empathy and love and remorse....

Hare sat down with his research assistant and together they wrote down all the personality traits they'd consistently seen in the psychopaths they'd studied.  Things like lack of empathy, lack of remorse, manipulation, egocentricity, impulsivity, superficial charm, psychological lying.  For each of these qualities, Hare wrote up a description so it would be clear what he meant by, say, lack of empathy....

The test listed 20 traits to check, and so Hare called it the Psychopath Checklist.  Scores were totaled at the end — 40 was the highest score, but anything over 30 certified the test taker as a psychopath.  Hare next tested his test to make sure that it was "scientifically reliable" — that two people using the test on the same person would reach the same conclusion about whether that person was a psychopath.  In research settings, the PCL-R's reliability appeared astonishingly good.....

For about five years, Hare's test did exactly what he wanted it to do: make the science of psychopathy better.  Psychopathy researchers from around the world bombarded Hare's lab with requests to use the PCL-R.  They published study after study on their findings.

Then, in the mid-'80s, one of Hare's students, an undergraduate named Randy Kropp, decided to conduct a different kind of study using the PCL-R. Kropp selected a group of prisoners with high, low and moderate scores on the PCL-R, then followed them after their release from prison.  He wanted to see whether prisoners with high scores were more likely to commit crimes than those with low scores once they were out on parole.  About a year later, he published his findings.

"Those who had low scores on the PCL-R, about 20 to 25 percent would be re-convicted within four or five years," says Hare.  "In the high group, it was about 80 percent."  So a parolee who scored high had an 80 percent chance of committing another offense within the next five years.  Low scorers had just a 20 percent chance of recidivism....

Suddenly, the PCL-R — a personality test used only in marginal academic research — appeared to identify the world's most serious chronic criminals.  The research community was stunned, says Stephen Hart, a former student of Hare's who is now a leader in the field of psychopathy research....

Its predictive ability made the test potentially useful outside the lab. Shortly after Kropp's finding went public, Hart recalls, Hare's lab got a visit from Canada's National Parole Board. It wanted the test: "They said quite literally, 'What we want to do is give everybody this test, and then have the test score written in big red numbers on the front of the file. No parole board should be able to make a decision without having some knowledge of whether or not somebody is psychopathic!' "

[A]t least initially, Hare was deeply concerned about letting people in the criminal justice system use the PCL-R.  He feared that the test, created purely for research purposes, might be used incorrectly in the real world and could hurt people.  Hare was particularly worried, he says, because by that point, the test had become widely respected as a scientifically reliable instrument.... For years, Hare made it clear to his students that he would not give the test out to anyone working in the criminal justice system....

While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.  "Once you get into the real world, there does seem to be some lessening of reliability," says Daniel Murrie, a professor at the University of Virginia who has studied what happens when psychological tests are taken from a rarefied research environment and transferred to the rough-and-tumble world of criminal justice.

About four years ago, Murrie decided to study the PCL-R to look at what happened when a psychologist hired by the prosecution gave Hare's test to the same prisoner as a psychologist hired by the defense.  Did those two psychologists give the same score to the same person?  The answer, says Murrie, was no. "Ten, 15, even 20-point score differences we found," he says, " And overall there was about an 8-point difference in scores."

The question is why.  One possibility, Murrie argues, is that the psychologists using the test in prisons and courts might not be well-trained.  "We don't know if the people giving the test in the field have gotten formal, rigorous training, or if they've just sort of bought the manual and maybe read a couple of papers and just decided to start using it," Murrie says.

But Murrie thinks it's also something else.  He says that in his study, psychologists hired by the prosecution consistently gave higher scores than psychologists employed by the defense.  Probably, Murrie says, because they're being paid for those opinions, and that money influences them.

The idea that criminal behavior is primarily a product of poor environments has much less power today, in part because Hare's work seemed to teach us that crime resides inside the person. Inborn personality traits, like empathy, can influence whether people participate in crime.

When you think about criminals this way — as people who are almost genetically predisposed to crime — you are much less likely to invest in their rehabilitation than if you saw their acts as the product of unfortunate environmental circumstances.

This is why it's so important to figure out if bias and bad training are affecting Hare's test to the point that it is potentially mislabeling people. After all, once someone is labeled as a psychopath, what can you do with him? Nothing but lock him away.

Along with this segment, the NPR website has this companion page titled "Expert Panel: Weighing The Value Of A Test For Psychopaths."  This page sets out these views on the PCL-R's role in the criminal justice system:

June 6, 2011 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Still more interesting ruminations on what accounts for modern lower crime rates

Abort2 There continues to be lots of interesting MSM and new media discussion of lower modern US crime rates and the possible explanation for this good news.  Here are two news piece of note on this front:

From Professor James Fox's Boston Globe blog here, "Abortion and crime -- A missing link."  An excerpt:

Despite persuasive logic regarding a reduction in the number of children born to circumstances that would place them at-risk for growing into criminality, the significance of this effect appears to have been grossly overstated. For example, nearly 60% of the decline in murder since 1990 involved perpetrators ages 25 and older—individuals who would have been born prior to the landmark abortion decision. As shown in the figure below, there were substantial reductions during the 1990s in homicides committed by older age groups, especially those in the 25-34 year-old age range.

The abortion-crime link also cannot account for the transient surge in youth homicide during the late 1980s, if not for which the 1990s would not have witnessed such a sizable decline. The rise and then fall in youth homicide before and then after 1990 has much more to do with fast changing patterns of drug trade, gang activity and illegal gun supply than a sudden shift in abortion policy.

Finally, the abortion-crime hypothesis cannot explain the large drop in murder and other violent crime from the first six months of 2009 to the corresponding months of 2010. In fact, nothing really can.

From the Dan Walters at the Sacramento Bee here, "Is California crime drop due to 'three-strikes' law?". An excerpt:

[H]ave California's crime rates fallen because the state adopted a get-tough attitude three decades ago and began locking up more of its miscreants?

The prison population surged from about 20,000 to more than 160,000 during that period as sentencing laws were beefed up, symbolized by the passage of the state's "three strikes and you're out" statute.  Supporters of the crackdown credit "three-strikes" and other sentencing laws for the steady drop in crime. Harris' remarks appear to support the view that when cops and prosecutors crack down, criminals retreat and the public is safer.

But to Robert Parker, a professor at the University of California, Riverside, that's just hot air.  As the Supreme Court was issuing its ruling and Harris was announcing a decline in violent crime, Parker was circulating his new study contending that three-strikes and other sentencing laws had virtually nothing to do with the state's decreasing violent crime rate.

Citing "logic, data and research," Parker contends that "all these uniformly show little or no impact of three strikes policy on violent crime rates in California and elsewhere."  He compared historic crime patterns in California and other states with similar laws to those without such laws and found they "show little difference in … pattern of violent crime."

Parker cites other studies that attribute crime rate declines to economic and social factors, such as alcohol consumption, rather than policing and sentencing policies and suggests it's "better to use alcohol policy to control violence than three strikes."...

His study, if nothing else, provides new fuel for the ever-burning crime debate.

A few recent related posts on how to account for still-dropping crime rates in the US:

June 6, 2011 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, June 05, 2011

Call for papers on "US Prisons" from William Mitchell Law Review

I received a request from the Executive Editor for the William Mitchell Law Review to post a call for papers. I am happy to oblidge:

Call for Papers - U.S. Prisons

William Mitchell Law Review, Vol. 38, Issue IV (Spring 2012)

The William Mitchell Law Review is proud to dedicate the fourth Issue in the upcoming Volume 38 (Spring 2012) to the topic of U.S. Prisons.  We are currently seeking papers that examine a broad range of issues and recent developments regarding this topic, including but not limited to prison medical care, education in prisons, the war on drugs, prison privatization and prison overcrowding.  Submissions may either take the form of shorter commentaries or longer law review articles.  The deadline for submissions has been set for November 15, 2011.

The William Mitchell Law Review is highly regarded both regionally and nationally.  Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals.  Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale.  The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O'Connor, Byron White, and Harry Blackmun.  Now, we would like to invite you to join us to publish in our upcoming volume.

Please direct inquiries to Executive Editor Leah Graf at leah.graf@wmitchell.edu.  Please send submissions to lreview@wmitchell.edu or mail them to our Editorial Office.  Please note that the Law Review prefers electronic submissions in Word.

June 5, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, June 02, 2011

"Jerry Brown says state needs more time to implement Supreme Court prison ruling"

The title of this post is the headline of this Los Angeles Times report.  Here are the particulars:

Gov. Jerry Brown said Thursday he would likely ask federal judges for more time to reduce the state's prison population by more than 30,000 inmates.

The U.S. Supreme Court ruled last week that California's overcrowded prisons violate the constitutional rights of state prisoners, and gave officials two years to slash the number of inmates.  The Brown administration has to submit a plan to a three-judge panel by next week, outlining how it intends to move those prisoners out of state facilities. 

But Brown said Thursday the timelines offered by the high court were unrealistic. "It's going to take more than two years," Brown told reporters Thursday.  When asked if he planned to ask federal judges for more time to comply with the Supreme Court ruling, he said, "I'm looking at that option."

Brown's budget calls for a massive prisoner shift to county jails -– a shift that would be funded by tax extensions Brown wants voters to ratify later this year.  Under Brown's plan, the state prison population would come close to the targets set by the Supreme Court, but that plan would take four years to implement.

Prior posts on the Plata ruling:

June 2, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Informed criticisms of Justice Department's proposed limitation on crack retroactivity

I have received feedback from a a number of informed and thoughtful folks that there are real problems with the Justice Department's proposed limits on who should get the retroactive benefits of the new lower crack guidelines (basics here).  Margaret Colgate Love gave me permission to reprint her comments on this score here:

The Justice Department's proposal to categorically disqualify from relief individuals with a criminal history score higher than 3, and anyone in a lower criminal history category whose sentence was enhanced for gun possession, would weed out upwards of 60% of those otherwise eligible for early release.  It would also reduce the projected savings by as much as 70%, since those in higher criminal history categories would potentially qualify for a much larger reduction in their prison terms.  Many witnesses [at the USSC hearing on June 1] -- as well as several Commissioners -- pointed out that criminal history category or gun bump is an imperfect proxy for dangerousness or likely recidivism.  For example, the Commission's new recidivism study of the 2007 crack releasees shows that CH 4 has a lower recidivism rate than CH 3.  Also, it can be pretty easy to get into a high criminal history category with very minor priors, and guns are frequently attributed to defendants who never touched much less fired them.

The comparatively low recidivism rates of those released under the 2-level drop enacted in 2007 in every criminal history category indicates that the judges who made case-by-case decisions under that authority did a good job of weeding out individuals who were likely to be a danger upon release.  Almost everyone who testified [at the USSC hearing] thought judges could be relied upon to make these decisions again with the smaller cohort of individuals eligible for release under the new guidelines.  As if more were needed to discredit the Justice Department's recommendation, the Acting Director of BOP departed from his written testimony to remark on the management and public safety problems that might be created by disqualifying so many prisoners from a shot at early release when they have been working hard to earn it.

Recent related posts:

UPDATE Margaret Love also passed along for posting another informed observer's reflections on the USSC crack retroactivity hearing:

As you may have heard, Attorney General Holder was the first witness.  He stated that DOJ favors retroactivity with limitations.  DOJ would exclude those in Criminal History Categories IV, V and VI, and anyone with a weapon enhancement or a weapon conviction (e.g., 924(c)). (This would be well over half of the 12,000 or so inmates that the Commission believes to be eligible.)  After he left, the US Attorney for Northern Iowa elaborated on the Department’s position in her testimony.  The Commissioners grilled her on how these limitations (especially those based on criminal history) could be so important to public safety for those already sentenced when the Department did not request them prospectively. Her answers did not seem to satisfy the Commissioners.

She also was pressed hard on a broader recommendation to the Commission that it make retroactivity even more rare in the future given that judges can always vary to account for problems that the Commission later decides to fix.  This was not well received either, partly because the same logic should have led the Department to oppose retroactivity for the FSA amendments and partly because it would require the Commission to admit that it has become nearly irrelevant in the sentencing process.

It is always hard to predict based on questions at a hearing,... but I suspect that the Commission will rely on the favorable 2007 experience to make the current amendments retroactive without exclusions.  They also seemed to see a need to clarify the circumstances when it may not be appropriate to grant a reduction (i.e., the language it now has about the general inappropriateness of a reduction if the original sentence was a downward variance under 3553(a)).  The purpose there was to avoid a double dip in those cases where the judge already applied a ratio at least as favorable to the defendant as 18:1.  Because the person best situated to know whether that will be an issue is the sentencing judge, we asked the Commission to clarify the purpose so that judges can do their jobs.  I suspect that it will.

In addition, Michael O'Hear has still more observations on the hearing at his Life Sentences blog here and FAMM's twitter feed has even more on the hearing.

June 2, 2011 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

"Prison Vouchers"

The title of this post is the title of this new piece by Alexander Volokh available via SSRN.  Here is the abstract:

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons -- what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that they will adopt policies valued by prisoners.  They would be more flexible as a constitutional matter -- faith-based prisons would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights.  As far as prison quality goes, the advantages of vouchers would plausibly include greater security, decent health care, and good educational and vocational opportunities -- features that are also valued by prison reformers and have rehabilitative value.

The counterarguments are twofold. “Market failure” arguments hold that, because of informational or other problems, prisoner choice would not succeed in improving overall prison quality.  “Market success” arguments, on the other hand, hold that prison choice would im-prove prison quality too well, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison.  These counterarguments have substantial force, but it is still possible that these disadvantages are outweighed by the socially desirable improvements.

I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.

June 2, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 01, 2011

Lots of news as AG Holder say to USSC lower FSA crack guidelines should be retroactive

June kicks off with big US Sentencing Commission doings:  the agency today has been conducting a full-day hearing to consider whether and how its new reduced crack sentencing guidelines prompted by the Fair Sentencing Act should be made retroactive.  A few weeks ago, the USSC released this impact analysis of what FSA crack guidelines retroactivity might be, and late yesterday the USSC posted this recidivism analysis reporting on its study of the reoffense rates for offenders who got released a bit earlier from prison due to the last round of reduced crack guidelines that were made retroactive.

Meanwhile, as reported in this Bloomberg piece, Attorney General Eric Holder personally testified before the USSC this morning and he indicated support for (partial) retroactivity of the new reduced crack guidelines:

Holder described the Obama administration’s position today at a hearing before the U.S. Sentencing Commission in Washington, which establishes sentencing policies and is considering whether the shorter sentences should be retroactive.  Applying the measure to those previously sentenced could affect about 12,000 inmates....

“We believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law,” Holder said.  Retroactive reductions in sentences shouldn’t apply to those who possessed or used weapons in committing their crimes or offenders with “significant” criminal histories, Holder said.

The full text of AG Holder's written testimony and of many others testifying today before the USSC are linked from this page.  Here is a key passage from AG Holder's testimony:

The Commission’s Sentencing Guidelines already make clear that retroactivity of the guideline amendment is inappropriate when its application poses a significant risk to public safety -- and the Administration agrees.  In fact, we believe certain dangerous offenders -- including those who have possessed or used weapons in committing their crimes and those who have significant criminal histories -- should be categorically prohibited from receiving the benefits of retroactivity, a step beyond current Commission policy.

The Administration’s suggested approach to retroactivity of the amendment recognizes Congressional intent in the Fair Sentencing Act to differentiate dangerous and violent drug offenders and ensure that their sentences are no less than those originally set.  However, we believe that the imprisonment terms of those sentenced pursuant to the old statutory disparity -- who are not considered dangerous drug offenders -- should be alleviated to the extent possible to reflect the new law.

This effort by Holder and DOJ to differentiate dangerous and violent drug offenders from non-violent drug offenders seems sound to me (though the devil can and will often be in the details).  I will not be at all surprised if the USSC adopts some version of what the Justice Department is advocating here.

A few related posts on this particular retroactivity decision before the USSC are linked below, and readers interested in a broader understanding of the FSA should check out this February 2011 issue of the Federal Sentencing Reporteron the FSA and those interested in a broader discussion of the last round of crack retroactivity should check out this April 2008 FSR issue on crack retroactivity:

June 1, 2011 in Drug Offense Sentencing, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Still more notable commentary about Plata and its prisoner release order

Not surprisingly, the Supreme Court's major California prison ruling in Plata last week (basics here) continues to generate a lot of important and interesting commentary in the MSM and in new media.  Here is a round-up of some newer pieces that have caught my eye:

In addition, though not technically focused on Plata, Sasha Volokh is starting to blog at The Volokh Conspiracy about his interested new article about creating prison vouchers that would provide defendants with a kind of prison choice akin to what school vouchers provide as a form of school choice for parents. His first two posts on this interesting (and crazy?) idea are here and here.

I am very pleased to see the Plata decision (and its dissents) getting lots of early attention from the media.  I hope that academics will give all the opinions sustained attention in forthcoming law reviews, because the case raises far too many important and dynamic stories about courts and prisons to be effectively covered in short forms.

Prior posts on the Plata ruling:

June 1, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 31, 2011

"The Right Way to Shrink Prisons"

The title of this post is the headline of this notable new New York Times op-ed authored by Shima Baradaran, who is a BYU law prof and chairwoman of the ABA's Pretrial Release Task Force.  Here are excerpts:

Last week the Supreme Court ordered California to reduce its prison population after finding that the state’s penal system was so overcrowded that it constituted cruel and unusual punishment.  What the court didn’t do, however, was provide any guidance about how to do it, giving rise to fears of violent convicts being set free and increasing crime rates.

Rather than seek major criminal justice reforms to reduce the prisoner numbers, including scrapping California’s harsh “three strikes” sentencing laws, Gov. Jerry Brown has proposed simply moving the surplus state prisoners to county jails. This does nothing to reduce California’s disproportionately high incarceration rates and could just transfer the overcrowding to local jails.

Fortunately, there is a more lasting solution to overcrowding, one that gets to the heart of exploding inmate populations nationwide: reform the rules governing pretrial detention, in part by using formulas to help judges better determine which defendants are unlikely to commit crimes while on bail.  Doing so not only would make the system more fair, but also would significantly reduce the number of people who are unnecessarily jailed and even reduce crime rates.

Every year America spends close to $66 billion to keep people behind bars. But almost 500,000 of the 2.3 million prisoners aren’t convicts; rather, they are accused individuals awaiting trial.  While some defendants are able to pay their bail and go free, most cannot, because many judges, lacking firm insight into what types of prisoners are too dangerous to release, set high bail amounts knowing the accused can’t afford them.  Though some of these defendants will eventually be found not guilty and go free, keeping them incarcerated before their trials creates a burden on the prison system.

What’s more, detention begets more detention.  Defendants detained before trial are more likely to be convicted if they go to trial, more likely to receive prison sentences rather than probation when sentenced, and, given their weak bargaining power with prosecutors while locked up, are more likely to have longer sentences....

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail.  On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.... [O]ur models indicate that such guidelines could safely lead to the release of up to 25 percent more defendants — and a significant reduction in prison costs and crime rates.

Given eye-popping local, state and federal deficits, it’s unlikely that California will be the only state to face the tough choices involved in reducing its prison population.  With the right data on pretrial defendants, though, judges can help make that task a lot easier.

May 31, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, May 30, 2011

Could SCOTUS Plata ruling grease path to reform of California's tough 3-strikes law?

The question in the title of this post is inspired by this new local piece headlined "Opponents of three-strikes law see hope in prison ruling." Here are excerpts:

The U.S. Supreme Court’s ruling last week requiring California to cut its prison population by more than 33,000 inmates within two years could boost efforts to modify or repeal the state’s three-strikes law, which some say keeps nonviolent offenders in prison for far too long. The law, approved by voters and the Legislature in 1994, significantly increased prison terms for repeat offenders with previous convictions for violent or serious felonies as defined by state law, putting some behind bars for life.

Opponents of the three-strikes law have argued for years that it is overly harsh and keeps people in prison decades after they stop being dangerous — because of age, medical problems or both — exacerbating the state’s prison overcrowding problem.

A main argument against the law has been that a person with two strikes can be sentenced to 25 years to life for a nonviolent offense, such as petty theft. “We over incarcerate in California, and this U.S. Supreme Court decision is an impetus to change that,” said Erwin Chemerinsky, founding dean at the University of California Irvine Law School....

Supporters of the three-strikes law, including San Diego County District Attorney Bonnie Dumanis, insist it’s a good law, if applied correctly. They note that judges and prosecutors now have the discretion to decide when it should be applied, which wasn’t the case immediately after the law was approved. “Most district attorneys aren’t sending people to prison for 25 years to life on a nonviolent offense,” Dumanis said.

She acknowledges that the three-strikes law has affected prison overcrowding but it wasn’t a major factor. A bigger contributor, she said, is California’s 70 percent recidivism rate. The people convicted under the three-strikes law “weren’t the large numbers that everybody was anticipating,” Dumanis said.

According to a report by the state Legislative Analyst’s Office, roughly 41,000 inmates — about 25 percent of the total prison population — were serving time in prison under the three-strikes law as of Dec. 31. Of those, more than 32,000 were second-strikers and about 8,700 were third-strikers.

The report says that although the population of inmates incarcerated under the three-strikes law grew quickly in the first years it existed, the rate of growth has slowed significantly over the past decade as second-strikers finished their prison terms and were released on parole....

“The reality is that California has to release some inmates,” [Chemerinsky] said, noting that it would be wise to look at nonviolent second- and third-strikers as candidates. “We are paying ($40,000) to $50,000 a year on average to incarcerate people,” he said. “When they get older, the cost increases dramatically.”

Members of Families to Amend California’s Three-Strikes have talked about getting a measure on the 2012 ballot that would modify the law. But such an effort requires money and it’s not clear where that might come from.

Alan Mobley, an assistant professor of public affairs and criminal justice at San Diego State University, said the U.S. Supreme Court’s ruling, and the attention it has generated, could help. “It provides a good argument for activists to approach funders and say the tide is on our side,” Mobley said.

Still, any measure to repeal or revise the three-strikes law is likely to be met with resistance. “No elected official wants to touch it,” said Paul Pfingst, who was the county’s district attorney from 1994 to 2002 and is now a criminal defense lawyer....

In 2004, California voters rejected an initiative that would have required an offenders’ third strike to be a violent or serious felony and eliminate second-strike sentences for most offenders. Only 47 percent of the state’s voters supported the measure.

May 30, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, May 29, 2011

Lots more talk about Plata and its consequences a week later

It has now been about week since the Supreme Court's major California prison ruling in Plata (basics here), and there justifiably continues to be a lot of important and interesting post-Plata commentary in the MSM and in new media.  This op-ed piece in the Los Angeles Times, headlined "Don't fear the prison decision: California won't have to free dangerous criminals to meet the Supreme Court's mandate," highlights why the ruling is not cataclysmic for California. Here is how the op-ed begins:

In his dissent from the majority in the recent Supreme Court decision requiring California to reduce its prison population by 33,000 inmates, Justice Antonin Scalia warned that "terrible things are sure to happen as a consequence of this outrageous order." But Californians shouldn't panic. The state won't have to throw open the prison doors to meet the court's order if it embraces very modest sentencing reforms.

Prudent ideas for reducing the prison population have been advocated by various task forces, including ones led by former Gov. George Deukmejian, by former Atty. Gen. John Van de Kamp and by a national panel of corrections experts convened by the Legislature. The California Department of Corrections has already submitted a plan to the federal courts detailing how it expects to make the necessary prison population reductions.

Even without the Supreme Court decision, about 250,000 inmates who have served their time will be released from California prisons over the next two years. In addition, since the late 1990s, jails in 22 counties have been releasing nearly 100,000 inmates a year to meet court-ordered caps on the number of people their facilities can accommodate.

Despite all those releases, crime rates are at the lowest levels since Dwight D. Eisenhower was president. Serious crime and arrests have been dropping in California and across the nation for years. While criminologists do not have an easy explanation for the huge crime decline, the evidence points to more effective policing, improved prevention programs for at-risk families and an influx of immigrants, who traditionally have very low crime rates.

Not surprisingly, not every agrees with this sober assessment.  The folks at Crime & Consequences, for example, have a more pessimistic assessment of Plata as demonstrated in a pair of recent posts titled "Lies, Damned Lies, and Lazy Falsehoods" and "The Leftist Arsenal: Lying and Smearing."  And, for a still different set of perspectives, there are a bunch of Plata posts at  California Corrections Crisis and Prison Law Blog worth checking out.

Prior posts on the Plata ruling:

May 29, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Friday, May 27, 2011

"China used prisoners in lucrative internet gaming work"

Images The title of this post is the headline of this recent report from the Guardian, which starts this way:

As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.

Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.

"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."

Memories from his detention at Jixi re-education-through-labour camp in Heilongjiang province from 2004 still haunt Liu. As well as backbreaking mining toil, he carved chopsticks and toothpicks out of planks of wood until his hands were raw and assembled car seat covers that the prison exported to South Korea and Japan. He was also made to memorise communist literature to pay off his debt to society.

But it was the forced online gaming that was the most surreal part of his imprisonment. The hard slog may have been virtual, but the punishment for falling behind was real. "If I couldn't complete my work quota, they would punish me physically. They would make me stand with my hands raised in the air and after I returned to my dormitory they would beat me with plastic pipes. We kept playing until we could barely see things," he said.

It is known as "gold farming", the practice of building up credits and online value through the monotonous repetition of basic tasks in online games such as World of Warcraft. The trade in virtual assets is very real, and outside the control of the games' makers. Millions of gamers around the world are prepared to pay real money for such online credits, which they can use to progress in the online games.

Especially because it is late Friday before a holiday weekend, readers are welcome (and even encouraged) to respond to this post with jokes about sentencing prisoners to play Angry Birds or about what kinds of required on-line activities might be deemed cruel and unusual punishment.

May 27, 2011 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (11) | TrackBack

Thursday, May 26, 2011

Is California so dysfunctional that doom and gloom is the right reaction to Plata?

Cal prison population Regular readers likely realize that I see much of the doom and gloom coming from the Plata dissenters and from some commentators to be overheated reactions to the Supreme Court's decision to affirm the prisoner release order requiring California to significantly reduce its prison population.  Experiences in Texas and New York and a number of other states show that astute sentencing and correction reforms can allow a significant reduction in a state's prison population without a severe adverse impact on public safety.  Thus, I do not believe a huge Golden State crime spike is a necessary (or even likely) consequence of the Plata ruling if California responds reasonably and effectively to the population reduction order.

That said, two new pieces appearing in today's Los Angeles Times has me fearing that California's politics and practices may be so dysfunctional that perhaps the state will fail to be able to respond reasonably and effectively to the Plata population reduction order.  For starters, consider this piece headlined "No easy fix for California's prison crisis; Even if a court order to ease crowding can be met, sentencing laws could fill lockups again, analysts say," which reports on these on-going realities:

[W]ithout sweeping policy changes, the state will still send high numbers of offenders to prison under "three-strikes" sentencing laws, put about 70% of parolees back behind bars for violations within three years of their release and keep ambitious prison construction plans on hold for lack of money, according to experts and inmates' advocates....

Gov. Jerry Brown's plan to ease crowding would move inmates convicted of low-level and nonviolent crimes into the custody of county officials. The nonpartisan Legislative Analyst's Office estimated that as many as 32,500 such inmates could be transferred in time to meet the court's two-year deadline.

But Brown's plan requires the state to pay local officials hundreds of millions of dollars to help them cope with the influx, and the money would come from tax increases or extensions that are politically controversial. So far, there's no guarantee the state will come up with the money or would continue to provide it indefinitely, although Brown wants a constitutional guarantee that Sacramento could not cut funding to the counties....

Loyola Law School professor Laurie Levenson, a former federal prosecutor and veteran criminal law scholar, points to the high recidivism rate and past cuts in funding for prison rehabilitation and education programs as a formula for continued — even worse — crowding. "We have to stop the insanity of sending nonviolent drug offenders and low-level theft offenders to prison for life," Levenson said. "Nobody is saying we should let murderers out.... We have to stop the revolving door of parolees being returned for minor violations."

Compounding the situation is Jessica's Law, the 2006 initiative barring sex offenders from living within 2,000 feet of schools or parks, making it difficult for California's 92,000 released sex offenders to comply with that parole condition, especially in large cities.

In 2009, the most recent year for which the California Department of Corrections and Rehabilitation has statistics, almost 85,000 parolees were sent back to prison, most of them for two- and three-month sentences. That forced the state to erect three-tier bunks in sports halls, where parole violators spend their terms in the company of hardened criminals and without access to the minimal educational and rehabilitative programs that the corrections system retains after years of budget cuts.

With the average number of parolees in California at 127,383 on any given day, the state's overcrowding problem is bound to reemerge unless substantial changes are made to sentencing laws, parole conditions and in-prison rehabilitation programs, Levenson said.

Drug counseling and education have been severely hampered by overcrowding that has spilled into gymnasiums and meeting rooms. "There's no space and no money" for those programs, said [Michael Bien, whose law firm launched a 1990 case addressing poor mental healthcare in California prisons that ultimately led to Monday's ruling].

Even more distressing than these chronic challenges facing California are more acute problems such as the one reported in this piece, headlined "Computer errors let violent California prisoners go free; A computer system that lacked key information about inmates factored in the release of an estimated 450 prisoners with a "high risk of violence," according to the California inspector general." Here are the worrisome details:

Computer errors prompted California prison officials to mistakenly release an estimated 450 inmates with "a high risk for violence" as unsupervised parolees in a program meant to ease overcrowding, according to the state's inspector general. More than 1,000 additional prisoners presenting a high risk of committing drug crimes, property crimes and other offenses were also let out, officials said.  No attempt was made to return any of the offenders to state lockups or place them on supervised parole, said inspector general spokeswoman Renee Hansen.

All of the prisoners were placed on "non-revocable parole," whose participants are not required to report to parole officers and can be sent back to prison only if caught committing a crime.  The program was started in January 2010 for inmates judged to be at very low risk of reoffending, leaving parole agents free to focus on supervising higher-risk parolees.

The revelations come two days after the U.S. Supreme Court ruled that California's prisons are dangerously overcrowded and upheld an earlier order that state officials find a way to reduce the 143,335-inmate population by roughly 33,000.  The state has two years to comply. State Sen. Ted Lieu (D-Torrance), a former prosecutor who requested an investigation of the unsupervised-parole program, said the inspector general's report "confirms my worst fears" about it.

Investigators reviewed case files for 200 of the 10,134 former inmates who were on non-revocable parole in July of last year. They found that 31 were not eligible, and nine of those were determined likely to commit violent crimes.  The inspector general and corrections officials refused to identify the inmates who were released erroneously. They also would not specify what their original offenses had been.

Using the 15% error rate they found in their sample, investigators estimated that more than 450 violent inmates had been released during the first seven months of the program, the time period they reviewed.  Prison officials have disputed the findings, saying they had corrected some of the computer problems discovered by the inspector general.  The error rate is now 8%, the inspector general report says.

Gov. Jerry Brown's plan to address overcrowding would shift tens of thousands of low-level offenders from prison to county custody.  Counties would also supervise most low-risk parolees, like those in the non-revocable program.

But if the state can't properly identify which inmates qualify for an unsupervised parole program, Lieu said on Wednesday, "how can the public have confidence they can release 33,000 felons safely?"

Under the law that created non-revocable parole, inmates are excluded if they are gang members, have committed sex crimes or violent felonies or have been determined to pose a high risk to reoffend based on an assessment of their records behind bars.  That's where the problems begin, according to the inspector general.  The computer program prison officials used to make that assessment does not access an inmate's disciplinary history.

Prior posts on the Plata ruling:

May 26, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, May 24, 2011

A simple take on Plata: Congress asked for this in the PLRA

I am still working my way through the various opinions in Plata, but I keep coming back to one simple idea when considering the case and the Supreme Court's ruling: when enacting the Prison Litigation Reform Act in 1996, Congress clearly contemplated and clearly authorized federal courts to enter a "prisoner release order" under the PLRA.  See 18 U.S.C. § 3626(a)(3) (setting forth in detail the requirements for court issuance of a "prisoner release order").  Given that Congress envisioned the possibility of such an order, combined with the extraordinary record of constitutional problems in California's operation of its prison system and the extraordinarily long period in which California has been unable to correct these problems, the Plata case seems to be "perfect storm" fact pattern that would require a federal court to issue such an order.

In other words, anyone who does not like the idea of federal courts ordering a state to release prisoners really should be complaining about the fact that Congress in 1996 clearly contemplated and clearly authorized federal courts to enter such an order through the enactment of the PLRA.  And especially given the reality that Republicans controlled both houses of Congress when the PLRA was enacted, there is a certain irony to any complaints by Republicans now about the seemingly straight-forward application of the PLRA in Plata.

Prior posts on the Plata ruling:

May 24, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack

Lots and lots of interesting commentary on SCOTUS Plata prison ruling

At lots of old and new media outlets, I am already seeing lots of interesting commentary on the Supreme Court's major California prison ruling yesterday in Plata (basics here).  Here are just a few of the interesting and diverse pieces I have seen:

May 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Prison advocates in Illinois pointing to Plata to help their case for reform

It will be interesting to watch whether and how the Supreme Court's major California prison ruling yesterday in Plata (basics here) will impact sentencing and prison reform debates in other states.  This local article, headlined "Call made for sentencing standards reform in Ill.," shows that folks in Illinois are already hearing echoes from the ruling: 

A U.S. Supreme Court ruling ordering California to release tens of thousands of prisoners to ease overcrowding should serve as a warning bell about the need to overhaul sentencing standards in Illinois, a prison watchdog group said today.

“We don’t want to become California,” said John Maki, executive director of the Chicago-based John Howard Association.  “We need to be talking about ways to have a more effective justice system, and heavy sentencing is not the best way of preventing crime.”

The number of inmates in state custody has soared in recent months after Gov. Pat Quinn suspended early release programs after a botched attempt to speed up the rate at which inmates could receive good-time credit.

There are currently 48,661 inmates in state custody, and while that is higher than in recent years, the state is capable of properly housing 50,000, said Cara Smith, chief of staff for the Illinois Department of Corrections.  Smith said the department is engaged in discussions about ways to reform sentencing standards.  She noted 5,000 inmates a year enter the system on relatively minor crimes, such as drug possession and retail theft.

May 24, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, May 23, 2011

Early press coverage and reactions to SCOTUS California prison ruling in Plata

Thanks to this post at How Appealing, everyone can quickly jump to some of the early press coverage of the Supreme Court work in the Plata prison ruling this morning (basics here).  Here are some of the highlights:

Today's main posts on the Plata ruling:

May 23, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Some big-time rhetoric in big-time SCOTUS Plata prison ruling

Based on my very quick first pass through the majority and dissenting opinions in the Plata prison ruling this morning (basics here), there appears to be a lot of rhetoric flying in all directions.  Here are just a few of the lines from each opinion that caught my eye at the outset:

From Justice Kennedy's opinion for the Court (with quotes/cited left out):

For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs.  Needless suffering and death have been the well-documented result....

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty.  Yet the law and the Constitution demand recognition of certain other rights.  Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.  The basic concept underlying the Eighth Amendment is nothing less than the dignity of man....

From the start of Justice Scalia's dissent:

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty.  I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

From the end of Justice Alito's dissent:

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA.  In largely sustaining the decision below, the majority is gambling with the safety of the people of California.  Before putting public safety at risk, every reasonable precaution should be taken.  The decision below should be reversed, and the case should be remanded for this to be done.

I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims.  I hope that I am wrong.

In a few years, we will see.

May 23, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (41) | TrackBack

In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order

Here is the early blog report from the SCOTUSblog folks on the big California prison overcrowding ruling handed down this morning by the Supeme Court:

The first opinion is Brown v. Plata (prisons). The opinion is by Justice Kennedy. The Court has affirmed the decision of a three-judge district court in California.  The vote is 5-4; Justice Scalia dissents, joined by Justice Thomas. Justice Alito dissents, joined by the Chief Justice.

The Court rules first that the plaintiffs properly convened a three-judge panel to hear the case; that court did not err in concluding that overcrowding was the primary cause of the violations of the inmates' rights to medical and mental health care.

Plata opinion is here.

The injunction was narrowly drawn and extended no further than necessary to correct the violation and was the least intrusive means.

Very interesting and potentially very important.  Bloggy commentary will follow when I get a chance to review the opinions, though others should not wait for me to weigh in on what might be the biggest sentencing and corrections ruling of the Term.

May 23, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 19, 2011

Might private prisons actually cost taxpayers more than public prisons?

The important question in the title of this post is prompted by this new piece in the New York Times, which is headlined "Private Prisons Found to Offer Little in Savings."  Here is how the piece starts:

The conviction that private prisons save money helped drive more than 30 states to turn to them for housing inmates. But Arizona shows that popular wisdom might be wrong: Data there suggest that privately operated prisons can cost more to operate than state-run prisons — even though they often steer clear of the sickest, costliest inmates.

The state’s experience has particular relevance now, as many politicians have promised to ease budget problems by trimming state agencies. Florida and Ohio are planning major shifts toward private prisons, and Arizona is expected to sign deals doubling its private-inmate population.

The measures would be a shot in the arm for an industry that has struggled, in some places, to fill prison beds as the number of inmates nationwide has leveled off. But hopes of big taxpayer benefits might end in disappointment, independent experts say. “There’s a perception that the private sector is always going to do it more efficiently and less costly,” said Russ Van Vleet, a former co-director of the University of Utah Criminal Justice Center. “But there really isn’t much out there that says that’s correct.”

Such has been the case lately in Arizona. Despite a state law stipulating that private prisons must create “cost savings,” the state’s own data indicate that inmates in private prisons can cost as much as $1,600 more per year, while many cost about the same as they do in state-run prisons.

Some recent related posts on private prison sale plans in Ohio and Florida:

May 19, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, May 17, 2011

SCOTUS taking up private prison Bivens issue

As detailed in this lengthy new SCOTUSblog post, titled "New curb on Bivens remedy?", the SUpreme Court yesterday granted cert "on a case involving a damages lawsuit against private individuals working for a private contractor as guards at a federal prison."  Here is the basic backstory:

Last June, the Ninth Circuit Court added a new Bivens-type claim: it ruled that a prison inmate, Richard Lee Pollard, could sue a group of private individuals working under contract as prison guards for Wackenhut Corrections Corp., the operator of the federal prison in Taft, Calif.  Pollard contended that he broke his elbow in a fall after tripping over a cart left in a hallway, but that prison guards required him to make use of the arm in painful ways in taking him to and from an outside clinic for treatment, refused to provide a splint for the injury though a doctor had prescribed one, and was required to return to work at a prison job before he had healed fully.  (Wackenhut has since become a part of GEO Corp.)

The Circuit Court remarked that “neither the Supreme Court nor our court has squarely addressed whether employees of a private corporation operating a prison under contract with the federal government act under color of federal law.”  It went on to rule that their actions were as if they had been federal employees, and the fact that the prisoner could have sued under California state law did not deprive him of a federal constitutional remedy.  Over the dissent of eight judges, the Circuit Court refused to reconsider the ruling en banc.

On Monday, the Supreme Court agreed to review the decision, in the case of Minneci, et al., v. Pollard (docket 10-1104).

At this stage, the Court does not explain why it will hear a case, but the ruling by the Ninth Circuit conflicts directly with decisions of two other Circuit Courts (the Fourth and the Eleventh), and involves the creation of a perhaps wide expansion of the Bivens decision.  The private organization, DRI, which seeks to curb civil liability in general, told the Court in a separate amicus brief that the Ninth Circuit ruling “takes Bivens into uncharted territory by exposing private employees to an unprecedented form of personal liability,” and potentially may extend Bivens-type liability well beyond the prison setting, given how common it is for private employees to work under contract for federal agencies.

As this SCOTUSblog post spotlights, this new case would seem to be of interest to the Justices primarily because of its concern about Bivens jurisprudence rather than a distinctive interest in the workings of private prisons.  Nevertheless, especially at a time when a number of states are talking about privatizing prison services, it seems likely that this case might prompt some useful discussion and briefing on the operations, regulations and litigation surrounding the private prison industry.

May 17, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (3) | TrackBack