Tuesday, November 29, 2011

Texas now has "lifer" row larger than its death row

As reported in this new Houston Chronicle piece, which is titled "Nearly 400 capital murder convicts get life without parole," Texas after just a few years after creating LWOP as an alternative to the death penalty now has more inmates slated to die in prison from old age rather than from a trip to the executions chamber. Here are the details, which include some very interesting statistics:

In six years, Texas has built a "lifer's row" filled with 398 prisoners who will never be released through parole - a fast-growing group that already has outpaced the number of inmates serving a death sentence in the Lone Star State, a Houston Chronicle analysis of prison records shows.

Harris County prosecutors, who historically have led the state in seeking death sentences, have so far also been the most aggressive in pursuing capital murder charges and obtaining mandatory life without parole sentences in capital cases.

Texas became the last of the death penalty states to approve life without parole in September 2005, after Harris County prosecutors dropped their opposition to the change. The law applies only to offenders convicted of capital murder.

For the first time, it gave jurors and prosecutors a non-death sentence that guaranteed someone convicted of killing a child, killing multiple victims, slaying a police officer or committing another capital crime could not be released on parole.

In all, 110 Harris County offenders have been sentenced to life without parole since the law took effect, compared with 11 death sentences. "Harris County is a tough law and order county on the really bad actors. That hasn't changed," said First Assistant District Attorney James Leitner.

The change has led to fewer death sentences in Texas and nationwide. Fifty-one people were sentenced to life without parole in Dallas County. Tarrant County had 26; Bexar County had 22.

Texas offenders convicted of capital murder were six times more often sentenced to life without parole than to death: 66 people got death sentences compared with the 398 lifers. The life without parole law has been used in about one third of all Texas counties at least once, the Chronicle's analysis of state prison records shows....

From September 2005 to September 2009, Texas allowed life without parole prison sentences for juvenile offenders who had been certified to stand trial as adults. The law was subsequently changed to bar such punishment. By then, 21 people sentenced for crimes they committed before age 18 had been sentenced, including eight from Harris County....

Seventeen women are serving life without parole. Two were juvenile offenders. One is Ashley Ervin, a former Harris County area honor student sentenced for her role at 17 as the driver for a murderous robbery ring led by older males....

Marc Mauer, executive director of The Sentencing Project, a nonprofit critical of the national explosion in such sentences, argued the offenders are more likely to come from impoverished minority groups who sometimes get unfairly targeted by police. "We see that around the country that the race differences in life sentences are generally more extreme," he said. So far in Texas, 76 percent of the state's "lifers" are minorities, compared with 70 percent of death row inmates.

November 29, 2011 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Sunday, November 27, 2011

"The Real Prison Industry"

The title of this post is the headline of this notable commentary by Jonah Goldberg over at Townhall.com. Here are excerpts:

I've long thought the notion of a prison-industrial complex to be laughable left-wing nonsense peddled by Marxist goofballs and other passengers in the clown car of academic identity politics.

For those who don't know, the phrase "prison-industrial complex," or PIC, is a play on the military-industrial complex. The theory behind PIC is that there are powerful forces -- capitalist, racist, etc. -- pushing to lock up as many black and brown men as they can to maintain white supremacy and line the pockets of big-prison CEOs and shareholders with profits earned not just from the taxpayer but from the toil of prison-slave labor....

Self-described "abolitionists" in the anti-PIC cause seek to get rid of prisons altogether. Indeed, they want to abolish punishment itself. That goes for murderers, rapists and pedophiles....

Personally, I think that is just bat-guano crazy. Still, the state of our prisons has become something of a scandal. We have more prisoners today than we have soldiers, and more prison guards than Marines.

Our prisons have become boot camps for criminals. That's one reason why I'm sympathetic to Peter Moskos' idea to bring back flogging. A professor at John Jay College of Criminal Justice, Moskos argues in his book, "In Defense of Flogging," that flogging -- aka the lash -- is more humane than prison and much, much cheaper. He suggests that perpetrators of certain crimes -- petty theft, burglary, drug dealing -- be given the option of receiving one lash instead of six months in prison....

Moskos' motive is to reduce the size, scope and influence of prisons while keeping them around for the people who truly must be locked up: murderers, rapists, terrorists, pedophiles, etc. I might disagree with where he would set the ideal size of our prison population (I think incarceration rates have reduced crime more than he does), or how many lashes criminals should get, but he makes a compelling case, and his objective is reasonable.

But it's not an objective shared by the California Correctional Peace Officers Association (CCPOA). This was the outfit that essentially destroyed then-Gov. Arnold Schwarzenegger's attempt to fix the state budget. In a state where more than two-thirds of crime is attributable to recidivism, CCPOA has spent millions of dollars lobbying against rehabilitation programs, favoring instead policies that will grow the inmate population and the ranks of prison guard unions. In 1999, it successfully killed a pilot program for alternative sentencing for nonviolent offenders. In 2005, it helped kill Schwarzenegger's plan to reduce overcrowding by putting up to 20,000 inmates in a rehabilitation program. It opposes any tinkering with the "three strikes law" that might thin the prison rolls.

According to UCLA economist Lee E. Ohanian in a illuminating paper for The American, "America's Public Sector Union Dilemma," California's corrections officers have exploited their monopoly labor power to push policies that will expand the prison population and, as a result, the demand for more guards who just happen to be the best-paid corrections officers in the country. That's why, contrary to what the Marxist sages would expect, they've successfully kept privately run prisons out of the state.

Meanwhile, incarceration costs in the essentially bankrupt state are exploding. California spends $44,000 per inmate, compared with the national average of $28,000. A state prison nurse exploited overtime rules to earn $269,810 in one year.

Also contrary to left-wing expectations, these policies have been implemented not so much by the hard-hearted captains of industry and their Republican lackeys, but by a Democrat-controlled state legislature lubricated with donations from a powerful public-sector union....

Still, I suppose I owe the folks in the clown car at least a small apology. They're still nuts, but they're right about the existence of a prison-industrial complex. They were just looking in the wrong direction.

November 27, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, November 25, 2011

South Korea rolls out new robot prison guard

20111124000765_0As reported in this Wall Street Journal piece, "South Korea is about to put a new type of droid through its paces: a robot prison guard." Here are the brave new world details:

Under a project sponsored by the Ministry of Justice, trials of the robots will be held for a month at a jail in the city of Pohang, southeast of Seoul, from March.  The robots are designed to patrol the corridors of corrective institutions, monitoring conditions inside the cells.  If they detect sudden or unusual activity such as violent behavior they alert human guards.

“Unlike CCTV that just monitors cells through screens, the robots are programmed to analyze various activities of those in prison and identify abnormal behavior,” Prof. Lee Baik-chul of Kyonggi University, who is in charge of the 1 billion-won ($863,000) project, told the Journal.

The robots can also work as a communication channel when inmates want to contact guards in an emergency.  According to Mr. Lee, prison officers have welcomed the idea because the robots can potentially reduce their workload, particularly at night.

And how about the reaction of inmates?  “That’s a concern. But the robots are not terminators.  Their job is not cracking down on violent prisoners.  They are helpers.  When an inmate is in a life-threatening situation or seriously ill, he or she can reach out for help quickly,” he said.

Mr. Lee said his team is putting the final touches to the appearance of the robots to make them look more “humane and friendly” to those behind bars. 

November 25, 2011 in Prisons and prisoners, Sentencing around the world, Technocorrections | Permalink | Comments (5) | TrackBack

Monday, November 21, 2011

Committed sex offenders climb roof with nooses to protest confinement conditions

ImagesCAFGHOTPBreaking this afternoon is this interesting story out of Virginia, headlined "Rooftop standoff with noose-clad sex offenders ends."  The piece reports on the extreme (and successful) efforts by a pair of confined sex offenders to bring attention to their complaints about the conditions of their confinement.  Here are the details:

A three-and-a-half-hour standoff at a psychiatric facility for sex offenders who have already served their prison sentences ended without incident Monday when the two men who had climbed onto a roof with nooses around their necks climbed down and shook hands with police and officials.

The standoff at the Virginia Center for Behavioral Rehabilitation, which began around 11:30 a.m., ended just before 3 p.m. when police brought in ladders and the offenders took off their nooses and climbed down.  The men were not immediately arrested but were assessed by medical personnel, Virginia State Police Sgt. Thomas Molnar said.

Offenders at the facility told The Associated Press the men climbed a fence to get to the awning, which is connected to the main building and is about 15 feet off the ground.  The men had fashioned nooses from bed sheets and tied them to a building support, demanding to speak to a state official about conditions at the facility.  The protest could be seen from a nearby highway....

[S]everal residents of the facility identified them as William Dewey and Victor Johnson. Dewey has complained to the AP about his treatment at the facility on several occasions. "Nobody wants to listen to us anymore," said offender Timothy East, one of several to report the standoff.  "There's no voice here.  Some people are taking drastic measures to make their voice be heard."

In calls and letters to the AP, Dewey and other offenders have complained about an increase in security.  The nearly 300 offenders were sent to the facility after serving their prison sentences.  The U.S. Supreme Court has said such civil commitment programs are constitutional as long as the offenders are there for treatment, not further punishment.

The offenders argue their privileges, such as outside recreation and property allowances, continue to be cut back while security increases.  "It's too much of a prison mentality here," East said.  "When they start going back to prison mentality that means we'll go back to it, too, and they're not going to like it."

Gordon Harris, another offender at the center, said he was in art class when everyone started running toward the yard where the standoff was taking place.  He said many residents are upset over the restrictions and the lack of treatment.  "There is no treatment here," he said.  While two state inspector general reports in 2007 and 2008 were highly critical of the amount of treatment offenders received, that has increased in recent years.

November 21, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Sex Offender Sentencing | Permalink | Comments (30) | TrackBack

Sunday, November 20, 2011

"Lifers are growing part of prison population"

The title of this post is the headline of this local article from Pennsylvania, which gets started this way:

What's behind the increase of older inmates in the state prison system?  Experts point to everything from aging baby boomers and longer life spans to overall prison population growth and a trend toward stiffer sentences.

"Lifers" make up a sizable portion of the elderly state prison population, said Dr. Larry Rosenberg, a Millersville University assistant professor of sociology who teaches a course on modern corrections.

The elderly prison population also includes repeat offenders incarcerated after their "third strike" and inmates serving long sentences for crimes committed in their 40s and 50s, he said.

Older men are generally less likely to commit violent crimes, Lancaster County District Attorney Craig Stedman said.  His office also prosecutes only a small number of drug dealers over age 40, he said.

But Stedman has noticed a recent increase in older sex offenders. "We do prosecute a lot of older men for these offenses compared to other crimes, and they tend to get the long sentences, which keep them in," he said.

Regardless of why they landed in prison, it's increasingly difficult for inmates of any age to get out.  Nearly 4,800 men and women currently are serving life sentences in state prisons.

November 20, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

New documentary looks at "Young Kids, Hard Time"

Anyone concerned with juvenile crime and punishments (including Supreme Court Justices, who are starting to develop a whole Eighth Amendment jurisprudence on this front) ought to be sure to set their DVRs tonight at 10 pm EST to MSNBC, which will be premiering a one-hour documentary titled " "Young Kids, Hard Time."  A five-minute clip of Act One of the documentary is available at this link, where there is also this summary of the program:

Young Kids, Hard Time is an extraordinary new series from Calamari Productions and MSNBC that throws back the veil on the reality of young kids serving long sentences behind adult prison walls.  With sweeping access to go inside the maximum security Wabash Valley Correctional Facility in Carlisle, Indiana -- the only adult prison in the state of Indiana that houses kids sentenced as adults -- Young Kids, Hard Time reveals what life is like for young kids staring down decades behind bars.  Wabash Valley is home to the Youth Incarcerated As Adults cellblock (YIA), where 53 kids eat, sleep, study and recreate while being alienated from their adult counterparts.  But once a youth turns 18, they are transitioned into the adult population, where thousands of adult prisoners await.

UPDATE:  The Scripps Howard News Service has run a series of articles based on investigation of kids serving adult time, which is reported in these two new pieces:

This second piece includes this notable data:

Nine thousand times a year, U.S. judges move juvenile suspects into criminal court, opening the door to a stay in adult jail. While judges say these transfers are meant for youths suspected of the most dangerous offenses, only two out of five transferred youths stands accused of a violent crime against another person, the Scripps Howard News Service found in analyzing data from almost a quarter-million cases. Most youths moved to adult court are charged with crimes involving drugs, weapons or property....

Most transferred juveniles face charges for crimes other than murder, rape, robbery or assault, National Center for Juvenile Justice data show. The Pittsburgh-based nonprofit publishes records covering 228,771 cases moved from youth court to the adult criminal justice system from 1985 to 2008....

Even a very young age doesn't exempt defendants from transfer. The database shows some 1,528 suspects 12 or younger were transferred, including 623 charged with violent crimes. More — 651 — faced charges of property crimes.

November 20, 2011 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (5) | TrackBack

Friday, November 18, 2011

Interesting data on crime and punishment in New Hampshire

This local article, headlined "N.H. has low crime rate, but high rate for incarcerating minorities," reports on some interesting aspects of crime and punishment in The Granite State. Here are some of the details:

New Hampshire owns one of the nation’s lowest crime rates. But that New Hampshire advantage is a disadvantage for residents of Hispanic origin. The Granite State has one of the nation’s highest per-capita rates for jailing Latinos.

Criminal justice experts say the state’s low crime rate might have to do with a culture in the state that holds people accountable for their actions. The high incarceration rate for Latinos might have more to do with economics and with unintentional and subtle rather than outright discrimination, experts say.

According to the most current U.S. Census Bureau statistics available, New Hampshire in 2009 had the third-lowest rate of violent crime, a rate of 169.5 violent crimes per 100,000 people. Maine had the lowest rate, and the District of Columbia the highest, with Nevada second highest.

Within the violent crime statistics, New Hampshire had the nation’s lowest murder rate. But it ranked near the middle with the 27th-highest rate for forcible rape. New Hampshire had the third-lowest rate for aggravated assault and the eighth lowest for robbery....

The state’s statistics aren’t so good when it comes to incarcerating minorities. New Hampshire in 2005 had the sixth-highest Hispanic-to-white incarceration ratio, and 19th-highest black-to-white ratio per 100,000 people, according to statistics compiled by the Sentencing Project, a research and advocacy organization based in Washington, D.C.

Among 100,000 people in 2005, New Hampshire incarcerated 289 people identified as non-Hispanic whites; 2,666 African Americans and 1,063 Hispanics. Pennsylvania incarcerated the most Hispanics by number per 100,000 people, and Connecticut had the highest ratio of Hispanics to whites incarcerated, according to the statistics.

November 18, 2011 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, November 17, 2011

California jails getting more prisoners than expected in realignment plans

As reported in this interesting Los Angeles Times article, the "number of state prisoners arriving in county jails under California's controversial prison diversion program is significantly higher than officials had estimated, adding new pressure on sheriff's departments to figure out what to do with thousands of extra inmates." Here is more:

Prisoners convicted of some nonviolent crimes began serving their time in county jails last month as California complied with a U.S. Supreme Court decision requiring the state to lower its prison population by 30,000.

But the number of state prisoners being transferred has been much higher than officials had predicted, prompting counties to speed up efforts to reopen shuttered jail wings and find other arrangements for some inmates.

Los Angeles County was projected to add about 600 state prisoners by now but has booked more than 900.  The tally in Orange County is running more than double what the state had estimated....  Some counties, such as Los Angeles, are under court order preventing jail overcrowding. So officials said it's almost a foregone conclusion that some inmates will be released to make way for the state prisoners.

Orange County Sheriff Sandra Hutchens said none of the alternatives are ideal.  For example, she said, she's not sure how many inmates can be trusted to serve time wearing GPS-monitored bracelets....

State corrections officials said they hadn't expected the plan known as realignment to be a smooth transition because it is such an unprecedented shift.  They acknowledged that their estimates have been off but believe the surge will be short-lived....  State officials and some sheriffs believe the higher-than-projected number of state prisoners being sent to jails has occurred in part because defense attorneys waited until realignment took effect to settle their clients' cases.  By doing that, the attorneys were assured that their clients would receive jail time instead of prison time.

"We believe it has occurred because of publicity the realignment received. Defense attorneys delayed a lot of adjudications until after Oct. 1," when the law took effect, said Merced County Sheriff Mark Pazin, president of the California State Sheriffs' Assn.  "Those persons who pleaded guilty ended up in the local facilities when under the old course of events they would have gone to prison."

Many county officials say it's just a matter time before some inmates have to be released. Riverside County Sheriff's Chief Deputy Jerry Gutierrez said his jail is now at 93% capacity and will be full by January.  In San Bernardino County, officials are planning to significantly expands their work-release and electronic monitoring programs, certain that the influx of state prisoners will force some releases.

"We just started the biggest system change in the history of California justice," said Nick Warner, legislative director for the State Sheriffs' Assn.  "Anyone who predicts with certainty failure or success is premature in that judgment."

November 17, 2011 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

"Cats outnumber inmates at Fla. prison about to close"

Lol cat 8It is rare I have a reasonable excuse to do any "cat blogging" in this space, but today I get an opportunity to do just that through the title of this post, which is also the title of this new AP article.  Here are the details:

Authorities say dozens of cats that snuck into a South Florida prison will get new homes before the facility closes next month....

As many as 80 cats have burrowed under fences and taken up residence at the state-run prison in Belle Glade. Inmates have been feeding the felines, even though prison rules prohibit that.

The 1,000-inmate prison closes Dec. 1. Officials tell The Palm Beach Post that as of Monday, there are more cats than prisoners at the facility. Just 69 inmates remain awaiting transfers.

Palm Beach County animal control officers are removing the animals so they won't starve when the prison closes. They're offering to waive adoption fees to find them new homes. However, some of the cats had to be euthanized because they were feral and couldn't be adopted.

As the picture I have posted above is meant to suggest, I encourage readers to come up with good jokes or puns about cats in prison.  Riffing off one of my old punny favorites, I will start the thread by wondering how many of these cats are now behind bars because they got involved with kitty porn.

November 17, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Wednesday, November 16, 2011

How common are fines or other state sanctions on private prisons?

The question in the title of this post is prompted by this notable local article from New Mexico, which is headlined "State fines private prison operator $1.1 million over staffing shortage." Here are excerpts:

A Florida company will pay New Mexico $1.1 million in penalties for not adequately staffing a private prison it operates in Hobbs, a state official said.

GEO Group, which manages three of New Mexico's four private prisons, agreed to pay the settlement last week following a meeting between the corrections agency and the company's top management, Corrections Secretary Gregg Marcantel said Monday.  "They've agreed on it," Marcantel said of GEO.  "It's a very fair way of doing it.  They are not completely happy.  It needed to be done."...

GEO will pay the $1.1 million over several months, the corrections secretary said. In addition, GEO has agreed to spend $200,000 over the next calendar year to recruit new correctional officers for the Hobbs facility.

By contract, New Mexico can penalize The GEO Group and Corrections Corp. of America, the two firms that operate the private facilities, when staffing vacancies are at 10 percent or more for 30 consecutive days. The settlement represents the first time in years — possibly ever — that New Mexico has penalized the out-of-state, for-profit companies for not adequately staffing the facilities they operate.  The issue has come up in the past, but state officials said New Mexico had never levied penalties for understaffing issues.

The question surfaced in 2010 when state lawmakers were struggling to find ways to close a yawning state budget gap.  At the time, the Legislature's budget arm, the Legislative Finance Committee, estimated Gov. Bill Richardson's administration had skipped $18 million in penalties by not assessing penalties against the two firms for inadequate prison staffing levels....

GEO, headquartered in Boca Raton, Fla., recently reported $1.2 billion in earnings and $58.8 million in profit through the first nine months of this year, according to a Nov. 2 release by the company.

Some recent related posts: 

November 16, 2011 in Prisons and prisoners, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, November 13, 2011

"Lawsuit seeks compensation for inmates held too long"

The title of this post is the headline of this local article out of Iowa. Here is how it starts:

Iowa inmates held past their proper release dates deserve to be compensated for each day they were improperly confined, according to a class action lawsuit filed this week in Polk County District Court. The lawsuit, filed on behalf of Mahaska County sex offender Richard Scott and other similarly situated inmates, contends that Scott was held for 46 days too long under new rules outlined in a decision this summer by the Iowa Supreme Court.

Justices ruled in July in a case involving convicted sex offender Michael Anderson that Anderson deserved credit for time spent under home supervision even though he was later found to have violated probation during that time. According to the decision, Iowa law clearly requires that any defendant committed to the state Department of Corrections for supervision “who has probation revoked shall be given credit for such time served.”

Iowa corrections officials say the ruling explicitly changed the math used to calculate prison release dates for more than 3,500 Iowa convicts. “Our position is that they have been prepared for this,” said Jeffrey Lipman, the Des Moines attorney behind the lawsuit. “Knowing that this was an issue, they should have been prepared.”

The class action lawsuit, filed against Iowa Department of Corrections director John Baldwin, contends that “hundreds if not thousands of Iowa inmates” have been detained past the dates they properly should have been set free.

November 13, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Saturday, November 12, 2011

"L.A. County jails may be out of room next month" (which could really help Conrad Murray)

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

Los Angeles County's jails could run out of space as early as next month because of an influx of state prisoners, prompting officials to consider releasing potentially thousands of inmates awaiting trial.

The state's new prison law, which establishes a practice known as realignment, is expected to send as many as 8,000 offenders who would normally go to state prisons into the L.A. County Jail system in the next year.

Currently, defendants awaiting trial account for 70% of the jail population, but Sheriff Lee Baca said that might need to drop to 50%.  The department is studying a major expansion of its electronic monitoring and home detention programs to keep track of inmates who are released.

Baca said the department is also developing a new risk-assessment system designed to better identify which inmates are the best candidates to leave the jails.  Additionally, the department is looking at ways to channel more offenders into education and substance abuse programs rather than jail.

An internal report produced by the L.A. County district attorney's office and obtained by The Times estimated that the county jails would be full by the end of the year.  The Sheriff's Department has the funding to open only an additional 1,800 beds, far below the number needed to accommodate the tide of state prisoners coming its way, the report said.

The realignment plan, developed to comply with a U.S. Supreme Court decision on overcrowding in the state prison system, has generated dire warnings from local police and prosecutors who fear the shift will place more offenders on the streets and increase crime. Los Angeles Police Chief Charlie Beck has predicted that the city could see a 3% increase in crime because of realignment.

There is special concern about releasing more defendants before trial, with prosecutors fearing that some might not show up in court.  Dist. Atty. Steve Cooley said he also worries that inmates on electronic monitors could intimidate witnesses or take other actions to disrupt their trials.

Cooley used the conviction of Michael Jackson's personal physician for involuntary manslaughter to highlight the risks realignment brings.  Conrad Murray faces up to four years in prison.  But under the realignment law, he would spend that sentence in a county jail rather than a state prison.  That's because under the law, involuntary manslaughter as well as crimes such as drug offenses and identity theft no longer require state prison time.

Cooley said that if the County Jail system reaches capacity, Murray could be a candidate for early release.  "There is going to be a tremendous number of people that should be in jail and will not be incarcerated," he said. "This is the kind of story that will play out over and over again."

Yikes, Conrad Murray might be back on the California streets sooner because of L.A. jail overcrowding?!?!  Oh my, goodness! Gracious land sakes alive!   Sound the alarms, get your kids inside right away, and be extra sure to lock-down all of your propofol!!  We all should start worrying that Murray could be a threat all by himself to cause the 3% increase in crime being predicted by the LA police chief.

Obviously, my tongue was planted firmly in my cheek when writing the prior paragraph.  Though there may be lots of reasons we might think it unjust if Conrad Murray ultimately ends up getting a significant sentencing windfall because of prison and jail overcrowding in California, I do not think many folks should be deeply worried about Murray (or other similar persons who get an early release from California incarceration) going on a post-release crime spree.  Of course, other persons who get early release in California because the jails have no more room may be much more of a threat to public safety, but crime increases may be as much the result of a local officials having a poor plan for who gets early release rather that the fact that Californians have been unwilling to spend a lot more money to construct a lot more prisons and jails. 

November 12, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Debates over a healthy diet now an Eighth Amendment issue

I often tell my students that every matter of importance in society is, in some way and at some time, a matter of concern in debates over sentencing law and policy.  The latest proof of this claim comes from this New York Times article, which is headlined "Soy Diet Is Cruel and Unusual, Florida Inmate Claims," and starts this way:

One too many bouts of flatulence and cramping has led a Florida inmate to sue the Department of Corrections, arguing that the prison’s soy-based turkey dogs and sloppy Joes amount to cruel and unusual punishment.

Eric D. Harris, 34, who is serving a life sentence for sexual battery on a child, said the soy in his prison chow is threatening his health by endangering his thyroid and immune system. Florida prisons serve meals with 50 percent soy and 50 percent poultry three times a day, a mixture that costs half as much as using beef and pork, the Department of Corrections says. The cost per meal: $1.70 a day for each inmate. Florida prisons first began serving soy-based meals in 2009.

As an inmate at the Lake Correctional Institution, near Orlando, Mr. Harris, a former paralegal, has few culinary choices. He can eat 100 grams of soy protein a day, use his own money to buy food at the commissary or eat a vegan diet, he said in the lawsuit, which was filed in state court in Tallahassee and which The Orlando Sentinel reported on this week.

Gretl Plessinger, a spokeswoman for the Florida Department of Corrections, said inmates can choose an alternative vegan meal if they do not want soy. “We have a constitutional obligation to feed them healthy, nutritious food, but we don’t have an obligation to feed them beef,” she said.

“Excessive soy can be toxic to the thyroid gland,” said Sally Fallon Morell, the president and treasurer of the Weston A. Price Foundation, a nonprofit group that advocates a diet of whole, largely unprocessed foods and food high in saturated fats, and is publicizing the lawsuit. “It can have hormonal effects.”

It turns out that Mr. Harris is not alone in his objection. Nine inmates at the Danville Correctional Center in Illinois filed a similar lawsuit there in 2009, which is pending. That lawsuit is being financed by the Price Foundation.

Prisoners who have soy allergies or other ailments are especially at risk, said Ms. Fallon Morell, who added that her organization has received hundreds of calls from inmates and their relatives in Illinois and Florida who complain about the ill effects from too much soy. Illinois switched to soy-based meals in 2004 to save money. Ms. Fallon Morrell said Illinois prisons serve more than 100 grams of soy protein a day — much more than the 25 grams the government recommends.

November 12, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Friday, November 11, 2011

Santa Clara in the midst of (dangerous?) crime experiment in laboratory of California

As a deep believer in the benefits of laboratories of democracy, I have long hoped that there would be more local and state criminal justice innovations in this modern era of less crime and more punishment. Consequently, I am pleased and intrigued by this local story out of California, headlined "On crime policy, Santa Clara County takes a cutting-edge -- some say risky -- approach." Here are excerpts:

Long overshadowed by freethinking San Francisco, Berkeley and now protest-roiled Oakland, Santa Clara County has been eclipsing its lefty neighbors lately -- with criminal justice policies that critics blast as risky but supporters call cutting-edge.

From its controversial stand against a federal policy on detaining jailed illegal immigrants to its open-arms, welcome-home stance toward newly freed state prisoners, Santa Clara County has struck the kind of permissive chord that puts Fox News pundits in a lather. "The county is shaping up to be one of the most progressive in the state on reforming the criminal justice system," said Allen Hopper, police practices director of the ACLU of Northern California.

To be sure, prosecutors and judges in Santa Clara County are still filing stiffer charges and putting people behind bars longer than in San Francisco.  But on the immigration front, the Board of Supervisors late last month approved a policy that made Santa Clara County only the second jurisdiction in the nation to defy U.S. Immigration and Customs Enforcement, known as ICE.  Chicago's Cook County was the first.

Now, the Santa Clara County sheriff releases illegal immigrants with a history of committing serious or violent crimes onto the streets unless ICE pays to detain them -- and so far the feds are refusing to cough up the money.  Even San Francisco County has retreated from its previous extremely lenient illegal-immigration policy after undocumented juveniles it protected went on to commit well-publicized murders.

In addition, Santa Clara County's willingness to experiment with rehabilitating rather than simply locking up nonviolent felons under the state's massive new "realignment" of the criminal justice system is generating such interest that Stanford and Santa Clara universities are holding law school seminars this year devoted to studying it.  The county, for example, is the only one in the state reaching out to prison inmates before they return home under the new supervision of county probation officers.  Local officials are showering the prisoners with offers of job training, places to live and even free medication.

"I'm proud of the county," said Supervisor Dave Cortese. "I feel we are moving as much as we can toward a system of restorative justice rather than punitive" justice.

But some think the county is going too far -- particularly with its new immigration policy, which passed on a 3-1 vote....  After the vote, District Attorney Jeff Rosen and Sheriff Laurie Smith warned that freeing illegal immigrants whose previous records include violent crimes, instead of holding them 24 hours for ICE, poses a risk that they may go on to victimize others.   "I think they're just playing with dynamite," said Don Gage, a former longtime Republican county supervisor who represented South County.  "I wouldn't have voted for it either."

Advocates, on the other hand, say any alliance with ICE in the face of anti-immigrant laws in Arizona, South Carolina, Georgia, Utah, Indiana and Alabama -- as well as the recent presence of two ICE agents on a San Jose police gang unit -- could create an even bigger risk by undermining immigrant communities' trust in the police, making people afraid to report crimes as witnesses or even as victims.  In a recent local case, two San Jose brothers who are illegal immigrants badly beat a man who molested an 8-year-old girl in their household rather than call the police, partly out of fear of being deported....

On realignment, the county was able to draw on its previous positive experience with juvenile-justice reform programs, which have reduced the number of kids in juvenile hall and shifted the emphasis at youth ranches from punishment to rehabilitation.  So when the state set out to trim its prison population and costs by unloading responsibility this fall for incarcerating and rehabilitating thousands of lower-level felons on local governments, Santa Clara County was ready.

November 11, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 08, 2011

New ACLU report critical of private prsions

Bankingonbondage_web_page_01As spotlighted on this webpage, the ACLU late last week released this big new report on the private prison industry.  The report is titled "Banking on Bondage: Private Prisons and Mass Incarceration." Here are excerpts from the webpage's summary of the 50+ page report:

The imprisonment of human beings at record levels is both a moral failure and an economic one — especially at a time when more and more Americans are struggling to make ends meet and when state governments confront enormous fiscal crises.  This report finds, however, that mass incarceration provides a gigantic windfall for one special interest group — the private prison industry — even as current incarceration levels harm the country as a whole.  While the nation's unprecedented rate of imprisonment deprives individuals of freedom, wrests loved ones from their families, and drains the resources of governments, communities, and taxpayers, the private prison industry reaps lucrative rewards.  As the public good suffers from mass incarceration, private prison companies obtain more and more government dollars, and private prison executives at the leading companies rake in enormous compensation packages, in some cases totaling millions of dollars....

Part One of this Report traces the rise of the for-profit prison industry over the past 30 years, demonstrating that private prisons reaped lucrative spoils as incarceration rates reached historic levels.  Part Two focuses on the supposed benefits associated with private prisons, showing that the view that private prison companies provide demonstrable economic benefits and humane facilities is debatable at best.  Part Three discusses the tactics private prison companies have used to obtain control of more and more human beings and taxpayer dollars.

The time to halt the expansion of for-profit incarceration is now.  The evidence that private prisons provide savings compared to publicly operated facilities is highly questionable, and certain studies point to worse conditions in for-profit facilities.  The private prison industry helped to create the mass incarceration crisis and feeds off of this social ill.  Private prisons cannot be part of the solution — economic or ethical — to the problem of mass incarceration.

November 8, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (37) | TrackBack

Monday, November 07, 2011

Detailed coverage of Michigan's juve LWOP policies and practices

Lifermainfixx1-640jpg-8c8ebb1fa85c5afcMichigan's newspaper are collectively doing an amazing job providing both depth and breath to their coverage of Michigan's recent history and continuing practice of sentencing a significant number of serious juvenile offenders to life without the possibility of parole.  This lead article in this series, headlined "Why Michigan has more juvenile life sentences than almost any other state," has lots of background and data on this notable sentencing phenomenon, and the piece gets started this way:

They were teenagers once, and did horrible things, or were in horrible places. People died. Sometimes at their hands; sometimes not. But they were present. And for that, they were told they will die, too, in prison.

These are Michigan’s “juvenile lifers,” although most are much older now, sentenced to life in prison without chance of parole. And there are more in this state than in almost any other.

There is Keith Maxey, wounded in a drug theft gone bad. He was unarmed and fled, but another man was killed. A jury found the 16-year-old just as responsible as if he had pulled the trigger. Except the shooter got a lighter sentence.

There, too, are identical twins David and Michael Samel, arrested at 17 for beating a pool hall worker to death. Michael pleaded to a reduced charge and was released in 2009. David took his chances with a jury. He is in the 30th year of life without parole.

And there is Cedric King, 14 when he helped set up a marijuana thief to be killed. Except the court thought he was a year older, and the victim survived. Still, confusion has persisted for years over whether he was given the state’s severest punishment, or something less, a Booth Michigan investigation found.

As a federal judge in Detroit weighs whether such sentences are unconstitutional, reporters from seven newspapers and MLive.com spread out across the state. They interviewed nearly two dozen inmates, including some who committed their crimes before they could drive.  They also talked to victims’ families, prosecutors, judges and lawmakers.   What they found was regret and bitterness, anger and forgiveness.  They also found an issue measured more in shades of gray than black and white.

Ask Shirley Schwartz what her brother would think of imprisoning juveniles for life, and she pauses. “That’s a really difficult question,” she finally says. Her college professor brother was “very liberal,” she recalls, an advocate for his urban neighborhood in Grand Rapids’ Heritage Hill.  That was where he met his killers; Jerry Freid died after being beaten to death with a baseball bat during a burglary by a 16- and a 17-year-old.

Ask Schwartz the same question, what she thinks of life sentences for juveniles, and she does not hesitate.   “I never believed in the death penalty,” she says. “After this happened, I was pretty sure I could pull the switch. You can afford to be a liberal when it doesn’t touch you.” Told one of her brother’s killers died in prison, Schwartz says one word. “Good.”

Michigan spends more than $10 million a year to house more juvenile lifers than all but one other state, Pennsylvania. In all, 358 inmates are serving life sentences for crimes committed from ages 14 to 17.  One in five has been in prison 25 years or longer. The oldest is 67, now that two older lifers have died.

All this could change.  A federal lawsuit pending in Detroit claims life without parole for juveniles 17 and younger constitutes cruel and unusual punishment.  It seeks mandatory parole reviews when young inmates reach 21, then every five years after. The lawsuit has had early success.  A judge in July threw out the claims of eight inmates imprisoned since their teens, ruling too much time had passed. But he allowed one inmate to move forward — Keith Maxey.

Deborah LaBelle, the lawsuit’s lead attorney, says she has met with about 100 of the inmates and corresponded with more than 300.  She blames a “toxic combination” in Michigan of juvenile reforms, mandatory sentences and immature judgment she says puts minors at a disadvantage in adult courts.

I find the the stories of— and constitutional challenges to — juve LWOP in Michigan to be especially interesting and important because Michigan was the first US state to abolish the death penalty way back in the 1840s.  It seems notable that the state's historic disaffinity for the ultimate punishment of death did not prevented it from embracing its functional equivalent in modern times.  Against this backdrop, one can also argue that the Supreme Court's Eighth Amendment rulings in Roper and Graham ought to have even more bite in Michigan: if those rulings are understood dynamically to prohibit giving juvenile offenders the most severe sentences available to adult, then arguably juvenile should not be able to receive LWOP for any crime in any state that does not have capital punishment.

November 7, 2011 in Assessing Graham and its aftermath, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Sunday, November 06, 2011

Reduced crack sentences help reduce of federal prison population for first time in long time

A helpful reader alerted me to the fact that, according to official US Bureau of Prisons data, the federal prison population dropped recently for the first time in a very long time.  Based on various year-end report by the Bureau of Justice Statistics and more recent Weekly Population Reports from BOP, here is an accounting of total federal prison populations in past and recent times:

Year end 1992: 80,259

Year end 1996: 105,544

Year end 2000: 140,064

Year end 2004 180,328

Year end 2007: 197,285

Feb. 2009: 201,280

May 2009: 203,692

June 2010: 211,438

July 28, 2011: 217,444

Oct. 20, 2011: 217,908

Nov. 3, 2011: 217,660

Lots for different factors play a role in the total federal prison population head-count, but I have to assume that the earlier release of some crack offenders based on the new guideline played a big role in this (historic?) federal prison population decline.  It will be interesting to see if what has previously always been going up might continue to move down.  I somewhat doubt it, but time will tell.

November 6, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (18) | TrackBack

Saturday, November 05, 2011

"Who Benefits When A Private Prison Comes To Town?"

Private_prisons_enlThe title of this post is the headline of this new NPR story run on the program "All Things Considered." Here are excerpts from the written part of the segment:

Federal and state officials are increasingly contracting private companies to run prisons and immigration detention centers. Critics have long questioned the quality of private prisons and the promises of economic benefits where they are built. But proponents say private prisons not only save taxpayers money, but they also generate income for the surrounding community.

In 2004, officials in Hardin, Mont., agreed to a deal for a private prison to be built in town. The idea was that the county would pay for the prison and the state or federal government would fill it.  Hardin would get tax revenues, new jobs and economic benefits while a private prison company would run the place and get a cut of the profits.

The Two Rivers Regional Detention Facility, a 464-bed $27 million private prison, was completed in 2007.  Since then, the facility has remained empty and unused because the builder never landed a contract with the state or federal government for inmates. In 2009, the facility made national news when, in an attempt to recoup the money it had spent on the facility, the town offered to do something almost no other town in America was willing to do — house prisoners from Guantanamo Bay.

That didn't happen, but it's a testament to how desperate Hardin is to fill the prison, get it up and running, and create jobs for the town....

Despite the criticism private prisons face, as an industry they do very well. They make money, a little for some of the towns where they're built and a lot for shareholders and investors.

"This is an investment that we talk with investors about on a regular basis as a good idea," investment analyst Tobey Sommer tells Sullivan.  Sommer, director of equity research at SunTrust Robinson Humphrey in Tennessee, says both CCA and Geo Group made more than $1 billion each last year and their CEOs took home multimillion-dollar bonuses.

The recession could actually make them more money, Sommer says. With budgets stretched thin, states might look to private prisons to house and secure even more inmates. Only 10 percent of all inmates in the U.S. are housed in private prisons, he says, so that other 90 percent could be seen as an opportunity for growth.

But not everyone sees opportunities for long-term growth. "Crime rates are declining, the prison population is declining, and many states, in large part motivated by the economic downturn, are realizing that they can't keep building their way out of the problem," says Michele Deitch, who teaches criminal justice at the Lyndon B. Johnson School of Public Affairs at the University of Texas.

Deitch says the new growth market for prison companies is immigrant detention, like the facility in Karnes County. New prisons, possibly for state inmates, like the one in Hardin, Mont., are on the decline.

November 5, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, November 03, 2011

"Changed crack sentencing rules leave a justice system in flux"

The title of this post is the headline of this effective article in today's Minneapolis Star Tribune which provides an in-depth review of all the challenges posed by the implementation of the new reduced federal sentencing guidelines for crack.  Here are excerpts:

Carlos Lamont Cleveland, 39, was jailed in 1995 on charges that he was the "right-hand man to the leader of a large and violent drug-trafficking organization" that distributed crack cocaine in Minnesota. But his sister stood by him as he kept challenging his 300-month sentence. This week, she got the news from her brother she had been waiting for: Cleveland would be returning home on Friday.

New sentencing rules that took effect on Tuesday made Cleveland one of more than 1,800 prisoners eligible for release right away, federal officials said. Creature comforts of a full-size bed, a freshly painted room and a bouquet of welcome-home balloons will await him in his hometown of Detroit....

Nationwide, more than 500 people were released from custody on Tuesday, the Federal Bureau of Prisons said. In Minnesota, the change in the guidelines will mean an early release for 100 to 150 inmates who were convicted of crack cocaine crimes. The change is eventually expected to benefit 12,000 U.S. inmates, reducing sentences by an average of three years....

For the past few months, U.S. probation officers, federal defenders and federal prosecutors in Minnesota have been combing through hundreds of court files in an effort to find inmates who may be eligible for release under the new retroactive sentencing rules....

Hundreds of files fill a space in the federal public defender's office that they jokingly call the "crack room," Roe said. At least two lawyers review each file. "The last thing we want to do is miss somebody," she said.

So far, they've found 21 candidates for "immediate release," Roe said. But the number is still in flux. The U.S. attorney's office said it has identified 28 potential candidates for immediate release; the Probation Office said it might be somewhat fewer than that.

So far, orders have been signed for just four that reduced their sentences to time served. In addition to Cleveland, who got a 29- month reduction, they include Paris Lamar Wilson, sentenced in 1997 on charges of conspiracy to distribute crack cocaine, possession and use of a firearm related to drug trafficking; Bobby Woods, sentenced in 2001 on charges of conspiracy and possession of cocaine base, and Steven Mitchell Gant, who pleaded guilty in 2008 to charges of conspiracy and possession of cocaine base, cocaine and ecstasy.

The orders give the Bureau of Prisons 10 days to release the inmates. Jeanne Cooney, a spokeswoman for the U.S. attorney's office in Minnesota, said under the law, the bureau gets time to notify victims in some cases or even local law enforcement. The offenders will remain subject to post- prison "supervised release" even if, in effect, they served excess time under the new guidelines.

Some of the inmates affected by the changes have been imprisoned long after the time they would've been released had the new rules been in place when they were originally sentenced, Roe said. Two are already under electronic monitoring in their homes. Others are in half-way houses because they were already transitioning back into society as they neared the end of their original sentence.

Chief U.S. Probation Officer Kevin Lowry said some inmates who were released early after the first guidelines change experienced "a little bit of culture shock" at their sudden release. "Some did indicate that they had anxiety about being back in the community sooner than they expected," he said. Kerns said probation officers worked hard then and are working hard now to connect the outgoing offenders with social services to ensure they have a place to stay, as well as educational and employment opportunities. "That's what we'll continue to focus on, successful re-entry into the community and helping these folks turn back into successful, law abiding lifestyles," he said.

November 3, 2011 in New USSC crack guidelines and report, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 01, 2011

SCOTUS two for Tuesday dealing with civil liability in criminal contexts

As previously noted in this week in preview, this morning the US Supreme Court will hear arguments in Rehberg v. Paulk and Minneci v. Pollard, cases dealing with the potential limits on civil liability for prosecutors and and private prison operators.  Neither case deals directly with sentencing, obviously, both both cases could have a consequential impact on actors involved with sentencing systems.

Though I have a variety of views on the pros and cons of tort liability for various criminal justice participants, I have long been troubled by court-created categorical limits on such liability.  I think all tort liability should be subject to narrow and nuanced rules and I think most of these rules ought to be developed initially by legislatures and executive officials (with some subsequent common-law development in the courts).   I often worry that too much modern tort immunity doctrines for criminal justice participants is created by judicial fiat.  The oral arguments today may showcase in  Rehberg v. Paulk and Minneci v. Pollard how some of the newer justices view some of these issues.

UPDATE via SCOTUSblogTranscripts from today’s arguments in Rehberg v. Paulk and Minneci v. Pollard can be found here and here.

November 1, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, October 28, 2011

"Madoff says he is happier in prison than free"

The title of this post is the headline of this news report discussing a recent interview of Bernie Madoff from prison.  Here is how the piece starts:

Financial swindler Bernard Madoff said that he is happier in prison than he was on the outside because he no longer lives in fear of being arrested and knows he will die in prison, TV journalist Barbara Walters said on Thursday.

Walters, who spent two hours at the prison with Madoff two weeks ago, also told ABC's "Good Morning America" program that Madoff said that while he had contemplated suicide during his early days behind bars, he lacked the courage and never thinks about killing himself now.

Madoff is serving a 150-year prison term for bilking investors out of billions of dollars in a decades-long Ponzi scheme that is considered the biggest financial fraud in U.S. history.

October 28, 2011 in Celebrity sentencings, Prisons and prisoners, White-collar sentencing | Permalink | Comments (2) | TrackBack

Tuesday, October 25, 2011

"Lockdown: Technology in America’s Most Notorious Prison"

Xlarge_img_2962The title of this post is the headline of this interesting new series at the technology site Gizmodo.  Here is how the series is set up:

Do prison inmates surf the Internet?  Do they have gadgets?  Do they make gadgets? Do they make weapons?  Where do they get their porn and booze?

On the outside, we enjoy lives built around the fruits of modernity.  But what about prisoners?  San Quentin sits on the San Francisco Bay, minutes away from the most technologically famous valley in the world, so we went to jail to find out how much of our 21st-century techno-culture has made it behind bars.

San Quentin State Prison is the stuff of legend.  Hell, Johnny Cash wrote a song about it. A lot has changed since The Man in Black visited, but even more striking is what hasn't changed.  Recently, Gizmodo had the rare opportunity to get inside this notorious prison. To say that it was enlightening is a serious understatement.

There are a lot of rules when you visit the slam: You can't wear blue, grey, or orange.  Not a stitch: Those colors are reserved for inmates only — blue and grey for the full-time residents, and orange for guys who were still being processed and might well end up in a higher security prison. (They kept us far away from the guys in orange.)  You also can't bring in a cell phone, a very coveted piece of contraband.  And you most definitely cannot bring in anything that could be used as a weapon; not that they're hurting for weapons, as you'll find out tomorrow....

San Quentin houses more than 5,000 inmates, despite being built to accomodate only 3,082.  Six hundred condemned men reside on San Quentin's death row — far more than Florida's or Texas'.  For all that, there are only 300 officers on duty at peak shifts.  We spent most of our time on North Block, which houses approximately 850 men.  Around 650 of them carry a life sentence, and roughly 80-percent are there for violent crime.  Prisoners are generally housed two men to a small cell that was only intended to house one.  That's overcrowding for you.  The men refer to their cellmates as "cellies."

For all intents and purposes, San Quentin is designed to be an island.  It's very clear that inmates are not meant to be a part of the modern world of technology.  They aren't allowed any internet access at all.  They can have TVs, but no cable.  They can make phone calls, but they absolutely cannot have cellphones.  No booze, no way.  Yet, despite the levies in place, technology has a way of seeping in.  Cellphones can be procured though a number of illegal channels.  Booze can be made right in your cell.  Permitted devices can be hacked to do things they aren't supposed to do.

Essentially, where there's a will there's a way — even in prison. And these guys have nothing but time on their hands....   By and large the inmates we interviewed were affable and articulate.  If you were meeting them under other circumstances, you'd probably think they were nice guys.

Except most of them were in for murder.  It was hard to wrap my mind around that.  The deeds didn't seem to match the men's personalities, and probably with good reason.  Most of the guys we'd talked to had been in jail since the 70's.  They were young men who had made big mistakes—mistakes which many would argue are unforgivable — and they were still paying for them.  Many had been in prison longer than I'd been alive.

When we left that afternoon, we were acutely aware of how lucky we were to be able to do so.  The battery in our car had died.  So what.  We weren't in jail.  Small annoyances were put in their proper places.  Our smartphones, which we'd gotten so jaded about, were incredible and magical again.  As we ate our dinners, sipped our beers, and occasionally checked our emails that night, we talked about the things we took for granted.  We had always enjoyed our freedom, but I don't know that we'd ever had a clearer picture of what life would be without it.  It's the kind of thing that makes you want to make sure you are taking advantage of all life has to offer.  It's the kind of thing that makes you grateful to go home.

Every day this week we'll be bringing you a new tech story from inside San Quentin, complete with photos and video. Check out today's episode: Prison Hacks.

October 25, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, October 23, 2011

"When life is too long: Debate over older prisoners"

The title of this post is the headline of this notable new AP article, which includes data and discussion on very lengthy prison terms.  Here are excerpts:

Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison.  The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.

"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.

Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."

Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends.  "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said....

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995.  Five returned to prison for new felonies, none for similar life-term crimes.   By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found.  In New York, the number of lifers with few prospects for release has grown in the past decade, tracking a national trend and raising a new set of criminal justice policy questions.

"What kind of treatment programs should we be considering for the offenders who have a sentence of life without parole, or enter the system with sentences of 50 years to life?" Commissioner Brian Fischer asked recently on the 40th anniversary of the deadly riots at Attica, another maximum-security prison in New York.  Since the state's 1996 sentencing amendments for capital crimes, establishing life without parole for first-degree murder, inmates with that sentence rose from four to 223, with 15 more expected each year, he said.

New York now has more than 800 prisoners who are 65 or older, double the total a decade ago. It has no death penalty, though 34 states and the federal government do.  Federal prisons held 3,254 inmates age 66 or older in August, up from 1,326 in 2000.  From 1985 to 2006 in New York, 72 prisoners released when they were over 65 were returned for new crimes, less than 5 percent.

Some recent related posts:

October 23, 2011 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (16) | TrackBack

Friday, October 21, 2011

"Rajaratnam's kidney transplant could cost taxpayers $300,000"

The title of this post is the headline of this new CNNMoney story.  Here are the details:

Taxpayers could be bankrolling a kidney transplant for wealthy white-collar convict Raj Rajaratnam, who was recently sentenced to 11 years in federal prison for insider trading. The cost could exceed $300,000 if he's able to secure a kidney early in his sentence, including the price of the transplant and a decade's worth of post-operative therapy.

At Rajaratnam's sentencing on Oct. 13 in New York, federal Judge Richard Holwell described the former hedge fund manager as a diabetic with "imminent kidney failure" who needs a transplant. The judge also said he will ask the Federal Bureau of Prisons to place Rajaratnam in the Butner Federal Correctional Complex in North Carolina, which has a medical facility.  Incidentally, Butner is home to Ponzi schemer Bernard Madoff, who is serving a 150-year sentence.

All federal prisons have some level of medical care, according to Federal Bureau of Prisons spokesman Edmond Ross, but some prisons specialize in it.  Butner is one of six federal prisons that are considered medical centers, meaning that their mission is to deliver more enhanced medical care than what would normally be expected from a prison hospital.

Rajaratnam will probably get sent to Federal Medical Center Devens in Massachusetts, not Butner, because Devens specializes in kidney treatment, including dialysis, according to Ross....   But none of the hospitals in the prison system conduct transplants, said Ross. That work would be outsourced to a non-prison hospital....

[The costs all] fall on the taxpayers. Not that the former hedge fund manager and Galleon Group founder has a choice. Rajaratnam does not have the option of paying for his own treatment once his sentence begins on Nov. 28.

"No, he cannot pay for it himself," said Alan Ellis, an attorney, prison consultant and author of the Federal Prison Guidebook.  "No way. There's no such thing as rich man's medicine versus poor man's medicine in the Bureau of Prisons."

Ross would not say how much the bureau specifically spends on health care, but the U.S. Government Accountability Office estimates that the cost is growing, in tandem with the aging prison population.   "I don't know what the 2012 health care costs are going to be, but it wouldn't surprise me if it's approaching a billion dollars," said David Maurer, director of the Homeland Security and Justice Team of the GAO, which analyzes the federal prison budget.

October 21, 2011 in Prisons and prisoners, White-collar sentencing | Permalink | Comments (20) | TrackBack

Noting the impact of life sentences on efforts to cut prison costs

USA Today has this little piece, headlined "Growing prison populations hinder budget cuts," which details how the massive increase in offenders serving life sentences in recent years adds an extra challenge for those states now eager to reduce prison populations and associated costs.  Here are excerpts:

The rising number of prisoners serving costly life terms across the country is complicating state officials' efforts to make dramatic cuts to large prison budgets, lawmakers and criminal justice officials said.

From 1984 to 2008, the number of offenders serving life terms quadrupled, from 34,000 to roughly 140,000, according to the most recent count by The Sentencing Project, which advocates alternatives to incarceration.  

One of the fastest-growing subgroups are inmates serving life without the possibility of parole.  Those numbers have jumped from 12,453 in 1992 to 41,095 in 2008 and represent the most costly inmates to house as the aging inmates require increased medical care....

In Texas, the second-largest state prison system in the country, with 156,000 inmates, the number of offenders serving life without parole has been increasing since the sentence was adopted by the state Legislature in 2005, from 47 in 2007 to 391 this year.  The number of Texas prisoners serving life with the possibility of parole — 8,665 — has increased in four of the past five years....

In California, the country's largest prison system with 164,000 inmates, the number of prisoners serving life terms has been steadily increasing, even as the state faces a federal court mandate to reduce the prison population by 30,000 by 2013.  More than 20% of the state's inmates are serving life terms or equivalent sentences.

Joseph Cassilly, a past president of the National District Attorneys Association, said there is concern that increasing budget pressures on state governments could drive officials to consider paroles for lifers in an attempt to reduce costs.   "How do you explain that to a victim of a crime or a surviving family member who thought life in prison really meant life in prison?" Cassilly said.

October 21, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Wednesday, October 19, 2011

"Billions Behind Bars: Inside America's Prison Industry"

Prison-Industry-Billions-Behind-Bars-IntroThe title of this post is the title of this new CNBC special, which was first broadcast last night (while I was watching another crime-and-punishment-free GOP debate).  The website for this program, which provides lots of video snippets, reports that there will be a rebroadcast at 8 pm this Friday, October 21.  Here is how the network describes this notable show:

With more than 2.3 million people locked up, the U.S. has the highest incarceration rate in the world. One out of 100 American adults is behind bars — while a stunning one out of 32 is on probation, parole or in prison.  This reliance on mass incarceration has created a thriving prison economy.  The states and the federal government spend about $74 billion a year on corrections, and nearly 800,000 people work in the industry.

From some of the poorest towns in America to some of the wealthiest investment firms on Wall Street, CNBC’s Scott Cohn travels the country to go inside the big and controversial business of prisons.  We go inside private prisons and examine an Idaho facility nicknamed the “gladiator school” by inmates and former prison employees for its level of violence.  We look at one of the fastest growing sectors of the industry, immigration detention, and tell the story of what happens when a hard hit town in Montana accepts an enticing sales pitch from private prison developers.  In Colorado, we profile a little-known but profitable workforce behind bars, and discover that products created by prison labor have seeped into our everyday lives — even some of the food we eat.  We also meet a tough-talking judge in the law-and-order state of Texas who’s actually trying to keep felons out of prison and save taxpayer money, through an innovative and apparently successful program.

October 19, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, October 18, 2011

Fascinating claims about "Unintentional Punishment"

Professor Adam Kolber, who helped prompt a whole new line of theorizing about punishment through his piece on "The Subjective Experience of Punishment" (blogged here and here), has now up on SSRN this potent follow-up titled "Unintentional Punishment."  Here is the abstract:

Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally.  Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.

In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen.  Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct.  Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration because it cannot justify the side effects which necessarily accompany it.

I have previously discussed with Professor Kolber my view that his points and overall project can logically lead to a complete destruction of a retributivist defense of imprisonment (and perhaps all punishments).  In this paragraph toward the end of the "Unintentional Punishment" paragraph, Professor Kolber reinforces my views here:

While some scholars have recognized that retributivism does not provide a complete justification of real-world institutions of state-imposed and -financed punishment,I make a more damaging claim: Even if we put aside cost and administrative concerns, principles of retributive proportionality cannot even justify the amount of prison time an offender should serve because they cannot justify the unintentional hardships of prison.  I take it that even those retributivists who believe that retributivism fails to justify the allocation of resources in the criminal justice system or fails to provide a general justifying aim for punishment still believe that retributive principles of proportionality can tell us, at least in principle, how long to incarcerate deserving offenders.  I show otherwise.

October 18, 2011 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

"Medicaid expansion seen covering nearly all state prisoners"

The title of this post is the headline of this interesting report from Stateline.org, which gets started this way:

The federal health law’s controversial Medicaid expansion is expected to add billions to states’ already overburdened Medicaid budgets. But it also offers a rarely discussed cost-cutting opportunity for state corrections agencies. Starting in 2014, virtually all state prison inmates could be eligible for Medicaid coverage of hospital stays—at the expense of the federal government.

In most states, Medicaid is not an option for prison inmates. But a little known federal rule allows coverage for Medicaid-eligible inmates who leave a prison and check into a private or community hospital. Technically, those who stay in the hospital for 24 hours or more are no longer considered prison inmates for the duration of their stay.

Under the 1965 law that created Medicaid, anyone entering a state prison lost Medicaid eligibility. The same went for people who entered local jails, juvenile lock-ups and state mental institutions. The reasoning was that states and local governments had historically taken responsibility for inmate health care so the federal-state Medicaid plan was not needed.

But an exception to that general rule opened up in 1997 when the U.S. Department of Health and Human Services wrote to state Medicaid directors saying inmates who leave state or local facilities for treatment in local hospitals can get their bills paid by Medicaid, if they are otherwise eligible. In addition to the incarcerated, those on probation or parole or under house arrest were among those who could participate.

Still, most state prisoners do not qualify for Medicaid. That's because all but a few states limit Medicaid to low-income juveniles, pregnant women, adults with disabilities and frail elders. The majority of people in lock-ups are able-bodied adults who do not qualify, even on the outside. In 2014, however, when Medicaid is slated to cover some 16 million more Americans, anyone with an income below 133 percent of the federal poverty line will become eligible. Since most people have little or no income once they are incarcerated, virtually all of the nation’s 1.4 million state inmates would qualify for Medicaid.

As the article goes on to explain, this could end up being very be good news for states struggling with prisoner health-care costs (and presumably bad news for anyone hoping federal spending will be reduced in the years ahead):

The 1997 ruling meant that even though a limited number of inmates would qualify, state corrections agencies could save millions in hospitalization costs because most hospital fees are lower for Medicaid patients and the federal government pays from 50 to 84 percent of the bill.

The problem was, few corrections agencies heard about the ruling. As a result, it took more than a decade for any state to take Washington up on its offer.... Even among corrections officials who did find out about the opportunity, many were reluctant to talk to Medicaid officials about the complex law, she says. Another barrier has been that many hospitals oppose the idea because it means lower fees for patients they are already serving.

So far, only Louisiana, Mississippi, Nebraska, North Carolina, Oklahoma and Washington State have taken advantage of the ruling. California is preparing to launch a statewide reimbursement program this year. Alabama, Michigan, New Jersey and Utah are studying the idea.

Mississippi was among the first to make the change. Launched in 2009, its program has already saved the state $10 million in inmate health care costs, says corrections commissioner Christopher Epps. The cost reduction comes partly from lower hospital fees and partly because 84 percent of the state’s Medicaid bills are paid by the federal government.... Out of 21,000 inmates in Mississippi, 242 have been approved for the program, and Medicaid reimbursements have paid for 2,088 days in the hospital. Perry says the most common reasons for hospitalization are childbirth, and treatment of cancer, liver and heart disease.

North Carolina launched a reimbursement program this year that includes all of the state’s 40,000 Medicaid-eligible prison inmates. According to a 2010 auditor’s report, the state corrections agency is likely to shave about $12 million from its $160 million annual health care bill by requiring hospitals and skilled nursing facilities to seek payment directly from Medicaid.

California, with about 160,000 inmates, is likely to be the next state to launch a Medicaid inmate reimbursement program. Corrections officials say they expect to have an enrollment system up and running by the end of the year. The state also plans to use Medicaid to fund hospital stays for some 6,000 inmates of state mental institutions. In 2014, of course, virtually all of the state's incarcerated will qualify for Medicaid-covered hospital stays.

October 18, 2011 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, October 17, 2011

Taking stock of New York's historic prison population drop

This lengthy AP article discusses the what and the how of New York's remarkable reduction in its state prison population in recent years.  Here are highlights:

Nearly 40 years after tough new drug laws led to an explosion in prison rolls, New York state has dramatically reversed course, chalking up a 62 percent drop in people serving time for drug crimes today compared with 2000, according to a Poughkeepsie Journal analysis.

The steep decline — driven, experts said, by shifting attitudes toward drug offenders and lower crime — means that nearly 17,000 fewer minorities serve state time today than in 2000, groups that were hardest hit by the so-called war on drugs.  Overall, the prison population declined 22 percent.

Hispanics and blacks are still vastly overrepresented in prisons but incarceration experts said the overall figures were impressive.  "The drop itself is really quite extraordinary," said Michael Jacobson, director of the Manhattan-based Vera Institute of Justice, a nonprofit center for justice policy research....

Nationally, New York charted the biggest drop in its prison rolls from 2000 to 2010, a decade when 37 state prison systems had double-digit population hikes.  Ironically, it was the state's 1973 drug laws, championed by then-Gov. Nelson A. Rockefeller, that helped kick off a massive national prison buildup — and the highest incarceration rate in the industrialized world.

Now — with state prison spending at $3.7 billion in fiscal 2010, or $55,000 per inmate — New York may be leading the way back.  Nearly 7,700 fewer blacks are incarcerated in state prison in 2011 compared with 2000, the Journal study found.  In addition, 35 percent fewer female inmates serve time — and 77 percent fewer women serve drug sentences as their top crime.  Inmates were also older — by three years on average, according to the analysis, which used databases of the inmate population on one day each in February 2000 and March 2011.

The trend is an outgrowth, experts said, of factors including the diversion of more drug offenders to treatment, changes in drug laws and lower crime rates — especially in New York City, which currently ranks among the safest big cities in America.  There, aggressive "stop-and-frisk," zero-tolerance and computer-driven anti-crime programs have been employed, some say, with remarkable results....

The decline in drug-convicted inmates means more of the type of inmate for which penitentiaries were constructed: violent offenders.  Today, the No. 1 top crime of sentenced inmates is second-degree murder, with just over 8,000 convicts — about the same as in 2000.  In 2000, the most common top crime for which inmates were incarcerated was third-degree criminal sale of a controlled substance — with almost 10,000 people sentenced.  That's now down to about 3,000.  

"I would argue that the right people are being sentenced to prison," said Brian Fischer, New York state's prison commissioner.  "Was prison the best alternative for drug abusers? Clearly it was not."...

Before adoption of its drug laws in 1973, New York had built just 18 prisons in 140 years. Driven by mandatory drug sentences and other tough-on-crime statutes, the state opened 52 prisons from 1973 to 2000, raising the population from 13,400 to a historic peak, on Dec. 12, 1999, of 71,538 inmates.  It was 55,599 last week....

Janet DiFiore, a former judge and current Westchester County district attorney ... ties the prison downturn both to drug law reforms — in 2004, 2005 and 2009 — and a recognition in law enforcement that alternatives like drug treatment were needed.  Almost 200 drug courts have been opened statewide, most since 2000, that divert many otherwise prison-bound offenders to treatment.

The downsizing doesn't impress some reform advocates, who still see the system as hugely bloated, especially with blacks and Hispanics, now 77 percent of inmates and down from 84 percent in 2000. "The disparities have diminished somewhat and that's good news, but that does not put us as a state in a place that we can be proud of," said Donna Lieberman, executive director of the New York Civil Liberties Union, which has opposed city frisking policies as invasive and discriminatory. "We were starting at a pretty horrific place from which to decline."...

What's clear is that the downturn is continuing — equal to one or two large prisons in each of the last three years. And it may accelerate with most experts agreeing that the latest drug law reforms have yet to fully kick in.  In 2009, amendments to the Drug Law Reform Act gave judges far broader discretion to divert offenders to drug treatment or sentence them to lesser, non-mandatory, terms. In 2004 and 2005, the act reduced the harshest sentences — 15 years to life for selling as little as two ounces of cocaine or possessing four ounces — but those reforms only marginally reduced the population, experts said.

The reforms are an outgrowth of something much larger than a drug-war backlash, according to close prison observers, among these ballooning prison budgets, the economic downturn and a realization that punishment isn't always the answer.  "Prosecutors were recognizing that our job was not just about handcuffs and prison," said DiFiore. "It was a mindset change."

"In a time of economic recession it causes a rethinking," said Alan Rosenthal, director of justice strategies for the Center for Community Alternatives, a Manhattan-based sentencing reform group. "We had a shift from tough on crime to smart on crime," an acknowledgement, he added, that high prison rolls did not equate with lower crime.

Rates of major crime in New York state have dropped 63 percent since 1990 — a consistent decline even as the prison population rose an average 4 percent a year in the 1990s and declined an average 2 percent a year in the 2000s.

This important article not only highlights the links between the drug war and large prison populations, but also documents that state decisions to fight the drug war using smarter (and less costly) alternatives to imprisonment can facilitate a dramatic reductions in prison populations without obvious adverse public safety consequences.  

I find it especially notable that New York managed to reduce is prison population over 20% during the same period in which California was fighting in court over court orders to fix its overcrowded prisons.  I genuinely believe if the folks in California had embraced the creation of a sentencing commission that could have studied and implemented effective changes taking place in other states, the Plata litigation would have played out much differently and the massive prisoner release order that worries so many would never have come to pass.

October 17, 2011 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, October 13, 2011

"Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners"

The title of this post is the title of this new article available via SSRN by Priscilla Ocen.  Here is the abstract:

The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States.  This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation.  At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use.

More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South.  The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners.

Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level.  This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices.  Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause.  This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.

October 13, 2011 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (50) | TrackBack

Wednesday, October 12, 2011

Dangerousness and dignity dicta could make SCOTUS work in Florence of sentencing interest

I have not been following the jail strip-search case before the Supreme Court too closely, in part because it is a Fourth Amendment case and in part because I lack the time to follow everything closely. But this early SCOTUSblog report on today's oral argument in Florence v. Board of Chosen Freeholders leads me now to the suggest that sentencing fans keep a close eye out for this forthcoming opinion.  First, here are parts of the helpdul SCOTUSblog report from Lyle Denniston: 

One thing, and only one thing, emerged clearly after a busy — and often confusing — hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other.  None of the three lawyers argued for that, and nowhere near a majority of the Justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals.   But where five Justices might draw the line was entirely unpredictable after the hearing on Florence v. Board of Chosen Freeholders (docket 10-945).

What might turn out to be decisive is that the Justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem. Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places.

Although there were some comments from the bench — especially from Chief Justice John G. Roberts, Jr. — that not much was in dispute, it seemed obvious that the case involves anything but trivial differences of opinion. The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an “anything goes” policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched — at times in vain — for some guidance on just what potential threats to individual “dignity” were too much to be constitutionally forbidden....

The Court had real difficulty, for example, as the Justices tried to nail down just what Washington lawyer Thomas C. Goldstein was proposing as a Fourth Amendment standard to govern strip-searching.... Goldstein’s approach, indeed, allowed his principal adversary, Washington lawyer Carter G. Phillips, to begin his portion of the argument by saying that Goldstein’s argument moved around so much that it was not exactly clear what his constitutional claim was. But, as matters were to unfold, Phillips, too, wandered at times from his core argument that the Fourth Amendment should simply have nothing to do with the procedures used in jails upon the receipt of new arrestees. He conceded to Justice Sonia Sotomayor, for example, that there is “some constitutional right of privacy” in the jail setting, and conceded that manual inspection of body cavities would invade that right unless there were some strong evidence of a threat to justify it.

Justice Antonin Scalia somewhat sarcastically said that what Phillips seemed to be advocating was a Supreme Court ruling that was limited to the validity of “squatting and coughing” inspections, and nothing more.  Scalia was the Court’s most vigorous champion of jail security, and thus its least skeptical about strip-searching as a routine jail-entry policy.

The most aggressive defense of strip-searching, without any notable limits, came from a Justice Department lawyer, speaking for the federal government. Nicole A. Saharasky, an assistant to the U.S. Solicitor General, resorted to sometimes fanciful conjecture about how even individuals arrested for the most petty crimes — including political protesters — might actually be lurking conspirators to get guns, knives and drugs into jails or prisons. Her strongly emotional argument was notably short on hard evidence to prove her point.

Though I want to read the full transcript myself before calling Florence a "sentencing sleeper," this report on the oral argument leads me to think we could get multiple opinions from a splintered Court in Florence and that important sentencing-related concepts like dangerousness and dignity may be discussed at some lengthy in these opinions.  If nothing else, the Florence case may give us a helpful (and perhaps surprising?) window on the newer Justices' views on what should be considered constitutionally permissible in the name of jail security.

UPDATE:  The oral argument transcript in Florence is now available at this link.

October 12, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, October 10, 2011

Oklahoma using electronic monitoring to enable earlier prisoner releases

As detailed in this interesting local article, headlined "Hundreds of Oklahoma prisoners could be released Nov. 1," a notable sentencing reform plan incorporating technocorrections goes into effect this week in the Sooner State.  Here are the particulars (along with the usual expressions of concern from the tough-on-crime crowd):

Oklahoma corrections officials say they are preparing to put as many as 250 to 300 inmates in ankle monitors and release them. Prosecutors throughout the state are upset.

The inmates, convicted of nonviolent offenses, are set to be released starting Nov. 1. That is when a new law intended to relieve prison overcrowding goes into effect.  The law changes when certain nonviolent inmates become eligible for ankle monitors.

“I suspect that many — if not most — of the legislators that voted for this didn't realize it was going to have the result of releasing several hundred inmates on Nov. 1,” said Michael Fields, district attorney for Blaine, Canadian, Garfield, Grant and Kingfisher counties.

“I have a hard time believing that legislators understood that whenever they agreed to vote for this law,” Fields said.  “I doubt that would have been their intent because many of those legislators are our allies on public safety issues. I think that this clearly does undermine public safety.”

House Speaker Kris Steele, R-Shawnee, said the goal actually is to increase public safety. He said the change will put more low-risk, mostly female inmates into the successful electronic monitoring program so corrections officials can focus their limited resources on inmates who are truly threats to society....

Currently, in general, no nonviolent inmate is eligible for an ankle monitor until he gets down to the last 11 months of his sentence. Starting Nov. 1, offenders with sentences of five years or less become eligible once they have served 90 days, if no other restrictions apply.

Prosecutors said Friday public confidence in sentences will be undermined if quick releases start happening. “Then, I will stop sending people to prison for less than five years,” said Greg Mashburn, district attorney for Cleveland, Garvin and McClain counties. “I mean, I'll have no choice. If I intended them to go to prison, I intended them to stay for more than 90 days. I will absolutely adjust what I'm doing on my cases so this isn't happening.”

Mashburn said ankle monitors haven't worked well in his counties. He recalled three instances where offenders on ankle monitors committed crimes. “Ankle monitors, it's not the great answer. ... A lot of people think, ‘Well, if they're on an ankle monitor, we can stop them from committing crimes.' All we're going to be able do is know where they were when they were committing the crime,” Mashburn said.

Oklahoma County District Attorney David Prater said he worries whether the overburdened and underfunded Corrections Department will have enough officers to keep track of the hundreds of new inmates on ankle monitors. “It's almost impossible for them to adequately supervise even people on probation,” Prater said. “There's no way that the Department of Corrections has the capability to adequately supervise those prisoners on ankle monitors and assure the public that they will be kept safe.”

Corrections Department Director Justin Jones said few inmates will get ankle monitors after only 90 days. Most will need more time. “It would be the exception and not the rule,” Jones said. “Some needs are going to have to be addressed … before we put them into a re-entry program. … Rational behavior training, substance abuse, anger management, parenting skills, fatherhood skills, those kinds of things.”

Corrections officials originally came up with a list of 1,133 nonviolent offenders already serving sentences to be considered for ankle monitors because of the new law.

The original list included burglars, drug offenders, embezzlers, drunken drivers and thieves. Officials have been eliminating from that list inmates who do not qualify for ankle monitors for other reasons, such as they have no suitable residences where they can go.

Prosecutors say they have been told as many as 600 inmates will get ankle monitors Nov. 1. But the Corrections Department director said the list is now down to around 400 and will probably be cut down to 250 to 300.

“We consider it a very successful re-entry program,” Jones said. “And it is controlled. And it is custody because of the devices and the supervision by an officer.” The director said more than 90 percent of the females who get ankle monitors succeed and 86 percent of the males do....

About 450 convicts already are on ankle monitors, a Corrections Department spokesman said. Their movements are tracked by GPS.  The House speaker and Corrections Department director both said most of the inmates who will be getting ankle monitors Nov. 1 are already in halfway houses and other community correction centers. Steele said he understands more officers have been hired to track their movements. “I really do think it's much ado about nothing,” Steele said of prosecutors' concerns.

Whatever Oklahoma prosecutors might say say about what they think their state legislators did not realize, I suspect somebody behind this legislation concluded that it was more politically palatable than raising taxes to pay for more prison beds.  (I have long thought that if state sentencing reforms included an automatic increase in prosecutorial funding based on a percentage of savings that come from decreases in incarceration levels, prosecutors would not always have such a predictable reaction to sentencing reforms that result in some early releases.)

October 10, 2011 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, October 08, 2011

Connecticut prisoners expressing concerns over new prison porn ban

This lengthy new AP article, which is headlined "Connecticut prisoners express anger over porn ban," raises interesting issues at the intersection of prison policies and First Amendment freedoms.   Here are the basics:

A group of prisoners has begun a letter-writing campaign to protest what they see as an unfair ban on pornography inside the state’s correctional institutions.  The Department of Correction announced in July that it would be banning all material that contains "pictorial depictions of sexual activity or nudity" from the prisons beginning next summer.

The state says the ban is intended to improve the work environment for prison staffers, especially female staffers, who might be inadvertently exposed to pornography.  "While it is not supposed to be displayed, it is still visible to staff, whether it be on the inside of a foot locker or underneath their bunks, so they are still exposed to it," said Correction Department spokesman Brian Garnett.  "And secondarily, is the fact that this is contrary to our rehabilitative efforts, particularly when it comes to sex offenders."

The department has received about three dozen letters from inmates, many of them form letters, claiming the recently adopted ban violates the inmates’ First Amendment rights. Some of those letters also were sent to The Associated Press.  They suggest either lifting the ban or providing inmates with alternatives such as "cable programming that offers and displays nudity, also sexual activity." The letters say the suggestions are being made to avoid litigation....

Bill Dunlap, a law professor at Quinnipiac University, said there is a constitutional argument to be made.  But, he said the courts have generally sided with prison officials, as long as they can prove the ban has a legitimate goal other than to simply suppress material that some people might find objectionable — such as maintaining safety in the prisons, or keeping the material out of the hands of sex offenders....

Inmates were given a year to dispose of any pornography they might have, which will allow any current magazine subscriptions to run their course....  The total ban will take effect in July 2012.  After that, material considered to be pornography will be taken as contraband and inmates found with it could face such punishments as a loss of commissary privileges, loss of phone or the loss of visits.

October 8, 2011 in Prisons and prisoners | Permalink | Comments (4) | TrackBack

Thursday, October 06, 2011

In praise (I think) of Georgia's efforts to put prisoners to work on farms

The title of this post summarizes my (ambivalently) positive reaction to this notable and fascinating new Atlanta Journal-Constitution story, which is headlined "Georgia may use prisoners to fill farm labor gap." Here are the details:

State officials have set their sights on another potential pool of workers to help bridge Georgia’s severe farm labor gap: prisoners. The idea is to put nonviolent inmates -- who are spending the end of their prison terms at one of the state’s 13 transitional centers -- to work picking fruits and vegetables across Georgia.

This is at least the state’s second attempt to tackle the labor shortages since enacting a tough new immigration law many farmers blame for their problems. State officials started experimenting last summer by encouraging criminal probationers to work on the farms, but results are mixed.

State officials hope the nonviolent offenders would be motivated to learn new skills, earn money and eventually land steady jobs that would help them once they get out of prison. The prisoners would help fill open jobs in Georgia’s $68.8 billion agricultural industry, the state’s largest. And Farmers could become eligible for federal Work Opportunity tax credits by hiring the offenders once they finish their terms.

State Corrections Department officials confirmed the details of the latest plan Wednesday, calling it a joint effort between the agency, Gov. Nathan Deal and state agriculture and labor officials. They said the idea is still under development, and they have not set a start date.

The work would be voluntary for the prisoners. Pay would be set by farmers, though it would be at least minimum wage. Prisoners would pay for their transportation to and from the farms.... “Gov. Deal is interested in having an organized system to match a group that needs employment with employers who need labor,” Stephanie Mayfield, a spokeswoman for the governor, said. “It’s not a cure-all, but it allows two groups with fixable needs to help each other.”

A state survey of farmers released in June showed they had as many as 11,080 jobs open. On Tuesday, the agriculture industry released a separate report documenting $74.9 million in crop losses tied to farm labor shortages. Some farmers blame Georgia’s new immigration law, House Bill 87, that targets illegal immigrants and those who harbor them. They say the measure is scaring away the Hispanic migrant workers that farmers depend on, putting their crops at risk....

Charles Hall, executive director of the Georgia Fruit and Vegetable Growers Association, said putting prisoners to work on the farms “may be a partial solution.” “I don’t think we are opposed to it,” he said. “We just have got to see how well it will work.”

Deal, who signed HB 87 into law in May, reacted to the labor shortages by proposing putting probationers to work on the farms. Hall said some of the probationers who worked on two vegetable farms in Sumter and Colquitt counties during this summer’s pilot program quit because of the heat, long hours and physically taxing jobs they got.

Agriculture Commissioner Gary Black summarized more results from the pilot program Tuesday while testifying before a U.S. Senate Judiciary Committee’s Subcommittee on Immigration, Refugees and Boarder Security. One farmer who participated in that program found the probationers to be half as productive as his other workers, Black said in written testimony. Another farmer found only 15 to 20 reliable workers out of 104 probationers.

“There were some obvious challenges with using probation labor,” Black said, “and the two producers found that the probationers were unable to harvest at the same rate as the other workers. At the end of the day, both producers agreed that the program had potential to meet the niche needs for farmers desperate for workers.”

October 6, 2011 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (11) | TrackBack

Effective commentary providing the back-story on California prison problems

The Los Angeles Times has this effective new commentary by columnist George Skelton, headlined "Prison overcrowding and underfunding lead to more local burdens; Transfer of prisoners to local lockups was inevitable because voters want stiff sentences but won't pay for them."  Here are excerpts:

The boring, bureaucratic word "realignment" masks the truly dramatic change in locking up California criminals that Gov. Jerry Brown just pulled off.

"A lot of people say, 'Hey, what's new in Sacramento?'" Brown told a news conference last week.  "Well, this is new.  It's bold.  It's difficult.  And it will continuously change as we learn from experience.  But we can't sit still and let the courts release 30,000 serious prisoners.  We have to do something."

In truth, the change was inevitable.  Either the state began to dump thousands of its lower-risk prisoners onto local custody or it would have been forced by federal courts to dump them on the streets....

Complainers — such as Mayor Antonio Villaraigosa — are being disingenuous, at best. Villaraigosa called a news conference Monday to denounce the state for not providing "a single dollar to help with the burden" of incarcerating and monitoring more criminals. "That is not alignment. That is political malpractice."

Not quite. The state is sending financial help to the counties, including $124 million to Los Angeles County.  It's up to the cities to request a share. The mayor has privately told people that he won't "go begging" to county supervisors for money, according to one state official who requested anonymity because he was reporting a private conversation.

My favorite hyperbole, however, comes from Republican State Sen. Sharon Runner of the Antelope Valley: "Now is the time for Californians to get a dog, buy a gun and install an alarm system. The state of California is no longer going to protect you."

Let's be honest: The politicians and the voters simply could not continue their decades-long insistence on increasing criminal sentences and enlarging the prison population without raising the money to pay for more cells and guards....

Prisons originally designed for 80,000 inmates ballooned to 170,000. Thousands were stacked like cordwood in barracks, gyms and hallways, some triple-bunked.  There was little room for exercise and rehab: education, job training and drug treatment. The recidivism rate rose to 70%, twice the national average.

Actually, it all started back when Brown was first governor in the 1970s. He signed a bill that switched California to determinate sentencing, mandating a fixed term for each crime. Before that, sentencing and release were more flexible, depending a lot on the inmate's behavior behind bars.

"Things didn't prove out the way we expected," then-Atty. Gen. Brown told me two years ago, when he was preparing to run for governor again.  "If a prisoner knows he's going to spend a determined amount of time for a crime, it may create a deterrent.  But then once in prison, there's no incentive to do work programs, to improve yourself, no incentive that you can get out earlier. That's bad. That's very bad… I think the whole prison system needs to be changed."...

When Brown was governor in 1978, the prison population was roughly 21,000.  It accounted for less than 3% of state general fund spending. Currently, there are approximately 160,000 inmates — 140,000 within state prison walls; the rest incarcerated out of state, in camps or locally — and they're consuming more than 11% of the general fund, or almost $10 billion.

Costs have skyrocketed as politicians tried to outdo each other in stiffening sentences while voters cheered.  "Three strikes" has been a particular money-burner. Meantime, polls showed that prison spending was the first thing voters wanted to cut and the last thing they were willing to pay more taxes for.  A survey in May by the Public Policy Institute of California found that 70% of likely voters favored reducing funds for prisons. Only 18% supported raising taxes to maintain the lockups....

Former Gov. Arnold Schwarzenegger and the Legislature stumbled around on the issue for years.  Finally, the U.S. Supreme Court in May ordered California to empty its prison cells of 30,000 inmates. With a court gun to their heads, Brown and Democratic legislators acted.

Their solution: Those who commit nonviolent, non-serious and non-sex-related crimes will be incarcerated in county jails instead of sent to state prisons.  Such current inmates, when released by the state, will be supervised by county probation officials.  Parole violators won't be sent to prison, they'll be jailed locally and for less time than previously. The hope is that there'll be more rehab opportunities locally than in the packed pens.

Recent related posts:

October 6, 2011 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, October 04, 2011

Examining California's new prison placement law (and its possible impact on the King of Pop's doc)

I have not been closely following the on-going trial of Conrad Murray, the doctor charged with being criminally responsible for causing Michael Jackson's premature demise.  I am intrigued and pleased to discover, however, that this new AP story finds a way to link that trial and Murray's potential sentencing to the new laws in California enacted in part to help the state comply with the Plata SCOTUS ruling concerning the state's overcrowded prisons.  Here is how the lengthy new AP piece starts:

Gov. Jerry Brown and others who supported the dramatic shift in California's sentencing law that took effect this week have said it will send only those convicted of nonviolent or non-serious crimes to county jails instead of state prison, a change designed to save the state money and reduce inmate crowding.

Yet a review by The Associated Press of crimes that qualify for local sentences shows at least two dozen offenses shifting to local control that can be considered serious or violent. Among them: Involuntary manslaughter, vehicular manslaughter while intoxicated, killing or injuring a police officer while resisting arrest, participating in a lynching, possession of weapons of mass destruction, possessing explosives, threatening a witness or juror, and using arson or explosives to terrorize a health facility or church.  Assault, battery, statutory rape and sexual exploitation by doctors or psychotherapists are also covered by the prison realignment law and carry sentences that will be served in a county jail instead of state prison.

"These crimes include a variety of offenses that would strike many civilians as far from trivial," Public Policy Institute of California researcher Dean Misczynski wrote in a recent analysis of the new law [available at this link].  A list of 500 criminal code sections to be covered by the law was compiled by the California District Attorneys Association and posted late last month to its website [at this link].  In response to a request by the AP, the state attorney general's office confirmed the association's review was accurate but said defendants with a previous felony conviction or those charged with enhancements would still be sent to state prison.

Among those who could be affected by the new law if convicted is Dr. Conrad Murray, who is on trial for involuntary manslaughter in the death of Michael Jackson.  Legal experts said he would serve his maximum four-year sentence in a Los Angeles County jail instead of state prison.

The length of sentences won't necessarily change, but the realignment law does offer significant differences for inmates.  Parole will disappear for offenders who serve their terms in county jails, including Murray, if he is convicted.  Offenders who serve their full sentences behind bars will not be supervised once they are released.  Parole officers will not be tracking their movements or making sure they comply with conditions such as substance abuse treatment.

Judges also have the discretion to impose "hybrid" or "split sentences" in which offenders serve part of their sentence in county jail and the rest on what is being called "mandatory supervision," overseen by probation officers.

Offenders convicted of more significant crimes still are likely to get lengthier sentences, even if they are served in jail instead of prison, said Scott Thorpe, chief executive officer of the state district attorneys association.  But sentencing more serious offenders to jail rather than state prison will likely force counties that already have crowded jails to release less serious offenders who are serving time for crimes such as auto theft, burglary, grand theft, forgery, counterfeiting and drug crimes.

Los Angeles County District Attorney Steve Cooley is among those complaining that counties will be forced to release lower-level offenders by the thousands before they have served their full terms.

October 4, 2011 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, October 02, 2011

Los Angeles' DA predicting "doom" and huge "spike in crime" with prisoner transfer

The rhetoric surrounding the implementation of new prisoner rules in California is heating up, as evidenced by this local story headlined "As Prisoner Exchange Begins, LA County Officials Predict Doom." Here are excerpts:

Los Angeles County’s top prosecutor is predicting doom and gloom with a prospect of thousands of convicted felons being diverted to the county’s jail system rather than state prisons....

District Attorney Steve Cooley says with thousands of new, convicted felons coming into the jail system and 8,000 or more nonviolent felons being released early on parole; it’s a prescription for disaster. “I’m also predicting in connection with that population, we’re going to experience the greatest spike in crime of the last several decades,” Cooley said.

Only Deputy Chief Probation Officer Reaver Bingham, whose department will have to keep track of the thousands of new parolees, is hopeful that with increased funding and smaller caseloads, things might not turn out as bad as predicted. “If we do supervision correctly, we have seen the positive outcomes that we are projecting,” Bingham said.

On Saturday, the first group of 45 nonviolent felony inmates already serving time will gain early release and will be allowed to head home to LA. They’ll be the first of nearly 9,000 inmates who will also be released over the next nine months.

October 2, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (19) | TrackBack

Notable Ohio headlines on many modern crime and punishment fronts

A number of recent articles in my local Columbus Dispatch spotlight a number of modern issues of crime and punishment playing out in the bellwether Buckeye state.  Here are headlines and links:

UPDATE: Here is one more new story of note from Monday's Dispatch: "Crack convicts’ prison time cut; New federal guidelines might affect hundreds"

October 2, 2011 in Death Penalty Reforms, Gun policy and sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, October 01, 2011

Is there any strong justification for keeping (first-offender) crack dealer in federal prison after 20 years?

The question in the title of this post is prompted by this lengthy new story appearing in the Chicago Tribune, which is headlined "Supporters seek freedom for convict serving life sentence for first-time conviction; Reynolds Wintersmith, 37, has served nearly 20 years on drug offense; his only hope may lie in presidential commutation."  Here is the factual set-up for the question in the title of this post:

Reynolds Wintersmith's first conviction was a costly one.  At 20 he was sent away for life after being convicted in a large-scale drug conspiracy.  It was a mandatory sentence that troubled even the judge, who questioned if lawmakers really intended this kind of outcome for someone so young....

In the nearly two decades since, Wintersmith has been fighting from inside federal prison to convince higher courts of the unfairness of his life sentence — the result of a decision he says he made at 17 to start peddling crack and cocaine after being raised in a family where drug dealing and addiction were part of daily life.

Now, in what seems a quixotic effort, because all his legal appeals have fizzled, a small group of supporters has rallied to his cause. There is his sister, who has stood by him from the beginning. The old friend who dropped back into his life last year and refused to accept that a life sentence was just. A new attorney who was moved to lead the legal fight after taking a phone call about Wintersmith's plight. And just last week, a lawyer who was the White House pardon attorney in the 1990s agreed to consult on the case.

At the time Wintersmith was sentenced, the country was still grappling with how to respond to the crack epidemic. The federal sentencing guidelines were mandatory, giving federal judges no real leeway. Under the guidelines, Wintersmith's crimes were churned through a mathematical formula that spit out a sentence for the judge to impose. A number of factors jacked up his punishment. He was convicted of being part of a Gangster Disciples-run drug conspiracy in Rockford. The law also held him accountable for being a leader in the gang and pushing large quantities of cocaine and crack on the street. The gang also used weapons to protect its drug trade. It all added up to mandatory life, a sentence in which the judge had no say.

For some attorneys and advocates of sentencing reform, Wintersmith's case illustrates the enormous risk behind strict, inflexible sentencing guidelines. They are particularly troubled by his young age and that it marked his first conviction. "There's even more reason to be discretionary in sentencing by not throwing away lives that could be turned around," said Kara Gotsch of the Sentencing Project.

And the federal judge who handed down the sentence lamented at the time that his hands were tied by mandatory sentencing guidelines. "Even though … other members (of the conspiracy) … seem to me to be more significantly involved, and there ought to be some latitude for the court to take that into consideration when you have a 17-year-old who gets involved … there is not another alternative available," U.S. District Judge Philip Reinhard said while sentencing Wintersmith. "It gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life, but in any event, it's there."

Since then, sentencing guidelines and laws have been changed to temper the stiff penalties in drug cases or give judges more discretion. But the changes came too late for Wintersmith, leaving him with little recourse.... Today, about 2,000 drug defendants — Wintersmith among them — are serving life with no chance of parole, according to the Federal Bureau of Prisons. Love cited a recent recommendation from the American Law Institute, a law-reform group, that calls for a review of lengthy prison sentences — from 15 years to life — to determine if the punishment is still appropriate....

In an interview, Wintersmith, now 37, described a childhood scarred by drugs. Virtually everyone in his family was either using or dealing, he said. He — as well as his sister, Rashonda, in a separate interview — recalled how their mother dragged them into social service agencies, coaching them to "act the fool" so she could get a Ritalin prescription to sell on the street. Wintersmith was 11 and his sister 9 when they woke one morning to find her cold to the touch, dead of a heroin overdose.

They and two younger brothers were then sent to live with their grandmother, but she dealt drugs out of the home, both said. She was arrested when Wintersmith was about 16, leaving him feeling responsible for caring for the three siblings. Under pressure to help pay the electric bill and the rent, he turned to the life he knew — dealing on the street. While he was 17 when he joined the conspiracy, he continued selling drugs for more than a year.

Wintersmith trafficked drugs in Rockford with the Gangster Disciples. The gang had introduced crack — and with it a plague of violence. Wintersmith knows his decisions led him to prison. He has spent almost 20 years understanding why he made them and what influenced him.

Today he has multiple degrees and certifications, earned through the Bureau of Prisons. He counsels suicidal inmates and mentors inmates about to be released — even though he has virtually no prospects for freedom himself. Relaxed as he recounted his story, Wintersmith clearly has spent time reflecting, but he has accepted his lot while still keeping hope for a second chance.

"I still see myself as outside of prison.  This is something I am traveling through.  And I don't want to waste my time. I want to get the things I need to get while I am here," he said of his education efforts in prison....

The best option for Wintersmith at this point would seem to be to petition the White House to commute the life sentence.  The argument would be that justice has already been served and Wintersmith's continued imprisonment would only add to the high cost of incarceration — tabbed at millions of dollars over his lifetime.

I can readily articulate a number of strong justifications for commuting Wintersmith's sentence.  Some are based in changes in the law:  given the SCOTUS rulings in Booker and also the passage of the Fair Sentencing Act, there is every reason to that a 2011 version of Wintersmith would face a much lower sentence than the LWOP term he received two decades ago.  Some are based in equity: given his rough childhood and good works in prison (as well as the constitutional principles articulated by the Supreme Court in cases like Graham and even Ewing), he seems to deserve a second chance at personal freedom despite his criminal activity when a teenager.  Articulated in statutory 3553(a) terms, Wintersmith's two decades in prison already seem sufficient to "reflect the seriousness of the offense" and "provide just punishment for the offense" and "afford adequate deterrence to criminal conduct" and "protect the public from further crimes of the defendant."

Meanwhile, I have a very hard time devising any strong justifications for Wintersmith having to serve perhaps another 40 years or more in federal prison.  Though the principle of "finality" has limited the ability of Wintersmith it get relief in courts based on changes in the law, that principle only provides a justification four courts not revising or revisiting long-ago rulings.  The clemency power in the US Constitution spotlights that the Framers recognized that concerns of finality and the limits of law should not preclude an accountable executive official from prioritizing other values and granting deserved relief or mercy in special situations.  

Perhaps my bleeding heart (not to mention the millions of tax dollars seemingly being wasted on Wintersmith's continued imprisonment) has blinded me to the best arguments for keeping him imprisoned until he dies.  So I hope readers will help me understand any strong justifications for Wintersmith's current fate.  I also hope readers who we especially concerned or moved by Troy Davis's plight will also help me understand why Reynolds Wintersmith's situation is not at least as compelling for national and international concerns as was Davis's.

October 1, 2011 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (24) | TrackBack

Thursday, September 22, 2011

Tucson shooter wants to attend his competency hearing against his lawyers' advice

This new AP article, which is headlined "Loughner wants to be at hearing," highlights just some of the challenges of representing a high-profile and mentally shaky murder defendant.  Here are the specifics:

The suspect in the Tucson shooting rampage wants to appear at a court hearing next week in Arizona despite objections from his lawyers that traveling from a Missouri prison facility to their mentally ill client's hometown would be disruptive.

Jared Lee Loughner has been at a prison facility in Springfield, Mo., since May 27 after he was found to be mentally unfit to stand trial.  Experts have concluded Loughner suffers from schizophrenia and are trying to make him psychologically fit to trial.

The disagreement between Loughner and his attorneys about his presence at a hearing Sept. 28 in Tucson surfaced in a transcript of a conference call between lawyers and the judge on Monday.  The transcript was made available late Tuesday.  In the end, U.S. District Judge Larry Burns, in a ruling released Tuesday, agreed with prosecutors that Loughner must attend the hearing.

Loughner has pleaded not guilty to 49 charges stemming from the Jan. 8 shooting that killed six and wounded 13, including Rep. Gabrielle Giffords.  Prison officials have forcibly medicated Loughner with psychotropic drugs after concluding he posed a danger at the prison.

Defense lawyers had opposed a request by prosecutors to make their client attend next week's hearing where Burns will consider whether it's probable Loughner can be made mentally fit for trial and whether to extend his nearly four-month stay at the prison by another eight months.

Loughner's lead attorney, Judy Clarke, told the judge she didn't think Loughner can help her advocate against an extension.  "He is on suicide watch.  He has been described as gravely disabled.  We think it's an unnecessary risk to bring him to a hearing," Clarke said, adding that she saw nothing in the law that requires him to be there.

Prosecutors said they couldn't go forward with the hearing without Loughner and cited a federal law that implies that Loughner has a right to be there and confront witnesses.

Dr. Christina Pietz, a psychologist treating Loughner, testified that Loughner wanted to attend the hearing and was disappointed when learning that it had been postponed from Wednesday to Sept. 28.  She said she believes Loughner has an ulterior motive to be in Tucson.  "He wants to visit his mother and father," Pietz said.  "In addition to that, he understands that there is a hearing to make a determination if he can be having an extended stay in Springfield.  And that would also mean that he would continue to be medicated."...

"If Mr. Loughner is incompetent, it appears to me he remains incompetent," Burns said.  "I don't know what good it would do to have him present at a hearing," Burns said, noting that his lawyers can't look to him for assistance because he hasn't been mentally competent.   Still, the judge ruled that federal law appears to require his presence and said he was reluctant to grant a waiver for Loughner's presence in court if he wants to be there.

On Wednesday night, Clarke filed a motion to obtain notes of Loughner's recent conversations with Pietz that "defense counsel had not previously been privy" to.  Clarke said the Bureau of Prisons "has withheld from the defense, while sharing with the prosecution, information, opinions and conversations pertaining to issues surrounding Mr. Loughner's competency and commitment, including statements he has made in response to questioning."

The hearing will mark Loughner's first court appearance since a May 25 hearing in which he was removed from the court after an outburst.  Less than an hour into that hearing, Loughner lowered his head to within inches of the courtroom table and then lifted his head and began a loud and angry rant.  "Thank you for the free kill. She died in front of me. Your cheesiness," Loughner said before U.S. marshals whisked him out of the courtroom.

Pietz said Loughner has made improvements.  Prior to being forcibly medicated, he didn't make eye contact, a symptom of psychosis. But now he maintains regular eye contact, his physical hygiene has improved and he paces less over the last few weeks, Pietz said.

September 22, 2011 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, September 21, 2011

"Brown: Prisons give state ‘healthiest damn criminals in the world’"

The title of this post is the headline of this interesting new local report on what sounds like an interesting local speech given by California Gov Jerry Brown today.  Here is how the piece starts:

Gov. Jerry Brown said Wednesday that California’s prison system, under pressure from the courts, has focused on turning inmates into “the healthiest damn criminals in the world” but has done little to make them less likely to commit another crime after they leave custody.

County sheriffs, probation officers and others at the local level could do a much better job if given the funding and the authority to supervise low-level offenders and try to rehabilitate them, Brown said.

The Democratic governor, speaking to a gathering of 500 local law enforcement officials, heralded the Oct. 1 beginning of a new program to shift responsibility for 34,000 inmates from the state to the counties. “This does put the problem closer to where people are,” he said. “When people commit a crime, they have a family and they have a neighborhood and there’s a history there.”

If they are sent to state prison, even for a short time, he said, they disappear into a system that operates under the authority of 19 separate court orders, with hundreds of overseers walking the grounds, “taking notes” and then going back to courts to force the state to change its policies. The biggest of them all was a recent order from the US Supreme Court requiring the state to reduce its prison population by more than 30,000 inmates by 2013.

“We have lots of cooks in the kitchen,” Brown said. “We are running an ongoing legal experiment without precedent.” Brown said all of those orders have resulted in the most expensive prison system in the world, one that is mandated to give inmates health care, dental care, mental health counseling and other support but does not focus enough on changing what they will do once they leave custody.

“The goal up to now has been not to try to change the lives of the criminal, but to make sure they are the healthiest damn criminals in the world,” he said. “That they live longer, they run faster, and they shoot straighter. That’s been the game plan. We are going to move beyond that. We are going to start focusing on what will work.”

County officials have been working with Brown since January to craft a plan that will help the state relieve prison overcrowding while giving local officials the tools they need to handle more inmates. The process will be gradual, with only new inmates going to county jails while felons now in state prison complete their sentences there.

While some local officials fear their jurisdictions will be overwhelmed by the new responsibilities, others have welcomed the challenge. “It’s our belief that with adequate funding, constitutionally protected funding, we can get the job done and do it better than the state of California,” said Riverside County Supervisor John F. Tavaglione, president of the California State Association of Counties.

September 21, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, September 18, 2011

Bureaucrats initially deny Pennsylvania prisoner access to state constitution

This local story, headlined "Pennsylvania's Department of State denies inmate's request for a copy of the state constitution," provides an amusing tale of state bureaucracy at its finest:

The state constitution ... should be readily available to anyone who wants it, right? That’s probably what Michael Baynard thought when he requested a copy of it from the Pennsylvania Department of State through the state’s Right to Know Law.

Instead, the 37-year-old prison inmate was told he couldn’t have it. Baynard, who is serving time at the State Correctional Institution at Coal Township for sex offenses, appealed to the state’s Office of Open Records. On Sept. 7, the Open Records Office ordered the State Department to send him a copy of the constitution.

When that appeal arrived at the Open Records Office, its executive director, Terry Mutchler, said she thought it was some kind of high jinks. Then she realized it was for real. “It almost leaves me speechless,” Mutchler said. “It encapsulates some of the derision that folks have for us in government because a copy of the constitution is clearly a public record.”

The Department of State argued that the constitution doesn’t qualify as a record that falls under its purview since it is not a record that the department made as a result of an action it took, spokesman Ron Ruman said. In defending its decision to the Open Records Office, the department also claimed it assigns act numbers to records and the request for the constitution failed to cite an act number and year.

But there is only one state constitution. Mutchler said she couldn’t imagine a state agency not providing it.... The State Department has decided not to appeal the Open Records Office decision, although the department’s staff counsel stands by the initial denial as correct and appropriate, Ruman said.

September 18, 2011 in Prisons and prisoners | Permalink | Comments (10) | TrackBack

Saturday, September 17, 2011

The exact price of federal confinement in FY 2010

A helpful e-mail alerted me to this page of the Federal Register putting a precise dollar figure for federal confinement last year as calculated by the US Bureau of Prisons:

The fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2010 was $28,284.  The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2010 was $25,838....

We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.

September 17, 2011 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 16, 2011

Wiccan Witch of Wisconsin prison now in big trouble

This amusing but still sad story from ABC News seems tailor-made for a Friday post on this blog.  The piece is headlined "Wisconsin Witch Accused of Sex Assault in Alleged Prison Hostage Plot," and here is how it starts:

A Wiccan prison chaplain who allegedly hatched a plan to fake a hostage situation with an inmate is now facing close to 60 years in prison, accused of sexual assault and providing narcotics to an inmate.

Jamyi Witch, 52, of Omro, Wis., who became the first Wiccan prison chaplain in the state amid controversy in 2001, is accused of sexual role-playing with an inmate, plying him with sleeping pills and telling the prison she was assaulted so both individuals could be transferred to a new facility.

On Aug. 10, Witch, who changed her last name from Welch because of her religion, told police that an inmate came into her office, barricaded the door with shelving and her wheelchair, and held her hostage, according to court documents.  The situation ended peacefully, with the inmate being removed after being fed sleeping pills by Witch.

Two weeks later, however, police said they intercepted a letter from the inmate to his mother describing a different scenario in which Witch hatched a plan for a fake hostage situation in order to get them both transferred to other facilities, according to the criminal complaint.

September 16, 2011 in Prisons and prisoners | Permalink | Comments (5) | TrackBack

Wednesday, September 14, 2011

"Prison work crews cut in cost-savings move"

The title of this post is the headline of this new USA Today article, which gets started this way:

Prison inmate labor programs, long considered a lower-cost option for needed public work projects such as clearing debris and cutting weeds on highways, are increasingly facing elimination or reduction because of budget issues.

Michigan and North Carolina are the latest to completely eliminate their programs, and Florida reduced its program by nearly 40% this year.

Michigan lawmakers stopped funding the Michigan Department of Corrections' 15 crews this year, even as more requests for inmate labor poured in from communities.   "We actually stopped all but one work crew (which the requester fully funded) in September 2010," according to Michigan Department of Corrections spokesman John Cordell.

It cost Michigan taxpayers $10 million last year to operate the crews.  Most of that cost was for transportation and supervision of the inmates, he said.   Cordell said there are plans to reinstate inmate crews Oct. 1, but with a major difference.   "We will have to charge the entities who use the crews," Cordell said. "We just can't subsidize the program anymore."

September 14, 2011 in Prisons and prisoners | Permalink | Comments (3) | TrackBack

Tuesday, September 13, 2011

California to "start releasing thousands of female inmates who have children"

The quote in the title of this post is drawn from the lead of this new Los Angeles Times article, which is headlined "Prison officials are set to let some female inmates out early; Women who have children and are convicted of 'non-serious, non-sexual' crimes could start going home as early as next week as the state seeks to relieve overcrowding." Here is how the article begins:

Drastically redefining incarceration in California, prison officials are about to start releasing thousands of female inmates who have children to serve the remainder of their sentences at home.

The move, which could affect nearly half the women held in state facilities, will help California meet a court-imposed deadline to make space in its chronically overcrowded prisons. The policy could be extended to male inmates in the near future, administrators said Monday.

Mothers who were convicted of non-serious, non-sexual crimes — and have two years or less remaining on their sentences — could start going home as early as next week, prisons spokeswoman Dana Toyama said. The women would be required to wear GPS-enabled ankle bracelets and report to parole officers.

The program is "a step in breaking the intergenerational cycle of incarceration," state prisons Secretary Matthew Cate said, arguing that "family involvement is one of the biggest indicators of an inmate's rehabilitation."

But skeptics abound, including prosecutors and crime victims' advocates who opposed the idea as it worked its way through the Legislature last year. "If they were such great mothers to begin with, they never would have committed the heinous crime that got them sent to state prison," said Harriet Salarno, founder of Sacramento-based Crime Victims United. In many cases, the children might be better off in foster care, Salarno said.

Reuniting families clearly was not the only consideration that led prison officials to opt for home incarceration. In May, the state lost a U.S. Supreme Court appeal of a ruling that had found California's prison overcrowding and the resulting lack of access to medical care amounted to cruel and unusual punishment.

September 13, 2011 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Saturday, September 10, 2011

"American Prison Culture in an International Context: An Examination of Prisons in America, The Netherlands, and Israel"

The title of this post is the title of this interesting new article by Professor Lucian Dervan providing a comparative perspective on imprisonment. The piece is available via SSRN, and here is the abstract:

In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks.  As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination.

Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling.  At a minimum, the court’s actions indicate that a perception has developed in the world that the American penal system has gone astray.  But are prisons in the United States that much different from those found in other parts of the world?

In the spring and summer of 2010, I traveled to prisons in the United States, The Netherlands, and Israel to compare the way each country detains its most violent and culpable residents.  The results of this research indicate something quite striking about what makes prisons around the world successful and offer a sobering examination of the deficiencies present in many under-funded American institutions.

This article will begin by examining the cultures of four prison facilities: two prisons in America (one federal and one state), a prison in The Netherlands, and a prison in Israel. For each institution, this article will offer a narrative of my observations regarding the prison’s structure and security, living conditions, and programming.  In particular, the examination of each prison facility will include discussion of the apparent significant impact of each prison’s culture on the perceived rates of violence, the financial costs of administration, and the achievement of moral obligations regarding the treatment of prisoners.

Through this analysis, this article will first propose that prisons with cultures that create a sense of community within the inmate population benefit from lower rates of violence. Second, the article will contend that lower rates of violence also lead to reduced costs of administration.  Finally, this article will argue that regardless of the above-described benefits it is also morally correct to create positive prison environments rather than permit prisons to become warehouses for societal outcasts.

September 10, 2011 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0) | TrackBack

Looking at mass incarceration as a kind of "new epidemic"

Book300 A new book published by The New Press brings a kind of "clinical" perspective to the phenomenon of mass incarceration.  The book is titled "A Plague of Prisons: The Epidemiology of Mass Incarceration in America," and is written by Ernest Drucker, professor emeritus of family and social medicine at Montefiore Medical Center/Albert Einstein College of Medicine, and adjunct professor of epidemiology at Columbia University’s Mailman School of Public Health.  The New Press website for the book is at this link, and the book has its own full website at this link.  Here is part of an excerpt from the book's website:

Here are some of the things we know about this new epidemic:

• The population involved is diverse: men and women, adults and children, different social classes....

• The effects of the epidemic extend beyond actual cases -- over 30 million have been affected in the last thirty years.

• Young minority men have been affected most severely: although they make up only 3 percent of the U.S. population, young black and Hispanic men constitute over 30 percent of the cases.

• While this epidemic is nationwide, most cases have occurred in the poorest neighborhoods of America's urban areas -- in some communities, over 90 percent of families have afflicted members.

• Individuals who are afflicted are also socially marginalized and often become incapacitated for life -- unable to find decent work, get proper housing, participate in the political system, or have a normal family life.

• The children of families affected by this new epidemic have lower life expectancy and are six to seven times more likely to acquire it themselves than the children of families not affected.

The new epidemic is mass incarceration -- a plague of prisons.

Mass incarceration?  The term seems out of place for America -- a nation premised on individual rights and freedom.  It conjures up images of brutal foreign tyrannies and totalitarian despots -- widespread oppression and domination of individuals under regimes of state power built upon fear, terror, and the absence of effective legal protection.  When we think of large-scale systems of imprisonment throughout history, we think of great crimes against humanity -- Hitler's network of diabolical concentration camps, or the vast hopelessness of Stalin's archipelago of slave labor prison camps.  Stalin's system established a model for mass incarceration whose effects penetrated every corner of Russian society, shaping the experience of millions beyond those in the camps -- most immediately the prisoners' families.  More broadly, it created an entire population living under the threat of arrest and arbitrary detention.

This model seems foreign to life in our democratic society -- a product of different times and faraway places.  Yet the facts about current-day American incarceration are stark. Today a total of 7.3 million individuals are under the control of the U.S. criminal justice system: 2.3 million prisoners behind bars, 800,000 parolees, and another 4.2 million people on probation.  If this population had their own city, it would be the second largest in the country.

September 10, 2011 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack

Friday, September 09, 2011

Notable California report on (mis)use of prisoner rehabilitation assessment scores

This recent piece from California, headlined "State auditor calls for end to prisoner rehabilitation test," spotlights the persistent challenges of trying to make rehabilitation work within a prison system. Here are the details:

The state auditor is recommending that California’s corrections system shut down tests that determine what rehabilitation prisoners need, calling the tools unproven and little used.

Since 2006, the California Department of Corrections and Rehabilitation has developed and repeatedly revised the assessments, called Correctional Offender Management Profiling for Alternative Sanctions (COMPAS for short).  It is composed of two tests. The first is given to incoming inmates, gauging levels of criminal thinking, violence, substance abuse and educational needs.  The other assessment is for prisoners about to go on parole and is different from the first in that it measures housing and employment prospects on the outside.

In a report released yesterday, auditors found numerous shortcomings [PDF] in how prisons have used assessment scores. Rank-and-file officers within the corrections system show “a lack of buy-in on COMPAS” and doubt the tests are useful, the report states. The department often fails to use the scores when deciding where to place inmates, and few inmates even receive the exams

State prison officials acknowledge problems highlighted by the auditor, but strongly disagree with the overall conclusion. The department plans to continue, upgrade and expand the assessments. “We refuse to return to the method of simply placing an offender in the next slot available – regardless of their criminogenic needs,” Corrections Undersecretary Scott Kernan wrote in response to the audit.

The tests represent a major culture shift for California’s prison system, said Lee Seale, internal oversight and research director for the department. Such changes come hard. “Obviously, with over 60,000 staff, you’re going to find pockets of resistance here and there throughout the institutions and parole regions,” Seale said. “We’re not surprised by that.”

California is one of 19 states that assess inmates for both risk of criminal behavior and their criminogenic needs. Risk and need are two sides of the same coin. Prisons long have relied on risk assessments, based in large part on records like rap sheets, to decide where to house inmates. Needs assessments are a more progressive approach, relying on question-and- answer sessions with trained psychologists that are used to calculate how best to rehabilitate prisoners....

Contrary to the auditor’s argument that the state cannot afford the assessments, Seale contends California’s money woes make criminogenic needs assessments critical. “Now is the right time, more than ever, to make sure we’re prioritizing those resources correctly,” he said. 

September 9, 2011 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 08, 2011

More of the (interesting?) story behind T.I. getting sent back to federal prison

This AP story, headlined "Report: Feds transferred T.I. over business flap," provides more details on the mistakes made by a high-profile defendant during a high-profile trip to a halfway house:

Grammy-winning rapper T.I. was sent back to federal prison after corrections officials discovered a manager and a TV producer were traveling with him on a luxury bus as he transferred to a halfway house in Georgia, according to documents obtained today by The Associated Press.

The two were not authorized to travel or conduct business with T.I., whose real name is Clifford Harris, during the 375-mile journey from the Arkansas federal prison, the Department of Justice incident report said. It said T.I. indicated he was discussing a new reality series and book with the individuals but said he wasn't being interviewed.

T.I. was making the journey last week after he had been released a month early from a sentence for violating probation, and a VH1 reality show and book deal were announced within hours of his release. Attorney Steve Sadow said the rapper didn't violate prison rules because those deals already were finalized. "There wasn't any business to conduct," he said. "These were just two people riding back with him."

The Bureau of Prisons declined to comment.  The performer remains in federal custody.

T.I. made the trip from Arkansas to Atlanta with his wife, Tameka Cottle Harris, manager Brian Sher and producer Cris Abrego, the co-president of 51 Minds Entertainment, a company that specializes in reality TV shows, according to letters provided to the AP....

T.I. had initially served about seven months in prison in 2009 after he was arrested for trying to buy unregistered guns and silencers from undercover federal agents.  He was on probation after he was released and ordered not to commit another crime or to illegally possess any controlled substances.  He then was arrested in Los Angeles in September 2010 after authorities said he was found with four ecstasy pills.

He was sentenced to 11 months in prison for that violation and had been set for release at the end of September, but he was allowed to transfer to an Atlanta halfway house about a month early.  He was returned to federal prison a day later, and his attorneys say they will fight that move.

September 8, 2011 in Celebrity sentencings, Prisons and prisoners | Permalink | Comments (14) | TrackBack