Sunday, November 14, 2010
"Hundreds Die of Illnesses in County Jails"
The title of this post is the headline of this piece from the Texas Tribune. Here are some excerpts:
Sheriffs say that they are doing everything they can to care for people who come to them with a multitude of physical and mental illnesses that are exacerbated by drug and alcohol addiction. And, they say, they are struggling to meet the health care needs of more inmates at a time when budgets are dwindling.
There are no state standards for health care in county jails, but criminal justice advocates and correctional facility experts say the large number of illness-related deaths prove they are needed. “People aren’t dying of old age in jails,” said Michele Deitch, a jail conditions expert and professor at the University of Texas at Austin’s Lyndon B. Johnson School of Public Affairs. “Those numbers are more likely to be reflective of medical care concerns.”
The data analyzed by the Tribune related to more than 1,500 deaths that occurred in law enforcement custody statewide from January 2005 through September 2009. Nearly 500 of those deaths were inmates who were in the custody of the state’s 254 sheriff’s departments. Some were the result of high-intensity pursuits or suicides that occurred before an offender was arrested. Some happened during the course of the arrest, when a person was shot, tased or restrained by officers.
But more than half of the deaths reported by county law enforcement — 282 — happened as a result of an illness contracted before or during incarceration. Many inmates died of heart conditions; some of cancer or liver and kidney problems; and others of afflictions ranging from AIDS to seizure disorders and pneumonia.
Friday, November 12, 2010
Inmates having to sleep on floors in overcrowded West Virginia jails
This local article, which is headlined "Official says inmates sleeping on jail floors," spotlights the problems of jail overcrowding in West Virginia. Here are excerpts:
Officials say the issue of over-population has reached a critical point in the state's regional jails and prisons, with no clear-cut solution in sight.
Joe Thornton, Secretary of Military Affairs and Public Safety, said the issue has gotten so bad, inmates have slept on mattresses on the floors of some facilities. The Regional Jail Authority took up the problem at its quarterly meeting Wednesday at South Central Regional Jail.
One temporary solution has been the installation additional bunks at the 10 regional jails around the state. The bunks will be mounted to the walls in the pods as per safety specifications, leaving less space for inmate and guard movement but providing additional beds, which officials hope keeps the inmates off the floors....
"We're getting to a point where we have no room at the inn," Thornton said. "We don't have the right of refusal." He said the problem of over-population in the regional jails stems from having too many offenders in the state's prisons. Currently, there are about 1,600 of the Department of Corrections 6,639 inmates being held in regional jails around the state....
A commission established by Gov. Joe Manchin to study overcrowding in the state's jails and prisons released a report last July with 14 recommendations to ease the problem. Thornton said the state is working on implementing them.
Among the recommendations was accelerated parole for eligible inmates. He said those eligible inmates would have their parole hearing 9 months before their estimated parole date rather than 12 months, meaning they would get out three months earlier. Add to that a review of the state criminal code to review and possibly revise or repeal outdated laws....
Thornton said the idea of adding on to any prisons or jails was "not on the table" at this point because of the state of the economy, and building another prison facility or jail was all but out of the question, he said, citing a $200 million price tag.
Friday, November 05, 2010
Overcrowded jail lacks room for non-violent offender who keep trying to get in
A helpful reader altered me to this amusing local article, which is headlined "Thief can't get in, now won't go to jail." Here are the basics:
Despite being a criminal, Carla Freeman's persistence paid off Wednesday when a judge decided she didn't have to go to jail after all.
Freeman, 28, was an employee in 2004 at the Pleasant Ridge Home Depot when she was charged with voiding sales for friends and letting them take items without paying. She was convicted of theft and placed on probation with the stipulation she pay $2,278 for Home Depot restitution, court costs and fines. Six years later, though, Freeman hadn't paid that money so Hamilton County Common Pleas Court Judge Melba Marsh ordered Freeman's probation ended and told her to go to jail for 180 days.
Freeman reported Jan. 4 to the jail to serve her sentence. She was turned away because the overcrowded jail had no room for her. For about two years, the jail has been turning low-level, non-violent criminals away, often telling them to return later to serve the sentences, because there was no room.
Freeman showed up at the jail again March 8 and she again was told to come back later due to overcrowding. She tried several more times, each time being turned away. "She's tried eight times to get in and can't," Freeman's attorney, Ed Noe, said Wednesday. She tried again April 16, June 2, July 7, Aug. 8, Sept. 17 and Oct. 15....
"That's not unusual at all, especially for females," sheriff's spokesman Steve Barnett said Wednesday. "We just don't have room for them."
Freeman has been trying to get into the jail for so long, Noe said, that she just gave birth and likely wouldn't be accepted in her next scheduled reporting date, Nov. 29. "They don't take breast-feeders," Marsh said of the jailers.
Noe filed a motion asking Marsh to release Freeman. Marsh agreed and ordered Freeman released.
Thursday, October 28, 2010
Great new Vera Institute report on how states are trying to balance tight budget and public safety
I received via e-mail blast this afternoon this helpful heads-up about a helpful new report about state corrections practices:
A report released today by the Vera Institute of Justice’s Center on Sentencing and Corrections suggests that after decades of increases in corrections spending, states are trying something new. The Continuing Fiscal Crisis in Corrections: Setting a New Course is based on a two-part investigation that sought to gauge the current status of states’ corrections policies: Vera staff surveyed state officials about their planned corrections spending for fiscal year 2011 and reviewed states’ recent corrections-related legislative initiatives. The results show officials planning to spend less even as they initiate changes aimed at shoring up public safety.
According to the report, two factors are driving these developments. First, ongoing budget pressures are compelling officials to seek savings whenever safely possible. At the same time, states are drawing on decades of research and using identified policies and practices that can be counted on to yield positive results.
The Center on Sentencing and Corrections has also created an interactive online resource highlighting data from the new report. The page features a map and chart illustrating changes in individual states’ corrections appropriations from fiscal year 2010 to 2011, including funding sources.
Download the report.
View the interactive map and chart.
Tuesday, October 19, 2010
"Retribution and the Experience of Punishment"
The title of this post is the title of this new forthcoming article from Professors John Bronsteen Christopher Buccafusco and Jonathan Masur that is now available via SSRN. It looks like the latest must-read for those interested in punishment theory and subjective punishment experiences. Here is the abstract:
In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment.
Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.
Monday, October 18, 2010
Justice Sotomayor dissents from cert denial in prisoner rights case
The one notable action for criminal justice fans in today's SCOTUS orders comes via Justice Sotomayor's dissent from the denial of certiorari in Pitre v. Cain (available here). It starts and ends this way:
Petitioner Anthony Pitre, a Louisiana state prisoner,stopped taking his HIV medication to protest his transferto a prison facility. He alleges that respondents at thefacility punished him for this decision by subjecting him tohard labor in 100-degree heat. According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious torush him to an emergency room. In response to one such request, respondent Cain expressly acknowledged in a letter attached to Pitre’s complaint that Pitre was “dealing with unnecessary pain and suffering, as well as cruel and unusual punishment,” but he accused Pitre of “bringing it on himself” by refusing to take his medication. App. F toPet. for Cert. (Exh. A-2). Cain concluded, “If you are suffering because of your own choices, so be it.” As a result of respondents’ actions, Pitre alleges, his already-fragile medical condition deteriorated even further.
The courts below deemed these allegations insufficient to state an Eighth Amendment violation....
Pitre’s allegations, if true, describe “punitive treatment [that] amounts to gratuitous inflictionof ‘wanton and unnecessary’ pain that our precedent clearly prohibits.” I cannot comprehend how a court could deem such allegations “frivolous.” Because I believe that Pitre’s complaint states an Eighth Amendment violation, I would grant the petition for a writ of certiorari and reverse the judgment below.
Monday, October 11, 2010
"With more prisoners and no place to put them, Kansas faces hard choices"
The title of this post is the headline of this lengthy article from the Kansas City Star. Here is how it starts:
A few years ago, Kansas had figured out how to control its prison population. It had solved the equation and become a national model. No more. Kansas is officially out of beds for male prisoners, with a population last week of 8,411 — above the system’s capacity of 8,259.
In 10 years, the state is projected to be nearly 2,000 beds short. So Kansas corrections leaders have started talking seriously about two options: Either find millions of dollars to house more prisoners — at a time when the state is struggling to pay for schools and social services — or start letting them go.
Another option — crowding prisoners — would just lead to violence and lawsuits, prison officials say. Many states, including Mississippi, have already retreated from years of tough crime laws. Kansas experts are looking at the Mississippi solution of making nonviolent offenders eligible for parole after they have served 25 percent of their sentences.
Another possibility suggested by the Kansas Sentencing Commission is to increase “good time” credit for some inmates from 15 or 20 percent to up to 50 percent, meaning prisoners who stay out of trouble could be released after serving half of their sentences.
But early releases in either form would violate promises the state made to those who have suffered at the hands of criminals, said Wyandotte County District Attorney Jerome Gorman. “I don’t know how we can do that to the victims of the state of Kansas,” he said. Even nonviolent inmates such as drug addicts and burglars are mostly chronic criminals who will get out and cause trouble, he said, and the state is already failing to revoke parolees who should be put back in prison. “They entrusted a job to police, prosecutors and judges and now they’re saying we don’t care about the effort,” Gorman said.
Wyandotte County District Court Judge Ernest L. Johnson, chairman of the Sentencing Commission, agreed that early releases would be a step back from the state’s sentencing grid system meant to impose consistent and true prison time. “But what do you do when there isn’t enough money? You’ve got to change something,” he said.
Sunday, October 10, 2010
Could (and should?) expanded good-time credits help reverse mass incarceration?
The question in the title of this post is inspired by this effective local article from Washington state, which is headlined "Will the State Bring Back Half-Off Sentences for Good Behavior?". The piece highlights that in most states it is budget woes, rather than concerns about mass incarceration, that is helping to generate a policy debate concerning how much of a sentence reduction a prisoner should be able to earn for good behavior while behind bars. Here are excerpts:
A revival of the 50-percent-off provision for well-behaved inmates in the prison system is likely in January as the state’s budget situation grows increasingly dire. Rep. Sherry Appleton, D-Poulsbo, said she has “no doubt” that lawmakers will discuss the provision, which allows inmates serving time for non-violent offenses half off their sentence for good behavior.
A law for 50 percent off was enacted in 2003 but expired on July 1. The vast majority of inmates in prison receive their earned release time, currently up to a third off, according to DOC officials.
Awarding time off for good behavior can be seen as a benefit to the taxpayer. Inmates who get out early for good behavior don’t take up costly prison space, said Mary Fan, a criminal law professor at the University of Washington School of Law. So, what began as a tool to keep inmates behaving has become a mechanism to relieve budgets in a time when the state is perennially strapped for cash.
Fan agreed that lawmakers who wish to appear tough on crime can, say, bolster sentences for a variety of offenses, while more discreetly saving money by expanding good time. “If, on the back end, you quietly open the door wider, it’s less controversial,” Fan said.
Kitsap County Prosecutor Russ Hauge believes good time can control behavior and provide incentives for inmates to stay in line while behind bars. But 50 percent off is simply too much, he said. “That’s just for cost savings,” said Hauge, also a member of the state’s sentencing guidelines commission, which advises Gov. Chris Gregoire on criminal justice policy issues.
State appellate court decisions have also altered the idea of earned release time, Hauge said. “They’ve turned good time from a privilege one earns through good behavior to a right they’re entitled to,” Hauge said.
The state’s prisons currently hold more than 16,000 people. Each inmate costs $100 per day, making prisons a target for cuts. Appleton, a member of the House public safety and emergency preparedness committee, said if re-elected, she would support the half-off provision. In her mind, the alternative is letting more inmates in state prisons out to lower costs, so it would be better to reward non-violent offenders and keep all others incarcerated. “I think that could save a lot of money,” she said.
State Sen. Tim Sheldon, D-Potlach, said he cannot support the concept of 50-percent off a sentence. He said the state’s residents have an expectation of “clear and definitive” sentences by a judge. “I think the public likes truth in sentencing,” said Sheldon, also a Mason County commissioner. “I think you ought to behave yourself anyway and be penalized for not behaving.”
Perhaps the only offenders who should get expanded good-time credits are those who can sing the great theme song to the classic 1970s sit-com, which ends with the fitting lines "Good Times ... Ain't we lucky we got 'em ... Good Times!"
Monday, October 04, 2010
Notable Third Circuit ruling on process requirements for prisoner sex offender classification
The Third Circuit has a notable prisoner rights ruling today in Renchenski v. Williams, No. 07-3530 (3d Cir. Oct. 4, 2010) (available here), which gets started this way:
Plaintiff Charles Renchenski is serving a life sentence without the possibility for parole for murder in the first degree. Although he was never charged with, nor convicted of, a sexual offense, in 2005 Defendants classified Renchenski as a sex offender and recommended his enrollment in Pennsylvania’s Sex Offender Treatment Program (“SOTP”). Renchenski filed this 42 U.S.C. § 1983 action alleging that his forced participation in sex offender treatment therapy violates several constitutional rights, including his: Fourteenth Amendment right to due process before being labeled a sex offender; Fifth Amendment right against self-incrimination; and Sixth Amendment right to have a jury adjudicate his guilt. He also challenges the District Court’s conversion of Defendants’ motion to dismiss into a summary judgment motion without granting him leave to take discovery. Because we hold that an inmate who has never been charged with, nor convicted of, a sex offense is entitled to due process before Pennsylvania classifies him as a sex offender, we reverse the District Court’s Order entering summary judgment as to his procedural due process claim. We affirm the District Court in all other respects.
"California's bloated prison system threatens public safety"
The title of this post is the headline of this commentary in the Sacramento Bee authored by Jeanne Woodford, former director of the California Department of Corrections and Rehabilitation and former warden at San Quentin. Here is how it begins:
Public safety is a bipartisan concern. The corrections budget must be, too.
California's spending on corrections has risen unchecked for too long and with too little to show for it. As every other area of the state budget absorbs significant cuts, corrections remains the exception even as recidivism rates exceed 70 percent. Despite some attempts to cut back, prison costs have actually increased during this severe economic downturn. The state Legislature must not let one more year go by without righting this wrong.
Public safety is threatened –- not enhanced –- by a massive, inefficient prison system haphazardly constructed through piecemeal legislation and ill-conceived ballot initiatives. The 160,000-plus state prison population is far from static, with 120,000 people returning to communities each year and just as many taking their places behind bars. Two-thirds of people released from prison are sent back within three years.
Californians aren't getting their money's worth.
Thursday, September 23, 2010
"Jailhouse Stocks Slip as Trends Shift"The title of this post is the headline of this notable piece from The Street, which provides a market-based perspective on the private prison industry. Here are excerpts:
Corrections Corp. of America (CXW) and Geo Group (GEO), the largest U.S. prison operators with a combined 86% market share, have long been touted as ironclad investments based on two trends: the rising prison population and government outsourcing of penal services. But those companies' lock on the industry is loosening.
The Federal Bureau of Investigation last week reported that violent crimes fell 6.1% in 2009, the third consecutive year of declines in such crimes, the type that most frequently contribute to lengthy jail sentences. Also in 2009, the state prison population dropped for the first time in 38 years, by 0.3%. While small, that came as a surprise, given the eightfold increase between 1972 and 2008, the Pew Center on the States reported.
Criminologists cite a variety of reasons for the trends: an aging population, the recession and judges' increasing willingness to seek alternatives to prison sentences, such as putting non-violent offenders on probation, releasing well-behaved prisoners earlier than required under sentencing guidelines, or giving some home detention and equipping them with ankle bracelets for monitoring.
Those factors keep a lid on growth in the prison population, which bodes poorly for the private-prison industry. That's already showing up in the numbers....
Still, some analysts give Corrections Corp. of America and Geo high marks, primarily based on the expectation that government entities will increasingly outsource detention services as cost-effective alternatives to making the huge investment it takes to build new prisons and staff them.
Barclays Capital analyst Manav Patnaik, who has "buy" ratings on both firms, said in a recent research report that state prisons still anticipate their inmate populations will grow. And only four states have authorized funding for new prison construction next year, and none acted upon it, suggesting demand for new private-prison housing will continue.
Tuesday, September 21, 2010
"Risk as a Proxy for Race"The title of this post is the title of this notable new paper by Professor Bernard Harcourt available via SSRN. Here is the abstract:
Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process.
Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race. This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate the already unacceptable racial disparities in our criminal justice system. Instead of turning to prediction, we need to address prison admissions . Recent evidence suggests that our carceral excess was not so much fueled by the length of sentences, as it was by the front end: new admissions. The real solution to mass incarceration, then, is not to cut short prison terms though prediction, but to reduce admissions to prison.
Friday, September 17, 2010
"Feds seek to halt inmate's frequent lawsuits"The title of this post is the headline of this recent amusing AP article. Here is how it starts:
A federal inmate who has filed more than 3,800 lawsuits and targeted the famous, the infamous and even the long-dead is now being sued by federal officials who want him to knock it off.
Federal prosecutors who say they have had enough of the frivolous filings have filed a lawsuit of their own asking a judge to take unusual action to stop Jonathan Lee Riches. Since 2006, Riches has filed lawsuits in nearly every jurisdiction in the country, court documents show. The inmate who dubbed himself "Lawsuit Zeus" in one of his thousands of court cases has filed up to four of his handwritten petitions a day in Kentucky courts alone.
The 33-year-old inmate at the federal prison in Lexington has sued New England Patriots coach Bill Belichick, former President George W. Bush, then-Atlanta Falcons quarterback Michael Vick and even Somali pirates. Sometimes, Riches asks for money, other times an injunction to stop alleged, if physically impossible, activity.
Among Riches' targets have been "Adolf Hitler's National Socialist Party," the ancient philosopher Plato, the celestial body formerly known as the planet Pluto and the Guinness Book of World Records.
In the Guinness case, he wanted to prevent himself from being dubbed the most litigious man in America. "These phrases (i.e. "Patrick Ewing of Suing," "Johnny Sue-nami," etc ...) hurt my feelings and violate my civil rights. I've filed so many law suits with my pen and right hand that I got arthritis in my fingers, numbness in my wrists, crooked fingers, I got bags under my eyes for sleepless nights suing the world," Riches wrote in Riches v. the Guinness Book of Records.
Guinness spokeswoman Sara Wilcox said the book doesn't monitor litigious people and has no records concerning Riches. Like many of his other legal claims, the lawsuit was dismissed.
Monday, September 13, 2010
"Zapping Inmates To Control Them: Harmless Or Torture?"The title of this post is the headline of this recent NPR story which discusses the latest hot new technology that hopes to help to keep prisoners in line. Here are excerpts:
Los Angeles authorities have unveiled a new high-tech device designed to control rowdy inmates: a mechanism that blasts millimeter beams that simulate intense heat. At the Pitchess Detention Center, north of Los Angeles, officials recently showed off their latest tool, which resembles a supersized dental X-ray machine with a flat screen on top. It works like something out of Star Trek.
"You know when they set their phasers to stun, they did that so they didn't kill people? Well, that's exactly what this is. It does stun you," says Mike Booen, a vice president of Raytheon Missile Systems. The company built the device for the Los Angeles County Jail, a scaled-down version of what it designed for the military.
"I don't care if you're the meanest, toughest person in the world," he says, "this will get your attention and make your brain focus on making it stop, rather than doing whatever you were planning on doing."...
Dave Judge, the operation deputy for the sheriff's department, says the machine is more effective than their usual methods of firing rubber bullets and tear gas grenades. "This is tame; this is mild," Judge says. "This is a great way to intervene without causing any harm. The nice thing about this is it allows you to intervene at a distance."...
Raytheon's Booen says the device sends out millimeter waves, creating a harmless, but intense sensation. "It penetrates about a 64th of an inch under your skin," Booen explains. "That's about where your pain receptacles are. So it's what it would feel like if you just opened up the doors of a blast furnace. You feel this wave of heat immediately."...
Three years ago, the Department of Defense demonstrated a bigger version of the device it considered using. During one simulation, it repelled a pretend group of protesters with the "Active Denial System" direct energy weapon mounted on a military vehicle.The U.S. Joint Non-Lethal Weapons Programs reportedly never actually used the device in Afghanistan, but a spokeswoman says they are considering related technology.
Now, Los Angeles has been given a smaller, civilian version of the same device free. But the ACLU says that's a bad idea. "We're going to use people in the jails as guinea pigs for some mega arms builder to test their device," ACLU attorney Peter Eliasberg says.
He sent a letter to L.A. Sheriff Lee Baca asking him to reconsider using what he says has the potential to be a torture device.... Eliasberg says some tests of the millimeter device have badly burned people with repeated zaps. And he notes that Los Angeles deputies have a documented history of abusing inmates. Eliasberg suggests a better solution would be to prevent the overcrowded conditions that trigger jail riots in the first place.
Interesting judicial perspective on prison overcrowding in AlabamaThis local story from Alabama, which is headlined "Overcrowded prisons open Madison County judge's eyes," provides interesting background with how the state's judiciary is looking at the problems of prison overcrowding. Here are excerpts:
With state prisons stuffed beyond capacity and no signs of any slowdown in the volume of drug and theft cases that fill court dockets, Alabama's judges are being asked to rethink the sentences they issue.
The message came last week as all Alabama judges with power to sentence prisoners were invited by Alabama Chief Justice Sue Bell Cobb to a three-day meeting in Montgomery. Cobb wants to find ways to reduce jail overcrowding and still enforce Alabama's laws in the face of significant state budget problems.
She has said Alabama's prisons are operating at 195 percent of capacity, making it the most crowded state prison system in the U.S. Alabama has the nation's sixth highest incarceration rate; state prison costs quadrupled in 20 years to $577 million a year in 2008, and half of all new inmates in the system in 2009 were imprisoned for drug offenses, according to the chief justice.
Madison County Presiding Circuit Judge Karen Hall, who attended the conference, said the tours she took of Elmore and Tutwiler prisons are causing her to rethink how she sentences young male and female offenders.
Hall said the Alabama Legislature needs to address the lack of prison space and the lack of programs offering rehabilitation or skills training. "I saw 195 men in a dorm that was 96 degrees," she said. "They can go to church; they can play basketball or lift weights in their yard, and that's it. They need to be doing something.
"What it has done for me is made me rethink how I will handle those who are considered low-risk, especially young males, young females, and maybe give one more chance before I send them down there." Hall favors the addition of work camps and boot camps and halfway houses to bolster the state's alternative sentencing system.
She said Madison County enjoys a good reputation with its approach to alternative sentencing, which includes a drug court, a mental health court and a family drug court. Hall said there are clearly some counties where judges simply lock everybody up....
Alan Mann, a former prosecutor and longtime defense attorney who is running for the newly created circuit judge position, said the problems of prison overcrowding and how sentencing should work are fueled by sheer volume and a basic misunderstanding. "The rub is, there's always going to be some disconnect between the public and the reality of the problem," Mann said. "Every politician runs on being tough on crime, cleaning up the streets. But that's not the reality; (the case volume) never stops. So the rubber meets the road in the courtroom with the judge, the DA and the defense attorney."...
Mann said even alternative programs can prove to be too expensive or too time-consuming for some of his drug-offense clients, who instead opt for probation. "I'm told by many clients they simply can't afford it, it costs more than it does to pay a probation officer," he said. "Then again it takes money to run it. There are no easy answers to these things."
Friday, September 10, 2010
New York Times editorial urges "tough as possible" prison rape policiesThis morning's New York Times includes this editorial headlined "Make Prisons Safer," which gets started this way:
Attorney General Eric Holder Jr. has spent nearly 15 months weighing new mandatory rape prevention policies for federal prisons and state correctional institutions that receive federal money. The policies, which are due this fall, need to be as tough as possible.
A recent report from the Justice Department’s Bureau of Justice Statistics makes that clear, suggesting yet again that sexual violence is frighteningly commonplace in the nation’s prisons and jails.
Thursday, September 09, 2010
"At 90, what does 17 years in prison mean?"The question in the title of this post is the headline of this article from The Buffalo News about a (stiff?) sentence given to an elderly murderer. The piece also discusses the prison realities for very old criminals, and here are excerpts:
A feeble-looking John H. Bunz had to be held up by two court officers after the 90-year-old stumbled getting from his wheelchair into his seat at the defense table Wednesday in a downtown courtroom.
It's hard to comprehend, but this is the same man who bludgeoned his 89-year-old wife to death with a hammer in a bloody attack during March in their Amherst apartment. Bunz showed little emotion as he apologized for his crime shortly before receiving what some deemed a "death sentence" -- 17 1/2 years in prison -- in State Supreme Court....
Bunz pleaded guilty in July to first-degree manslaughter in the killing of Virginia H. Bunz, his wife of nearly 68 years, in the couple's apartment in the Amberleigh Retirement Community. In interviews Wednesday, authorities offered new details about the attack, which occurred early on March 21.
Sometime after getting up that morning, Virginia and John Bunz got into a quarrel over "her health care issues," said Amherst Police Detective Lt. Richard S. Walter.... John Bunz hit his wife about 30 times with the hammer, police and prosecutors said, first in the hands as she tried to defend herself and then repeatedly in the head. "It was an extremely violent crime scene," Walter said.
Virginia Bunz died from blunt-force trauma from the beating, but John Bunz still grabbed a pillow afterward and held it over her face "to make sure the job was done," Walter said. He then grabbed a kitchen knife and cut himself above his eyes, on his neck and on his wrists in an apparent suicide attempt.
Their daughter found the couple at about 10 a.m. Bunz admitted his role in the slaying to Detective Sgt. John J. Piracci and Detective James D. Jackson at Erie County Medical Center, where he was taken for treatment. "I would say he was remorseful but matter-of-fact," Walter said....
The district attorney said that he recognizes that this is likely a "death sentence" for Bunz but that he deserved lengthy incarceration because of the savageness of the crime. "This was not a mercy killing. This was not a gentle killing. This was not, as far as we know, part of any [murder-suicide] pact," Sedita said. "This was an extraordinarily violent act."
What happens to a 90-year-old who is sentenced to prison? Based solely on his crime and the length of his sentence, Bunz would be classified as a maximum-security inmate, said Linda M. Foglia, a spokeswoman for the state Department of Correctional Services. And elderly inmates aren't unilaterally segregated from the general prison population....
If it is apparent that Bunz has special needs, such as a wheelchair, she said, the state has several prison facilities that can accommodate him. And the state takes into account a prisoner's physical abilities when assigning housing and work responsibilities, she said. "We'll pay attention to the environment that a 90-year-old needs," Foglia said.
When Bunz begins his sentence, he will be the second-oldest inmate in a New York State prison, after Theodore A. Sypnier, according to department records. Sypnier, a 101-year-old convicted pedophile from this area, was sent back to prison on a parole violation and is serving two years at Groveland Correctional Facility in Livingston County.
A Niagara Falls man, Otes G. Rodriguez, is third on the current list at 86 years old. He was sentenced to 25 years in prison for pouring gasoline on a woman and trying to light her on fire by using a flare gun. Rodriguez was 80 at the time of the 2004 attack and previously served prison sentences for the 1959 murder of his wife and the 1973 murder of his girlfriend.
Wednesday, September 08, 2010
The story of prisons becoming nursing homes in VirginiaThis new piece in the Washington Post, headlined "Virginia's prison system struggles to handle the surge in elderly inmate," provides a look into some of the consequences of an aging prison population in Virgina. Here are excerpts:
Since the General Assembly abolished parole for the newly convicted in 1995, the number of elderly inmates in custody has soared. In 1990, there were 900 inmates over the age of 50. Now there are more than 5,000. Deerfield Correctional, which once housed 400 inmates, has become a 1,000-bed facility with a long waiting list. "We're left trying to be both a nursing home and a prison," said Keith Davis, the warden.
Scrambling to handle the surge, the state has built a 57-bed assisted living facility at Deerfield, with rows of hospital beds filling a room the size of a high school gymnasium. They've added a special meal for the facility's legion of diabetics, and they've hired nurses to keep round-the-clock watch on the infirmary's 16 inmates.
It's an expensive endeavor: It costs $28,800 annually to house an inmate at Deerfield, compared with the $19,000 it costs at most of the state's medium-security prisons....
Under the 1995 Truth in Sentencing law, two types of inmates can still be paroled: prisoners over 60 and those convicted before the law took effect. That makes Francis eligible for parole. But since George Allen (R) was elected governor in 1993 with a promise to abolish parole, offenders have spent significantly more time behind bars. Fewer than 5 percent of inmates charged before 1995 have won reprieves since Allen's initiative passed, compared with 42 percent of eligible inmates who were granted parole in the years preceding the change in law.
Those over 60 face even slimmer odds. Only 15 of 1,000 eligible elderly inmates have won release. That record has led to a class-action lawsuit against the state. "The law says these inmates are eligible for parole, but the Parole Board is acting as if they're not," said Bill Richardson, an Arlington attorney representing 11 inmates.
State officials say the low parole rate reflects the fact that most nonviolent criminals have been released over the past 14 years, leaving mainly harder-core criminals behind bars. "These inmates might be old, and they might no longer pose a threat, but this is the price of committing a heinous crime," said Rick Kern, director of the Virginia Sentencing Commission, which oversees state sentencing guidelines.
The trend in Virginia foreshadowed a national trend. Between 1999 and 2007, the number of inmates 55 or older in state and federal prisons grew 76.9 percent, from 43,300 to 76,600, according to the U.S. Bureau of Justice Statistics.
Some related posts:
- "Aging Prisoners, Increasing Costs, and Geriatric Release"
- What should Florida and other states do with all their old sex offenders?
- "Aging inmates straining prison systems"
Wednesday, September 01, 2010
"Prison is too good for Blago"The title of this post is the headline of this column by Phil Luciano in the Peoria Journal Star. Here are some excerpts:
How would you like to see Rod Blagojevich punished? I'd like to see him do something that involves hard and demeaning work. You know, like real punishment....
I get my prison peek courtesy of a pal of mine, "Screamin'." He recently got out of the federal system after serving three years for fraud. He spent a good amount of cell time writing me letters about the relative ease of federal prison camps. Now that he is out and on the straight and narrow, he still is amazed at how little punishment is involved behind bars at minimum-security prison -- and why many folks call it "Club Fed."
That's likely where Blago will end up. Remember, regardless of the second trial, he already has been convicted of lying to the FBI. For that, a source tells me, he likely will get a year or two in prison.
He has no prior record, so he will get a minimum-security assignment. Unlike Pekin's medium-security facility, minimum-security prisons have no walls. It's kind of like living at a college dorm, Screamin' says.
Screamin' says Blago will spend most of his days doing light labor, such as upkeeping the library or cutting grass. For that, he'll get around 16 cents an hour, which means about $15 a month. Inmates get to spend earnings on treats at the commissary.
But Blago will have opportunities to make more money or earn favors. As an attorney, he can write motions for other prisoners. In exchange, he could get packets of tuna -- a favorite at prison camps, because it tastes most like real food, Screamin' says. Or, Blago could trade legal work for favors, such as laundry work.
During down time -- and there is plenty of down time -- Blago likely will consort with other politicians and businessmen. They often walk around the outdoor track, not so much for exercise but to gossip and scheme. Sure, Blagojevich is a big jogger, but he'll likely be more attuned to the deals inmates concoct regarding life on the outside after they do their time....
Many [inmates] do what they love on the outside: gamble. Bookmaking is immensely popular, with wives and girlfriends taking care of settling wagers on the outside. Screamin' would see inmates lose thousands of dollars per sports season. "It's crazy," he says. "A lot of money."
Of course, get caught and get in trouble. You might get shipped off to "the hole." Or you could get moved to a stiffer prison, where you can't get away so easily with such shenanigans. All in all, though, Screamin' found his stay rather uneventful. And that's why I hate to see Blagojevich go away to federal prison.
U.S. taxpayers spend more than $24,000 a year to house each prisoner. And there are more than 200,000 inmates in the federal system. Behind bars, Blago gets easy jobs and a chance to network with other pols and bigwigs. That's hardly what I call punishment. So maybe it's time to get creative.
Judges sometimes opt for alternate sentences nowadays. In Ohio, a man who ran from police was forced to jog around a jail every day. In Texas, a woman who tried to weasel Hurricane Katrina rebuild money had to clean houses. In California, a beer thief had to wear a T-shirt declaring his crime. But those were state sentences. Federal sentencing guidelines don't allow anything but incarceration.
Yet wouldn't it make more sense to find a different way to handle Blago and others like him? A way that not only makes him pay his debt to society but takes the taxpayer off the hook?
Make him work a 9-to-5 minimum-wage job -- fast food, retail or whatever -- so he can learn how the little guy squeaks by while earning money to help support his family. At night, he would have to stay at home -- no restaurants or fun until his term is over.
Weekends, though, he would do very visible public service. Picking up trash on the highways, cleaning state Dumpsters, shoveling state-owned sidewalks -- anything involving sweat and humility. And the aggrieved public could watch -- perhaps with knowing smiles and pointing fingers -- what happens when a government official brazenly goes bad.
Informed readers should know that shaming sanctions and other prison alternatives in fact are possible in the federal sentencing system, though truly creative sentences are quite rare. Do others agree with this columnist that Blago is a good candidate for some creative sentencing?
September 1, 2010 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (7) | TrackBack
Sunday, August 29, 2010
A thoughtful call for Congress to slightly increase federal good-time creditSteve Sady, the public defender who for years argued for a defendant-friendly interpretation of the federal statute providing for 15% good time credit for prisoners, has this new commentary in the National Law Journal. The piece is headlined "Too much time in prison," and here is how it starts and ends:
On June 7, my federal public defender office had the disturbing experience of losing Barber v. Thomasin the U.S. Supreme Court, a case that — if the outcome had been different — would have prevented up to 36,000 years of federal overincarceration, saving taxpayers up to $951 million. The issue was whether the federal statute that allowed federal prisoners to earn up to 54 days of good-time credits for each year of their sentences meant that a prisoner could reduce the sentence imposed by up to 15%. This sounds like an easy figure to calculate (54/365), but the federal Bureau of Prisons (BOP), based on time served, came up with a complex formula that works out to 12.8% of the prisoner's sentence, or only 47 days per year of the sentence imposed. In light of the Court's majority ruling approving the BOP's interpretation of 12.8%, Congress should now amend the good-time credit statute to require the 15% rate against the sentence imposed that has received bipartisan support in previous legislation and that provides the basis for the federal guidelines' sentencing ranges....
Although the Supreme Court has made its decision, the result is bad public policy. It is now up to Congress and the administration to step up and correct the problem. Congress can fairly and safely lower incarceration rates for well-behaved prisoners, thereby reducing prison overcrowding and preserving public resources, by amending the federal good-time statute to ensure that prisoners can receive good-time credits of up to 15% of the sentence imposed. By doing so, Congress would reaffirm the value our society and Constitution place on human freedom, while reinforcing good behavior by federal prisoners.
Friday, August 20, 2010
Notable Eleventh Circuit ruling on use of force on mentally ill prisoners
The Eleventh Circuit has a long discussion of the use of force against prisoners in Florida in its ruling today in Thomas v. Bryant, No. 09-11658 (11th Cir. Aug. 20, 2010) (available here). Here is how the legthy opinion gets started:
This appeal presents important questions concerning the intersection of the Eighth Amendment and the incarceration of inmates with serious mental illness. Ten inmates incarcerated at Florida State Prison (“FSP”) brought this § 1983 action against various officers and employees of the Florida Department of Corrections (“DOC”), alleging that the use of chemical agents on inmates with mental illness and other vulnerabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. After the plaintiffs settled their damages claims against the individual correctional officers responsible for administering the chemical agents, the district court held a five-day bench trial on their remaining claims for declaratory judgment and injunctive relief against the two defendants allegedly responsible for the policy which authorized the use of chemical agents on inmates at FSP: Walter McNeil, Secretary of the DOC, and Randall Bryant, Warden of FSP.
The district court entered judgment in favor of two of the remaining six plaintiffs, concluding that the repeated sprayings inmates Jeremiah Thomas and Michael McKinney received pursuant to the DOC’s non-spontaneous use-of-force policy violated the Eighth Amendment. Specifically, the district court concluded that Thomas and McKinney demonstrated that at times in which they were sprayed with chemical agents they were unable to conform their behavior to prison standards due to their mental illnesses such that the DOC’s use of force for purposes of prison discipline amounted to cruel and unusual punishment. To remedy the violation, the district court permanently enjoined the defendants, in their official capacities, from allowing the non-spontaneous use of chemical agents on Thomas or McKinney without first consulting with the DOC’s trained mental health staff to evaluate their mental health status. Defendants McNeil and Bryant now appeal, challenging both the district court’s finding of an Eighth Amendment violation and the propriety of its permanent injunction....
Our task is to determine whether the district court erred in concluding that the DOC’s nonspontaneous use-of-force policy, as applied to McKinney, violates the Eighth Amendment and whether its permanent injunction was both necessary to remedy the violation of McKinney’s rights and also properly tailored to the identified harm. Finding no error in the district court’s thorough conclusions of law and narrowly tailored injunction, we affirm.
Wednesday, August 18, 2010
Two interesting new commentaries on prison reform in the Obama era
The folks at AOL have recently published these two interesting commentaries on prison reform:
The second piece ends this way:
The Obama administration has the perfect opportunity to move forward on prison reform. Economic pressures are making over-criminalization fiscally unfeasible, and research-driven solutions are available. Moral issues like prison rape are crystal clear. President Obama can credibly use the bully pulpit to point out what the American criminal justice system must learn: Compassion is not the enemy of public safety.
ACLU of Ohio produces major report on prison growth and problems
As detailed in this article from the Columbus Dispatch, which is headlined "ACLU: Ohio prisons in crisis: Senators of both parties agree that system is costly, overcrowded," the ACLU has a new and timely report on Ohio's prison costs and problems. Here is how the Dispatch article gets started:
The American Civil Liberties Union and state Sens. Nina Turner, a Cleveland Democrat, and Bill Seitz, a Cincinnati Republican, are at odds on many issues. But the unlikely trio joined forces yesterday to pitch enactment of reforms to heal Ohio's "overcrowded, overused and underfunded" prison system.
"We are at a crisis in the state of Ohio," said James Hardiman, Ohio ACLU legal director, in releasing "Reform Cannot Wait," a report examining the cost and impact of prison incarceration and spending from 1991 to the present.
The report summarized the findings of other reports over nearly two decades and reached the same conclusions: Ohio sends far too many people to prison, spends an inordinate amount of money on adult and youth prisons, and has done little to reduce crime and recidivism....
Seitz said the state's 1996 "truth-in-sentencing" law failed miserably, largely because lawmakers added dozens of tough-on-crime sentence "enhancements" that increased the overall average time served instead of reducing it as intended. "We created layer after layer of additional sentences," he said.
Seitz is the sponsor of Senate Bill 22, which would funnel some low-level, nonviolent offenders to community treatment programs and give offenders time off their sentences for successfully participating in education and treatment programs behind bars. It would initially save about $13.7 million in operating costs, but it would help avoid billions in spending if it prevents the state from having to build new prisons because of severe overcrowding, he said.
Terrific piece in The Atlantic on "Prison Without Walls"The September issue of The Atlantic magazine includes this terrific piece focused on technocorrections like GPS tracking under the headline "Prison Without Walls." The lengthy piece is a must-read and here is a long excerpt that highlights some reasons why I have been talking up the future of technocorrections for years:
GPS devices ... are looking like an appealing alternative to conventional incarceration, as it becomes ever clearer that, in the United States at least, traditional prison has become more or less synonymous with failed prison. By almost any metric, our practice of locking large numbers of people behind bars has proved at best ineffective and at worst a national disgrace. According to a recent Pew report, 2.3 million Americans are currently incarcerated — enough people to fill the city of Houston. Since 1983, the number of inmates has more than tripled and the total cost of corrections has jumped sixfold, from $10.4 billion to $68.7 billion. In California, the cost per inmate has kept pace with the cost of an Ivy League education, at just shy of $50,000 a year.
This might make some sense if crime rates had also tripled. But they haven’t: rather, even as crime has fallen, the sentences served by criminals have grown, thanks in large part to mandatory minimums and draconian three-strikes rules — politically popular measures that have shown little deterrent effect but have left the prison system overflowing with inmates. The vogue for incarceration might also make sense if the prisons repaid society’s investment by releasing reformed inmates who behaved better than before they were locked up. But that isn’t the case either: half of those released are back in prison within three years. Indeed, research by the economists Jesse Shapiro of the University of Chicago and M. Keith Chen of Yale indicates that the stated purpose of incarceration, which is to place prisoners under harsh conditions on the assumption that they will be “scared straight,” is actively counterproductive. Such conditions — and U.S. prisons are astonishingly harsh, with as many as 20 percent of male inmates facing sexual assault — typically harden criminals, making them more violent and predatory. Essentially, when we lock someone up today, we are agreeing to pay a large (and growing) sum of money merely to put off dealing with him until he is released in a few years, often as a greater menace to society than when he went in.
Devices such as the ExacuTrack, along with other advances in both the ways we monitor criminals and the ways we punish them for their transgressions, suggest a revolutionary possibility: that we might turn the conventional prison system inside out for a substantial number of inmates, doing away with the current, expensive array of guards and cells and fences, in favor of a regimen of close, constant surveillance on the outside and swift, certain punishment for any deviations from an established, legally unobjectionable routine. The potential upside is enormous. Not only might such a system save billions of dollars annually, it could theoretically produce far better outcomes, training convicts to become law-abiders rather than more-ruthless lawbreakers. The ultimate result could be lower crime rates, at a reduced cost, and with considerably less inhumanity in the bargain.
Moreover, such a change would in fact be less radical than it might at first appear. An underappreciated fact of our penitentiary system is that of all Americans “serving time” at any given moment, only a third are actually behind bars. The rest — some 5 million of them — are circulating among the free on conditional supervised release either as parolees, who are freed from prison before their sentences conclude, or as probationers, who walk free in lieu of jail time. These prisoners-on-the-outside have in fact outnumbered the incarcerated for decades. And recent innovations, both technological and procedural, could enable such programs to advance to a stage where they put the traditional model of incarceration to shame.
In a number of experimental cases, they already have. Devices such as the one I wore on my leg already allow tens of thousands of convicts to walk the streets relatively freely, impeded only by the knowledge that if they loiter by a schoolyard, say, or near the house of the ex-girlfriend they threatened, or on a street corner known for its crack trade, the law will come to find them. Compared with incarceration, the cost of such surveillance is minuscule—mere dollars per day—and monitoring has few of the hardening effects of time behind bars. Nor do all the innovations being developed depend on technology. Similar efforts to control criminals in the wild are under way in pilot programs that demand adherence to onerous parole guidelines, such as frequent, random drug testing, and that provide for immediate punishment if the parolees fail. The result is the same: convicts who might once have been in prison now walk among us unrecognized—like pod people, or Canadians.
There are, of course, many thousands of dangerous felons who can’t be trusted on the loose. But if we extended this form of enhanced, supervised release even to just the nonviolent offenders currently behind bars, we would empty half our prison beds in one swoop.... [S]ome would offend again. But then, so too do those convicts released at the end of their brutal, hardening sentences under our current system. And even accepting a certain failure rate, by nearly any measure such “prisons without bars” would represent a giant step forward for justice, criminal rehabilitation, and society.
Monday, August 16, 2010
"Aging inmates straining prison systems"The title of this post is the headline of this effective new AP article. Here is how the piece starts:
Curtis Ballard rides a motorized wheelchair around his prison ward, which happens to be the new assisted living unit — a place of many windows and no visible steel bars — at Washington's Coyote Ridge Corrections Center. A stroke left Ballard unable to walk. He's also had a heart attack and he underwent a procedure to remove skin cancer from his neck. At 77, he's been in prison since 1993 for murder. He has 14 years left on his sentence.
Ballard is among the national surge in elderly inmates whose medical expenses are straining cash-strapped states and have officials looking for solutions, including early release, some possibly to nursing homes. Ballard says he's fine where he is. "I'd be a burden on my kids," said the native Texan. "I'd rather be a burden to these people."
That burden is becoming greater as the American Civil Liberties Union estimates that elderly prisoners — the fastest growing segment of the prison population, largely because of tough sentencing laws — are three times more expensive to incarcerate than younger inmates. The ACLU estimates that it costs about $72,000 to house an elderly inmate for a year, compared to $24,000 for a younger prisoner.
The federal Bureau of Justice Statistics reported that the number of men and women in state and federal prisons age 55 and older grew 76 percent between 1999 and 2008, the latest year available, from 43,300 to 76,400. The growth of the entire prison population grew only 18 percent in that period.
Wednesday, August 11, 2010
Two must-reads from the latest issue of Governing
The August 2010 issue of the magazine Governing has its cover story devoted to the interesting and important (and under-appreciated) story of corrections reform in the state of Mississippi. There are so many interesting parts to the stoty, I will just plug this piece by simply noting its headline and subheading: "Mississippi's Corrections Reform: How America's reddest state -- and most notorious prison -- became a model of corrections reform."
In addition, the same issue has this astute commentary piece on one of my favorite policy topics under the headline "Marijuana: To Legalize or Not to Legalize?; Federal, state and local governments can't seem to agree whether to legalize cannabis." Here are two snippets this commentary:
Medical marijuana is in a legal and political twilight zone, caught between the ongoing policy battles on drugs and the pleas of patients suffering from painful, debilitating diseases. In fall 2009, U.S. Attorney General Eric Holder announced that in the 14 states permitting the sale of medical marijuana, the feds would focus only on big drug traffickers and money launderers. Republicans fired back that Holder was undermining federal laws and fueling the drug wars on the Mexican border. The House Judiciary Committee's ranking Republican, Rep. Lamar Smith, countered: "We cannot hope to eradicate the drug trade if we do not first address the cash cow for most drug-trafficking organizations -- marijuana." The Cato Institute's Tim Lynch countered yet again, saying the drug war had proven a "grand failure," while advocates of legalizing marijuana quietly applauded....
It's hard to think of a policy battle full of so much heat but backed by so little research. The drive for medical marijuana comes from two sources: the underground campaign to make marijuana legal, where advocates have long argued that the drug is a harmless recreation, and the desperate plight of patients suffering from chronic diseases, where traditional medicine has provided little relief....
Amid the ongoing federal war on drugs, the states are leading a noisy revolution to legalize marijuana, at least for medical use. The Obama administration said it will back off prosecuting drug laws in the states permitting medical marijuana, but in some local governments, opponents are fighting back to restrict where state-sanctioned marijuana can be sold. The state laws themselves are all over the map, from California's permissive statute to New Jersey's tough government regulation of the chain from plant to user. [Along the way], we're clumsily drawing new lines on drug use as only American federalism can.
Saturday, August 07, 2010
"Private Prisons, Public Functions, and the Meaning Punishment"The title of this post is the title of this new article by Mary Sigler now available on SSRN. Here is the abstract:
As the prison population in the United States soars, states and the federal government have come to rely increasingly on private prisons. In 2007, private detention facilities housed more than seven percent of incarcerated adults in federal and state prisons. The primary impetus for the private-prison boom of the 1980s was the belief that for-profit corporations could deliver correctional services more efficiently than could the state. One recent study found that private prisons may reduce the cost of housing inmates by as much as fifteen percent.
Some critics have questioned the validity of these findings; others contend that if private prisons achieve any cost savings, they come at the expense of inmate well-being. That is, in order to turn a profit, private prison operators skimp on personnel training and staffing; offer only minimal educational programming and vocational training; and save space by housing inmates in cramped quarters. In addition, public accountability for prison conditions is undermined to the extent that public officials must rely on reports of abuse and mistreatment from within the private prisons themselves. Finally, the profit motive creates perverse incentives to extend inmate sentences and promote criminal justice policies that yield more and longer prison sentences regardless of whether they are in the public interest.
While these important policy considerations may be reason enough to worry about the proliferation of private prisons around the world, this paper defends the position that an even more basic consideration concerns the nature and justification of legitimate punishment. In a liberal democratic polity, punishment is an inherently public function. It is inflicted for public wrongs in the name of the people themselves. Outsourcing punishment to nonpublic agents thus represents the abdication of a core state responsibility. Moreover, because retributive considerations dominate the public’s conception of criminal justice, punishment is meaningful not primarily as a means to an end. Rather, punishment constitutes justice. Delegation through privatization attenuates the meaning of punishment – for punisher and punished alike – treating justice as a mere commodity. To be sure, state-run prisons routinely rely on private providers for food service, waste management, and even medical care. But these services are commodities that have practical rather than social significance; what matters is that they are competently provided, not the identity of the provider. Central to punishment, however, is the relationship between punisher and punished, for it transforms otherwise socially objectionable conduct – such as the deprivation of liberty – into a legitimate instrument of social control. Accordingly, the institution of punishment must be, and must be seen to be, the work of public agents.
Monday, August 02, 2010
Investigative report indicates California's prisoner rights poorly regardedA helpful reader altered me to this lengthy article from the Sacremento Bee, headlined "The Public Eye: California prisoners' rights often trampled," that reports on how guards have abused prisoners through disciplinary hearings. The piece, which ran on Sunday's front page, also included the graphic (reprinted here) with lots of interesting data on charges against prisoners in five of the larger states in the nation. Here is how the Sacremento Bee report gets started:
The prison official assured his warden in an e-mail that everything was set: A group of 77 inmates accused of interfering with officers would be found guilty, no matter what. Disciplinary hearings – required proceedings where inmates can defend themselves with witnesses and evidence – had not yet taken place at North Kern State Prison.
Yet, in the April e-mail obtained by The Bee, acting Associate Warden Steven Ojeda promised to provide the hearing officers –- lieutenants he supervised –- "with direction prior to the hearings and ensure they understand to hold all of these inmates accountable."
Leaving nothing to chance, Ojeda prescribed punishments, too: loss of good-behavior credit and visiting privileges, threat of a term in one of the prison system's security housing units – called "the hole" by prisoners – and other serious penalties.
By acting as judge and jury, Ojeda fit a pattern, a Bee investigation has found, that suggests widespread suppression of inmates' rights to contest allegations by guards or pursue claims of mistreatment.
Current and retired officers, prisoners and parolees allege that correctional officers and their superiors routinely file bogus or misleading reports, destroy or falsify documentation of abuses, and intimidate colleagues or inmates who push back.
Sources with firsthand knowledge called the problem pervasive, offering dozens of examples. Even if the allegations are valid for a fraction of cases, thousands of prison terms could have been extended improperly at vast cost to taxpayers.
Saturday, July 31, 2010
A must-read take on American justice courtesy of now-free Lord Conrad BlackAs detailed in this news report, "media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto's National Post." This first-person column is available at this link under the headline "Conrad Black: My prison education," and here are choice excerpts from this weekend's must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years....
t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.
I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.
And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.
And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.
Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.
Tuesday, July 27, 2010
"An Open Letter to Lindsay Lohan from the ACLU"The title of this post is the descriptive heading given to this page at the ACLU of Southern California. I praise the ACLU for trying to turn LiLo's experiences into a teachable moment, and here are excerpts from the letter:
We know that going to jail is scary. But we can assure you that your experience at the women’s facility in Lynwood, outside Los Angeles, is likely to be starkly different from the thousands of others serving time and awaiting trial in the Los Angeles jails. Based on the ACLU’s decades of experience as an official court-appointed monitor of the jails, and the stories of countless women with whom we’ve spoken, the facility where you are staying is an overcrowded detention facility where women are needlessly humiliated for so long that they come to expect sub-human treatment....
We know from the more than 4,500 complaints we receive annually that the women’s facility is a lot nicer than the Men’s Central Jail -- where rats roam the tiers, and violence is as routine as sunshine in California. We’ve seen men with broken legs and black eyes. It‘s not uncommon for a prisoner to be thrown up against the wall or punched, simply for asking a deputy a question....
Lindsay, even though it’s going to be difficult for you to be incarcerated even for a few weeks, rest assured that your celebrity is something that we who frequently visit Los Angeles’s jails see as an opportunity to draw attention to conditions in the jails. You will have a window into the world of Los Angeles jails, and we hope you will use it to talk to the press about conditions here.
Monday, July 26, 2010
Heading off to hear about how Ohio should reinvest in justiceI am about to head off-line for the day to attend a conference at which the Council of State Governments' Justice Center will present its first findings as part of Ohio's involvement in CSG's Justice Reinvestment project. This AP article, which is headlined "Ohio's probation system called costly, ineffective," previews what I am going to be hearing about through the day:
Ohio's probation system is a jumble of overlapping and fragmented agencies without common rules for improving the way the state treats offenders under supervision, according to a report to be released today.
The study also says that offenders who commit minor drug and property crimes are often supervised for years, while inmates who pose a high risk to public safety are released from prison without supervision.
The study by the Council of State Governments Justice Center also confirms something that Ohio officials have known for years: A large number of offenders cycle through prisons with sentences of just a few months each, placing a costly burden on an already-strapped agency.
One reason for the cycling is that the minimum sentence for lower-level felonies is six months in Ohio; it is one year in many other states. The Ohio study, to be unveiled at a daylong symposium, found that only four of every 10 inmates serving short sentences have a low risk of offending again. Two of every three are property-crime or drug offenders and have two or fewer prior convictions.
Sunday, July 25, 2010
"Jail Source: The Inmates Are Sick of Lindsay Lohan"The title of this post is the headline of this new People magazine piece that provides a LiLo update for sentencing fans. Here are the particulars:
As far as reports go, Lindsay Lohan is eating the same meals as regular inmates at the Century Regional Detention Facility. But that doesn't mean she's being entirely treated like the others.
"She's not treated like if it was anyone else going to jail," Maria Medina, a relative of an inmate at Lohan's jail tells PEOPLE. "Like, if they even want to bring her new clothes or bring her anything, they put the whole facility on lockdown. It happens all the time."
Medina, 40, says residents at the jail, based in Lynwood, Calif., find it unfair that someone they're not even allowed to see is exerting so much control over their stay. "All the inmates are sick of Lindsay," Medina says. "It's almost like Lindsay Lohan's here, but she's not. Like if she even moves, they put the whole facility on lockdown. It happens all the time. For example, just yesterday [Friday], Lindsay had to go to the mini-clinic, and the whole place was on lockdown again."
Los Angeles Sheriff's spokesman Steve Whitmore denied Medina's claim. "It's business as usual. Lindsay's getting no special treatment," he told PEOPLE on Saturday. He also said there is no such thing as "lockdowns."
As far as Lohan is concerned, she's now apparently in a much better state of mind than earlier this week. "[Lindsay's] doing well, she's doing fine," Lohan's lawyer Shawn Chapman Holley tells PEOPLE. "Her outlook is definitely more positive."
Despite speculation that Lohan was given exemptions when it came to visitation limits, Holley told reporters her client is playing by the rules, saying,"[Her family's] not allowed any more visits this week."
Whitmore earlier this week told PEOPLE that Lohan received her visits during the week to avoid disrupting other families visiting on the weekend with ensuing TV crews and photographers.
Wednesday, July 21, 2010
Just another (average?) week in incarceration nation...
with Lindsay Lohan entering jail apparently for only two weeks, and Lord Conrad Black getting to go free on bail from federal prison after having already served well over two years. Anyone want to make predictions on likelihood of recidivism for these two notable defendants?
Tuesday, July 20, 2010
Effective review of New Jersey's recent significant prison population declinesThanks to The Crime Report, I saw this effective local article from New Jersey discussing the Garden State's significant reduction in its prison population over the last decade. The piece is headlined "N.J.'s inmate population declines, officials credit less crime, prisoner re-entry programs," and here are excerpts:
In Kentucky, authorities started a controversial program to release inmates early to alleviate prison overcrowding. In California, federal judges ordered prisons to shed 46,000 inmates in a case heading to the U.S. Supreme Court.
But in New Jersey, the prison population fell 14.8 percent from 2000 to 2009 without any need for such drastic actions, according to new federal statistics. New Jersey is one of only six states to reduce the number of prisoners over the decade.
With 25,263 inmates in the system as of this month, state prisons still hold more people than they were designed for. And 600 additional inmates will be double-bunked this year to save money. But officials say the overall population shrank because crime was cut, drug courts diverted many people from jail, and programs helped inmates prepare for life on the outside.
"It’s a pretty impressive reduction," said Marc Mauer, executive director of the Sentencing Project, a research and advocacy organization. "We’re not just talking about a tinkering. It comes about through conscious changes in criminal justice policy."
New York is the only state whose prison population declined faster than New Jersey’s, by 16.4 percent. Maryland, Michigan, Delaware and Illinois also cut their inmate numbers.
But while the total number of state prison inmates in the country dropped last year for the first time since 1972, most states struggle with increasingly large and expensive prison populations. West Virginia packed its prisons with 65.1 percent more inmates from 2000 to 2009. Minnesota, Arizona, Florida and Kentucky had increases from 45 to 60 percent.
"It’s hard to find a state not having a problem," Mauer said. State officials, researchers and experts said New Jersey’s progress reflects a multi-faceted approach to the issue — before sentencing, in prison and after incarceration....
One big reason for the reduction in inmates is that fewer people are going to prison in New Jersey. In 2000, 12,845 were sent to state prison. In 2009, there were 11,948.
The state’s overall crime rate fell 17.1 percent from 2000 to 2008, the last year Uniform Crime Report statistics are available. Violent crime dropped 13.2 percent in that period....
Offenders who commit nonviolent drug-related crimes can enter drug court programs to avoid prison time and receive treatment... The state recently loosened mandatory minimum sentences for drug crimes, a primary reason for prison population increases. Some people caught dealing drugs within 1,000 feet of a school will no longer be automatically sent to prison for one to three years....
Smaller inmate populations can’t come fast enough for states facing severe budget deficits. In New Jersey, where the deficit was $11 billion, each inmate costs about $49,000 a year.... New Jersey closed Riverfront State Prison in Camden last year, saving at least $43 million annually. The state also stopped using a Kearny facility to house civilly committed sex offenders. Overall, the corrections budget dropped $67 million, to $1.08 billion, this year.
"Are Lindsay Lohan, other celebs glorifying jail time?"Today's question of the day comes via this lengthy article with the same headline as my post title in the Detroit Free Press. Here is how the piece it begins:
Lindsay Lohan is scheduled to go to jail today. While it may not sound like a big deal -- yet another train-wreck celeb in trouble -- it may actually have a cumulative effect on fans, especially young people. Social experts suggest that being pelted with image after image of celebrity after celebrity in trouble does have societal implications.
"Things like reality TV and other things have almost glorified going to jail," said Arthur Robin, head of psychology at Children's Hospital of Michigan. "Yes, it's still something young people view very negatively, but probably not as negatively as 50 years ago."
The accelerated news media obsession with locked-up celebrities, politicians and sports stars may be desensitizing young people to jail, experts have said. Rather than a stiff penalty, jail has become a simple inconvenience.
Published reports suggest Lohan's first post-jail interview will be worth more than $500,000. Lil Wayne plans to drop his next album from Rikers Island. And in urban areas like Detroit, the jailings of those in the public eye could be leading youths down the wrong path.
Monday, July 19, 2010
"Five Things You Need to Know About Lindsay Lohan's Pending Jail Stint"The title of this post is the headline of this hard-hitting new piece at E! Online. Here is the piece's intro and the heading of those important "five things you need to know":
Lindsay Lohan is going to do the time — even though she remains in denial. "She's really nervous," a source close to the actress tells E! News. "She is still hoping she is not going to jail." Meanwhile, back in reality...
Lindsay is due to surrender herself tomorrow to begin serving her 90-day sentence, which will likely be shortened drastically due to overcrowding (25 percent of the original sentence is about as much as gets served these days).
After appearing in court, she will likely be shuttled to the Century Regional Detention Facility in Lynwood, Calif. And here's what you need to know about Lindsay's new digs:
1. It Has Celebrity Cachet....
2. It'll Ruin Her Diet of Kombucha and Cigarettes....
3. Michelle Rodriguez Is Not Impressed....
4. It's Girl-on-Girl....
5. It's Going to Be a Rough Ride....
Relatedly, I would like to know if readers would like me to keep blogging about the train-wreck starlet who is about to become (not-quite-) just-another number among the nearly 2.5 million persons incarcerated in the United States.
I generally enjoy blogging about celebrity cases because they provide a visible setting to discuss timely sentencing issues. Also, even silly celebrity posts tend to generate many interesting comments and can be fun as a change of pace. But I am already feeling as though I have done a bit too much LiLo blogging lately, and will only keep on this particular celebrity beat if readers think it worthwhile.
Related recent Lohan sentencing posts:
- "Lindsay Lohan New Spokeswoman for SCRAM Alcohol Testing Accessory"
- Lindsay Lohan doing her best to become technocorrections poster child
- Lindsay Lohan provides yet another opportunity to debate the (un)real aspects of celebrity sentencing justice
- Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence
Friday, July 02, 2010
"How The Recession Hurts Private Prisons"The title of this post is the headline of this Newsweek feature. Here is how the interesting piece gets started:
Baldwin, Mich., (population 1,107), will soon have more prison beds than full-time residents. On the outskirts of town, one of the country’s largest private prison companies recently spent $60 million to expand a former juvenile prison into a 1,755-bed facility meant to house illegal immigrants before deportation. This is the same town where every summer locals gather for a carnival nicknamed Troutarama at which teenage girls vie for the crown of Ms. Lake County. Thirty-two percent of Baldwin’s families live below the poverty line, in a state with a 13.6 percent unemployment rate, compared to the national unemployment rate of 9.7 percent. Baldwin residents were counting on the private prison to create jobs, but this past March, the federal government pulled back its funding on the bid. This left the Geo Group, Inc., with an empty fortress in the middle of rural Michigan, 85 miles north of Grand Rapids.
A similar scenario is playing out across the country, in states such as California, Oklahoma, and Colorado, where entire private prisons now sit vacant. The Huerfano County Correctional Facility in Colorado and the Diamondback Correctional Facility in Oklahoma temporarily shut their doors this spring after the state of Arizona stopped sending prisoners out of state in an effort to save money. Cornell Companies, one of the three largest private prison operators in the U.S., expects two of its California prisons to remain empty through 2010, while 11,600 of Correction Corporation of America’s beds were unoccupied as of early May. The empty prisons are not a result of the number of inmates dropping. In fact, according to the Pew Public Safety Performance Project, the number of inmates rose in 2007 in Arizona, Ohio, Kentucky, Mississippi, and Florida. Instead, the empty beds are because state corrections agencies are crowding prisoners into more facilities as they do in California, or trying to change legislation to make sentencing less harsh for nonviolent criminals. The private prison industry’s reliable mix of housing state and federal inmates and illegal immigrants — a model that helped to fuel two decades of growth — is no longer a surefire way to get rich. “There are only so many places you can find people,” says Martin F. Horn, a former commissioner with the New York City Department of Correction and a lecturer at the John Jay College of Criminal Justice.
Though it’s certainly not disappearing and there are signs of a potential recovery for the sector, the private corrections business is under financial pressure to change its business plan, and as that happens, prison advocates worry that the industry and it’s bottom-line approach will come to dominate other areas of the justice system. Rather than worrying about upping the number of inmates, private prison companies are tapping into overseas markets and offering a wider range of services. GEO increased its revenue by $20.2 million in the last year by opening up prisons in Australia and the United Kingdom, while also eyeing contracts in South Africa and New Zealand. Cornell runs halfway houses and youth prisons and has noticed an uptick in the demand for drug treatment, housing, or job placement programs that help prisoners reenter society. “The challenge for reentry is funding,” says James Hyman, CEO and president of Cornell Companies. “If states can’t fund programs for their star college graduates, how do they fund programs for the prisoners?”
Wednesday, June 30, 2010
Fascinating Ninth Circuit ruling on whether prisoners have medical privacy rightsThe Ninth Circuit issued an interesting ruling today concerning the medical privacy rights of a prisoner in Seaton v. Mayberg, No. 05-56894 (9th Cir. June 30, 2010) (available here). Here is how the main panel opinion starts and ends:
We address a claim to privacy rights in his medical records of a prisoner being evaluated for civil commitment....
One who goes to a physician in order to obtain medical benefit to himself or his family has substantial privacy interests that may or may not be constitutionally protected. One who is compelled to submit to medical examination for the benefit of the public, to determine whether because of mental disease he is likely to engage in sexually predatory behavior, does not.
Tuesday, June 29, 2010
"The Case for Treating Drug Addicts in Prison"
The title of this post is the headline of this interesting new piece in Newsweek. Here is an excerpt:
Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges (although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007). But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions....
Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them. In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment. That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs. Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.
The irony here is that by lowering recidivism, the programs themselves save money in the long run. The NIDA report released last year cited a remarkable statistic: heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again. For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration, according to Human Rights Watch. Looked at another way, the programs can save the justice system about $47,000 per inmate.
So why would prisons target their own treatment programs in an effort to cut costs? Part of the reason is that pharmacological treatment — such as giving heroin addicts methadone to help them through withdrawal — requires a lot of regulation, and thus it’s expensive in the short run.... [P]oliticians may oppose treatment (at least publicly), especially if they’re worried about being seen as soft on crime. And even if they support the idea, with state budgets under a crunch, treatment can start to look expendable.
Wednesday, June 23, 2010
BJS reporting state prison population down almost 3,000 in 2009, while fed population rose over 6,800As detailed in this official press release from the Bureau of Justice Statistics, in 2009 "the number of prisoners under jurisdiction of state correctional authorities decreased by 2,941 inmates (down 0.2 percent)." This is big news because it represents "the first decline in the state prison population since 1972." But the total prison population in incarceration nation still grew because in 2009 the "federal prison population increased by 6,838 (or 3.4%) which accounted for all of the increase in the U.S. prison population." Here are more details from the BJS press release:
Twenty-four states experienced decreases in their prison populations and 26 had increases. Six states reported declines of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069). States reporting the largest increases included: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282) and Arizona (up 1,038)....
By yearend 2009, the U.S. prison population (state and federal prisoners combined) reached 1,613,656, increasing by 0.2% during the year. The increase of 3,897 prisoners was the smallest annual increase during the current decade.
As of June 30, 2009, state and federal prisons and local jails had custody over 2,297,400 inmates, a decrease of 0.5 percent since yearend 2008. This decrease resulted from the 2.3 percent decline of inmates held in local jails, which hold over a third of the custodial population each year.
Midyear 2009 incarceration rates for inmates held in custody in prisons or jails differed by race and gender. Black males, with an incarceration rate of 4,749 inmates per 100,000 U.S. residents, were incarcerated at a rate more than six times higher than white males (708 inmates per 100,000 U.S. residents) and 2.6 times higher than Hispanic males (1,822 inmates per 100,000 U.S. residents). Black females (with an incarceration rate of 333 per 100,000) were more than two times as likely as Hispanic females (142 per 100,000) and over 3.6 times more likely than white females (91 per 100,000) to have been in prison or jail on June 30, 2009.
I am not surprised that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction. One more reason to root for local control on most crime and punishment issues.
All the details of this new data run can be found in this new BJS publication, titled "Prisoners at Yearend 2009–Advance Counts."
Monday, June 14, 2010
"States start reducing solitary confinement to help budgets"The title of this post is the headline of this notable new piece from USA Today. Here are some of the details:
State prison officials are reducing the number of offenders in solitary confinement — once among the fastest-growing conditions of detention — as budget pressures, legal challenges and concerns about the punishment's effectiveness mount.
States such as Mississippi, Texas and Illinois have decreased the number of inmates in solitary confinement, a dramatic acknowledgement, analysts say, that states can no longer sustain the costs of hard-line criminal justice policies. "The whole philosophy of being just tough — locking people up and throwing away the key — has not solved the problem," said Texas state Sen. John Whitmire, Democratic chairman of the Senate Criminal Justice Committee.
Decisions to return dangerous inmates to the general prison population anger some prison officials, who say the changes could threaten the safety of corrections officers and other inmates. "The departments of correction are rolling the dice with public safety. ... This is going to blow up," said Brian Dawe of the American Correctional Officer Intelligence Network, an association of officers.
The number of prisoners in solitary confinement — typically locked away for 23 hours a day — grew 40% from 1995 to 2000 when there were 80,870 segregated inmates, a study by The Commission on Safety and Abuse in America's Prisons found. The overall prison population increased 28% during that time. Isolating prisoners, the private study found, is often "twice as costly."
What exactly happens now with the litigation over California's prison problems?I am a bit perplexed by what the Supreme Court did this morning in response to the appeal of the California prisoner litigation coming from the Ninth Circuit. Here is the full text of what SCOTUS said in its orders this morning:
09-1233 SCHWARZENEGGER, GOV. OF CA V. PLATA, MARCIANO, ET AL.: Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.
Here is how Lyle Denniston at SCOTUSblog explains this order:
The Supreme Court, having already shown it was interested in the controversy, on Monday finally agreed to rule on at least part of the state of California’s complaint about being forced by a federal court to release close to 40,000 inmates from its 33 state prisons, to relieve over-crowding and a serious health crisis. The Court will set the case for a hearing in the Term starting Oct. 4, but the first issue up for review is whether a three-judge U.S. District Court had the authority even to issue an inmate release order. The Justices said they will consider that jurisdictional question when the case is called for a merits hearing on the case of Schwarzenegger, et al., v. Plata, et al. (09-1233). The case could produce a major ruling on federal judges’ power to order prison releases under the Prison Litigation Reform Act of 1996....
The Court’s order Monday in the California prison case grew out of prolonged litigation in federal court over threats to the health of both prisoners and prison staff members as a result of severe over-crowding in the state’s prisons. Two separate lawsuits by prison inmates ultimately were merged before a three-judge District Court, to consider whether a mandate to free prisoners would ultimately be necessary to meet the health threat. The state’s prisons were operating at close to twice their actual design capacity. The District Court in the end ordered California to reduce over-crowding from the peak of 196 percent of design capacity to 137.5 percent, and to do so in two years.
Earlier, the Supreme Court had declined to step into the controversy, but expressly noted that it had been assured that no prisoner release order would be ordered until the Supreme Court had had an opportunity to review it. The release order is now on hold pending final action by the Justices.
The question of jurisdiction that lingers in the case is whether the District Court satisfied the requirements specified under the 1996 federal act for any inmate release order. Under that act, a prisoner release order may be adopted only as a “last resort,” only if it has previously issued other, less-intrusive orders that had failed to remedy violations of inmates’ rights, and only if it found that state officials had had a reasonable time to comply with such prior orders. The state contends that the District Court did not have jurisdiction, because it did not give officials time enough to try to cure the over-crowding situation on their own.
Only if the Justices find that the District Court had jurisdiction would they move on to decide whether the specific order at issue was justified. The case is not likely to come up for a hearing until the winter.
So does this means there will be full SCOTUS briefing and a full "traditional" SCOTUS oral argument on both the jurisdiction issue and the merits issues over the next few months? Does this mean all efforts to reform California's prison over-crowding now can and should be put on hold while briefing and argument go forward? Does this mean these issues more likely or less likely to be a topic of political debate in California's many contested elections this Fall?
Put simply, I am confused and would be grateful for any reports from anyone in the know about what this seemingly cryptic SCOTUS order means both practically and politically.
- From the AP here, "Court to review Calif. plan to cut prison numbers"
- From Reuters here, "Top court to hear California prisoner release case"
Sunday, June 13, 2010
"Who should control California's prison budget? U.S. Supreme Court may weigh in"
The title of this post is the headline of this new article in the Los Angeles Times. It gets started this way:
A legal battle over who gets to control California's massive spending on prisons — judges or corrections officials — may be headed to the U.S. Supreme Court, with overcrowding at the state's 33 prisons at the center of the debate.
Gov. Arnold Schwarzenegger and state officials have challenged an edict from three federal judges that the California Department of Corrections and Rehabilitation must cut the prison population by 40,000, or about a quarter of its 165,000 inmates. The judges' order, issued last August, cited overcrowding as the main cause of healthcare failures that amounted to cruel and unusual punishment and left inmates to die from treatable conditions at the rate of one per week.
The three-judge order brought to a head the tension over a decades-long judicial practice of intervening in prison management to correct what have been deemed unconstitutional deficiencies in state custody. Courts have empowered a phalanx of overseers and experts to mandate reforms on prisoners' healthcare, psychiatric treatment, parole rights, access to law libraries and other matters.
But as California's budget woes increasingly pit the jailers and judicial monitors in a struggle for scarce resources, the monitors have become a point of contention.
The U.S. Supreme Court is expected to decide as early as Monday whether to review the three-judge order to reduce overcrowding. Some observers of the legal tug of war over inmate treatment believe the conservative justices on the high court want to weigh in on what they may see as judicial activism. When the state appealed the reduction order, the justices suspended a two-year deadline for releasing inmates or building prisons to house them.
UPDATE on June 14: According to SCOTUSblog, the Supreme Court "
Thursday, June 10, 2010
Notable Canadian ruling on extreme prison confinement
A helpful reader from north of the border sent me this note about a notable and high-profile (and very lengthy) ruling about prisoners' constitutional rights in Canada:
I thought you may wish to write about this significant decision from a Canadian trial court about the meaning of cruel and unusual punishment in Canadian law. Your blog emphasizes American developments, but this case has an American emphasis as it relies upon expert opinion evidence provided by Craig Haney, and there is discussion as to the importation of American ‘supermax’ style imprisonment. The case is quite long [and can be found here]:
Media coverage can be found here. The media coverage is, of course, a bit sensational. From a prison lawyer perspective, the critical parts of the decision are at paragraphs 318–335 which indicate a new standard for interpreting long-term administrative segregation as constitutionally impermissible; as contrary to legitimate penological objectives.
Monday, June 07, 2010
"Bernie Madoff, Free at Last"The title of this post is the headline of this long new article in New York magazine about life in prison is like for everyone's favorite Ponzi-schemer scoundral. (Hat tip: The WSJ Blog.) This piece looks very buzz-worthy, as its start highlights:
Last August, shortly after his arrival at the federal correctional complex in Butner, North Carolina, Bernard L. Madoff was waiting on the evening pill line for his blood-pressure medication when he heard another inmate call his name. Madoff, then 71, author of the most devastating Ponzi scheme in history, was dressed like every other prisoner, in one of his three pairs of standard-issue khakis, his name and inmate number glued over the shirt pocket. Rec time, the best part of a prisoner’s day, was drawing to a close, and Madoff, who liked to walk the gravel track, sometimes with Carmine Persico, the former mob boss, or Jonathan Pollard, the spy, had hurried to the infirmary, passing the solitary housing unit — the hole — ducking through the gym and the twelve-foot-high fence and turning in the direction of Maryland, the unit where child molesters are confined after they’ve served their sentences. As usual, the med line was long and moved slowly. There were a hundred prisoners, some standing outside in the heat, waiting for one nurse.
Madoff was accustomed to hearing other inmates call his name. From July 14, the day he arrived, he’d been an object of fascination. Prisoners had assiduously followed his criminal career on the prison TVs. “Hey, Bernie,” an inmate would yell to him admiringly while he was at his job sweeping up the cafeteria, “I seen you on TV.” In return, Madoff nodded and waved, smiling that sphinxlike half-smile. “What did he say?” Madoff sometimes asked.
But that evening an inmate badgered Madoff about the victims of his $65 billion scheme, and kept at it. According to K. C. White, a bank robber and prison artist who escorted a sick friend that evening, Madoff stopped smiling and got angry. “Fuck my victims,” he said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”
Ninth Circuit allows for Bivens suit against operator of private federal prisonAddressing an issue that has the smell of a future cert grant, a Ninth Circuit panel today in Pollard v. Geo Group, Inc., No. 07-16112 (9th Cir. June 7, 2010) (available here) allows a Bivens action to go forward against the operators of a private prison. Here is how the majority opinion starts:
Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons. This appeal presents the question of whether the implied damages action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does.
A partial dissent, which flags why this ruling may be cert worthy, starts this way:
I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006). The evolution of the U.S. Supreme Court’s Bivens jurisprudence confirms that this Court should follow their lead.
Fascinating sentencing dogs that did not end up barking in Barber
The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits. More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration.
But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber. Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post.
Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute. Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements. And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.
Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer. What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor. I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government.
I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor. As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:
The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11. The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute. These considerations, and those stated below, require this respectful dissent.
Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.
SCOTUS upholds BOP's method for calculating good time credits in Barber v. ThomasSCOTUS watchers will likely be disappointed that the Justices did not hand down any of its big pending opinion this morning. But federal prisoners should be even more disappointed that the one criminal justice opinion in an argued case that was handed down this morning, Barber v. Thomas, has turned out to be a 6-3 loss for defendants. Barber could have been the most practically consequential sentencing case of the Term if it had come out the other way, but now it is perhaps most interesting for its (unprecedented) voting blocks. Here is how SCOTUSblog reports on the Barber ruling:
The third and last opinion is in 09-5201, Barber v. Thomas... The Court affirms the lower court, with Justice Breyer writing for the Court...
The vote is 6-3, with Kennedy dissenting joined by Stevens and Ginsburg...
The Court upholds the federal Bureau of Prison's method for calculating inmates' good-time credits.
The full opinion in Barber is available here, and I will have commentary on the ruling later in the day.
Saturday, June 05, 2010
"Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts"The title of this post is the title of this interesting new piece by Ira Robbins available via SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them — that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation — or “unbundled legal services” — is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. N evertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take — i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance — and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Thursday, June 03, 2010
"The Crunch in Federal Prisons"The title of this post is the headline of this effective new article from The Crime Report. The piece carries this sub-head: "More prisoners are doing federal time than ever, but Congress isn’t allocating enough funds to pay for them. Prison officials and reformers say a rethink of the system is long overdue." And here is how the piece gets started:
While cash-strapped states are responding to the nation’s economic crisis by looking for ways to reduce their prison populations, the federal prison system is heading in the opposite direction.
Last year, the 115 federal prisons added 7,000 inmates to their rolls, making a total of 211,000 inmates in federal facilities — and the figure is expected to grow. The number of federal criminal cases filed annually has increased from 69,575 in fiscal year 2005 to 76,655 in FY 2009.
To make matters more difficult, federal funding isn’t keeping up with the extra burden. At a U.S. Sentencing Commission hearing in Washington, D.C. last week, U.S. Attorney for Atlanta Sally Quillian Yates said that federal facilities are currently operating at 34 per cent above capacity. And that, she warned, will have “real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.”
The White House appears to have recognized the problem. President Barack Obama is seeking a $600 million increase in the prison system’s budget for next year. The proposal includes filling an additional 1,200 correctional staff positions and opening three new facilities.
But the question is whether a budget-conscious Congress will go along. The prison system already eats up $6.8 billion, making it the second-largest component of the Justice Department’s budget, just below the FBI.