Wednesday, August 15, 2012

Fascinating story of cowboy fun and games for prisoners in Angola

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, August 14, 2012

Interesting report on marketing technology to a confined consumer

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

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

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

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

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

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

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

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

Monday, August 13, 2012

California facing crunch time in prison population reduction plans

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

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

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

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

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

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

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

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

Sunday, August 12, 2012

Texas continues to lower its (still high) incarceration rates

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

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

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

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

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

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

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

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

National prison rates

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

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

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

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

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

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

Thursday, August 09, 2012

"Engendering Rape"

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

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

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

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

Monday, August 06, 2012

Notable report on "decarceration laboratory" taking place in California

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, August 05, 2012

New York Times editorial laments "Too Many Prisoners"

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

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

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

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

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

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

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

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

Friday, August 03, 2012

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

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

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

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

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

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

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

Thursday, August 02, 2012

Audit spotlights clear costs and uncertain benefits of educating Utah inmates

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

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

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

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

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

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

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

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

Wednesday, August 01, 2012

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

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

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

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

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

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

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

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

Tuesday, July 31, 2012

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

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

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

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

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

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

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

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

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

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

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

Monday, July 30, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 26, 2012

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

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

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

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

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

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

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

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

Monday, July 23, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

Federal prisoner claims need for medical care prompted escape

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

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

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

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

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

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

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

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

Thursday, July 19, 2012

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

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

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

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

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

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

Sunday, July 15, 2012

Record(?)-long sentence of 1,256 years(!) imposed on Colorado bank robber

As reported in this local article, headlined "Convicted bank robber gets 1,256 years in prison," a repeat offender in Colorado state court was given a sentence longer than any sentence I can ever recall.  Here are the details:

After serving part of a six-year sentence for a 2003 bank robbery, parolee Daryl Lamont Keener went right back to his old tricks, authorities say, joining an accomplice in eight more bank heists in Colorado Springs.  It’s unlikely there will be a repeat performance.

Keener, 31, was sentenced Friday to 1,256 years in prison -- a result of Colorado’s stiff sentencing for repeat criminals and one of the most severe penalties in El Paso County’s recent history.   “It’s shocking,” said Shimon Kohn, a defense attorney unaffiliated with the case.  “I’ve been practicing criminal law in this jurisdiction since 2000, and I’ve never heard of these kinds of numbers, ever.”...

Police described Keener as a “career criminal” in announcing his March 2011 arrest, and detailed terrifying scenes in which Keener and a second man took turns storming into banks and ordering people onto the floor at gunpoint.  The men were arrested after detectives linked them to a getaway car captured on tape by a surveillance camera as it fled a March 3, 2011....

Among Keener’s charges related to the spree were multiple counts alleging he is a “habitual offender” – a sentence enhancer with the potential to quadruple penalties. Under Colorado’s sentencing laws, the multiplier would apply to each named victim in every bank robbed by Keener.  Getting to a total in excess of 1,200 years, however, required Judge Prince to exercise his discretion to stack those sentences rather than rolling all eight robberies together for a single triple-digit sentence.

Unless Colorado has some automatic mechanism for reducing time served, as of this writing Daryl Lamont Keener's proejected release date is now the year 3286!  Or, to put a sentence of this number of years into a slightly different perspective, such a long sentence would be concluding now if an offender had gotten sentenced to this extreme term in the year 756.

July 15, 2012 in Offense Characteristics, Prisons and prisoners | Permalink | Comments (10) | TrackBack

Wednesday, July 11, 2012

Fascinating video documenting challenges of securing compassionate release for dying federal prisoner

Federal public defender Steve Sady has an extraordinary record of litigating effectively (if not always successfully) a number of lower-profile, but highly-important, federal sentencing issues related to how the Bureau of Prisons runs federal prisons and applies various federal statutes.  And now, thanks to this post at the Ninth Circuit Blog, I see that Steve Sady has created an extraordinary video which documents his work on the issue of compassionate release on behalf of one terminally ill federal prisoner.  The blog post is titled "Second Look Resentencing: The Human Costs Of The BOP’s Restrictive Implementation Of Compassionate Release," and here is the introduction to the video which I have embedded below:

Phillip Smith contacted our office because, even though he had been diagnosed with a terminal illness, the Bureau of Prisons refused to allow his sentencing judge to decide whether to grant a motion to reduce his sentence and let him die at home.  After about two weeks of litigation, the BOP agreed to file the motion, which the judge immediately signed.  After release, Phillip sat down with us to describe his experience with a system that failed to even alert his judge to his terminal illness until he had almost no time left. The video with Phillip's story in his own words is available here.  Phillip died a week after the interview.

Legal arguments are one thing; the practical and human costs are another. Phillip hoped that by putting a human face on the problem, things would change for the hundreds of prisoners whose sentencing judges never even know of the extraordinary and compelling circumstances that warrant a second look resentencing.

July 11, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 10, 2012

Distinct headlines with distinct stories on modern intersections between Bible and jail

BH03The picture reprinted here is an overhead view of the historic Eastern State Penitentiary, and here below are a few passages from a lengthy discussion of the famed prison's early history:

Eastern State Penitentiary broke sharply with the prisons of its day, abandoning corporal punishment and ill treatment. This massive new structure, opened in 1829, became one of the most expensive American buildings of its day and soon the most famous prison in the world.  The Penitentiary would not simply punish, but move the criminal toward spiritual reflection and change....

Eastern's seven earliest cellblocks may represent the first modern building in the United States.  The concept plan, by the British-born architect John Haviland, reveals the purity of the vision.  Seven cellblocks radiate from a central surveillance rotunda.  Haviland’s ambitious mechanical innovations placed each prisoner in his or her own private cell, centrally heated, with running water, a flush toilet, and a skylight.  Adjacent to the cell was a private outdoor exercise yard contained by a ten-foot wall.  This was in an age when the White House, with its new occupant Andrew Jackson, had no running water and was heated with coal-burning stoves.

In the vaulted, skylit cell, the prisoner had only the light from heaven, the word of God (the Bible) and honest work (shoemaking, weaving, and the like) to lead to penitence.  In striking contrast to the Gothic exterior, Haviland used the grand architectural vocabulary of churches on the interior.  He employed 30-foot, barrel vaulted hallways, tall arched windows, and skylights throughout.  He wrote of the Penitentiary as a forced monastery, a machine for reform.

The historic and intricate links between incarceration, religious commitments and the Bible are on my mind today because of these two very different recent stories reporting on two very different modern intersections of Bible study and imprisonment:

July 10, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, July 05, 2012

NY Times editorial on Miller puts Gideon cart before the Teague horse

I continue to be intrigued that so many commentators seem so quick to assume that all the juvenile murderers sentenced to mandatory LWOP long ago will be sure to get resentenced as a result of the Supreme Court's Miller ruling.  A high-profile example of commentary that appears to make this (harmful?) assumption comes from this New York Times editorial, which is headlined "A Moral Right to Counsel."   Here is the editorial in full, with commentary to follow:

About 2,000 juvenile offenders serving life sentences without parole can now seek new sentencing hearings to challenge their punishment.  The Supreme Court ruled last week that it is unconstitutional to impose such a sentence on a juvenile convicted of murder without an individualized finding that considers the defendant’s characteristics and the details of the crime.

But without capable lawyers to handle the hearings, the court’s humane ruling is unlikely to matter for those serving a mandatory life sentence received as a juvenile.

The constitutional right to counsel in criminal trials does not apply to these sentencing reviews because the offenders have already been convicted.  But they can’t initiate a review if they cannot afford a lawyer.  That’s why the federal government and the 28 states affected need to provide them with lawyers as a moral right.

And not just any lawyer.  The court said juveniles have a less developed sense of responsibility and should not necessarily get the same punishment as adults.  The hearings will require lawyers with training in psychology and human development to argue convincingly that an offender’s record supports reducing a life sentence — including what Justice Elena Kagan, in her majority opinion, called a juvenile offender’s “immaturity, recklessness, and impetuosity” at the time of the crime.

In addition, states must provide funds for expert witnesses to help the lawyers do their job, as is now required in the sentencing phase of death penalty cases, where mitigating factors are weighed.

Almost one-quarter of those serving mandatory life sentences have been in prison for 21 years or longer.  For them, Justice Kagan said, a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

In many cases, the offender’s young age and a history of being abused, for example, were so striking that judges said during sentencing that they were imposing mandatory life without parole because they had no choice.  States should ensure that these offenders receive new hearings and the assistance of effective counsel.

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start.  To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller.  But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

This editorial also seems misguided when it asserts that the Sixth Amendment right to counsel "does not apply to these sentencing reviews because the offenders have already been convicted."  It is true that there is no constitutional right to counsel for a habeas petition, but if/when a defendant were to secure a true, full trial court "resentencing" after Miller through a successful habeas petition, the Sixth Amendment right to counsel arguably would apply just as it does at an initial sentencing.  (Indigent federal defendants often get their sentences reversed on direct appeal in the federal system and I have never seen a claim that they lack a right to counsel at a true, full trial court "resentencing".)

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can’t initiate a review if they cannot afford a lawyer."  These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition.  Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."  In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

Last but certainly not least, this editorial also seems misguided when it suggests governments have a "moral" obligation to providing enough funding so that these juve murderers now get the best lawyers to help them argue for a second bite at the sentencing apple.  I think it would be very appropriate and valuable if the NY Times had asserted that all the highly (over?)paid corporate lawyers in NYC have a moral obligation to provide pro bono assistance to the roughly 2000 juvenile defendants who might be able to benefit from Miller.  (I suspect there are well over 2000 lawyers in NYC alone making a seven-figure salary, so a real pro-bono commitment for major law firms should mean every one of the juve defendants potential impacted by Miller could have a million-dollar lawyer.)

But with states now strapped to find taxpayer resources to help hungry kids and sick old people and so many other innocent persons struggling in this down economy, I find disconcerting the notion that there is moral obligation on states to take money away from other urgent priorities in order to (excessively) fund lawyers to help get these juve murderers another bite at the sentencing apple.  (Of course, I would be happy to bill in full for all my lawyering time to help out these defendants if and when any state steps up to the plate with a big pile of funding for lawyers as the New York Times says they should.)

July 5, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack

Monday, July 02, 2012

Widows and orphans win over prisons in Illinois budget

A great example of how prison spending can become a low priority once its opportunity costs become clear in a tight budget comes today from this state budget story out of Illinois, headlined "Illinois governor signs budget, vetoes prison funds." Here are the basics:

llinois Governor Pat Quinn said on Saturday he signed a $33.7 billion budget for fiscal 2013 after vetoing spending for prisons that he plans to close.   Quinn said public pensions, which lawmakers have so far failed to reform, will eat up $5.2 billion of the fiscal 2013 budget, compared to $1.8 billion in fiscal 2008....

The Democratic governor said he also planned to work with lawmakers later this year to reallocate the vetoed prison funding to the Department of Children and Family Services, which lawmakers cut by $50 million.  He said he was choosing vulnerable children over "outdated, half-full facilities."

Quinn said the new spending plan, which aims to save $82 million through the closure and consolidation of 57 state facilities, makes progress on fixing Illinois' ailing finances by cutting spending, paying bills and reforming Medicaid, the state and federally funded healthcare program for the poor.

I am not sure if anyone has ever tracked whether pension and health care expenditures reduce crime, but I am sure that wise investments in children (through education and other services for at-risk youths) can have a significant long-term public safety benefit.  Thus, IF Illinois ends up spending the prison monies saved on effective programming for kids, Gov Quinn has made a "smart on crime" budget call here.  (I have placed the if in the prior sentence in all caps, of course, because this is always a big if.)

July 2, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, June 27, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence:  "As I have previously explained, 'the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.'  Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.  Nor could they. Petitioners were 14 years old at the time they committed their crimes.  When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders.  Further, mandatory death sentences were common at that time.  It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment."  But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual.  But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional.  Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective.  In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time.  But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding.  (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.)  In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty."  Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death.  Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies.  (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible.  Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional.  Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

Related post in this series:

June 27, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Lots of new interesting and diverse prison headlines and stories

A quick Google news search on the term prison has brought up this morning a whole host of notable stories. In no special order, here are some of the headlines and links to stories that caught my eye:

June 27, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Friday, June 22, 2012

Jerry Sandusky found guilty on 45 counts

and now seems all but certain to get a functional life sentence. My understanding is that he faces a 60-year minimum prison term based on certain counts of conviction, and he was taken immediately into custody following the reading of the verdict.

UPDATE: This AP article, headlined "What's next for Jerry Sandusky after the trial?," provides a road map concerning the legal process still to come. Here are how the piece begins:

The jury took less than two days to find Jerry Sandusky guilty of 45 of 48 counts of child sexual abuse, but the judge will need substantially more time to decide his punishment.

Judge John Cleland ordered a pre-sentencing report, which will take anywhere from one to two months to complete. During that time, Sandusky will be examined by the state Sexual Offenders Assessment Board to decide if he should be treated as a sexually violent predator, and prosecutors could ask the judge for a hearing.

The judge determines whether someone is a sexually violent predator — it carries stiffer reporting and treatment requirements once someone is out of prison — and can use information from the board's investigation in a sentencing decision.

If he's sentenced to state prison — which appears to be certain in this case — then Sandusky will be transferred to Camp Hill, in south-central Pennsylvania, which has 3,000 to 4,000 inmates, about 1,000 of whom are held temporarily for classification.

June 22, 2012 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Wednesday, June 20, 2012

"Can America Reduce its Prison Population?"

The title of this post is the headline of this effective new piece by Ted Gest at The Crime Report, which is itself a report on an effective new speech by Joan Petersilia.  Here are highlights:

The current trend of prison downsizing in the United States may not succeed unless experts can advise policy makers promptly about which non-prison programs for convicts change offender behavior, says criminologist Joan Petersilia of Stanford Law School.

In a keynote address to the National Institute of Justice's annual conference Tuesday in Arlington VA, Petersilia warned that it is not inevitable that the current movement among states to reduce prison populations and close penal institutions will continue. "We have been here before," Petersilia said.

She recalled that many states adopted intensive probation supervision in the 1980s and 1990s as an alternative to prison, but research results on its effectiveness were disappointing. "We've got to stop overselling community corrections -- and under-delivering," Petersilia said.

She worries that, as in previous decades, prison population totals will moderate or recede in the short run in large part as a way to save government money -- but when the economy improves, political leaders will start filling prisons again when they have no proof that non-prison programs worked.

The test case for prison reform is Petersilia's home state of California, where the evolving prisoner "realignment" plan is the "biggest criminal justice experiment ever conducted in America," Petersilia says.

Even many Californians are not aware that in the last 18 months, the state's prison population has dropped from 172,000 to 135,000, and the number of parolees has plummeted even more sharply, from 132,000 to 60,000.

While this sounds promising to corrections reformers, Petersilia says it is happening so fast that officials and offenders alike are just beginning to understand the impact.  Many former inmates complain that they have been taken off the parole rolls so quickly that they are losing government benefits that are reserved for parolees.  Some are being asked to get back on parole as a result, she says.

In addition, many prosecutors and law enforcement officials oppose aspects of realignment, contending that it will lead to rising crime rates.  One big problem is that government agencies are not pouring sufficient funding into ex-inmate rehabilitation.

Petersilia's Stanford Criminal Justice Center, which is receiving a federal grant to evaluate the California prisoner realignment program of Gov. Jerry Brown, is building a database of how the state's 58 counties are spending the $2 billion they are getting from the state to perform corrections-sytem functions that the state formerly did.  So far, only 10 percent of that money is going to treatment programs, with the bulk going to sheriff's office, local jails, probations staff, and court services.  That bodes ill for keeping ex-inmates from returning to crime, Petersilia says....

Petersilia believes that the public will back expenditures of public funds on projects that truly help former prisoners get their lives back together.  She has some hope for "social impact bonds," also known as "pay for success," which are contracts with government agencies in which entrepreneurs invest in projects that produce improved social outcomes and save public money.  Initial interest in the concept has been seen in the juvenile justice area, Petersilia says.

If these and other non-prison alternatives can't be proved to work, she said, the "incredibly huge" constituencies for the status quo, including labor unions for prison employees and rural communities that depend on income from prisons, will prevail.

June 20, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, June 19, 2012

Lots of notable (and overdue) questioning of extreme solitary confinement

I am intrigued and pleased to see more attention now finally being given to the severe depravation and related horrors of extreme isolation in prisons.  Two big new developments here are:

Here are highlights of both developments via the NYT report:

The hearing, held before the Subcommittee on the Constitution, Civil Rights and Human Rights, represents the first time lawmakers on Capitol Hill have taken up the issue of solitary confinement, a form of imprisonment that many human rights advocates believe violates the Eighth Amendment’s prohibition of “cruel and unusual punishment” and that has drawn increasing scrutiny in recent months in the United States and internationally.

The practice, which is widespread in American prisons, has also been the target of a growing number of lawsuits, including a class-action suit filed on Monday on behalf of mentally ill inmates held in solitary at ADX, the federal super-maximum-security prison in Florence, Colo. Last month, civil rights lawyers representing prisoners held for more than 10 years in isolation at Pelican Bay State Prison in California filed suit in federal court, arguing that solitary confinement is unconstitutional.

Senator Richard J. Durbin of Illinois, the assistant majority leader, began the hearing — which he said had the support of both Democratic and Republican committee members — by noting that more prisoners are held in isolation in the United States than in any other democracy and that about half of all prison suicides occur among inmates in solitary confinement.

“We can have a just society, and we can be humane in the process,” Mr. Durbin said. “We can punish wrongdoers, and they should be punished under our system of justice, but we don’t have to cross that line.” He said he was working on legislation to encourage changes in the way solitary confinement is used.

With more than 250 people packed into two rooms, the hearing was “one of the best attended of the year,” Mr. Durbin said, an indication “of the fact that the time is due for us to have this conversation about where we’re going.” Over the course of two hours, the senators heard testimony about the effects of solitary confinement and the steps taken in Mississippi and several other states to reduce the number of prisoners kept in isolation.

But the hearing also included a testy exchange between Mr. Durbin and Charles E. Samuels Jr., director of the Federal Bureau of Prisons, who defended the use of solitary confinement for inmates who pose a threat to the safety of staff members or other inmates.

“Do you believe you could live in a box like that 23 hours a day, a person who goes in normal, and it wouldn’t have any negative impact on you?” Mr. Durbin asked, pointing to a life-size replica of a solitary confinement cell that had been set up in the hearing room.

“Our objective is always to have the individual to freely be in the general population,” Mr. Samuels responded.

“I’m trying to zero in on a specific question,” Mr. Durbin said, adding, “Do you believe, based on your life experience in this business, that that is going to have a negative impact on an individual?”

“I would say I don’t believe it is the preferred option,” Mr. Samuels conceded, “and that there would be some concerns with prolonged confinement.”

Some recent and older related posts:

June 19, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, June 17, 2012

"As Escapees Stream Out, a Penal Business Thrives"

The title of this post is the headline of this notable front-page New York Times article, which is the first of a three-part series of articles concerning New Jersey’s system of large halfway houses.  Here is how the very-lengthy first piece gets started:

After serving more than a year behind bars in New Jersey for assaulting a former girlfriend, David Goodell was transferred in 2010 to a sprawling halfway house in Newark. One night, Mr. Goodell escaped, but no one in authority paid much notice.  He headed straight for the suburbs, for another young woman who had spurned him, and he killed her, the police said.

The state sent Rafael Miranda, incarcerated on drug and weapons charges, to a similar halfway house, and he also escaped.  He was finally arrested in 2010 after four months at large, when, prosecutors said, he shot a man dead on a Newark sidewalk — just three miles from his halfway house.

Valeria Parziale had 15 aliases and a history of drugs and burglary.  Nine days after she slipped out of a halfway house in Trenton in 2009, Ms. Parziale, using a folding knife, nearly severed a man’s ear in a liquor store.  She was arrested and charged with assault but not escape.  Prosecutors say they had no idea she was a fugitive.

After decades of tough criminal justice policies, states have been grappling with crowded prisons that are straining budgets.  In response to those pressures, New Jersey has become a leader in a national movement to save money by diverting inmates to a new kind of privately run halfway house.

At the heart of the system is a company with deep connections to politicians of both parties, most notably Gov. Chris Christie.  Many of these halfway houses are as big as prisons, with several hundred beds, and bear little resemblance to the neighborhood halfway houses of the past, where small groups of low-level offenders were sent to straighten up.

New Jersey officials have called these large facilities an innovative example of privatization and have promoted the approach all the way to the Obama White House.  Yet with little oversight, the state’s halfway houses have mutated into a shadow corrections network, where drugs, gang activity and violence, including sexual assaults, often go unchecked, according to a 10-month investigation by The New York Times.

Perhaps the most unsettling sign of the chaos within is inmates’ ease in getting out.  Since 2005, roughly 5,100 inmates have escaped from the state’s privately run halfway houses, including at least 1,300 in the 29 months since Governor Christie took office, according to an analysis by The Times.  Some inmates left through the back, side or emergency doors of halfway houses, or through smoking areas, state records show.  Others placed dummies in their beds as decoys, or fled while being returned to prison for violating halfway houses’ rules.  Many had permission to go on work-release programs but then did not return.

While these halfway houses often resemble traditional correctional institutions, they have much less security.  There are no correction officers, and workers are not allowed to restrain inmates who try to leave or to locate those who do not come back from work release, the most common form of escape.  The halfway houses’ only recourse is to alert the authorities. And so the inmates flee in a steady stream: 46 last September, 39 in October, 40 in November, 38 in December, state records show.

“The system is a mess,” said Thaddeus B. Caldwell, who spent four years tracking down halfway house escapees in New Jersey as a senior corrections investigator.  “No matter how many escaped, no matter how many were caught, no matter how many committed heinous acts while they were on the run, they still kept releasing more guys into the halfway houses, and it kept happening over and over again.”  By contrast, the state’s prisons had three escapes in 2010 and none in the first nine months of 2011, the last period for which the state gave figures.

UPDATE:  The second piece in this series is headlined "At a Halfway House, Bedlam Reigns," and is now available at this link.

June 17, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, June 14, 2012

"Scores in N.C. are legally 'innocent,' yet still imprisoned" due to federal gun laws

Med-topperThe folks at USA Today have this fascinating and fantastic front-page feature story concerning the many persons currently serving federal prison time for gun possession crimes that are no longer crimes in the wake of an important recent Fourth Circuit ruling.  The headline of this post is drawn from the headline of the USA Today piece, which is today's must-read and includes these excerpts:

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.  Many of them don't even know they're innocent.

The legal issues underlying their situation are complicated, and are unique to North Carolina. But the bottom line is that each of them went to prison for breaking a law that makes it a federal crime for convicted felons to possess a gun.  The problem is that none of them had criminal records serious enough to make them felons under federal law.

Still, the Justice Department has not attempted to identify the men, has made no effort to notify them, and, in a few cases in which the men have come forward on their own, has argued in court that they should not be released.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime.  And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

"We can't be outcome driven," said Anne Tompkins, the U.S. attorney in Charlotte. "We've got to make sure we follow the law, and people should want us to do that." She said her office is "looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent."

These cases are largely unknown outside the courthouses here, but they have raised difficult questions about what, if anything, the government owes to innocent people locked in prisons.   "It's been tough," said Ripley Rand, the U.S. attorney in Greensboro, N.C. "We've spent a lot of time talking about issues of fundamental fairness, and what is justice."

It's also unusual.  Wrongful conviction cases are seldom open-and-shut — usually they depend on DNA or other new evidence that undermines the government's case, but does not always prove someone is innocent.  Yet in the North Carolina gun cases, it turns out, there simply were no federal crimes.

Using state and federal court records, USA TODAY identified 23 other men who had been sent to federal prison for having a firearm despite criminal records too minor to make that a federal crime.  Nine of them remain in prison, serving sentences of up to 10 years; others are still serving federal probation.  The newspaper's review was limited to only a small fraction of cases from one of the three federal court districts in North Carolina.

Federal public defenders have so far identified at least 39 others in additional court districts, and are certain to find more. And prosecutors have already agreed to drop dozens of cases in which prisoners' convictions were not yet final.

Some of the prisoners USA TODAY contacted — and their lawyers — were stunned to find out that they were imprisoned for something that turned out not to be a federal crime. And their lawyers said they were troubled by the idea that innocence alone might not get them out. "If someone is innocent, I would think that would change the government's reaction, and it's sad that it hasn't," said Debra Graves, an assistant federal public defender in Raleigh. "I have trouble figuring out how you rationalize this. These are innocent people. That has to matter at some point."...

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

Figuring out who fits that definition in North Carolina is not as simple as it sounds. In 1993, state lawmakers adopted a unique system called "structured sentencing" that changes the maximum prison term for a crime, based on the record of the person who committed it. People with relatively short criminal records who commit crimes such as distributing cocaine and writing bad checks face no more than a few months in jail; people with more extensive records face much longer sentences.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit's decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina's state courts over the past decade were for offenses that no longer count as felonies under federal law.

No one yet knows precisely how many people were incorrectly convicted for having a gun, but the number could be significant. Rand, the U.S. attorney in Greensboro, estimated that more than a third of the gun cases his office prosecuted might be in question, either because the defendants didn't commit a federal crime at all by possessing a gun or because their sentences were calculated incorrectly.  "We're going to be addressing this for a while," he said.

The Justice Department and federal courts moved quickly to clean up cases that were pending when the 4th Circuit announced its decision. Prosecutors dropped pending charges against people whose records no longer qualified them as felons; the 4th Circuit reversed convictions in more than 40 cases that were on appeal at the time. Some of the men were given shorter sentences; others were simply let go.

But the next question has proved far harder to answer: What should the government do with the prisoners whose legal cases were already over?

Whether [these legally innocent defendants] can go home depends on federal laws that put strict limits on when and how people who have already been convicted of a crime can come back to court to plead their innocence.

Those laws let prisoners challenge their convictions if they uncover new evidence, or if the U.S. Supreme Court limits the sweep of a criminal law.  But none of the exceptions is a clear fit, meaning that, innocent or not, they may not be able to get into court at all. Federal courts have so far split on whether they can even hear the prisoners' cases.

Habeas corpus — the main legal tool for challenging unlawful detention — is currently ill-suited to such cases, said Nancy King, a Vanderbilt Law School professor who has studied the issue.  Habeas mainly safeguards people's constitutional right to a fair process, she said, and the problem is that "saying, 'I'm innocent' isn't, on its face, that type of constitutional claim." Still, she said, "innocent people should be able to get out of prison."

Prosecutors don't disagree, though most said they are not convinced the law allows it. Rand, the U.S. attorney in Greensboro, said he is "not aware of any procedural mechanism by which they can be afforded relief," though he said lawyers in his office "have not been pounding on the table" to keep the men in jail.

"No one wants anyone to spend time in jail who should not be there," said Thomas Walker, the U.S. attorney in Raleigh.  That's why he said prosecutors were quick to dismiss charges that were pending when the 4th Circuit ruled.  But cases in which convictions are already final "are in a totally different posture and require us to follow the existing statutory habeas law," he said.

But there's also an even more basic question: How would the prisoners even know?... [C]ourts have asked public defenders to seek them out. Those lawyers said the Justice Department should do more to help, because it has better information and more resources, an assertion prosecutors dispute.

"We're doing it with our hands tied," said Eric Placke, a federal public defender in Greensboro.  "I appreciate the compelling considerations they have to deal with.  But I do think in cases of actual innocence that it would be nice, to say the least, if they would be a little more proactive."  Placke and other public defenders said the reviews have been difficult because they often have limited access to records from the men's prior convictions, which has left them to hunt through files in courthouses across the state.

This story is sad, telling and remarkable for so many reasons, and it also seems to present a situation in which I might argue that some kind of habeas relief (or even federal clemency) is constitutionally required under the Fifth and/or Eighth Amendment. 

As a matter of substantive due process and/or cruel and unusual punishment, I do not think the federal government should be constitutionally permitted to keep someone imprisoned for an act that all now seem to agree was not a federal crime.  Though the statutory habeas rules might preclude relief, I think the continuing constitutional violation of on-going imprisonment of an innocent person demands some kind of immediate remedy.  Clemency is often mentioned by the Supreme Court and commentators as the fail-safe in these kinds of cases, and I hope that this important USA Today piece will at the very least make the folks in the executive branch take this constitutional problem even more seriously.

June 14, 2012 in Clemency and Pardons, Gun policy and sentencing, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (52) | TrackBack

Judge unmoved by undefeated boxing champ's claim prison is defeating him

As reported in this AP article, "Floyd Mayweather's demands that he be released from jail because the poor quality of the food and water has threatened his health were denied by a Las Vegas judge who says he should eat and drink what is being given to him behind bars."  Here is more about the ruling which denied the boxing champ's request to get out of jail early:

Justice of the Peace Melissa Saragosa wrote in her late Wednesday decision that water has been made available to Mayweather around the clock and the only reason he isn't eating properly is because he refuses to eat the provided meals.  Saragosa said Mayweather's complaints that he is unable to exercise in jail also are invalid because he has been "provided sufficient space and time for physical activity if he so chooses."

"This court finds, and the defendant admits, there is nothing illegal about the defendant's sentence in this case," Saragosa wrote.

A mere 12 days after Mayweather turned himself in to begin his three-month sentence, his legal team filed an emergency motion Monday asking the court to put him under house arrest or move him into the general jail population -- something that jail officials had avoided to protect the celebrity fighter.  The motion claimed the undefeated champion might never fight again because he was getting out of shape in solitary confinement....

Mayweather pleaded guilty last year to reduced domestic battery charges stemming from an attack on his former girlfriend while two of their children watched.  The plea deal allowed him to avoid trial on felony charges that could have gotten Mayweather up to 34 years in prison if he was convicted.  Mayweather was sentenced Dec. 22, but was allowed to remain free long enough to make a Cinco de Mayo weekend fight.

Mayweather's legal team told the court this week that his personal physician, Dr. Robert Voy, visited the jail Friday and determined that the fighter appeared to have lost muscle tone.  Voy estimated Mayweather was consuming fewer than 800 calories a day instead of his usual 3,000 or 4,000 calories.  Mayweather also wasn't drinking enough because he wasn't allowed bottled water and doesn't enjoy tap water....

Prosecutor Lisa Luzaich scoffed at the complaints during a court hearing Tuesday. "It's jail," Luzaich told the court. "Where did he think he was going? The Four Seasons?"

Though perhaps not quite as catchy as "That's a clown question, bro," I sure like the idea of the sports world giving us the phrase "It's jail, not the Four Seasons."

June 14, 2012 in Celebrity sentencings, Prisons and prisoners | Permalink | Comments (2) | TrackBack

Wednesday, June 13, 2012

Big new ACLU report highlights the high cost of high numbers of elderly prisoners

Elderlyprisonreport_cover_0The ACLU has just released this important and timely new report, titled "At America’s Expense: The Mass Incarceration of the Elderly." The full report runs nearly 100 pages, but seems worth reading in full (especially after checking out thanks to the ACLU this slideshow and this video on the topic).  And the first seven paragraphs of the report's introduction highlights its basic findings and themes:

The United States is the largest incarcerator in the world, with 2.3 million people behind bars. Prisoners across the country are also getting older and experiencing all the same ailments that afflict those of the same age who are not behind bars. Our extreme sentencing policies and a growing number of life sentences have effectively turned many of our correctional facilities into veritable nursing homes — and taxpayers are paying for it.

From 1980 to 2010, the United States prison population grew over 11 times faster than the general population. During this time, the general population increased by 36%, while the state and federal prison population increased by over 400%. The number of elderly people in our prisons is growing even faster.

The graying prison population has become a national epidemic afflicting states around the country—from California to Missouri to Florida— further burdening already strained state budgets. According to the National Institute of Corrections, prisoners age 50 and older are considered “elderly” or “aging” due to unhealthy conditions prior to and during incarceration. This report uses that definition and finds that that there are 246,600 elderly prisoners behind bars across the country. To the extent possible, this report provides data for prisoners age 50 and older; in a few cases when data for this age group is not readily available, this report provides data on the next closest age range.

In 1981, there were 8,853 state and federal prisoners age 55 and older. Today, that number stands at 124,900, and experts project that by 2030 this number will be over 400,000, amounting to over one-third of prisoners in the United States. In other words, the elderly prison population is expected to increase by 4,400% over this fifty-year time span. This astronomical projection does not even include prisoners ages 50-54, for which data over time is harder to access.

The United States keeps elderly men and women locked up despite an abundance of evidence demonstrating that recidivism drops dramatically with age.  For example, in New York, only 7% of prisoners released from prison at ages 50-64 returned to prison for new convictions within three years.  That number drops to 4% for prisoners age 65 and older. In contrast, this number is 16% for prisoners released at age 49 and younger. Further, most aging prisoners are not incarcerated for murder, but are in prison for low-level crimes. For example, in Texas, 65% of prisoners age 50 and older are incarcerated for nonviolent drug, property, and other nonviolent crimes.  This increasing warehousing of aging prisoners for low-level crimes and longer sentences is a nefarious outgrowth of the “tough on crime” and “war on drugs” policies of the 1980s and 1990s.  Given the nation’s current overincarceration epidemic and persistent economic crisis, lawmakers should consider implementing parole reforms to release those elderly prisoners who no longer pose sufficient safety threats to justify their continued incarceration.

State and federal governments spend approximately $77 billion annually to run our penal system. Over the last 25 years, state corrections spending grew by 674%, substantially outpacing the growth of other government spending, and becoming the fourth-largest category of state spending.  These corrections costs are mainly spent on incarceration, and incarcerating aging prisoners costs far more than younger ones.  Specifically, this report finds that it costs $34,135 per year to house an average prisoner, but it costs $68,270 per year to house a prisoner age 50 and older. To put that number into context, the average American household makes about $40,000 a year in income.

States can implement mechanisms to determine which aging prisoners pose little safety risk and can be released.  Releasing many of these individuals will ease the burden on taxpayers and reunite prisoners with their families to care for them.  This report conducts a fiscal impact analysis detailing the cost savings to states in releasing the average aging prisoner.  While some of these prisoners may turn to the government for their healthcare or other needs, government expenditures on released aging prisoners will be far cheaper than the costs of incarcerating them.  Based on statistical analyses of available data, this report estimates that releasing an aging prisoner will save states, on average, $66,294 per year per prisoner, including healthcare, other public benefits, parole, and any housing costs or tax revenue.  Even on the low end, states will save at least $28,362 per year per released aging prisoner.

June 13, 2012 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Sunday, June 10, 2012

Golden anniversary of the greatest escape from the greatest prison

AlcThis morning's New York Times has this new article discussing an old mystery still surrounding a long-closed (but still justifiably famous) federal prison.  The piece is headlined "Tale of 3 Inmates Who Vanished From Alcatraz Maintains Intrigue 50 Years Later," and here is how it begins:

Fifty years ago, on the night of June 11, 1962, the three convicts were locked down as usual.  Guards walking the tier outside their cells saw them at 9:30 and checked on them periodically all night, looking in at the sleeping faces, hearing nothing strange.  But by morning, the inmates had vanished, Houdini-like.

Guards found pillows under the bedclothes and lifelike papier-mâché heads with real hair and closed, painted eyes.  Federal agents, state and local police officers, Coast Guard boats and military helicopters joined the largest manhunt since the Lindbergh baby kidnapping in 1932, scouring the prison complex on Alcatraz Island, the expanse of San Francisco Bay and the surrounding landscape of Northern California.

A crude raft made of rubber raincoats was found on a nearby island.  But the fugitives were never seen again.  Federal officials said they almost certainly drowned in the maelstrom of riptides, undertows and turbulent, frigid waters of the 10-mile-wide bay, their bodies probably swept out to sea under the Golden Gate Bridge.

But for aficionados of unsolved mysteries, the fantasy that Frank Lee Morris and the brothers Clarence and John Anglin had successfully escaped from the nation’s most forbidding maximum security prison and are still alive, hiding somewhere, has been a tantalizing if remote possibility for a half-century now.

It seemed wildly improbable.  “The Rock” where Al Capone, Machine Gun Kelly and other infamous criminals were held was thought to be escape-proof.  In its 29 years as a federal prison, from 1934 to 1963, no one is known to have made it out alive.  Forty-one inmates tried. Of those, 26 were recaptured, 7 were shot dead, 3 drowned and 2 besides Mr. Morris and the Anglin brothers were never found.

Had they survived, the three men — all bank robbers serving long terms — would be in their 80s now.  And while their names are all but forgotten, their breakout has been a subject of fascination to many Americans, analyzed in countless articles, four television documentaries, a 1963 book by J. Campbell Bruce, “Escape from Alcatraz,” and a 1979 movie of the same name starring Clint Eastwood as Mr. Morris.

June 10, 2012 in Prisons and prisoners | Permalink | Comments (12) | TrackBack

Wednesday, June 06, 2012

NY Times debates "When to Punish, and When to Rehabilitate" for juve offenders

The Room for Debate section of the New York Times has this new set of pieces discussing punishments for juvenile offenders.  Here is the sections set up:

The Supreme Court is expected to rule this month on when, if ever, it is appropriate to sentence juvenile offenders to life without parole.  The arguments this spring showed the complexity of drawing the lines between child and adult, and between justice and cruelty.

When minors commit violent crimes, should they be treated differently from adults?  Is prison effective as a punishment and deterrent for juveniles, or does it harden a young person who might otherwise recover?

Here are the contribututions, with links via the commentary titles:

June 6, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, June 05, 2012

"A Proposed National Corrections College"

The title of this post is the title of this article available via SSRN authored by James Jacobs and Kerry Cooperman. Here is the abstract:

More than four decades ago, Chief Justice Warren E. Burger proposed the establishment of a National Corrections Academy.  He envisioned a training center for prison and jail personnel as prestigious, well-funded, and high-powered as the FBI Academy in Quantico, Virginia.  Although the National Institute of Corrections established a National Corrections Academy in 1982, this academy has remained extremely small (ten full-time program specialists) and modestly funded ($2.5 annual budget) given the size of this nation’s correctional infrastructure.

Today, at a cost of approximately $70 billion per year, more than half a million correctional employees in more than 5,000 correctional facilities across the U.S. house, feed, clothe, supervise, recreate, educate, and provide medical care to nearly 2.3 million inmates, and probation and parole officers supervise an additional 5 million people. Despite the cost and complexity of administering this massive correctional complex, there is no national institution to identify and prioritize correctional-leadership-development needs, evaluate best training practices, develop and disseminate quality curricula, conduct cutting-edge research, and deliver training to a significant number of high-level corrections leaders.

This article reprises Chief Justice Burger’s proposal, calling for the establishment of a National Corrections College that would be the nation’s “brain center” for correctional research, curriculum development, and leadership training.  As Justice Burger observed three decades ago, an investment in a full-fledged national-level correctional training and research center would “cost less in the long run” than the failure to make such investment.

June 5, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, June 02, 2012

New civil rights suit goes after segregated isolation in California prisons

As reported in this recent Los Angeles Times article, headlined "Group sues California over isolation of some prison inmates," a new lawsuit is assailing California's use of solitary confinement in prison management. Here are the details:

California's practice of isolating prison inmates it suspects of gang affiliations and keeping them that way for years is being challenged in federal court by a national civil rights group. Inmate advocates say California is the only state that makes such extensive, harsh use of solitary confinement, which amounts to cruel and unusual punishment.

The inmates are segregated based on thin evidence and prevented from seeking parole, the advocates say, and their isolation leads to mental and medical problems. "It's beyond the pale for any civilized nation," said Jules Lobel, president of the New York-based Center for Constitutional Rights, which filed the lawsuit Thursday. "We as a society should not be sanctioning torture."

The lawsuit focuses on about 300 inmates who have been held in Pelican Bay State Prison's Security Housing Unit for more than a decade. Most are alone in their windowless cells, allowed out only to shower or exercise in a small concrete yard known as the "dog run." They're allowed one package a year and almost no phone calls, the lawsuit says, and the food is often rotten.

Prison officials said they were already examining their policies on how inmates are placed in the security unit, and a spokesman defended the practice as necessary to handle safety problems in a prison system rife with gangs.

"It's a place where people who pose a particular threat to staff and other inmates can be kept in the most secure way possible," said Jeffrey Callison at the California Department of Corrections and Rehabilitation.

The state's use of solitary confinement is one of the most controversial aspects of its troubled prison system. Thousands of inmates went on a hunger strike last year to protest conditions in solitary housing. Inmate advocates in March asked the United Nations to investigate whether such confinement constitutes torture.

Pelican Bay has 1,128 inmates in its Security Housing Unit. They are sent there through an administrative process that advocates described as severely flawed and lacking in due process. Only 66 are in the Security Housing Unit for behavioral problems; the rest have been confined because of gang affiliations, according to the state. One inmate is considered a member of the Mexican Mafia because he was caught with Aztec artwork, according to the lawsuit....

Ninety-one prisoners have been in the unit for more than two decades, according to the state. New rules under consideration would require assignment there to be based more on behavior in prison than on gang affiliation, Callison said.

June 2, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Friday, June 01, 2012

Ohio sentencing reforms already driving down state prison population (and recidivism rate?)

The mantra from one of my all-time favorite movies is "If you build it, they will come."  Now, based on a new article from my own Columbus Disptach, I am thinking about talking up a sentencing/prison policy mantra of "If you reform it, they will leave."  This article is headlined "Ohio prison population dropping: Sentencing revision seen as successful," and here are excerpts:

Ohio’s revised criminal-sentencing laws are making a difference after six months, diverting hundreds of inmates away from state prisons to less-expensive community programs.

From Oct. 1, 2011, when the new laws took effect, through the end of March this year, 26  percent fewer inmates were imprisoned for child-support-only violations and 180 fewer inmates came to prison for nonviolent fourth- and fifth-degree felonies.  As a result, the prison population dropped to 49,846, the lowest since November 2008. The number of prisoners had peaked at 51,278.

The recidivism rate — the number of offenders who return to prison within three years after being released — is at an all-time low, 31.2 percent. That compares with a national average near 50 percent.

Still, Ohio prisons director Gary C. Mohr said yesterday that he isn’t satisfied with the numbers. He had hoped to hit 49,168 inmates by July 1, but that won’t happen. “The impact has been slower than we anticipated,” he said.  But Mohr predicts House Bill 86, the much-debated criminal-sentencing overhaul, will show greater results in the coming year.

The provision expected to make the deepest impact has been delayed because of legal complications.  It would allow the Ohio Department of Rehabilitation and Correction to recommend in specific cases that inmates be released after serving 80 percent of their sentence.  The inmates must have a record of good behavior and be recommended by prison staff.   Cleanup language for the 80 percent provision is included in the omnibus budget review bill about to be signed by Gov. John Kasich.

Saving money is not the only reason the Kasich administration pushed for sentencing reform, but it’s an important one. It costs taxpayers $25,000 a year to house and feed each inmate in a state prison, compared with $5,000 a year for offenders in community corrections facilities.

Another change allows judges to issue what are called “risk-reduction” sentences. That means if inmates have a good record in prison and participate in programs, they qualify to get out early.  About 140 offenders have been sentenced under that provision since Oct. 1, Mohr said.

I am very pleased that, a mere six months after enactment, Ohio's sentencing reforms are already helping to ensure that my state taxpayer dollars are not being wasted on expensive prison space to warehouse non-violent offenders.  I am also intrigued to see that what strikes me as already a major state prison population reduction in only six months is still less than what Ohio's prison chief had expected by this point.

As the lats part of the title of this post reveals, I think it is a bit too early to assert that Ohio's sentencing reform from just last year itself fully accounts for the all-time low state recidivism rate.  Nevertheless, these numbers at the very least provide more encouraging evidence suggesting that we states can (and should be trying to) reduce the size of their prison populations without immediately producing a negative impact on public safety.

June 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, May 29, 2012

"Frail and Elderly Prisoners: Do They Still Belong Behind Bars?"

The title of this post is the title of this new commentary at The Crime Report. The piece was authored by Jamie Fellner, who is the Senior Advisor to the US Program of Human Rights Watch and author of the report "Old Behind Bars: The Aging Prison Population in the United States."  Here are excerpts from the commentary:

As the US confronts a growing population of geriatric prisoners, it is time to reconsider whether they really need to be locked up.  Prison keeps dangerous people off the streets. But how many prisoners whose minds and bodies have been whittled away by age are dangerous?

According to prison statistics, hardly any.   In Ohio, 26.7 percent of former prisoners commit new crimes within three years of their release from prison.   But only 5.6 percent of those released between the ages of 65 and 69 — and 2.9 percent of those released between the ages of 70 and 74 — commit new crimes.  Of those released at age 75 or older, none revert to criminal behavior.

In New York, you can count on two hands the number of older prisoners who have gone on to commit violent crimes after release.  Of 1,511 prisoners aged 65 and older when released between 1995 and 2008, only 8 were returned to prison for committing a violent felony.  Among the released older prisoners were 469 who had originally been sent to prison because of a violent crime.  Only one has returned to prison because of a new crime of violence.

These statistics quantify what criminal justice professionals know from experience: as a group, released older prisoners are not likely to pose much of a risk to the public.  The risk is no doubt even less if the released prisoners are ill or infirm....

Wholly apart from the effects of age and infirmity, years in prison also leave older prisoners with little desire to pick up a gun or hit the streets looking for trouble even if they were physically able to do so.  They want to spend their remaining time on earth with family and friends.  They do not want to die behind bars.

Ensuring just deserts for those who harm others is a legitimate criminal justice goal.  But age and infirmity can change the calculus of when the time served is long enough.  At some point in a prisoner’s life, parole supervision and perhaps restrictions on movement (e.g. home confinement) may suffice as a cost-effective and sensible punishment.

May 29, 2012 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

A year after Plata ruling, a "picture of success" fixing California's overcrowded prisons

UTI1646197.jpg_t220Before the completion of the federal litigation that culminated in last year's Plata Supreme Court ruling, the iconic image of the California's persistently crowded prisons was a picture of hordes of men in orange prison garb atop triple-stacked bunk beds in a packed gymnasium that was never intended to house inmates.  Versions of this iconic image were even reprinted in the Supreme Court reporter as part of the majority opinion in Plata which affirmed the federal court order that California reduce its total prison population to prevent continuing constitutional violations of the inmates' Eighth Amendment rights.

Now, thanks to this new article from the San Diego Union-Tribune, which is headlined "Prison crowding eases as local jails house more inmates," we can see a new "picture" of what the Plata ruling has achieved through a photo showing all those bunk beds now empty. Here are excerpts from the article in which this new image of California's prison system appears:

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Just a few months ago, California’s inmates were packed into double- and triple-stacked bunk beds in prison gymnasiums, classrooms and other areas never meant for housing. Now those beds are empty.

The prison population is declining, but not because there are fewer criminals. Instead, a new state law shifted the responsibility for some lower-level offenders to the county jails, which are filling up.

State officials have “taken the monkey off their back and put it on ours,” said Sheriff Bill Gore, whose department runs seven county jails. In the nearly eight months since the law took effect, Gore has used a number of strategies to ward off jail crowding, including early releases, but he insists the county is handling the load. He and other county officials have said that with proper funding the local authorities can do better than the state at rehabilitating criminals so they’re less likely to end up back behind bars. “We can’t warehouse these inmates,” Gore said.

At Donovan state prison in Otay Mesa, rows of graffiti-scarred bunks sit empty in one of the prison gyms, where more than 150 men once slept in an area the size of a basketball court. A couple of inmates likened the experience to “living in the crazy house.”

“It’s horrible. It’s violent. It’s crowded,” said David Dewrance, 50, who spent almost two years in a gym trying to rest and study for his correspondence courses. When space became available earlier this year, Dewrance was moved to a two-man cell in one of the housing units, which allowed him access to one of the preferred vocational programs. The Brooklyn, N.Y., native, imprisoned for second-degree murder, now works in the prison bakery.

Fellow inmate Jesus Yanez said he was housed in a gym at another prison before coming to Donovan five months ago to continue serving his sentence for assault with a deadly weapon causing great bodily injury. In an interview this month at the prison, he recalled trying to sleep, shower and keep his bunk clean while keeping watchful eye dozens of fellow inmates.

“I wouldn’t wish that on the worst person,” said Yanez, 40, whose head and arms are inked with tattoos, many of them evidence of his former gang life in Los Angeles. The cells, he said, are “100 percent better.”

Shortly after the state’s prison population had reached an all-time high in the summer of 2007, more than 19,600 inmates were sleeping in so-called nontraditional beds. All inmates were cleared out of Donovan’s gyms and day rooms at the beginning of this year. And in March, the state Department of Corrections and Rehabilitation announced it had stopped bunking inmates in gyms and day rooms at all California prisons.

“It’s a lot safer,” said Daniel Paramo, a 20-year corrections department veteran who became Donovan’s warden in July. The extra bunks, he said, “made it very difficult to manage the institution.”

As of this month, 3,573 prisoners were being held at Donovan, about 1,000 fewer than the facility housed at the same time last year, but it remains overcrowded. The prison is designed to hold 2,200 inmates with one man to each cell....

In January, the corrections department announced that the population of inmates housed in its 33 institutions had dropped by more than 11,000 inmates over six months. This month, the population was pegged at 122,305 — 153.6 percent of capacity — according to the most recent figures available.

“The population is going down,” said Dana Simas, a department spokeswoman, who acknowledged county officials’ frustrations over rising jail populations. “We never purported that it would be without a few bumps in the road,” Simas said.

Even with the recent inmate reductions, some doubt the state will meet the Supreme Court’s deadline.   Prison officials want the court to allow them to hold the inmate population at 144 percent of capacity — rather than the 137.5 percent as originally ordered — while maintaining constitutional standards for medical and dental care, Simas said. “Our conditions have vastly improved,” she said.

Of course, simply managing to move bodies out of a crowded gym hardly proves that the Plata decision was a perfect ruling or that all is now better in California's often dysfunctional criminal justice system.  But, at the very least, these pictures document that a constitutional ruling by the Supreme Court combined with a serious state effort to respect that ruling can quickly engineer some needed changes to a prison system that had for many years been stalled in a political and practical quagmire concerning overcrowding.

I am hopeful that there will be a number of serious and systematic efforts to take stock of what has followed from the Plata ruling in California.  I have little doubt that the demands on local facilities as a result of the urgent need to move bodies out of state facilities has created various new problems.  Still, this story confirms my gut instinct that, a year after the controversial Plata ruling, the 5-4 decision has produced a net gain for not only the inmates who were suffering Eighth Amendment violations, but also for the entire state of California.  At the very least, there seems to be limited evidence (or at least limited reporting of evidence) that the dire predictions of doom and California crime waves right after the Plata ruling (which appeared in the Plata dissents and on this blog) were a bit overstated and hyperbolic.

UPDATE:  I am intrigued and a bit surprised that oft-vocal "tough on crime" commentors like Bill Otis and federalist, who were quick to condemn the Plata ruling last year, have not yet had anything to say here about the opinion a year later when now it seems the opinion's benefits have been greater than its harms.   In that vein, I found notable this new Sacramento Bee commentary from a former California Assembly member titled "Fear mongers were wrong about prison system's 'realignment'." Here are excerpts:

A year ago we heard fear-mongering voices warning of dangerous criminals being released and counties too broke to provide jail space, parole officers or programming for realigned prisoners.

One year in, how's realignment actually working out? The number of people held in state prison has dropped by more than 25,000 in 16 months since Brown has been in office. The count of people on parole is down almost 30,000, and the number of people held in private out-of-state prisons is down 10 percent; all that without a spike in crime.

The crime rate continues to fall and putting fewer people in state prisons means saving tax dollars, and given the $15.7 billion gap forecast in the May revise those savings have never been needed more than they are now. CDCR estimates that it is saving $1.5 billion a year through realignment and will save another $2.2 billion a year by canceling $4.1 billion in new construction projects....

Corrections built prisons, but it was the Legislature that filled them with hundreds of laws that created new crimes and lengthened sentences. Serious sentencing and parole reforms are long overdue and communities, advocates, and other experts throughout the state have been providing ideas of where to start for decades.

An easy step could be to address the rapidly aging population by implementing a geriatric parole process, and expanding medical parole and compassionate release. Other options include passing legislation to decriminalize drug possession, or supporting the initiative to reform the "three strikes" law on the November ballot. We need only the political will to move away from sentencing and parole policies that have done more to bankrupt our state treasury than to secure safety in our neighborhoods.

Do we return to the course of expanding prisons and jails and expanding the percentage of our resources that go to filling them? Or do we take realignment as only a first step toward further downsizing, offering us the opportunity to use tax funds to invest in the well being of our residents now and in the future? I advocate for the latter.

May 29, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, May 26, 2012

Effective op-ed on "Plantations, Prisons and Profits" in Louisiana

26blow-ch-articleInlineThe title of this post is drawn from the headline of this new op-ed in the New York Times by Charles Blow, which gives justified praise to the recent local newspaper series about Louisiana's criminal justice system (which I have spotlighted in prior posts here and here).  Here are excerpts:

“Louisiana is the world’s prison capital.  The state imprisons more of its people, per head, than any of its U.S. counterparts.  First among Americans means first in the world. Louisiana’s incarceration rate is nearly triple Iran’s, seven times China’s and 10 times Germany’s.”

That paragraph opens a devastating eight-part series published this month by The Times-Picayune of New Orleans about how the state’s largely private prison system profits from high incarceration rates and tough sentencing, and how many with the power to curtail the system actually have a financial incentive to perpetuate it.

The picture that emerges is one of convicts as chattel and a legal system essentially based on human commodification.... [S]ome facts from the series:

  • One in 86 Louisiana adults is in the prison system, which is nearly double the national average.

  • More than 50 percent of Louisiana’s inmates are in local prisons, which is more than any other state.  The next highest state is Kentucky at 33 percent.  The national average is 5 percent.

  • Louisiana leads the nation in the percentage of its prisoners serving life without parole.

  • Louisiana spends less on local inmates than any other state.

  • Nearly two-thirds of Louisiana’s prisoners are nonviolent offenders.  The national average is less than half.

In the early 1990s, the state was under a federal court order to reduce overcrowding, but instead of releasing prisoners or loosening sentencing guidelines, the state incentivized the building of private prisons. But, in what the newspaper called “a uniquely Louisiana twist,” most of the prison entrepreneurs were actually rural sheriffs. They saw a way to make a profit and did. It also was a chance to employ local people, especially failed farmers forced into bankruptcy court by a severe drop in the crop prices.

But in order for the local prisons to remain profitable, the beds, which one prison operator in the series distastefully refers to as “honey holes,” must remain full.  That means that on almost a daily basis, local prison officials are on the phones bartering for prisoners with overcrowded jails in the big cities.

It also means that criminal sentences must remain stiff, which the sheriff’s association has supported. This has meant that Louisiana has some of the stiffest sentencing guidelines in the country.  Writing bad checks in Louisiana can earn you up to 10 years in prison.  In California, by comparison, jail time would be no more than a year.

There is another problem with this unsavory system: prisoners who wind up in these local for-profit jails, where many of the inmates are short-timers, get fewer rehabilitative services than those in state institutions, where many of the prisoners are lifers.  That is because the per-diem per prisoner in local prisons is half that of state prisons. In short, the system is completely backward....

Louisiana is the starkest, most glaring example of how our prison policies have failed.  It showcases how private prisons do not serve the public interest and how the mass incarceration as a form of job creation is an abomination of justice and civility and creates a long-term crisis by trying to create a short-term solution.   As the paper put it: “A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.”

Related recent posts:

May 26, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, May 25, 2012

Effective commentary urges greater us of "compassionate release"

Julie Stewart, the president and founder of FAMM (Families Against Mandatory Minimums), has this effective new commentary at The Crime Report headlined "Let’s End the ‘Death Rattle’ Rule." Here are excerpts:

It is easy for most Americans to identify ways in which the government wastes money, but it is not often you come across a federal program that is both wasteful and cruel. The Federal Bureau of Prison’s (BOP) “compassionate release” program fits the bill.

Some background will help. When Congress passed the landmark Sentencing Reform Act of 1984, in the interest of “truth in sentencing” it abolished parole at the federal level and eliminated all but a few opportunities for a judge to revisit and shorten a sentence once it had become final.

One little-known opportunity permits courts to order the immediate release of prisoners in “extraordinary and compelling” circumstances. Although Congress did not restrict this opportunity to situations where an inmate was in grave medical condition, the relief — which became known as “compassionate release” — was limited to such cases.

But, and this is important, a judge cannot act unless the BOP asks the court for the sentence reduction. Before 1994, the BOP would only file motions in court to release terminally ill patients with less than six months to live. It did not matter if the inmate was bedridden or suffered from advanced dementia, or how many taxpayer-funded medical services he required.

In 1994, the BOP slightly broadened its qualifications to include those with a terminal illness and less than a year to live, but it made no difference. BOP’s macabre standard became known as “the death rattle rule,” as in, no death rattle, no release. Despite the wider standard, during the 1990s, an average of 21 inmates a year received compassionate release, a figure that represents 0.01 percent of the federal prison population.

Sentencing reform groups, including Families Against Mandatory Minimums (FAMM), were dismayed by BOP’s cruel administration of the compassionate release program. The Bureau’s nonsensical stinginess resulted in families being kept from their incarcerated loved ones when they died, and in taxpayers footing the bill for extraordinary, end-of-life health care expenses that could have been shouldered by inmates or their families.

In 2007, the U.S. Sentencing Commission adopted sentencing guidelines to broaden eligibility for the compassionate release program. The Commission’s amendment was an overdue but straightforward interpretation of the Sentencing Reform Act. It interpreted to the Act’s “extraordinary and compelling circumstances” to include, but not be limited to, instances where: (1) the inmate is suffering from a terminal illness; (2) he is suffering from a permanent physical or mental health condition that prevents him from caring for himself and from which he is not expected to improve; and (3) the death or incapacitation of the inmate’s only family member capable of caring for the inmate’s minor children.

The BOP responded to this not-too-conservative, not-too-liberal interpretation by promptly ignoring it. Instead, it has continued to follow its grisly death rattle rule.

Nothing has changed. The rate of compassionate release motions filed by the BOP from 2000 to 2001 is the same as it was during the 1990s: an average of just 21 per year. In roughly 24 percent of those motions, the inmate died before the district court even had a chance to rule on the motion. Even the “lucky” ones are often forced to spend their final days fighting the BOP bureaucracy. Under the BOP’s rules, nearly every layer of the bureaucracy gets a chance to say “no” to an inmate seeking compassionate release....

The need for compassionate release is only going to grow. First, the number of older prisoners has increased by 750 percent nationwide over the last two decades. Second, the BOP is already suffering from severe overcrowding; its facilities are operating at 138 percent of capacity.

Lastly, Congress is facing a massive budget problem. Though it is asking agencies to look everywhere for cuts, the BOP is seeking an increase of more than $80 million to activate two new prisons. Even if administered correctly, the compassionate release program cannot solve BOP’s overcrowding problem or Congress’s budget challenges, but it can help.

Taxpayers need not subsidize expensive medical services for inmates who pose no threat to public safety. Ultimately, however, we need to expand the compassionate release program to save more than money. We need to do it save our nation’s soul.

May 25, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (26) | TrackBack

Thursday, May 24, 2012

"Cruel and Unusual: U.S. Sentencing Practices in a Global Context"

The title of this post is the title of this notable new report released this week coming from the University of San Francisco School of Law's Center for Law and Global Justice.  This press release provides a background and summary of this report, and here are excerpts from the press release:

Sentencing laws in the United States are at odds with the country’s human rights obligations to direct its prisons system towards rehabilitation, the University of San Francisco School of Law’s Center for Law and Global Justice said ... in a report examining the sentencing laws of all the countries around the world.  U.S. laws increasing the likelihood and length of prison sentences have created a prisons system out of step with the rest of the world.  They help to explain why, despite a declining crime rate, the U.S. prison population has grown six-fold since 1980 to become the world’s largest per capita.

The report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries.  Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.  Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and “three strikes” laws are used in the U.S. more widely than elsewhere in the world....

Fact Sheet for “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”

  • The United States is among only 20% of countries around the world having life without parole (LWOP) sentences.  LWOP sentences can never be reviewed and condemn the convict to die in prison.

  • The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.

  • The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.

  • There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands.  On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’....

  • The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime....

  • Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively.  Though 67% of countries have codified that right, the United States has not....

  • The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.

  • The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences.

May 24, 2012 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (27) | TrackBack

Is it inappropriate to find Unabomber's 50th Harvard reunion entry amusing?

TK profileThe quirky question in the title of this post is prompted by this story from the Boston Globe, which is headlined "Ted Kaczynski, the Unabomber, lists himself in Harvard 1962 alumni report; says ‘awards’ include eight life sentences." Here are the details:

Ted Kaczynski, the Unabomber, who is serving life in prison for sending deadly mail bombs, won’t be able to attend his 50th reunion festivities at Harvard College.  But he did contribute a bizarre entry to the alumni report for the class of 1962.

While many of his classmates sent in lengthy updates on their lives for the 2 ½-inch-thick “red book,” the entry for “Theodore John Kaczynski” only contains nine lines.  The listing says his occupation is “Prisoner,” and his home address is “No. 04475-046, US Penitentiary—Max, P.O. Box 8500, Florence, CO 8126-8500.”  Under the awards section, the listing says, “Eight life sentences, issued by the United States District Court for the Eastern District of California, 1998.”...

The widow of one of Kaczynski’s victims said she was “disappointed in Harvard.”  Susan Mosser, widow of Thomas Mosser, a 50-year-old advertising executive who was killed in December 1994 when a package exploded in the kitchen of their New Jersey home, said, “Kaczynski is a con artist.  He’s a serial killer, he’s a murderer. ... Everything is a game for him to push people’s buttons.”  She said if Harvard did not publish his information, she thinks he would have tried to sue the school for excluding it.

A Harvard Alumni Association spokesman confirmed that Kaczynski submitted the entry and said it was considered within the guidelines set for the book, which is titled, “Harvard and Radcliffe Classes of 1962 -- Fiftieth Anniversary Report.”  The books are ultimately by the alumni for the alumni, the spokesman said.

“I don’t fault them on that,” said one of Kaczynski’s classmates, John Higginson, who now lives in Arizona and is participating in the reunion events in Cambridge this week.  He said the entries are written by the alumni, and rather than making Harvard look bad, the entry makes Kaczynski look bad for writing it.

Kaczynski evaded the FBI for nearly 20 years while killing three people and injuring 23 others with bombs sent through the US mail.

May 24, 2012 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

Wednesday, May 23, 2012

"Justice Department Releases Final Rule to Prevent, Detect and Respond to Prison Rape"

A helpful reader rightly noted to me today that I have failed to give proper coverage to the big news last week concerning the Justice Department's new regulations to implement the Prison Rape Elimination Act (PREA).  This recent piece from Corrections.com, which shares the headline of this post, provides an effective and detailed summary of this important development.  Here are snippets of this summary:

The Justice Department [last week]] released a final rule to prevent, detect and respond to sexual abuse in confinement facilities, in accordance with the Prison Rape Elimination Act of 2003 (PREA). This landmark rule sets national standards for four categories of facilities: adult prisons and jails, lockups, community confinement facilities and juvenile facilities. This rule is the first-ever federal effort to set standards aimed at protecting inmates in all such facilities at the federal, state and local levels....

The standards set forth in the final rule are binding on the Federal Bureau of Prisons. With regard to states, those that do not comply with the standards are subject to a five percent reduction in funds they would otherwise receive for prison purposes from the department unless the governor certifies that five percent of such funds will be used to enable compliance in future years. No organization responsible for the accreditation of correctional facilities may receive any federal grants unless it adopts accreditation standards consistent with the standards set forth in the final rule.

The administration has also determined that PREA applies to all federal confinement facilities, including those operated by executive departments and agencies other than the Department of Justice....

Congress unanimously passed the Prison Rape Elimination Act in 2003 and created the National Prison Rape Elimination Commission to recommend a set of standards to the attorney general, after which it disbanded pursuant to the act. After receiving the commission’s recommendations in 2009, the attorney general convened an intradepartmental PREA working group that was tasked with reviewing the commission’s recommendations and collecting public feedback on the commission’s proposal. Last year the department published a draft rule for public comment....

To assist federal, state and local agencies in their compliance efforts, the department has funded the National Resource Center for the Elimination of Prison Rape to serve as a national resource for online and direct support, training, technical assistance, and research to assist adult and juvenile corrections, detention, and law enforcement professionals in combating sexual abuse in confinement. Focusing on areas such as prevention strategies, improved reporting and detection, investigation, prosecution, and victim-centered responses, it will identify promising programs and practices that have been implemented around the country and demonstrate models for keeping inmates safe from sexual abuse.

May 23, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, May 16, 2012

"The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness"

The title of this post is the title of this piece available via SSRN authored by Thomas Hafemeister and Jeff George.  Here is the abstract:

The increasing number of inmates with a mental disorder in America’s prison population and the inadequacy of their treatment and housing conditions have been issues of growing significance in recent years.  The U.S. Department of Justice estimates that “over one and a quarter million people suffering from mental health problems are in prisons or jails, a figure that constitutes nearly sixty percent of the total incarcerated population in the United States.”  Furthermore, a person suffering from a mental illness in the United States is three times more likely to be incarcerated than hospitalized, with as many as forty percent of those who suffer from a mental illness coming into contact with the criminal justice system every year and police officers almost twice as likely to arrest someone who appears to have a mental illness.  As a result, the United States penal system has become the nation’s largest provider of mental health services, a “tragic consequence of inadequate community mental health services combined with punitive criminal justice policies.”

This growth in the number of inmates with a mental disorder, combined with the recent rise of prolonged supermax solitary confinement and the increasingly punitive nature of the American penological system, has resulted in a disproportionately large number of inmates with a mental disorder being housed in supermax confinement.  The harsh restrictions of this confinement often significantly exacerbate these inmates’ mental disorders or otherwise cause significant additional harm to their mental health, and preclude proper mental health treatment.  Given the exacerbating conditions associated with supermax settings, this setting is not only ill-suited to the penological problems posed by the growing number of these inmates, but intensifies these problems by creating a revolving door to supermax confinement for many such inmates who may be unable to conform their behavior within the prison environment.

Housing inmates with a mental disorder in prolonged supermax solitary confinement deprives them of a minimal life necessity as this setting poses a significant risk to their basic level of mental health, a need “as essential to human existence as other basic physical demands . . . .”, and thereby meets the objective element required for an Eighth Amendment cruel and unusual punishment claim.  In addition, placing such inmates in supermax confinement constitutes deliberate indifference to their needs as this setting subjects this class of readily identifiable and vulnerable inmates to a present and known risk by knowingly placing them in an environment that is uniquely toxic to their condition, thereby satisfying the subjective element needed for an Eighth Amendment claim. Whether it is called torture, a violation of evolving standards of human decency, or cruel and unusual punishment, truly “a risk this grave — this shocking and indecent — simply has no place in civilized society.”

May 16, 2012 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0) | TrackBack

Continued great reporting on the toughest state in incarceration nation

As noted in this post from this past weekend, the New Orleans Times-Picayune is published a huge eight-part series on the severity of punishment and prison overcrowding in the Bayou state. This series is titled "Louisiana Incarceration: How We Built the World's Prison Capital," and every piece in the series merits a full read. Today's installment is headlined "Prison sentence reform efforts face tough opposition in the Legislature," and here are a few excerpts from the outset:

Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, '80s and '90s bloated the state's inmate counts.

If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time -- by far the nation's highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.

"The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives," said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.

This lengthy piece goes on to detail how challenging it can be to forge a needed political consensus for any ameliorative sentencing reforms.

May 16, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, May 15, 2012

New report highlights inequities in Michigan’s JLWOP sentences

JlwopmapAs reported in this new press release, the public policy group Second Chances 4 Youth along with the ACLU of Michigan has release a new report "documenting the systemic disadvantages facing juveniles in the adult criminal justice." This report, which it titled “Basic Decency: An Examination of Natural Life Sentences for Michigan Youth,” is summarized in the press releade this way:

The 38-page report explores the fiscal and human costs of juvenile life without parole sentences and the disproportionate punishments and documented racial disparities found in the plea bargaining process for youth accused of certain crimes. The findings rely on publicly available data produced by the Michigan Department of Corrections and survey responses from individuals originally charged with first-degree homicide in Michigan for crimes committed as youth since 1975. The report documents the many challenges youth face in the criminal justice system, including that:

• Race seriously affects the plea bargaining process for adolescents. Youth accused of a homicide offense where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. In addition, there are clear geographic disparities with Oakland, Calhoun, Saginaw and Kent Counties offering lessor sentences to youth at significantly lower rates than the state average.

• Juveniles reject plea offers at much higher rates than adults; therefore adults receive lessor sentences for comparable crimes. Juveniles are less equipped to negotiate plea offers because of their immaturity, inexperience, and failure to realize the value of a plea deal. Many report that they did not fully understand the nature of the charges they were facing, the crime they were on trial for, or the meaning of parole.

• Attorneys who have represented youth convicted and sentenced to life without parole in Michigan have an abnormally high rate of attorney discipline from the State Bar of Michigan. About 5 percent of all attorneys are reprimanded, however 38 percent of counsel representing youth sentenced to life without parole have been publicly sanctioned or disciplined for egregious violations of ethical conduct.

Michigan law requires that children as young as 14 who are charged with certain felonies be tried as adults and, if convicted, sentenced without judicial discretion to life without parole. Judges and juries are not allowed to take into account the fact that children bear less responsibility for their actions and have a greater capacity for change, growth and rehabilitation than adults.

The U.S. is the only country in the world that sentences youth to life without parole. In the last five years, there has been a downward trend in imposing such sentences across the nation.  Michigan is one of only six states deviating from this national movement. Michigan currently incarcerates the second highest number of people serving life sentences without parole for crimes committed when they were 17 years old or younger.

Intriguingly, this new report does not at all discuss the pending SCOTUS cases of Jackson and Miller, which could possibly result in a ruling that all LWOP sentences for juveniles are unconstitutional under the Eighth Amendment.  Perhaps that is wise; it remains hard to predict exactly what the Justices will end up doing in those cases when they hand down an opinion in the coming weeks before the end of the current Term.

Moreover, this new report categorically urges, inter alia, that Michigan "abolish Michigan’s sentence of life without the possibility of parole for children who commit homicide offenses prior to the age of 18" and "provide an opportunity for parole for any youth having served ten years of a life sentence with annual reviews thereafter and mandatory public hearing every five years."  In part because the Jackson and Miller cases both involve offenders who committed murders at age 14, and in part because SCOTUS has never required a particular timeline for parole consideration, there is little chance that even a very broad SCOTUS ruling in Jackson and Miller will require many (or even any) of the reforms urged by this new report.

May 15, 2012 in Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Monday, May 14, 2012

"Laissez-faire with strip-searches: America's two-faced liberalism"

The title of this post is the headline of this recent commentary appearing in The Guardian authored by Professor Bernard Harcourt.  The piece, which I have been meaning to post for some time, makes for a very interesting read and it gets started this way:

There is a deep tension in contemporary US political thought between the notion of freedom that tends to dominate in the socio-economic domain and the concept of liberty that predominates in the penal sphere.  In socio-economic matters, the idea of freedom tends to be shaped by classic economic liberalism: the belief that an invisible hand shapes favorable public outcomes, that individuals need robust protection from the government, that the state should refrain from interfering in commerce and trade.  In the law enforcement and punishment context, by contrast, the dominant way of thinking about liberty gives far more ground to the government, to the police and to the state security apparatus.

This tension, when it gets acute, gives rise to what I would call "two-faced" or "Janus-faced liberalism".  Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration.  In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.

This past month, the great American paradox took a distinctly dystopian turn, particularly at the US supreme court.  The oral argument on the constitutionality of President Obama's Affordable Care Act, in conjunction with the court's decision on the constitutionality of strip-searching all persons arrested even on the most minor traffic infractions, crystallize this worrisome trend.  My sense is that I am not alone in this assessment; there appears to be growing recognition across the US that this two-faced liberalism may, in fact, be pushing the country, inch-by-inch, in the direction of a police state.  This is surely true of the recent strip-search case, Florence v County of Burlington.

May 14, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Sunday, May 13, 2012

Profiling the top lock-up state in the top incarceration nation

Prison-referlogo-051312png-740cefbf65715ba5I am intrigued and pleased to see that the New Orleans Times-Picayune today starts this huge new eight-part series titled "Louisiana Incarceration: How We Built the World's Prison Capital." The first piece in the series is headlined simply "Louisiana is the world's prison capital," and it gets started this way:

Louisiana is the world's prison capital.  The state imprisons more of its people, per head, than any of its U.S. counterparts.  First among Americans means first in the world. Louisiana's incarceration rate is nearly triple Iran's, seven times China's and 10 times Germany's.

The hidden engine behind the state's well-oiled prison machine is cold, hard cash.  A majority of Louisiana inmates are housed in for-profit facilities, which must be supplied with a constant influx of human beings or a $182 million industry will go bankrupt.

Several homegrown private prison companies command a slice of the market.  But in a uniquely Louisiana twist, most prison entrepreneurs are rural sheriffs, who hold tremendous sway in remote parishes like Madison, Avoyelles, East Carroll and Concordia.  A good portion of Louisiana law enforcement is financed with dollars legally skimmed off the top of prison operations.

If the inmate count dips, sheriffs bleed money. Their constituents lose jobs.  The prison lobby ensures this does not happen by thwarting nearly every reform that could result in fewer people behind bars.

Meanwhile, inmates subsist in bare-bones conditions with few programs to give them a better shot at becoming productive citizens. Each inmate is worth $24.39 a day in state money, and sheriffs trade them like horses, unloading a few extras on a colleague who has openings. A prison system that leased its convicts as plantation labor in the 1800s has come full circle and is again a nexus for profit.

In the past two decades, Louisiana's prison population has doubled, costing taxpayers billions while New Orleans continues to lead the nation in homicides.

One in 86 adult Louisianians is doing time, nearly double the national average.  Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation.  Crime rates in Louisiana are relatively high, but that does not begin to explain the state's No. 1 ranking, year after year, in the percentage of residents it locks up.

In Louisiana, a two-time car burglar can get 24 years without parole.  A trio of drug convictions can be enough to land you at the Louisiana State Penitentiary at Angola for the rest of your life.

May 13, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Friday, May 11, 2012

"Too young to shave, but old enough for solitary"

The title of this post is the title of this recent article from the ACLU Blog of Rights, which gets started this way:

As any parent knows, teenagers are different than adults. This common-sense observation is backed by hard scientific evidence; we know that an adolescent’s brain continues to grow and develop well into his or her twenties. The fact that teenagers’ brains are still developing makes them especially vulnerable to trauma of all kinds, including the trauma of social isolation and sensory deprivation.

That’s why the leading American child psychiatry association just approved a policy statement opposing the use of solitary confinement in correctional facilities for juveniles. The American Academy of Child & Adolescent Psychiatry represents over 7,500 child and adolescent psychiatrists and other interested physicians.

This groundbreaking policy statement from adolescent psychiatry experts comes not a moment too soon. While recent settlements in ACLU lawsuits in Montana and Mississippi include limits on solitary confinement for youth, the practice remains alarmingly widespread, with thousands of persons under 18 held in solitary on any given day, in juvenile facilities as well as in adult jails and prisons.

May 11, 2012 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (5) | TrackBack

Wednesday, May 09, 2012

Could I be (and should I want to be) federal prisoner Keith Judd's DNC delegate from West Virginia?

120508_keith_russel_judd_apThe question in the title of this post is meant — sort of, maybe — as a joke in light of the notable primary voting news out of West Virginia reported in this AP article, headlined "Against Obama, even a jailbird gets some votes." Here are the basics:

Just how unpopular is President Barack Obama in some parts of the country?  Enough that a man in prison in Texas got 4 out of 10 votes in West Virginia's Democratic presidential primary.

The inmate, Keith Judd, is serving time at the Federal Correctional Institution in Texarkana, Texas, for making threats at the University of New Mexico in 1999.  Obama received 59 percent of the vote to Judd's 41 percent.

For some West Virginia Democrats, simply running against Obama is enough to get Judd votes. "I voted against Obama," said Ronnie Brown, a 43-year-old electrician from Cross Lanes who called himself a conservative Democrat.  "I don't like him. He didn't carry the state before and I'm not going to let him carry it again."  When asked which presidential candidate he voted for, Brown said, "That guy out of Texas."

Judd got on the state ballot by paying a $2,500 fee and filing a form known as a notarized certification of announcement, said Jake Glance, a spokesman for the Secretary of State's office.

Attracting at least 15 percent of the vote would normally qualify a candidate for a delegate to the Democratic National Convention.  But state Democratic Party Executive Director Derek Scarbro said no one has filed to be a delegate for Judd. The state party also believes that Judd has failed to file paperwork required of presidential candidates, but officials continue to research the matter, Scarbro said.

It would be silly (and surely inaccurate) to claim that democratic primary voters in West Virginia voted for Keith Judd over Barack Obama because they were hopeful that a federal felon would push Democrats to make sentencing and prison reform a higher priority within the party.  But it would not be silly (nor inaccurate) to claim that all the people of West Virginia who voted in the primary for Judd ought to have their votes represented at the Democratic National Convention by a delegate (like me) who is not going to to just fall in line with all the Obama supporters and who will go to the DNC with some of Judd's interests and concerns in mind. 

Of course, I neither live or work in West Virginia, but the same is true for Keith Judd.  (This Politico piece about Judd explains that he "currently resides in a low-security prison in Texas — Federal Correctional Institution Texarkana — where he’s serving a 210-month sentence for extortion connected to making threats at the University of New Mexico in 1999.  His projected release date is June. 24, 2013.")   For that reason, and so many others, I really think I could be the perfect person to head down to Charlotte in late summer and represent the tens of thousands of West Virginia democrats who indicated last night that they are eager for some new voices to be heard at the DNC.

May 9, 2012 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 07, 2012

"Realignment of Incarcerative Punishment: Sentencing Reform and the Conditions of Confinement"

The title of this post is the title of this timely new piece by Ken Strutin now available via SSRN.  Here is the abstract:

Part I of this article begins with a review of the state of incarceration as viewed through the lens of prison populations.  Then in Part II, the Supreme Court’s watershed decision in Brown v. Plata is explored, along with an analysis of its justifications for upholding a mass release order to remedy the inadequate medical and mental health facilities in an overcrowded state prison system.  Part III describes California’s novel choice of realignment legislation to comply with this order as a legislative approach that does not result in mass release but rather a mass redirection of incoming offenders away from state prisons and into the local corrections system. The potential for criminal sentencing reform inspired by the Court’s decision and the state’s realignment policy are further explored in Part IV, which examines past and present efforts to fine-tune incarcerative sentencing outcomes mindful of the conditions of confinement.  Finally, additional suggestions for uncovering and taking into account the conditions of confinement as an aid to reform are considered at different points along the adjudication spectrum.

May 7, 2012 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack