Thursday, September 27, 2012

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 25, 2012

"What Happens When the Amish Go to Prison?"

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

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

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

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

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

Recent related posts:

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

Monday, September 24, 2012

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

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

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

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

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

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

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

Sunday, September 23, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Related recent posts:

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

Tuesday, September 18, 2012

Another day of prison (over)populations headlines

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

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

Monday, September 10, 2012

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

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

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

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

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

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

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

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

Tuesday, September 04, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, September 02, 2012

New York claims success with prison shock camps

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

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

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

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

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

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

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

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

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

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

Wednesday, August 29, 2012

Prison videoconference visitation program expanding in New York

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

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

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

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

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

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

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

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

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

Tuesday, August 28, 2012

California struggles with prison realignment plans and alternative programming

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, August 23, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 22, 2012

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

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

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

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

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

Thursday, August 16, 2012

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

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

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

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

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

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

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

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

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

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

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

Wednesday, August 15, 2012

Fascinating story of cowboy fun and games for prisoners in Angola

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 14, 2012

Interesting report on marketing technology to a confined consumer

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

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

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

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

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

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

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

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

Monday, August 13, 2012

California facing crunch time in prison population reduction plans

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

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

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

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

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

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

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

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

Sunday, August 12, 2012

Texas continues to lower its (still high) incarceration rates

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

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

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

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

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

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

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

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

National prison rates

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

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

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

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

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

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

Thursday, August 09, 2012

"Engendering Rape"

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

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

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

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