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

Tuesday, May 01, 2012

Indiana legislators (over?)reacting to pair of sex offenders earning early prison release

This new AP story, headlined "Early prison release for sex offenders irks lawmakers," provides a telling and notable how sex offenders can get into trouble and prompt a harsh legislative response for, in essence, just being good prisoners.  Here are the details:

Indiana lawmakers are planning changes to the state’s early release law in response to this week’s slated release of two convicted sex offenders who significantly shortened their prison terms by earning college degrees.

Republican Sen. Jim Merritt of Indianapolis said Tuesday the law’s shortcoming is illustrated by the case of Christopher Wheat, a former high school swim coach convicted of having a sexual relationship with a 14-year-old female swim student.

Wheat, 38, is scheduled for release Thursday from the New Castle Correctional Facility after serving less than two years of his eight-year sentence.  Merritt said Wheat “manipulated the system” to cut his sentence to about 20 months by earning two computer science degrees behind bars. “I think he gamed the system.  And we need to make sure nobody does that anymore,” Merritt said.  “We all believe education in prison should be for the rehabilitation of one’s character and preparing them for their life as an ex-offender.”...

Wheat was sentenced to eight years in September 2010 following his conviction on two counts of sexual misconduct with a minor and one count of child solicitation.  His victim was a then-14-year-old student he coached at Lawrence North High School in Indianapolis.

Doug Garrison, a spokesman for the Indiana Department of Correction, said Wheat was sentenced to 15 years in prison, with five years suspended and another two years in community corrections, leaving him with an eight-year sentence.  It was cut to four years for good behavior and another two years and three months were removed when he earned an associate degree and a bachelor’s degree. Garrison said Wheat must wear a GPS-monitored ankle bracelet following his release from prison.

Merritt said he’s working with Sen. Randy Head, R-Logansport, to draft legislation for the next General Assembly that would likely include making convicted sex offenders unable to shave time off their sentences by earning degrees in prison.  It might also seek to prevent inmates from using previously accumulated college credits toward their degrees, as Wheat had done....

Merritt said the slated release of another convicted sex offender -- also Thursday from the New Castle prison -- demonstrates that changes are needed to the state’s early release law. Daniel J. Moore, a 53-year-old former New Whiteland Baptist Church pastor, pleaded guilty in March 2010 to child solicitation and sexual misconduct with a minor for a sexual relationship with a 15-year-old girl who was a church member.  His 10-year sentence was cut to five for good behavior, and he earned associate and bachelor’s degrees in human services, further paring his sentence to about two and a half years.

State Sen. Pat Miller, R-Indianapolis, said she also will push for changes to the early release law “to fix this terrible situation.” “Sexual predators are a menace to our society. The pain they inflict upon their victims lasts a lifetime, and it makes no sense that these violent offenders are being released early from prison,” Miller said in a statement.

May 1, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

"Illinois panel of lawmakers: Don't close prisons, mental facilities"

The title of this post is the headline of this new AP article which highlights some of the challenges, even in lean budget times, of making dramatic cuts to the big government prison-industrial complex supported by taxpayer dollars.  Here are excerpts:

A panel of Illinois lawmakers recommended against closing two prisons and a developmental center Tuesday, a vivid illustration of how difficult it will be for officials to slash state spending this year.

Closing the facilities would save the state tens of millions of dollars at a time when the governor and legislative leaders want to cut billions. But the closures also would eliminate hundreds of jobs, deliver painful blows to downstate communities... Legislators were unwilling to endorse that trade-off.

The Commission on Government Forecasting and Accountability voted 7-3 against closing the Tamms "supermax" prison and a women's prison in Dwight, as Gov. Pat Quinn has proposed.... The commission also gave a thumbs-down to closing two Department of Corrections halfway houses and a juvenile prison.

The votes were only advisory. The Democratic governor is still free to close the institutions if he wants.

Rep. Patricia Bellock, a top budget negotiator for House Republicans, rejected all the proposed closures. The amount of money involved may be small, she said, but the impact would be huge. "I don't feel it's minor when you're dealing with people's lives," said Bellock, co-chair of the commission.

Some Democrats on the commission supported closing the major facilities. Republicans generally opposed them.

The Tamms prison is a relatively new facility that houses the state's most dangerous and disruptive prisoners. Human rights advocates criticize it for holding prisoners in solitary confinement, keeping them in their cells 23 hours a day. Quinn says moving those inmates to other prisons and shutting Tamms would save about $26 million a year.

Closing the Dwight prison and moving inmates to a penitentiary in Lincoln would save about $37 million. Shutting the halfway houses and youth camps that the commission rejected Tuesday would cut spending by roughly $27 billion.

May 1, 2012 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Yale Law Journal sponsoring prisoner writing contest

YaleA helpful reader altered me to the interesting news that the Yale Law Journal is now, as detailed on this webpage, welcoming submissions for its first Prison Law Writing Contest.  Here are some of the details:

If you are or recently have been in jail or prison, we invite you to write a short essay about your experiences with the law.  The three top submissions will win cash prizes, and we hope to publish the best work....

The Contest offers people in prison the chance to share their stories with people who shape the law and to explain how the law affects their lives.  Where permitted by state law, the authors of the winning essays will receive prizes: $250 for first place, $100 for second place, and $50 for third place.

Here are just some of the interesting topics concerning which the Yale Law Journal seeks submissions:

Here are the basic rules: "You may submit an essay if you have been an inmate in a prison or jail at any point from January 1, 2010 through September 30, 2012. We welcome essays of about 1000-5000 words, or roughly 4-20 pages."

Kudos to the students at Yale for running this interesting writing contest. I hope they will consider reporting on the number of submissions they receive and consider making many of them widely available for public consumption (at least on-line).

May 1, 2012 in Prisons and prisoners, Who Sentences? | Permalink | Comments (10) | TrackBack

Saturday, April 28, 2012

"Prison Officials Go After Masturbating Prisoners"

The title of this post is the headline of this local article from Connecticut discussing a bill being considered by state lawmakers.  Here are the details:

Prison officials in Connecticut want lawmakers to pass a bill that would label inmates who commit lewd acts in their cells, including masturbation, as sex offenders. It's an ongoing problem at prisons. In 2011, 94 inmates committed 390 indecent exposure violations of this type, according to the bill.

At the high-security Northern Correctional Institution, some inmates masturbate in front of staff, often a female staff member, a Correction Department spokesman said. Lisamarie Fontano, president of the union representing prison workers, said more than 500 such incident reports were written up at Northern last year.

Internal discipline hasn't deterred the behavior, but she believes inmates will stop if they know they will have to register as a sex offender when they leave prison, Fontano said.

Prior sort-of related posts:

April 28, 2012 in Offense Characteristics, Prisons and prisoners, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Monday, April 23, 2012

Notable news and notes about prisons and prisoners

Winding my way around Google News this evening allowed me to come across this array of notable new stories about prisons and prisoners:

April 23, 2012 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, April 19, 2012

"Our ‘War on Drugs’: Eugenics Without Surgery?"

The title of this post is the headline of this provocative commentary by Erik Roskes, a forensic psychiatrist, and appearing at The Crime Report.  Here are excerpts:

[There is prison] data showing that half of all inmates are currently incarcerated on drug offenses.  In my experience, more than half of the remainder are also incarcerated on crimes committed in the service of addiction: burglary, robbery, bank robbery, assault, felony murder.

And these inmates disproportionately come from segments of society that suffer various, often multiple, deprivations: social deprivation, educational deprivation, nutritional deprivation, cultural deprivation, cognitive deprivation.

Since drug addiction — or at least being caught, prosecuted and convicted for addiction and related crimes — disproportionately affects deprived segments of our society, I submit that our incarceration addiction is tantamount to eugenics without surgery....

In my view, the selective incarceration of young minority men due to addictions that they often develop in their socioeconomically and culturally deprived worlds removes them from society in part because we view them as the “bogeyman,” and as unfit to be full partners with us. This is eugenics in different form.

April 19, 2012 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Sunday, April 15, 2012

When do the costs of incarcerating the elderly clearly outweigh any benefits?

The question in the title of this post is prompted by this commentary from the Tulsa World, which is headlined "A Wow Moment: The aging of Oklahoma's prison population."  Here are excerpts:

If the state can prove that [73-year-old Darlene] Mayes is what it claims she is, a marijuana queenpin who supplied 40 percent of the marijuana sales around Grand Lake, there could be other wow moments. Like the wow moment for taxpayers and the Department of Corrections when yet another aging offenderwith the equivalent of a life sentenceis added to the more than 5,000 geriatric inmates already in the prison system. These are inmates in varyingand some very costlystages of declining health.

How useful is sending or keeping some of these older inmates in prison? Does their incarceration deter others in the AARP set from dipping into crime? Does it protect the community, or simply cost it?

Oklahoma has thousands of inmates, of all ages, behind bars serving time for drug offenses. That fact obviously hasn't deterred many others from getting in the business despite the risks. So, if deterrence isn't working, how about risk to the community? Are there alternatives to prison that would protect public safety but not cost taxpayers an arm and a leg in medical costs for an aging inmate?

If there are two categories of people that Oklahoma likes to lock up, it is women and drug offenders. Oklahoma ranks No. 1 nationally in per-capita female incarceration and is fairly high up the ladder in the percentage of drug offenders in prison.

But it is not only the number of drug offenders and female offenders that's grown exponentially in the past few decades. Oklahoma also has had marked growth in the number of older inmates, a population that presents expensive health-care challenges.

In 1980, DOC had only 85 inmates age 50 or older in its entire prison system. By 2010, that figure had grown to 3,952, and by 2013, the population is expected to reach 5,254 - a 48 percent increase. This is not favorable news for the DOC, taxpayers or older inmates.

"Inmates don't come to us in good health to start with," DOC Director Justin Jones told Tulsa World reporter Barbara Hoberock two years ago. "After years of substance abuse, when they get into their mid-50s, they have an array of chronic illness." Several years ago, DOC opened a geriatric facility at Joseph Harp Correctional Center in Lexington. "We filled it up the day we opened," Jones said of the 273-inmate facility.

In fiscal year 2000, DOC's total inmate health-care costs were about $34 million, which rose to more than $61 million by fiscal year 2010. A disproportionate share of that cost, by necessity, is being spent on care of older inmates.

This aging of the prison population poses tough choices for lawmakers and agency heads grappling with ever tighter budgets and demands to cut spending. A Time magazine article reported that policymakers "must address soaring medical costs for these older inmates and ponder whether some can be safely released before their sentences expire."

That might work for some nonviolent offenders, who could be paroled and use Medicaid or Medicare benefits instead of DOC-supported care. But how well would that play politically?

In many states, which have no choice financially, early-release programs targeted at older, nonviolent inmates are being tried. Compounding the issue, however, is the difficulty of finding nursing homes for aging, recently released felons who have no families and cannot live on their own. Some states are looking at starting long-term care facilities outside prison to care for parolees.

April 15, 2012 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Monday, April 09, 2012

"Tim Tebow connects with inmates during prison visits"

TebowingThe title of this post is the headline of this notable new piece appearing on NFL.com.  Here are excerpts:

On Easter Sunday, Tim Tebow answered questions from a Texas pastor with more than 15,000 people hanging on his every word.  It was a very public example of both Tebow's immense popularity and outspoken connection to his Christian faith.  Not all Tebow does is seen by the masses, however.

The New York Jets' quarterback has made 10 prison visits dating back to his time at the University of Florida, speaking and interacting with inmates who are looking for a fresh start.  Accompanied by chaplain and longtime family friend James Williams, Tebow had spoken with everyone from death row inmates to young offenders new to the system.

“It’s hard to fool people who are incarcerated,” Gerald Evans, an inmate at Lawtey Correctional Institution in northeast Florida, told the New York Daily News.  “They can see right through you.  They can tell when a guy’s faking, every time. Tim Tebow, he brought a charge to people here.  He brought inspiration to people here. He is a real as you can get.”

Tebow has visited Lawtey twice, talking faith and throwing a football with inmates in the prison's gymnasium.  “Being in prison you automatically see the worst in people,” inmate Tyron Thomas said.  “You meet a lot of people who pick up the Bible and when they put it down you can never tell they read it.  There was just something about Tebow, and how he truly believes in the word of God.  It’s kind of freaky, actually.  It’s not something you see too often.”

I like this story not only because it is useful to hear from prisoners that Tebow is not a phony, but also because it is nice to see prominent persons practice what they preach.  Regular readers know that many persons with strong Christian faith are ready and eager to apply that faith's principles of forgiveness and redemption to the criminal justice system, and I am pleased to learn that Tebow has long brought these messages to persons in prison who surely benefit from hear them directly from someone so high-profile.  Let the Tebowing in prison begin.

April 9, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, April 08, 2012

"Race, Prediction & Discretion"

The title of this post is the title of this new paper by Professor Shima Baradaran, which is now available via SSRN. Here is the abstract:

Many scholars and political leaders denounce racism as the cause of disproportionate incarceration of black Americans. All players in this system have been blamed including the legislators who enact laws that disproportionately harm blacks, police who unevenly arrest blacks, prosecutors who overcharge blacks, and judges that fail to release and oversentence black Americans. Some scholars have blamed the police and judges who make arrest and release decisions based on predictions of whether defendants will commit future crimes. They claim that prediction leads to minorities being treated unfairly. Others complain that racism results from misused discretion. This article explores where racial bias enters the criminal justice system through an empirical analysis that considers the impact of discretion and prediction.

With a close look at the numbers and consideration of factors ignored by others, this article confirms some conventional wisdom but also makes several surprising findings. This article confirms what many commentators have suspected — that police arrest black defendants more often for drug crimes than white defendants. It also finds, contrary to popular belief, that there is little evidence to support the belief that drugs are linked to violent crime. Also, judges actually detain white defendants more than similarly-situated black defendants for all types of crimes. The important and surprising findings in this article challenge long-held conventions of race and help mitigate racial disparity in criminal justice.

April 8, 2012 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, April 07, 2012

Interesting report on developments in prison consulting industry

Today's New York Times has this intriguing piece headlined "Making Crime Pay," which discusses industry developments in the prison consulting business. Here is how the lengthy piece gets started:

Larry Levine, heavyset and bald, runs a thriving business out of a gated apartment complex in Ventura County, Calif., a setting that’s not at all bad for a home office considering some of the prison cells he’s lived in. But as he drops into his plush beige and white sectional couch to talk business, something is nagging at him.

The trouble is the new competition. All these guys are setting up shop, marketing themselves on the Internet, claiming they know the ropes and cutting into his market share. To Mr. Levine, they’re a bunch of poseurs, with no street cred. After all, they’ve barely spent any time behind bars.

“Look at my résumé, I’ve got 10 years: high-security, medium, low,” said Mr. Levine, 50, who was in jail until 2007 on narcotics trafficking, counterfeiting and weapons charges. “These guys go in for a year and a half, maybe two. I’ve got more experience than all the rest of these guys combined.”

Mr. Levine is a prison consultant. The business — which entails advising people who are facing jail time on how to prepare for life on the inside, deal with medical issues, transfer to other prisons and even reduce their sentences — has been around for decades. It enjoys a burst of publicity when a boldface name like Bernie Madoff or Michael Vick hires a consultant.

But the business is changing. Behind the scenes, the profession is attracting a new crop of ex-cons who believe they can put their experience to work, rather than have it burden them in a tough job market. And more competition means rising tempers and flying accusations. Some prison consultants say that others are so lacking in expertise that their businesses are practically criminal enterprises. Rancor among thieves.

“This industry’s exploding,” mourned Mr. Levine, who operates two Web sites, American Prison Consultants and Wall Street Prison Consultants. He reached to a nearby coffee table and picked up a piece of paper listing the names of several dozen competitors and the length of their prison sentences. This is not a rap sheet, it’s market research. The business, he said, is “becoming saturated with people who don’t know what they’re doing.”

He and his competitors (some of whom find his prison time equally unimpressive) walk a fine marketing line, bragging about an extensive criminal record to attract customers. That can make it tough for potential clients to choose: How much incarceration time is enough? What kind of experience is right for the job — maximum security, solitary confinement, a knife fight?

To hear the consultants talk, most competitors aren’t worth the time of day. “Let’s put it this way: If I was in prison, I wouldn’t share a chow table with Larry Levine,” said William Mulholland, who founded the Real Prison Consultant in 2010. He and Mr. Levine have had words about Mr. Mulholland directing people to free online resources about the prison system.

He also said Mr. Levine routinely criticizes lawyers as money pits, which Mr. Mullholland said only alienates lawyers who could be crucial allies for the fledgling industry. (Mr. Levine said Mr. Mulholland is afraid to criticize lawyers.) "He’s like a used-car salesman,” Mr. Mulholland said of Mr. Levine.

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

Friday, April 06, 2012

"Moms support closure of Illinois supermax prison"

The title of this post is the headline of this notable article from the Chicago Tribune, which gets started this way:

A group critical of the treatment of prisoners at Tamms Correctional Center marched through downtown Chicago in support of Gov. Pat Quinn's proposal to close the southern Illinois prison.

Mothers of prisoners were among about 50 marchers at Wednesday's demonstration. They took aim at a union opposed to the prison's closure because it would mean layoffs for guards and other personnel. The mothers say the issue is about “human dignity, not jobs.” They marched through downtown, shouting, “No more torture, no more cages.”

April 6, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 04, 2012

"Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment"

The title of this post is the title of this notable new paper from Professor Laura Appleman now available via SSRN.  This paper seems especially timely in light of the Supreme Court's ruling in Florence earlier this week concerning strip searching of arrestees (basics here).  Here is the abstract from this paper:

In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence.  Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.

This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons.  Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty.  This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems.  Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.

April 4, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, April 03, 2012

Marching bishops perhaps take Connecticut to verge of repealing its death penalty

Bishops-488x327As reported in this local article, which is headlined "Senate To Raise Death Penalty Repeal Wednesday" and is accompanied by the picture reprinted here, it appears that Connecticut may be on the verge of repealing its death penalty. Here are some of the interesting details of the still-on-going legislative debate:

The state Senate is poised to raise a bill to prospectively abolish the death penalty during Wednesday’s session with the support of previously undecided Sen. Edith Prague.  The news broke Tuesday as Bishops of the Episcopal Diocese of Connecticut led a march on the Capitol with group of about 120 people calling for the end of capital punishment. The state Capitol complex was the last stop on a “Stations of the Cross” trip, during which the Bishops depicted the events leading up to the Romans’ execution of Jesus.

Bishop James Curry said the idea was to take the annual Holy Week prayers to the streets of Hartford and to focus on repealing the death penalty.  “We’re looking for justice for victims and victims’ families, and justice for our society.  It’s truly about what we want to say we are as a society and I think the death penalty turns us to the worst we are: seeking revenge rather than just punishment,” he said.

Sources say the death penalty will come up for a vote during Wednesday’s session.  The fact that lawmakers are considering raising the bill indicates they’re confident they have at least enough votes for an 18-vote tie in the sharply divided chamber. Lt. Gov. Nancy Wyman has announced her intention to break a tie vote in favor of repeal.

Prague, one of the three senators who has been on the fence over the issue this year, said Tuesday she would vote for repeal if she could be assured the legislation will not provide the grounds for appeals by the 11 inmates currently on death row.  “I am fully prepared to vote for repeal with the caveat that I stand up on the floor and get documentation from the chair of the Judiciary Committee that this in no way gives judges any discretion to apply this repeal to the people who are currently on death row,” she said.

Prague said judges have a lot of discretion in their courts, so the legislation must “make it very loud and very clear that this repeal can not apply to anyone who is on death row.”

Senate Minority Leader John McKinney doubted anyone could give Prague such an assurance.  Even if language is inserted into the bill stipulating the law was not intended to apply to inmates already sentenced to death, McKinney said the courts will view that as immaterial.   “That’s a decision that will be decided in the courts,” McKinney said. “No one disputes that there will be a legal challenge brought by the public defender’s office and the weight of the legal experts is to say that a prospective death penalty won’t pass constitutional muster.”

Assuming Prague does support repeal, her vote alone won’t be enough to tip the scales of the chamber far enough to reach a tie.  Sen. Andrew Roraback, who has previously supported repeal, has announced his intention to vote against the bill this year unless the legislature repeals a program which gives inmates the opportunity to reduce their sentences by participating in re-entry programs.

“The early release program, the more I have learned about it, the more committed I am to not letting us repeal the death penalty unless we repeal that as well,” Roraback said Tuesday.  “The fact that nobody will give these people the time of day is a really sad commentary on the institution of the legislature and the relationship of the legislature and the Judicial Branch to victims of crime.”...

McKinney said he’s hoping tomorrow’s debate will convince anyone who is considering supporting the bill to abandon their support.  Sen. John Kissel, R-Enfield, said he expects a long debate.

Kissel, a supporter of the death penalty, was tight-lipped Tuesday on what amendments he intends to offer during the debate, but in the past he has expressed interest in requiring that inmates convicted capital murder be held in solitary confinement.  Kissel said he wouldn’t be surprised to see Democrats offer a similar amendment Wednesday.  He said it was flattering they had embraced his idea but suggested it supports the notion that inmates currently on death row won’t be put to death if the bill passes. If the bill is truly prospective, why is there concern over the living conditions of those inmates, he asked.

McKinney said Republicans may offer another amendment that would make the death penalty more workable in the state rather than abolish it. Roraback likely will try to amend the bill to repeal the inmate early release program. Advocates in favor of repeal, like Executive Director Ben Jones of the Connecticut

Network to Abolish the Death Penalty, said he’s on pins and needles in anticipation of this year’s vote. Last year, efforts to repeal the death penalty died when the Senate was unable to come up with the necessary votes. It passed both chambers in 2009, but was vetoed by former Gov. M. Jodi Rell. “I will be nervous until it passes the House,” Jones said. While Jones said he isn’t as nervous about the votes in the House, where there’s a much more comfortable margin in favor of repeal, he said he’ll sleep a little better after both chambers vote.

April 3, 2012 in Death Penalty Reforms, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 02, 2012

New poll from Pew Center suggests significant public concerns with prison populations and costs

Pspp1Via this website entry (which I discovered thanks to the The Crime Report), I see that the folks at The Pew Center on the States "collaborated with two of the nation's leading polling firms, The Mellman Group and Public Opinion Strategies, to explore public opinion on sentencing and corrections issues across the country." Here is more from the web description of the poll and its findings:  

The firms conducted a national survey of 1,200 likely voters to measure underlying attitudes and support for specific policy changes. Download the summary of findings. (Adobe PDF)

Key Takeaways

• American voters believe too many people are in prison and the nation spends too much on imprisonment.

• Voters overwhelmingly support a variety of policy changes that shift non-violent offenders from prison to more effective, less expensive alternatives.

• Support for sentencing and corrections reforms (including reduced prison terms) is strong across political parties, regions, age, gender, and racial/ethnic groups.

A quick review of the full the summary of findings document suggests that there is a lot more to glean from this poll than just what Pew lists above as "Key Takeaways."  In addition, it does not seem as though the poll asked any specific questions about marijuana law and punishment, which seems like a real missed opportunity give the detail in which this poll went into on other issues.  Still, as Pew suggests, this survey can and should provide even more momentum to on-going efforts in various jurisdictions to reduce prison populations and associated costs.

April 2, 2012 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Lots more interesting criminal justice work from SCOTUS via orders and opinions

Though the Supreme Court will not be hearing argument for the next two weeks, the Justices provides still more reason for criminal justice folks to buzz about their work through the issuance of notable orders and opinions this morning.  SCOTUSblog, of course, is the place to go for all the SCOTUS news, and here is the live-blogging summary of some of the Court's work this morning:

[A grant in] 11-702, Moncrieffe [v. Holder, which concerns whether state conviction that covers distribution of a small amount of marijuana without remuneration constitutes an "aggravated felony" for deportation purposes]...

First opinion: 10-788, Rehberg v. Paulk (Alito), affirmed 9-0. A governmental grand jury witness has the same absolute immunity as a trial witness. The opinion in Rehberg is here.

[Second opinion:] 10-945, Florence -- affirmed.  Justice Kennedy writes the opinion, except as to Part IV.  Roberts, Scalia, and Alito join the Kennedy opinion in full; Thomas in part. Breyer writes the lead dissent.  The search procedures at the jails strike a reasonable balance.  Roberts and Alito write concurring opinions.  The part of the opinion that Thomas does not join says the Court leaves open what to do when the inmate will not be admitted into the general jail population.  Here is the opinion.

The Alito concurrence joins the opinion but says it is limited to admission to the general population without physical contact.  The Roberts concurrence draws attention to the fact that Florence was arrested on a warrant and had to be admitted to the general jail population. It's unclear how much the Court has decided.

Final opinion: 11-199, Vasquez [concerning harmless error review] -- dismissed as improvidently granted.

There is much of criminal justice interest in all of these ruling, though arguably nothing that significant to hard-core sentencing fans.  Still, I suspect the ruling, the voting particulars and the dicta of Florence is a matter on which I will have later commentary.  In the meantime, here is part of Lyle Denniston's first take on the Court's work regarding jails and strip searching:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body.  A partial split within the five-Justice majority made it appear that the decision did not authorize jail officials to conduct a strip search unless the prisoner was to be placed among other prisoners at the facility. Two Justices wrote separately in an effort to narrow the ruling, and their votes were essential to the 5-4 result.

The decision was a clear defeat for challengers to strip searches as a general policy.  The Court explicitly refused to limit the authority to use such searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.  The same kind of visual inspection of an arrestee’s naked body, the Court declared, can be applied to anyone placed in the general population of a jail or prison, even if only temporarily.

The ruling also was a personal defeat for a Burlington County, N.J., man, Albert W. Florence, who was subjected to strip searches at two county jails over a six-day period of confinement after he had been arrested while driving on a state highway, based upon an out-of-date warrant.  The warrant was for failure to pay a fine, but he had actually paid the fine; court records had not been updated.  Florence has contended in public comments that he believed he had been targeted because he was a black man driving an expensive car.

As if somehow to help justify its ruling against his challenge to the strip searches, the Court’s main opinion by Justice Anthony M. Kennedy opened with a description of Florence’s earlier run-in with police, seven years before the arrest that led to the strip searches.... Although the Kennedy opinion would later say that police need not make a strip search policy depend upon an arrested individual’s prior history in crime, the inclusion of the background material about Florence’s history appeared to be aimed at showing that police could not know the character of any individual they had brought in, and thus needed a policy applying to all to ensure that no threat would enter the facility with that prisoner.

April 2, 2012 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, March 31, 2012

Lengthy fights in California over lengthy stays in solitary

A helpful reader altered me to this new piece in the New York Times, headlined "Fighting a Drawn-Out Battle Against Solitary Confinement." Here are excerpts:

Ernesto Lira is not a murderer. He has never participated in a prison riot. The crime that landed him behind bars was carrying three foil-wrapped grams of methamphetamine in his car. But on the basis of evidence that a federal court later deemed unreliable, prison officials labeled Mr. Lira a gang member and sent him to the super-maximum-security unit at Pelican Bay State Prison, the state’s toughest correctional institution.

There, for eight years, he spent 23 or more hours a day in a windowless 7.6-by-11.6-foot cell, allowed out for showers and exercise. His view through the perforated steel door — there were 2,220 holes; he counted them — was a blank wall, his companions a family of spiders that he watched grow, “season by season, year by year.”

Mr. Lira insisted that he was not a gang member, to no avail. He was eventually vindicated and is now out of prison, but he still struggles with the legacy of his solitary confinement. He suffers from depression and avoids crowds. At night, he puts blankets over the windows to block out any light. “He’s not the same person at all,” said his sister Luzie Harville. “Whatever happened, the experience he had in there changed him.”

California has for decades used long-term segregation to combat gang violence in its prisons — a model also used by states like Arizona with significant gang problems. Thousands of inmates said to have gang ties have been sent to units like that at Pelican Bay, where they remain for years, or in some cases decades. But California corrections officials — prodded by two hunger strikes by inmates at Pelican Bay last year and the advice of national prison experts — this month proposed changes in the state’s gang policy that could decrease the number of inmates in isolation.

Depending on how aggressively California moves forward — critics say that the changes do not go far enough and have enough loopholes that they may have little effect — it could join a small but increasing number of states that are rethinking the use of long-term solitary confinement, a practice that had become common in this country over the past three decades.

The changes in California’s system would represent one of the largest shifts in how it handles prison gangs since officials began pulling gang leaders, known as shot-callers, out of the general population in the late 1970s. Prison reform advocates say that if California, with the largest prison population in the nation, changes its practices, states like Arizona that have similar policies might follow suit....

Few dispute the threat posed by prison gangs, or the murders, assaults, drug smuggling and other mayhem they are responsible for. In 2011, there were 1,759 gang-related homicides, attempted homicides and violent attacks on staff members or other inmates inside state prisons, the California Department of Corrections and Rehabilitation said.

Most states identify inmates who are members of prison gangs, and gang members account for a large percentage of the prisoners held in solitary confinement around the country. But California’s policy has been among the most severe, sending not only full gang members but also inmates found to associate regularly with gangs to one of the state’s three super-maximum-security facilities. More than 3,000 prisoners judged to have gang ties are held in such conditions. Of the inmates sent to the unit at Pelican Bay for gang affiliation, 248 have been there for 5 to 10 years; 218 for 10 to 20 years; and 90 for 20 years or more....

But civil rights lawyers have long been critical of California’s gang policy. The procedures used to identify gang members are flawed and lacking in due process, they say, leading to mistaken identifications like the one that sent Mr. Lira — who was vindicated by a civil rights lawsuit resolved last year, long after he was paroled — to Pelican Bay.

The piece in accompanied by this slideshow titled "A Legacy of Solitary."

March 31, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (13) | TrackBack

Thursday, March 29, 2012

"Putting The Compassion Into 'Compassionate Release' With A Little Help From Setser"

The title of this post is the title of this great new post by Federal Public Defender Steve Sady over at the Ninth Circuit Blog, which discusses one (of many) interested aspects of the Supreme Court's sentencing ruling in Setser yesterday (basics here). The post demands a full read, but here are key excerpts:

Your client from years ago calls you with terrible news.....he has a terminal illness; his family suffered a tragedy; an injury or illness renders him no longer able to care for himself. You look through the statute book and see that Congress anticipated this type of issue.  Under 18 U.S.C. § 3582(c)(1)(A), the sentencing judge has the authority to reduce the federal sentence at any time based on “extraordinary and compelling reasons.” Congress assigned to the Sentencing Commission the task of defining “extraordinary and compelling reasons,” including examples, in 28 U.S.C. § 994(t).  The Bureau of Prisons (BOP) acts as the gatekeeper, filing a motion where such reasons exist, leaving to the sentencing judge the decision whether, considering all the factors under 18 U.S.C. § 3553(a), the motion should be granted.  Great theory; horrible reality.

The BOP hardly ever files § 3582(c) motions and when it does, the standard is imminent death or what we call “the death rattle rule.”  In about 24% of the cases where a motion is filed, the prisoner dies before the sentencing judge has a chance to rule.  Although the Sentencing Commission has broadly defined “extraordinary and compelling reasons” in U.S.S.G. § 1B1.13, the BOP expressly refuses to implement the Commission’s standard in its so-called “compassionate release” program, as the Government Accountability Office confirmed in its February 2012 report....

[T]he Supreme Court just gave our § 3582(c) litigation a big boost in Setser.  First, in holding that the power to run sentences concurrently or consecutively resided in the Judicial Branch, not the Bureau of Prisons, the Court rejected the BOP’s usurpation of sentencing authority: “But the Bureau is not charged with applying 3553(a).”  Exactly.  The BOP’s practice of only filing § 3582(c) motions that it believes should be granted now runs contrary to Supreme Court authority.  But there’s more.  During oral argument, the attorney defending the district court’s authority to order a federal sentence to run concurrently with a not-yet-imposed state sentence asserted that the federal court could review subsequent state court action through § 3582(c).  Didn’t he realize that the BOP only allowed consideration of imminent death (see 21 Federal Sentencing Reporter 167 (February 2009))?  Although the statute is nowhere in the briefing, the Setser opinion states, “[W]hen the district court’s failure to ‘anticipat[e] developments that take place after the first sentencing,’. . . produces unfairness to the defendant, the Act provides a mechanism for relief,” then sets out the text of § 3582(c)(1)(A). The BOP’s stingy reading of the statute is completely inconsistent with the Supreme Court’s broad reading, and the Court has added to the Sentencing Commission’s recognition of factors “other than, or in combination with” its listed factors that should now include subsequent state sentencing proceedings.

I likewise found notable and valuable the SCOTUS comments about § 3582(c)(1)(A) in Setser v. US, No. 10-7387 (S. Ct. March 28, 2012) (available here).  In addition to the important comments stressed in Steve Sady's post linked above, I also thought it important that at the very end of the Setser opinion the Court indicated that an imprisoned defendant who fails to get requested relief from the BOP adminstrative review process "may seek a writ of habeas corpus.  See 28 U.S.C. §2241."  Because I am not often involved in BOP-related issues, I am unsure if it is well known and/or common for imprisoned federal defendants to seek habeas review via 28 U.S.C. §2241 of BOP decisions that adversely impact them.  If not, the Setser ruling might, in this additional way, prove to be a very positive development for those already serving legnthy federal prison terms.

Prior related posts:

March 29, 2012 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Vermont exploring racial disparties in its prison population

Few people likely think first of Vermont when concerned about racial disparties in the operation of criminal justice systems, but this local article from the Green Mountain State highlights that Vermont's legislators are (justifiably) concerned on this front.  The piece is headlined "Vermont bill calls for study of prison population by race," and here are excerpts:

It’s been a vexing puzzle for years, and Vermont lawmakers have decided to take a step at trying to solve it: Why do African-Americans make up 10.3 percent of Vermont’s prison population when they are just 1 percent of residents in the nation’s second-whitest state?

Traffic stops and roadside searches have been studied for years as a possible source of race-based bias among Vermont law enforcement. A new study, contained in a bill given preliminary approval by the House on Tuesday, will look at whether bias enters the picture when defendants are sentenced in court.

“There’s a dramatic disparity between those who are incarcerated and what our census data show,” said Rep. William Lippert. The Hinesburg Democrat chairs the House Judiciary Committee and described the bill to his House colleagues Tuesday. It won preliminary approval on an overwhelming voice vote and was up for final House action Wednesday before moving to the Senate.

The figures are striking: African-Americans make up just 1 percent of the population of a state that is 95.3 percent white, yet they make up 10.3 percent of Vermont inmates. Put another way, a Vermont inmate is more than 10 times as likely as a resident at large to be African-American.

According to the legislative findings at the beginning of the bill, a statistical technique called regression analysis indicated that black men were 1.5 times more likely, and women 2.6 times more likely, to be arrested in Vermont than their white counterparts....

The bill requires that a key part of the study look at prior criminal records of defendants, including prior convictions from out of state. Appel said there is widespread belief — but not enough data to back it up — that African-Americans frequently get into trouble in Vermont when they bring illegal drugs from elsewhere to sell in the state.

“Is it racial profiling, or black men preying on our kids by selling drugs in our communities? It’s long overdue for us to get a handle on what’s driving these disparities,” Appel said. “That’s what this study is designed to answer.”

March 29, 2012 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 28, 2012

"How Would Jesus Punish Drug Use?"

The title of this post is the headline of this recent Huffington Post commentary authored by Molly Gill, who is the Director of Special Projects for Families Against Mandatory Minimums. Here are some excerpts from a potent piece discussing the always interesting connections between religious convictions and criminal justice doctrine:

The first and only time I heard evangelical mega-figure Pat Robertson speak in public, he wasn't calling for the legalization of pot. I was 21, a junior at Oral Roberts University, playing endless rounds of "Pomp and Circumstance" on my viola with the school orchestra. Robertson was present to give the commencement address to that year's graduates.  I can't remember what he exhorted them to do, but I'm positive it didn't involve toking up.

Robertson still isn't spreading that message, but his recent comments about legalizing pot, the cruelty and irrationality of mandatory minimum prison sentences for drug crimes, and the expensive and failed War on Drugs are refreshing.  Our harsh mandatory prison terms for drug offenses are incompatible with Christian principles of justice.  This conviction -- and the faith I and Robertson share -- drove me first to law school and then to Washington, D.C. to work on criminal sentencing reform for Families Against Mandatory Minimums (FAMM), a secular organization.  I join Robertson in posing a question all evangelicals should be striving to answer:

How would Jesus want us to punish?

Most Christians would start with Exodus 21's command that "an eye for an eye" is the right approach.  Sadly, this verse has been cited to justify heartless vengeance in our criminal laws: "do the crime, do the time."  The verse isn't a license to punish, but a limitation on punishment: the time must fit the crime and not be excessive. Giving either less or more punishment than the crime or the offender deserves is an injustice....

Jesus turned the "eye for an eye" concept on its head in Matthew 5, when he said, "You have heard that it was said, 'Eye for eye, and tooth for tooth.' But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also." Anyone can hit back, but it takes real Christian love to show compassion to criminals -- in Jesus' words, to love our law-breaking neighbors as ourselves and to treat them as we would like to be treated....

Our lawmakers are to blame.  Too many Christian legislators wear their faith like a badge of honor and proclaim a belief in redemption and forgiveness, but vote for more mandatory minimum prison sentences in election years.  These lawmakers would do well to remember James 2:17: "Faith by itself, if it is not accompanied by action, is dead."  (James 2:13 is another good reminder.  That verse tells believers to show others the same mercy they've received: "Judgment without mercy will be shown to anyone who has not been merciful.  Mercy triumphs over judgment.")

The Book of James also teaches that a true mark of our faith is caring for widows and orphans. Every time we lock up a breadwinner, we create a widow.  Every time we incarcerate a parent, we create an orphan.  The Christian organization Prison Fellowship does wonders in recruiting the faithful to care for prisoners and their families, but it also urges legislators to reform the laws that are at the root of the problem. Both prison ministry and sentencing reform advocacy are essential.  Christians should support reforming mandatory sentencing laws that perpetuate an over-reliance on prisons and fail to deliver the compassion, services and opportunities for redemption that prisoners and their families need.

More leaders like Robertson should tell Congress to remove the thumb of mandatory minimum sentences from our scales of justice. Our judges need flexibility and discretion to require an eye for an eye -- nothing less and nothing more. They also need more compassionate, redemptive -- I daresay Christian -- sentencing options that treat offenders like the valuable children of God we all are.

Some related older and newer posts:

March 28, 2012 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, March 27, 2012

Georgia poised to "nestle [its] miscreants in a down-filled feather bed of comfort"

ImagesCASZS4J3The title of this post is drawn from an amazing line in an amazing email reportedly sent by a local sherrif to county residents in reaction to a state sentencing reform bill that just received unanimous approval from the Georgia Senate.  This Atlanta Journal-Constitution piece, headlined "Senate unanimously approves sentencing reform bill," provides the details of this latest example of tight budgets prompting significant (cost-saving) sentencing reforms in a "red" state:

The state Senate on Tuesday unanimously approved legislation to reform Georgia's criminal sentencing laws to divert nonviolent drug and property offenders away from costly prison beds, saving the state tens of millions of dollars in projected corrections spending.

House Bill 1176, approved by a 51-0 vote, is intended to steer some low-level offenders to pretrial diversion programs such as drug and mental health courts and reserve the prison system for the state's most dangerous criminals.

The initiative is a top priority of Gov. Nathan Deal. The legislation must be approved once more by the House before it goes to the governor's desk for Deal's signature. House passage is a near certainty, as it initially passed the chamber with almost unanimous support.

"HB 1176 outlines much-needed reforms that will improve public safety, lower recidivism rates and bring real costs savings to Georgia taxpayers," Sen. Bill Hamrick, R-Carrollton, who handled the bill in the Senate, said. "Without action, taxpayers would have paid $264 million over the next five years to accommodate a rising prison population."...

If the bill is enacted, Georgia would follow a number of other conservative southern states -- including Texas and South Carolina -- that have already adopted so-called "smart on crime" sentencing reform legislation.

Some who have followed the legislation said it would go too far in lessening punishment for some crimes, while others said the initiative does not do enough to reform the criminal justice system.

In an email last week to Putnam County residents, Sheriff Howard Sills strongly criticized HB 1176. "Every thief, burglar, check forger and hoodlum from Trenton to Tybee, from Bainbridge to Blue Ridge will be grinning from ear to ear if this passes," Sills wrote. "When it comes to being soft on crime, this legislation will nestle our miscreants in a down-filled feather bed of comfort they never remotely thought they could slumber in."

Sara Totonchi, director of the Southern Center for Human Rights in Atlanta, disagreed. The bill, she said, "implements a very modest slice" of the reforms recommended by a special council of judges, lawyers and other officials that held meetings and issued a report on the initiative. "If Georgia is to realize the crucial cost-saving and public safety benefits that have been promised, future reforms must be far more bold and innovative than what we've seen in 2012," Totonchi said.

A key provision of HB 1176 would create new categories for drug possession crimes, with less severe penalties for those caught with small amounts of narcotics and the most severe penalties for those found with large quantities. It also would increase the felony thresholds for theft and shoplifting crimes.

March 27, 2012 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, March 26, 2012

Notable new ACLU of California report on state's prison realignment efforts

Asset_upload_file954_10684The ACLU of California has recently released this significant new report titled "Public Safety Realignment: California at a Crossroads," examining and assessing recent California efforts to deal with its prison overcrowding problems. Here is the start of the report's executive summary:

California is at a criminal justice crossroads.  After decades of “tough on crime” policies and draconian sentencing practices, the state correctional system — one of the largest incarcerators in the largest incarcerating country in the world — finally buckled under its own weight.  Faced with a historic U.S. Supreme Court order requiring the state to reduce overcrowding, California made a momentous decision: it would no longer take into state facilities or under state custody most people convicted of low-level, non-violent offenses, instead tasking counties with dealing with these individuals at the local level.

Legislatively codified as the Public Safety Realignment Act, or Assembly Bill 109 (AB 109), this major policy shift has put California’s 58 counties in the driver’s seat.  Each county will choose its own path, but their futures are intertwined. Poor implementation in one county will inevitably affect others. All will affect California taxpayers.

The ACLU has conducted an in-depth review of all 53 available county realignment implementation plans, and we have analyzed the statutory changes and related state laws and budget allocations.  We have identified four major interrelated themes:

• A troubling lack of state monitoring, data collection, outcome measurements and funding incentives to help counties successfully implement realignment.

• A dramatic increase in spending on county jails — facilitated by billions of dollars in state funding — particularly in those counties that have historically sent more people to state prison for low-level, non-violent offenses.

• A shockingly high number of people who present no real threat to public safety being held in county jails before having their day in court, incarcerated without trial simply because they cannot afford bail.

• A promising commitment — though not yet realized — by many counties to adopt alternatives to incarceration and evidence-based practices to reduce recidivism.  A few counties are adopting innovative programs and approaches that can serve as models for the rest of the state, but all too often our analysis revealed few, if any, resources allocated for such programs

March 26, 2012 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, March 25, 2012

"When lifers kill in prison, is it a waste to prosecute them?"

The question in the title of this post is the headline of this interesting piece appearing in the Denver Post.  Here are excerpts:

When Dominic Stewart was found guilty this month of killing a fellow prisoner at the Supermax prison in Florence, he was already serving a life term for another murder.  At sentencing, Stewart is likely to have another life term added on, raising questions about whether it was worth the government's time to pursue the case.

Prosecuting homicides is expensive and uses up government resources at a time when the economy is down, according to critics. Darren Cantor, a Denver defense lawyer who represents high-profile murder suspects, said it can cost about $500,000 to go to trial on a murder case, depending on a variety of factors.  The expense can be much less, but it can also go up, costing millions if the death penalty is pursued, he said....

But prosecutors counter that you can't put a price on justice for victims, and punishing people for their crimes sends a message to other inmates that violence won't be tolerated in prison.  "Sometimes justice is not an accounting exercise," said 13th Judicial District Attorney Robert Watson.  "Justice isn't always measured in dollars and cents. There are still family members of victims who want to see the process run through."

Watson, whose district encompasses a prison in Sterling where four murders occurred in two years, said even smaller crimes, such as a lifer found possessing drugs in his cell, need to be punished.  "We are sending the message to the guy in the cell next to him who is only doing five years," Watson said.

Mark Collins, spokesman for the Supermax prison in Colorado, agreed. "It is necessary to maintain the security and order of our institutions or a level of normalcy to the best of our ability," he said.  Collins said there are a variety of methods that corrections employees can use to keep order among lifers who may think they have nothing to lose.  "They could lose their visiting privileges, phone privileges, access to the prison commissary," he said.

In Colorado state prisons, 16 inmates were murdered by another prisoner from 2002 through 2010. In Colorado federal prisons, five homicides have been reported in the past seven years....

First Assistant U.S. Attorney Robert Troyer, who prosecuted Stewart, said victims — even if they were inmates with violent records of their own — deserve justice.  "If you don't prosecute a murder — especially if you have a pattern of not prosecuting a murder because someone is serving a life sentence — it can be an encouragement to that dangerous segment of society to commit murder with impunity because they feel they are not going to be prosecuted," he said.  "You have anarchy if you do not prosecute these crimes."

Murderers serving life sentences also have seen their convictions overturned on technicalities, and another violent conviction in prison can help ensure they will never get out.  "A life sentence isn't always forever.  There is no limitation on how much further down the road they can attack the conviction," Watson said.

When a murderer kills again behind bars, prosecutors will usually seek the death penalty, depending on the evidence, Troyer said.  Federal prosecutors are already pursuing death sentences in the cases of Richard Santiago and Gary Watland....

If prosecutors don't seek convictions, inmates might believe that the U.S. attorney doesn't care, Troyer said. "That is a hall pass to kill anyone you want," he said.

The substance of this article provides an easy answer to the question as phrased in the title of this post taken from the article's headline: no.  The much harder question is "What are the most effective and just ways to punish likers who kill?"  As we have debated on this blog before, this refined question is much more challenging, especially for anyone categorically opposed to the death penalty.

A few related prior posts:

March 25, 2012 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (57) | TrackBack

Friday, March 23, 2012

The Machinery of Criminal Justice #3: Hiding Punishment Behind Prison Walls

[Stephanos Bibas, guest-blogging]

In my last two guest-blog posts on my new book, The Machinery of Criminal Justice, I described a couple of the key features of colonial-era punishments: the room they left for showing mercy and for reintegrating defendants after they were punished. Now I'll start to describe a couple of key changes that happened in the nineteenth century with the shift to imprisonment as the dominant punishment. In this post I'll focus on how prison hid punishment from public view.

An ideological change led to the great prison experiment. Reformers no longer saw the roots of crime in weakness of free will or in the devil's temptations. Rather, they blamed wrongdoer's families, associates, and vice-filled cities for dragging wrongdoers down into crime. The solution seemed to be to remove them from their criminogenic environments and to instill new, law-abiding habits and discipline.

After a few failed experiments with hard labor in public or having the public come into prison to watch prisoners work, a newer vision took hold, starting in Philadelphia and New York. The Pennsylvania system kept each inmate in solitary confinement, separate from one another and in complete silence. If each man was kept in silence, with only a Bible as his companion, optimistic reformers believed that his inner light or reason would convict his conscience and lead him to repent and reform.

New York's Auburn prison was less austere, as inmates worked together in silence each day but slept alone at night. Both the Pennsylvania solitary system and the New York silent system involved at least some isolation, as well as almost military structure and discipline. Both had as their central aims to reform wrongdoers through structure, and in some cases through work.

These reformers were far too optimistic about human nature. Penitentiaries did not breed penitence but crime. Solitary confinement without work drove some inmates insane or to suicide and did not reform them. True solitary confinement also proved too costly and difficult. Crime kept rising, leading to double-bunking and more cells. Once prisoners talked and bunked together, prison became a school for crime, providing criminal networks and contacts.

Though prison had failed, few people could stomach going back to bloodier punishments, and there was no obvious alternative. Thus, prison has remained our default punishment for the last two centuries. Inertia triumphed. Prison bred everything from abusive guards to gang violence to rape, but these brutalities were out of sight and mind.

One of the biggest barriers to reentry was the prisons bred idleness, not job skills and responsibilities. Though at first work had been central to prison administrators' ambitions to reform inmates, prison labor dwindled between 1870 and 1940. The fatal blow was not humanitarian but economic, as labor unions and small businesses opposed potential competition and got Congress to outlaw interstate transportation or sale of prison-made goods, choking the market for prison labor.

Today, prisoners can work for private firms only at prevailing local wage rates. That requirement, on top of the added security costs in prison, makes prison labor uneconomical for private firms. Prisoners can instead produce goods for state governments' internal use, but that internal market is too small to keep most prisoners busy. As a result, only about 1/9 of state prisoners and 1/6 of federal prisoners work in an industry or farm. Far more waste their days in mind-numbing idleness, watching television or killing time.

March 23, 2012 in Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas, Prisons and prisoners | Permalink | Comments (6) | TrackBack

Monday, March 19, 2012

Lots of media coverage anticipating SCOTUS arguments on JLWOP

Unsurprisingly, the media now has lots of discussion of kids sent to prison for life with the US Supreme Court due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here is just a sampling of some of the notable new pieces from both old and new media:

From ABC News here, "Juvenile Murderers: Is Life Without Parole Unconstitutional?"

From the Chicago Tribune here, "For young killers, 'a chance to have a chance'; Supreme Court to consider whether a life sentence without parole is too harsh for juveniles"

From the Daily Beast here, "Ex-Prisoners Say Life Term Is Cruel for Teens, As Case Hits High Court"

From UPI here, "Under the U.S. Supreme Court: When children commit murder"

In addition, a large number of news outlets have recent editorials urging SCOTUS to declare these juve LWOP sentences always unconstitution, including CNN and the Los Angeles Times and the New York Times and the Washington Post and lots of other smaller media outlets from all around the nation (as evidenced here and here and here).

Some recent related posts on Jackson and Miller cases:

March 19, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack