Monday, June 07, 2010
"Bernie Madoff, Free at Last"The title of this post is the headline of this long new article in New York magazine about life in prison is like for everyone's favorite Ponzi-schemer scoundral. (Hat tip: The WSJ Blog.) This piece looks very buzz-worthy, as its start highlights:
Last August, shortly after his arrival at the federal correctional complex in Butner, North Carolina, Bernard L. Madoff was waiting on the evening pill line for his blood-pressure medication when he heard another inmate call his name. Madoff, then 71, author of the most devastating Ponzi scheme in history, was dressed like every other prisoner, in one of his three pairs of standard-issue khakis, his name and inmate number glued over the shirt pocket. Rec time, the best part of a prisoner’s day, was drawing to a close, and Madoff, who liked to walk the gravel track, sometimes with Carmine Persico, the former mob boss, or Jonathan Pollard, the spy, had hurried to the infirmary, passing the solitary housing unit — the hole — ducking through the gym and the twelve-foot-high fence and turning in the direction of Maryland, the unit where child molesters are confined after they’ve served their sentences. As usual, the med line was long and moved slowly. There were a hundred prisoners, some standing outside in the heat, waiting for one nurse.
Madoff was accustomed to hearing other inmates call his name. From July 14, the day he arrived, he’d been an object of fascination. Prisoners had assiduously followed his criminal career on the prison TVs. “Hey, Bernie,” an inmate would yell to him admiringly while he was at his job sweeping up the cafeteria, “I seen you on TV.” In return, Madoff nodded and waved, smiling that sphinxlike half-smile. “What did he say?” Madoff sometimes asked.
But that evening an inmate badgered Madoff about the victims of his $65 billion scheme, and kept at it. According to K. C. White, a bank robber and prison artist who escorted a sick friend that evening, Madoff stopped smiling and got angry. “Fuck my victims,” he said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”
Ninth Circuit allows for Bivens suit against operator of private federal prisonAddressing an issue that has the smell of a future cert grant, a Ninth Circuit panel today in Pollard v. Geo Group, Inc., No. 07-16112 (9th Cir. June 7, 2010) (available here) allows a Bivens action to go forward against the operators of a private prison. Here is how the majority opinion starts:
Plaintiff-Appellant Richard Lee Pollard, a federal inmate, appeals the district court’s order dismissing his Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons. This appeal presents the question of whether the implied damages action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), allows a federal prisoner to recover for violations of his constitutional rights by employees of private corporations operating federal prisons. We conclude that it does.
A partial dissent, which flags why this ruling may be cert worthy, starts this way:
I agree that the district court properly dismissed GEO from the lawsuit and that employees of a private corporation operating a federal prison are federal government actors. I conclude, however, that we would err by creating a split in the law of the various circuits by holding that a prisoner may maintain a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against such employees where adequate state law remedies exist. Until now, the federal circuits that have addressed the issue have held correctly that a prisoner may not maintain such an action. See Alba v. Montford, 517 F.3d 1249 (11th Cir.), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287 (4th Cir.), cert. denied, 547 U.S. 1168 (2006); Peoples v. CCA Det. Ctrs., 422 F.3d 1090 (10th Cir. 2005), vacated in relevant part and aff’d by equally divided en banc panel, 449 F.3d 1097 (10th Cir. 2006) (per curiam), cert. denied, 549 U.S. 1056 (2006) and 549 U.S. 1063 (2006). The evolution of the U.S. Supreme Court’s Bivens jurisprudence confirms that this Court should follow their lead.
Fascinating sentencing dogs that did not end up barking in Barber
The fact that many folks went to law school in order to avoid math may itself ensure that the Supreme Court's decision today in Barber v. Thomas concerning the calculation of prisoner good-time credits (basics here) does not get all the attention it merits. More fundamentally, because the Barber ruling affirms the good-time calculation status quo, this Term's biggest sentencing sleeper case will probably go down in history as just another jurisprudential dog that could have, but in the end did not, bark in the face of modern mass incarceration.
But before sentencing fans move on, I recommend everyone — not just sentencign fans, but everyone — find the time to read and reflect on the opinions and the votes in Barber. Put simply, there is a lot of "there there" in both opinionsi n Barber, and in this post I can only just start scratching the surface of what should be noticed in the Court's work with this initial post.
Starting with the opinion of the Court authored by Justice Breyer, it is intriguing and notable how both the legislative purpose and legislative history of the Sentencing Reform Act is deftly operationalized to support the Court's anti-defendant interpretation of the good-time credit statute. Though I am not a statutory interpretation guru, I sense Justice Breyer worked extra hard to craft language that enabled Justice Scalia and others to be comfortable signing on to his opinion's non-textual elements. And, for truly hard-core statutory interpretation junkies, there are also some really interesting rule of lenity and Chevon deference moves in the Barber majority worth noticing as well.
Turning to the voting patterns, I suspect that long-time blog readers will not be too surprised to see a pro-government ruling coming from the pen of Justice Breyer. What is a bit more surprising, and certainly noteworthy, is that this ruling in Barber lost the vote of Justice Kennedy even though it retained the vote of Justice Sotomayor. I cannot recall another split opinion this term in which Justice Sotomayor went against the defendant while Justice Kennedy when against the government.
I stress the voting patter in Barber in part because I still recall all the debate over "empathy" in last year's confirmation battles concern then-Judge Sotomayor. As highlighted by this first paragraph from the dissent in Barber, it would seem that it is Justice Kennedy who really knows how to turn on judicial emphaty:
The Court has interpreted a federal sentencing statutein a manner that disadvantages almost 200,000 federal prisoners. See Pet. for Cert. 11, and n. 2. It adopts thisreading despite the existence of an alternative interpreta-tion that is more consistent with the statute’s text. Absent a clear congressional directive, the statute ought not to beread as the Court reads it. For the Court’s interpretation — an interpretation that in my submission is quite incorrect — imposes tens of thousands of years of additional prison time on federal prisoners according to a mathematical formula they will be unable to understand. And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court’s interpretation comes at a cost to the taxpayers of untold millions of dollars. See id., at 11. The interpretation the Court adopts, moreover, will bedevastating to the prisoners who have behaved the bestand will undermine the purpose of the statute. These considerations, and those stated below, require this respectful dissent.
Whatever else one makes of the legal debate in Barber, I am eager to give Justice Kennedy props for writing an opening paragraph that manages to pull on both heart-strings and purse-stings at the same time.
SCOTUS upholds BOP's method for calculating good time credits in Barber v. ThomasSCOTUS watchers will likely be disappointed that the Justices did not hand down any of its big pending opinion this morning. But federal prisoners should be even more disappointed that the one criminal justice opinion in an argued case that was handed down this morning, Barber v. Thomas, has turned out to be a 6-3 loss for defendants. Barber could have been the most practically consequential sentencing case of the Term if it had come out the other way, but now it is perhaps most interesting for its (unprecedented) voting blocks. Here is how SCOTUSblog reports on the Barber ruling:
The third and last opinion is in 09-5201, Barber v. Thomas... The Court affirms the lower court, with Justice Breyer writing for the Court...
The vote is 6-3, with Kennedy dissenting joined by Stevens and Ginsburg...
The Court upholds the federal Bureau of Prison's method for calculating inmates' good-time credits.
The full opinion in Barber is available here, and I will have commentary on the ruling later in the day.
Saturday, June 05, 2010
"Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts"The title of this post is the title of this interesting new piece by Ira Robbins available via SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them — that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation — or “unbundled legal services” — is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. N evertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take — i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance — and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Thursday, June 03, 2010
"The Crunch in Federal Prisons"The title of this post is the headline of this effective new article from The Crime Report. The piece carries this sub-head: "More prisoners are doing federal time than ever, but Congress isn’t allocating enough funds to pay for them. Prison officials and reformers say a rethink of the system is long overdue." And here is how the piece gets started:
While cash-strapped states are responding to the nation’s economic crisis by looking for ways to reduce their prison populations, the federal prison system is heading in the opposite direction.
Last year, the 115 federal prisons added 7,000 inmates to their rolls, making a total of 211,000 inmates in federal facilities — and the figure is expected to grow. The number of federal criminal cases filed annually has increased from 69,575 in fiscal year 2005 to 76,655 in FY 2009.
To make matters more difficult, federal funding isn’t keeping up with the extra burden. At a U.S. Sentencing Commission hearing in Washington, D.C. last week, U.S. Attorney for Atlanta Sally Quillian Yates said that federal facilities are currently operating at 34 per cent above capacity. And that, she warned, will have “real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.”
The White House appears to have recognized the problem. President Barack Obama is seeking a $600 million increase in the prison system’s budget for next year. The proposal includes filling an additional 1,200 correctional staff positions and opening three new facilities.
But the question is whether a budget-conscious Congress will go along. The prison system already eats up $6.8 billion, making it the second-largest component of the Justice Department’s budget, just below the FBI.
Wednesday, June 02, 2010
Notable data from new EJI report on racial skew of key criminal justice decision-makersAs noted in this prior post, the Equal Justice Initiative have released this big new report on racial discrimination in jury selection. Though there is much of interest in this new report, sentencing fans know that juries have very little role in sentencing decision-making except in capital cases and in a few jury sentencing states. Thus, for those most concerned with sentencing law and policy, an especially significant part of the new EJI report is its brief accounting of the lack of minorities in other critical criminal justice decision-making positions. Specifically, consider these data from the EJI report:
While black employment in law enforcement has increased during the last three decades in major metropolitan departments, racial diversity remains virtually nonexistent in some smaller Southern jurisdictions. In Houston County, Alabama, where the population is 27% African American, the local police department is nearly 94% white.
State and federal prosecutors also are mostly white. Approximately 98% of district attorneys in states that apply the death penalty are white. As the chart opposite shows, African Americans are vastly underrepresented among district attorneys in each of the eight Southern states analyzed in this report. The latest data show no black district attorneys in Arkansas, Florida, or Tennessee.
Data on the racial diversity of the American judiciary reveal that it continues to be overrepresented by whites in both the federal and state courts. Nationwide, of a total of over 12,000 state and federal judges, approximately 90% are white, even though racial minorities make up more than 25% of the population nationwide.
People of color are most underrepresented in the state courts. African Americans constitute 12% of the United States population but fewer than 6% of the bench at all state court levels.
Underrepresentation among appellate judges in the states EJI studied is significant. African Americans comprise 26% of Alabama’s population but none of the state’s 19 appellate judges is black. According to the American Bar Association’s National Database on Judicial Diversity in State Courts, Alabama has the smallest percentage of black judges statewide of the studied states, followed by Tennessee.
Just 4.2% of lawyers and judges in the United States are African American, which means that, in addition to being arrested, prosecuted, and judged by whites, defendants typically are represented by white lawyers.
That Arkansas, Florida, and Tennessee all have no black district attorneys is especially notable given that all three states have African Americans populations that significantly exceed the national average. Also, I believe more than half of all prisoners in these three states are black. Consequently, even if one does not believe there is significant racial discrimination in the administration of criminal justice in these states and elsewhere, these EJI data should leave no doubt that there is significant racial disparity in the administrators of criminal justice in these states and elsewhere.
Tuesday, June 01, 2010
New NAACP report on "prison-based gerrymandering"As detailed in this press release, this morning "the NAACP Legal Defense and Educational Fund (LDF) released Captive Constituents, a report on prison-based gerrymandering." Here is more from the press release:
As the report details, most states and local governments count incarcerated persons as residents of the prison communities where they are housed when drawing election district lines, even though they are not residents of those communities and have no opportunity to build meaningful ties there.
“This practice is known as ‘prison-based gerrymandering,’ and it distorts our democratic process by artificially inflating the population count—and thus, the political influence—of the districts where prisons and jails are located,” said John Payton, LDF Director-Counsel. “Everyone should care about this anti-democratic phenomenon because it distorts our political system.”
The United States Constitution requires that election districts must be roughly equal in size, so that everyone is represented equally in the political process. This requirement, known as the “one person, one vote” principle, is undermined by prison-based gerrymandering.
Prison-based gerrymandering results in stark racial disparities as well. African Americans are nearly 13% of the general population, but are 41.3% of the federal and state prison population. But incarcerated persons are often held in areas that are far removed, both geographically and demographically, from their home communities. Thus, prison-based gerrymandering not only weakens the political strength of communities of color, it is also eerily reminiscent of the infamous “three-fifths compromise,” which enabled Southern states to amplify their political power by counting enslaved and disfranchised African Americans as amongst their constituents.
“Because incarcerated persons in the United States are disproportionately African Americans and other people of color, the current counting of prisoners at their place of incarceration severely weakens the voting strength of entire communities of color,” said Payton.
The full (and brief and colorful) NAACP report is available at this link.
Friday, May 21, 2010
Interesting talk in Oklahoma about creating a "Christian Prison"I just came across this fascinating local story from Oklahoma headlined "Christian Prison Remains On Hold: Leaders Say They Need Commitment From Prisoners." (Hat tip: Prison Law Blog). Here are the basics:
A private firm proposing a prison in Wakita with all born-again Christian staff and programming does not yet have the commitments for prisoners it needs to begin construction.
Bill Robinson, the founder of Corrections Concepts Inc., a Dallas nonprofit prison ministry that is leading the proposal, said the bonding company that is financing the project will not release funds to begin construction until states or other jurisdictions have agreed to send 285 prisoners to the 624-bed facility. "We're still working to get the adult facility done," Robinson said.
He said California has expressed an interest in sending adult inmates to Wakita, and he is in discussion with Kansas about it. Talks with Oklahoma are "in limbo."
The project has the support of city leaders in Wakita, a town near the Kansas border, and some civic leaders in the area. "We'd be very supportive of it," said John Criner, the mayor of Enid, the largest nearby city. "We can't put any money into it, but I'd be more than happy to get him a resolution supporting the project."
Criner said Enid, which is 30 miles south of Wakita, was close enough to reap indirect economic benefit from the proposed prison. Mayor Arden Chaffee of nearby Alva said the prison would have a positive effect on the area economy. "It sounds like a great idea. I just don't know if they can finance something like that, which is a Christian concept, with public money," he said.
The concept of an all-Christian private prison has drawn the attention of a Washington, D.C., civil liberties group. The group, Americans United for the Separation of Church and State, sent a letter to the Oklahoma Department of Corrections asking it not to send prisoners to the proposed prison.
Alex Luchenitser, the group's senior litigation counsel, said its chief concern is that public funds would be used for religious worship and instruction. "We think this would be clearly unconstitutional," he said. The organization also is concerned about possible civil-rights violations of prisoners, and public subsidy of an organization that hires only Christians, he said.
Robinson countered that the prison would be constitutional because inmates would go there voluntarily. He said he has legal opinions that say the prison, as a religious organization, can legally hire only people of like faith.
If constitutional challenges arise, he said, the American Center for Law and Justice, a major Christian law firm in Washington, has agreed to represent the ministry without charge....
Robinson's concept is to put inmates into a Christian environment where they can learn, work and grow spiritually during the last year or so of their incarceration. They would work at businesses that are set up in the prison, where they would learn a marketable skill and earn money for their families, for restitution to their victims, and for a nest egg when they are released. "We want to turn criminals into citizens," he said.
I am generally a fan of faith-based prisons, especially because early research suggests they are more effective at rehabilitative programming. So I hope this project gets off the ground and does not get unduly thwarted by litigation that will use up state and other resources that would be better allocated to inmate programs.
Sunday, May 16, 2010
"More Mentally Ill Persons Are in Jails and Prisons Than Hospitals"The title of this post is the headline of a notable and important new report issued this week by the National Sheriffs' Association. (Hat tip to a helpful reader who forwarded me this item from the Houston Chronicle.) This press release about the report provides this effective summary:
The full report is available at this link.
Americans with severe mental illnesses are three times more likely to be in jail or prison than in a psychiatric hospital, according to "More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States," a new report by the Treatment Advocacy Center and the National Sheriffs' Association.
"America's jails and prisons have once again become our mental hospitals," said James Pavle, executive director of the Treatment Advocacy Center, a nonprofit dedicated to removing barriers to timely and effective treatment of severe mental illnesses. "With minimal exception, incarceration has replaced hospitalization for thousands of individuals in every single state."
The odds of a seriously mentally ill individual being imprisoned rather than hospitalized are 3.2 to 1, state data shows. The report compares statistics from the U.S. Department of Health and Human Services and the Bureau of Justice Statistics collected during 2004 and 2005, respectively. The report also found a very strong correlation between those states that have more mentally ill persons in jails and prisons and those states that are spending less money on mental health services.
Severely mentally ill individuals suffering from diseases of the brain, such as schizophrenia and bipolar disorder, often do not receive the treatment they need in a hospital or outpatient setting. The consequences can be devastating – homelessness, victimization, incarceration, repeated hospitalization, and death.
"The present situation, whereby individuals with serious mental illnesses are being put into jails and prisons rather than into hospitals, is a disgrace to American medicine and to common decency and fairness," said study author E. Fuller Torrey, M.D., a research psychiatrist and founder of the Treatment Advocacy Center. "If societies are judged by how they treat their most disabled members, our society will be judged harshly indeed."
Recent studies suggest that at least 16 percent of inmates in jails and prisons have a serious mental illness. According to author and National Sheriffs' Association Executive Director Aaron Kennard, "Jails and prisons are not designed for treating patients, and law enforcement officials are not trained to be mental health professionals."
Ratios of imprisonment versus hospitalization vary from state to state, as the report indicates. On the low end, North Dakota has an equal number of mentally ill individuals in hospitals as in jails or prisons. By contrast, Arizona and Nevada have 10 times as many mentally ill individuals in prisons and jails than in hospitals.
Among the study's recommended solutions are for states to adopt effective assisted outpatient treatment laws to keep individuals with untreated brain disorders out of the criminal justice system and in treatment. Assisted outpatient treatment is a viable alternative to inpatient hospitalization because it allows courts to order certain individuals with brain disorders to comply with treatment while living in the community. Studies show assisted outpatient treatment drastically reduces hospitalization, homelessness, arrest, and incarceration among people with severe psychiatric disorders, while increasing adherence to treatment and overall quality of life.
Thursday, May 13, 2010
A gendered execessive force case of note as we reflect on gendered judging
Perhaps because I am married to a female Princetonian, I am especially focused on how gender issues (as well as elitism issues) are starting to play out in this debate over the nomination of SG Elena Kagan to the Supreme Court. (For some basic back-story, consider this New York Times piece from a few days ago, which is headlined "Reshaping Court’s Culture, a Woman at a Time.") In other words, I am primed to be thinking about gendered judging: whether and just how women may view legal disputes differently from men.
With this background, I found especially notable some of the gendered realities surrounding this split ruling by the Sixth Circuit today on an Eighth Amendment excessive force 1983 case. For starters, there is a gendered dynamic to the underlying facts: the plaintiff is a woman, Trudy Griffin, arrested for disorderly conduct suing a male corrections officer, Darrell Hardrick, who sought to control her through a "leg-sweep maneuver" which led to a tumble during which a female corrections officer fell on the Griffin and broke her tibia.
Right out of the box, I found intriguing that the female plaintiff apparently sued only the male corrections officer. But that choice may have been greatly influenced by the fact allegation made by plaintiff Griffin that the officer Hardrick told her that "she 'was his bitch.'"
Significantly, the entire incident was captured on video, but a video with no sound (and thus there is no recording to establish or refute whether Hardrick said to Griffin that she "was his bitch"). Relying in part on the video, the male corrections officer sought and was granted summary judgment by the district court which held that "no reasonable jury could find that Hardrick had intended the unnecessary and wanton infliction of pain when he tripped Griffin." That ruling now is before the Sixth Circuit, with a panel of two men and one woman considering whether this grant of summary judgment to the male corrections officer was appropriate.
With this set-up, I suspect the astute reader can already guess the nature of the split ruling from the Sixth Circuit that prompted this post. The two male Sixth Circuit judges on the panel both voted to affirm the grant of summary judgment on behalf of corrections officer Hardrick. Dissenting, the female Sixth Circuit judge on the panel asserts that a "jury viewing the events portrayed in the video in light of the statements Griffin attributes to Hardrick could reasonably conclude that Hardrick could not plausibly have thought that the use of the takedown maneuver, although executed properly, was necessary, and that, in fact, he performed it solely to inflict pain, even if not of the degree that ultimately occurred."
I find it useful and worthwhile not only to notice these gendered realities, but also to speculate whether a Justice Kagan might see this case differently than a Justice Stevens. (And, if we want to get elitism issues into this conversation, we might also wonder whether Elena Kagan or anyone else on President Obama's SCOTUS short-list has ever been arrested for disorderly conduct or ever worked as a corrections officer.)
For a last little bit of gender-awareness, I encourage readers to note that, in telling this tale, I have intentionally not reported the gender of the district judge who granted summary judgment and turned this matter into appeal fodder in this posture. Any reader who is interested to know the gender of the district judge who granted summary judgment in this case is likely someone who thinks that gender may be, at least descriptively, of some pertinence to the craft of judging (dare I say umpiring) in at least some contexts.
Friday, May 07, 2010
"Men’s Central Jail is a modern-day medieval dungeon"
The title of this post is part of the quote that accompanies this picture from the Los Angeles County jail depicted here and in a series of photos available here from the ACLU of Southern California. Here is the full quote/caption:
“Men’s Central Jail is a modern-day medieval dungeon, a dank, windowless place where prisoners live in fear of retaliation and abuse apparently goes unchecked. The jail is not an appropriate facility for housing prisoners with mental illness, many of whom do not receive proper treatment for their mental illness,” said Peter Eliasberg, ACLU/SC managing attorney. “At the root of the many problems plaguing this toxic facility is overcrowding and the only solutions are to either reduce the jail population dramatically or close it.”
The photo-spread accompanies a new report released by the ACLU of California concerning the jail conditions. This press release, which is headlined "Overcrowded Men’s Central Jail Plagued by Violence and Hazardous Living Conditions, New ACLU Report Finds," provides this overview of the report:
A report released today by the American Civil Liberties Union shows that overcrowding and unsanitary conditions that have plagued the jail for more than 30 years still persist, along with an apparent culture of violence and fear, including prisoner-on-prisoner assaults and the use of excessive force by deputies. The picture of the jail that emerges in stark and disturbing detail in the report suggests that mentally disabled prisoners suffer some of the worst treatment, and that retaliation and a lack of transparency in conducting investigations into prisoner complaints make it difficult to assess the true extent of violence that occurs there....
With approximately 20,000 detainees, the Los Angeles County jail system is the largest and most expensive in the nation, costing nearly $1 billion a year to operate. Men’s Central Jail is nearly 50 years old and currently houses an average of 5,000 detainees. More than half are simply awaiting trial – in other words, they are presumed innocent and have yet to get their day in court.
The ACLU/SC and the ACLU National Prison Project are the court-appointed monitors of conditions within the jail.
The new report, based on the observations of ACLU jail monitors, numerous interviews with prisoners, and thousands of prisoner complaints gathered between 2008 and 2009, focuses on conditions inside Men’s Central Jail, the largest jail in the county’s system.
The full ACLU/SC report can be found at this link.
Tuesday, May 04, 2010
Norway's new prison sound far more pleasant than punishingAs detailed in this new Time magazine piece, which is headlined "Norway Builds the World's Most Humane Prison," the folks in the Land of the Midnight Sun have a different vision of incarceration than do folks in the Land of the Free. Here are the details:
Ten years and 1.5 billion Norwegian kroner ($252 million) in the making, Halden is spread over 75 acres (30 hectares) of gently sloping forest in southeastern Norway. The facility boasts amenities like a sound studio, jogging trails and a freestanding two-bedroom house where inmates can host their families during overnight visits. Unlike many American prisons, the air isn't tinged with the smell of sweat and urine. Instead, the scent of orange sorbet emanates from the "kitchen laboratory" where inmates take cooking courses. "In the Norwegian prison system, there's a focus on human rights and respect," says Are Hoidal, the prison's governor. "We don't see any of this as unusual."
Halden, Norway's second largest prison, with a capacity of 252 inmates, opened on April 8. It embodies the guiding principles of the country's penal system: that repressive prisons do not work and that treating prisoners humanely boosts their chances of reintegrating into society. "When they arrive, many of them are in bad shape," Hoidal says, noting that Halden houses drug dealers, murderers and rapists, among others. "We want to build them up, give them confidence through education and work and have them leave as better people."
Countries track recidivism rates differently, but even an imperfect comparison suggests the Norwegian model works. Within two years of their release, 20% of Norway's prisoners end up back in jail. In the U.K. and the U.S., the figure hovers between 50% and 60%. Of course, a low level of criminality gives Norway a massive advantage. Its prison roll lists a mere 3,300, or 69 per 100,000 people, compared with 2.3 million in the U.S., or 753 per 100,000 — the highest rate in the world.
Design plays a key role in Halden's rehabilitation efforts. "The most important thing is that the prison looks as much like the outside world as possible," says Hans Henrik Hoilund, one of the prison's architects. To avoid an institutional feel, exteriors are not concrete but made of bricks, galvanized steel and larch; the buildings seem to have grown organically from the woodlands. And while there is one obvious symbol of incarceration — a 20-ft. (6 m) concrete security wall along the prison's perimeter — trees obscure it, and its top has been rounded off, Hoilund says, "so it isn't too hostile."
The cells rival well-appointed college dorm rooms, with their flat-screen TVs and minifridges. Designers chose long vertical windows for the rooms because they let in more sunlight. There are no bars. Every 10 to 12 cells share a living room and kitchen. With their stainless-steel countertops, wraparound sofas and birch-colored coffee tables, they resemble Ikea showrooms.
Halden's greatest asset, though, may be the strong relationship between staff and inmates. Prison guards don't carry guns — that creates unnecessary intimidation and social distance — and they routinely eat meals and play sports with the inmates. "Many of the prisoners come from bad homes, so we wanted to create a sense of family," says architect Per Hojgaard Nielsen. Half the guards are women — Hoidal believes this decreases aggression — and prisoners receive questionnaires asking how their experience in prison can be improved.
There's plenty of enthusiasm for transforming lives. "None of us were forced to work here. We chose to," says Charlott-Renee Sandvik Clasen, a music teacher in the prison and a member of Halden's security-guard chorus. "Our goal is to give all the prisoners — we call them our pupils — a meaningful life inside these walls." It's warmth like that, not the expensive television sets, that will likely have the most lasting impact.
Friday, April 30, 2010
Interesting split Eleventh Circuit ruling on whether ADA applies to a private prisonBecause I am not an expert on the American with Disabilities Act, I cannot readily assess the merits of the split ruling by the Eleventh Circuit today in Edison v. Douberly, No. 08-15819 (11th Cir. 2010) (available here). But the majority's holding and the forceful dissent have me thinking the case implicates not just the procese issue of whether just the ADA applies to a private prison, but also whether and how private prison operators can be sued by the prisoners they manage. Moreover, this concluding sentiment by the dissent cannot help but invoke a little sympathy for the losing litigant here:
In light of the fact that Edison is legally blind, his case raises novel issues of law, and he did not benefit from the assistance of counsel during the district court proceedings, the case should be remanded with the opportunity for Edison to amend his complaint. Leaving the majority’s holding on the ADA aside, it is an injustice to leave a blind, incarcerated litigant without any legal recourse in this complex litigation because his request for counsel was wrongfully denied during the district court proceedings.
Wednesday, April 28, 2010
"Jailbirds Order Up Hot Wings"The title of this post is the headline of this fascinating article about a modern new development in the economics of prison food from yesterday's Wall Street Journal. Here is how the piece starts:
In a bid to raise cash and keep the peace in crowded jails, wardens nationwide are offering inmates the chance to order meatball subs, cheeseburgers, chicken parmesan — even a "Pizza and Wings Party Pack," complete with celery, blue cheese and a Pepsi.
The program goes beyond the old-fashioned prison commissary, with its cup-a-soups and bags of chips, and it can be quite lucrative for corrections departments. "We have to be creative in tough fiscal times," said Edwin G. Buss, commissioner of Indiana's Department of Correction.
But critics worry the service will trigger jealousies, promote unhealthy diets and coddle prisoners.
The service, launched in 2006 by food-service giant Aramark Corp., took off in the past two years amid the recession. Inmates — or, more often, their relatives — place orders on Aramark's "iCare" Web site. The company tailors its menus to each jail's rules. Prices generally run $7 to $12 for a hot meal and $20 to $100 for a junk-food box filled with beef jerky, iced cookies, vanilla cappuccino or other goodies not available in the commissary.
The Indiana state prison system is on track to make more than $2 million this year on sales from the service. In San Antonio, Texas, the Bexar County jail, which makes 45 cents on every dollar in sales, projects its revenue could hit $500,000.
Advocates say the deliveries give guards a potent disciplinary tool: Be good or you won't get your jalapeno poppers.
Revenue from the meals has saved prison programs, such as parenting classes, wardens say. And in some institutions, inmates get job-training credit for preparing the hot meals in the jail kitchen and packaging the junk-food boxes. Plus, said Deputy Chief Debra Jordan, who runs detention programs in Bexar County, given the "very humble" quality of prison food, letting an offender's mom buy him a club sandwich now and then "is an act of kindness."
Critics, however, fear the deliveries will inspire envy, violence and extortion. "It's like with kids — you don't bring cookies to school unless you've got enough for everyone," said Gordon Crews, a criminal-justice professor at Marshall University.
Wardens who have tried the program say that hasn't been a problem. Many prisons have long let well-behaved inmates order goods such as CD players, sneakers and mini-TVs. "Jails are always run better when your inmates are happy," said Capt. Richard Fisher, the jail administrator in Rock Island County, Ill.
Tuesday, April 27, 2010
"Fixing the Prison Health Care System Through Changes in Punishment"The title of this post is the title of this new piece on SSRN that might be of special interest to policy-makers and prison officials in California who are trying to get out from under various court-ordered requirements to improve prison health care conditions. Here is the abstract:
Something must be done to improve access to health care in America’s prisons. A prison sentence today imposes an illegitimate burden of poor quality medical care on prisoners. The prison system neither treats inmate fairly nor effectively, and exacerbates and spreads disease. Existing pathways to reform have failed. Legislative fixes have been mired in losing political battles. Efforts at litigating for change have been derailed by hostility both from the judiciary and legislatures. Finally, common-sense prison based remedies have been stymied by extraordinarily rare application. The best hope for improving conditions comes through a radical expansion of sentencing and early-release initiatives. These proposals limit the sentences of sick inmates at the outset, and provide for early release of sick inmates who are already incarcerated. These measures serve as a safety-valve for the overburdened prison health-care system, while avoiding the problems of other measures.
Monday, April 19, 2010
The notable contrast in Arizona and Texas prison population trendsYesterday's Arizona Republic had this long and effective article on prison populations, which was headlined "Ariz. aims to cut prison costs; in Texas, a new approach." Here is how it gets going:
While the U.S. prison population is declining for the first time in nearly 40 years, Arizona is headed in the opposite direction.
Unlike in some other states, mandatory-sentencing laws keep Arizona inmates in prison for nearly all of their sentenced time. And state lawmakers say rewriting sentencing guidelines to grant shorter prison terms is politically unlikely.
Amid a historic budget shortfall, some lawmakers are intent on finding ways to reduce the $880 million bill taxpayers foot each year for locking up convicts, nearly 10 percent of the state's $8.9 billion budget. A look at other states with similar challenges shows some ways prison populations — and costs — can be cut.
With changes made over the past five years, Texas has reduced its prison population and halted plans for a huge prison expansion. New approaches to incarceration have saved money without taking the teeth out of the criminal-justice system, says a Republican Texas lawmaker who had a hand in the changes.
"Suicide watch stepped up for Death Row inmate"
The title of this post come from the headline of this story in this morning's Columbus Dispatch. Here are the details as I am contemplate whether I should be concerned that perhaps more of my tax dollars are now being spent by Ohio officials to ensure a condemned inmate does not kill himself before the state gets to kill him tomorrow:
The next inmate to be executed in Ohio is under heightened security as the state tries to avoid another suicide attempt on Death Row. In response, a civil-liberties group suggested the new policy goes too far.
Serial rapist Darryl Durr, who is scheduled to die Tuesday by lethal injection for strangling a 16-year-old girl a suburb of Cleveland in 1988, is under a 72-hour watch at a state prison in Youngstown.
The watch has been standard procedure. But now his cell includes a Plexiglas-like door so guards can keep him under better surveillance, prisons spokeswoman Julie Walburn said. Also, his bed lacks springs, which he could use to harm himself, and he can't have physical contact with visitors.
Mental-health staff members will evaluate whether Durr, 46, can have certain personal items, including shoestrings, or leave his cell for recreation, Walburn said.
The moves follow the March 7 suicide attempt of Lawrence Reynolds, an inmate who overdosed on an antidepressant hours before he was to be sent from Youngstown to the Southern Ohio Correction Facility in Lucasville, site of the state's death chamber.
Thursday, April 15, 2010
NY Times editorial calls for sensible prisoner census countingThis morning's New York Times has this editorial headlined "A Fairer Way to Count," which focuses on how prisoners get counted. Here are excerpts:
Maryland struck a blow for electoral fairness this week with a new law requiring that prison inmates be counted at their home addresses when legislative districts are redrawn after the 2010 census. Other states should follow.
Counting inmates as residents — prison-based gerrymandering — inflates populations and exaggerates the power of the mainly rural districts where prisons tend to get built. It undercuts the power of the mainly urban districts where the inmates come from, their families live, and to which they return after release....
Lawmakers in Maryland acted after learning how the prison count had distorted their political landscape. In one state legislative district, nearly a fifth of the population are inmates, most of whom hail from elsewhere in the state. In one county commission district, inmates account for 64 percent of the population.
Studies have shown that many states have districts that would probably be illegal had they not been padded with inmates who often come from hundreds of miles away. More than a half dozen states seem poised to follow Maryland’s example. That is an important start. The best solution is for the Census Bureau to begin counting inmates at their homes beginning with the 2020 census.
Monday, April 12, 2010
"Non-violent offenders clogging state prisons"The title of this post is the headline of this commentary in a local Pennsylvania newspaper. Here is how it starts:
Pennsylvania's prison system continues to be impacted by costly overcrowding, while 20 other states are reducing their inmate populations.
Pennsylvania currently has 51,000 inmates in a system designed to accommodate 43,000. To ease the overcrowding, Pennsylvania has begun sending 2,000 inmates to prisons in Virginia and Michigan at a cost of about $42 million a year. At the same time, the commonwealth is planning to build four new prisons estimated to cost $800 million.
In contrast, New York's inmate population has decreased by 13 percent. New York officials are considering closing one or more prisons. This is attributed to alternative sentencing, intensive drug treatment, and mental health programs.
Michigan has reduced its inmate population by 8 percent. It has closed eight prisons and has 3,260 fewer inmates than it had three years ago. This is attributed to drug and alcohol counseling, and job training, all outside the prison.
What makes Pennsylvania so different from New York and Michigan? In the 1980s and 1990s, tough-on-crime laws such as mandatory minimum sentences were designed to remove drug dealers and violent felons from society. As it has turned out, however, Pennsylvania now has the second-longest sentences for non-violent crimes. Yet the major restorative benefit from incarceration occurs in the first year.
Mandatory minimums have stripped discretion from judges. The majority of Common Pleas judges surveyed a few years ago argued that mandatory minimum sentences for nonviolent crimes were not an effective deterrent. In October 2007 the Pennsylvania House formed a committee of legislators, judges, district attorneys, and public defenders to study mandatory minimum sentencing structures. The findings (available at Web site http://pcs.la.psu.edu) uncovered a number of "unintended consequences."
The Department of Corrections has stated that Pennsylvania's state prisons are exploding with non-violent offenders, which include low-level drug users, drunk drivers, parole violators and shoplifters. The time for studies has ended. The time for reform is now.
Tuesday, April 06, 2010
"Aging Prisoners, Increasing Costs, and Geriatric Release"The title of this post is the subtitle of this terrific and timely new publication from the Center on Sentencing and Corrections at the Vera Institue of Justice. Here is how the Center summarizes the piece (which is authored by Tina Chui):
Correctional facilities throughout the United States are home to a growing number of older adults with extensive, costly medical needs. This report examines statutes related to the early release of geriatric inmates in 15 states and the District of Columbia and concludes that these provisions are rarely used, despite the potential of reduced costs at minimal risk to public safety. The author identifies factors that help explain the discrepancy and provides recommendations for addressing it.
Here is part of the piece's executive summary:
This report is based upon a statutory review of geriatric release provisions, including some medical release practices that specifically refer to elderly inmates. The review was supplemented by interviews and examination of data in publicly available documents.
At the end of 2009, 15 states and the District of Columbia had provisions for geriatric release. However, the jurisdictions are rarely using these provisions. Four factors help explain the difference between the stated intent and the actual impact of geriatric release laws: political considerations and public opinion; narrow eligibility criteria; procedures that discourage inmates from applying for release; and complicated and lengthy referral and review processes.
This report offers recommendations for responding to the disparities between geriatric release policies and practice, including the following:
- States that look to geriatric release as a cost-saving measure must examine how they put policy into practice. For instance, they should review the release process to address potential and existing obstacles.
- More analysis is needed to accurately estimate overall cost savings to taxpayers—and not just costs shifted from departments of corrections to other agencies.
- More effective monitoring, reporting, and evaluation mechanisms can improve assessments of the policies’ impact.
- Creative strategies allowing older individuals to complete their sentences in the community should be piloted and evaluated.
- Finally, to protect public safety, states should consider developing relevant risk- and needs-assessment instruments, as well as reentry programs and supervision plans, for elderly people who are released from prison.
Should Sherrif Joe Arpaio be praised or pilloried for "Pedal Vision"?This local story provides the details on the latest innovation coming from Arizona's (in)famous Sheriff Joe Arpaio. Here are the fascinating details:
Sheriff Joe Arpaio Maricopa County is implementing a new inmate program at Tent City Jail called “Pedal Vision.” The program uses inmate-powered cycles to generate electricity for televisions.
Reports say Arpaio’s recent visit to Tent City inspired the idea, when he saw that many of the inmates were overweight. The stationary bikes are customized so that as an inmate pedals, a connected television is powered once the cycle generates 12 volts of electricity.
One hour of pedaling equals one hour of television viewing for the inmates, according to Arpaio. Arpaio said the inmates will only be able to watch television in the television room if they choose to pedal.
"I started with the females because they seemed more receptive to the idea," Arpaio said. "The only exercise the females get right now is speed-walking around the tents yard and few are doing that. This gives them a reason to get moving and a way to burn up to 500 calories an hour. They won't be charged a monthly gym fee but they will have to sign a contract." Sheriff Arpaio debuted the pilot program on April 1.
Though Sherriff Joe is (justifiably?) notorous for some of the "get-tough" innovations he tries out on local prisoners, I am inclined to praise him for "Pedal Vision." The program seems to encourage improved physical fitness and also sound pretty "green" too. However, given Sherriff Joe's reputation and past programs, I have an inkling not everyone will be eager to praise him now for this latest innovation.
Monday, April 05, 2010
"there is no such thing as a nonviolent crime"This title of this post is a line from this remarkable op-ed from a "senior supervising psychologist" at a California prison. The op-ed is headlined "State plays dangerous game when it considers the early release of inmates," and it highlights some of the arguments and rhetoric that makes cutting prison populations so challenging. Here are excerpts:
After spending 20 years in corrections as a psychologist, I am astonished that anyone -- much less the governor -- could define any class of felons as nonviolent. The current plan to release thousands of California inmates with no or shortened parole is fatuous, if not disingenuous. It is a complete fiction to believe that any convicted felon upon release is safe for community re-entry without serious strengthened parole supervision and community-based rehabilitation.
The re-offense numbers are striking and troublesome. According to up-to-date reports readily available through the state corrections department, 57.44 percent of all paroled felons are returned to prison within three years for parole violations or for a new offense. And those are just the ones who have been caught.
Moreover, there is no such thing as a nonviolent crime. Virtually every blue-collar crime is committed by someone willing to do some kind of violence if in the doing of the crime they are discovered....
Do some inmates leave prison and lead exemplary lives? Of course. But the last thorough study revealed that out of 10,000 paroled criminals followed over many years, fewer than a dozen -- yes, a dozen -- of those multiple thousands truly turned themselves around. The rest faced post-release lives skirting the law and flirting with re-arrest by continuing their crime....
Not a pretty picture, especially when we are facing personnel reductions in police and sheriff's departments, locally and throughout the state. More felons on the street, fewer of society's "protectors" in the field. Not hard to see where that might lead.
The only credible solution if these felons are to be released is to redirect a serious portion of money saved through the release program to parole programs throughout the state to greatly reduce the number of parolees on an agent's caseload -- as has now wisely been done -- to 40 or fewer, so that supervision is close, frequent and regular. And these parolees need to be in rehab programs and forced to wear GPS devises so that at any time they can be located for random checks. Anything short of that, we're courting disaster.
I am a bit surprised to see a prison psychologist making such an aggressive argument against the notion that some crimes are nonviolent and for the idea that all felon pose a significant risk to the community upon release. Nevertheless, this op-ed provide a great example of the kind of fear-mongering that can make it so very hard for states to keep moving forward with plans to reduce prison populations.
Wednesday, March 31, 2010
"Supreme Court justices have a good time debating 'good time'"The title of this post is the headline of this CCN report on yesterday's Supreme Court argument in Barber v. Thomas (09-5201). Here's more:
Sometimes the most complicated of cases at the Supreme Court brings out the best arguments. It certainly brought out the giggles in a little-watched appeal Tuesday over federal prison terms.
The justices managed to crack themselves up -- along with the public audience -- at least a dozen times in the hourlong oral debate. Justice Clarence Thomas rarely speaks at the high court's normally sober sessions, but he especially enjoyed the gentle insults and self-deprecating jibes his colleagues showered on each other. His booming laugh could be clearly heard at times.
At issue was how the federal Bureau of Prisons should calculate "good-time credit" -- reduced sentences for inmates staying out of trouble in custody. Prisoners can earn up to 54 days of credit for each year of the sentence....
Despite the fun, the question is a serious one for the nearly 197,000 federal prisoners and their families, according to the most recent weekly population report issued by the Justice Department. Ninety-five percent of the inmates are affected by the good-time provision. Lawyers for the inmates say the savings to taxpayers under their reading of the law would amount to $953 million a year now being spent to incarcerate current prisoners.
The case is Barber v. Thomas (09-5201). A written ruling -- minus any jokes -- is expected by June.
Comically, I have been so busy the last few days, I have not yet even had a chance to read the Barber transcript yet (which is available here). For reasons hinted in this article, however, this case could prove to be the sleeper sentencing case of the Term.
Tuesday, March 30, 2010
Sentencing day at the US Supreme Court
This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).
Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:
- Does United States v. Booker apply to resentencing proceedings under 18 U.S.C. 3582(c)(2)?
- Calculation of “good time” sentencing credits
I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).
Monday, March 29, 2010
Is "medical parole" the best way to deal with California's high prison costs?The question in the title of this post is inspired by this notable new article in the Sacramento Bee, which is headlined "Watchdog proposes medical parole to cut California prison costs." Here are highlights from the interesting article:
The man in charge of upgrading the quality of health care in California's overcrowded prisons has an idea for taxpayers: medical parole. J. Clark Kelso, the federal court-appointed prison health receiver, suggests that California could stop spending millions of dollars a year if officials could grant parole to a handful of inmates who are comatose or otherwise severely incapacitated.
"I am keenly aware, as are the courts," Kelso said, "that a dollar that we can save in the prison health care program is a dollar that can be spent on other important priorities for the state, such as education, money for children, the elderly, other health care programs."
An aide in Kelso's office said that, conservatively, the prison system could save $213 million over five years by paroling just 32 inmates identified as severely incapacitated. Twenty-one of those 32 inmates are in nursing facilities or hospitals outside prisons, which requires spending for expensive guard time – including overtime – as well as huge health care costs.
These 21 inmates' average annual health care and guard costs total more than $1.97 million apiece – a total of $41.4 million a year for 21 individuals, said Kelso aide Luis Patiño. "These people are not even capable of realizing they're being punished," Patiño said. "Society becomes the victim, because it's paying the cost."
The 11 other severely incapacitated inmates are inside prison health centers, where their annual medical bills average $114,395 each. Kelso's office supplied these details after he and Sen. Mark Leno, D-San Francisco, announced March 17 that Leno had introduced a bill to create medical parole.
Leno said 1,300 inmates' health care costs exceed $100,000 a year, and that up to 700 prisoners could qualify for a possible medical parole under his bill.... With medical parole, Leno said, California's prison system would save by transferring medical costs to federal programs and eliminating guard costs. Prisoners are not eligible to enroll in federally funded Medi-Cal or Medicare, but parolees are.
California legislators passed a proposal similar to Leno's in 2003. Then-Gov. Gray Davis vetoed it, instead signing a bill to allow prison officials to contract space for inmates at non-prison health facilities. Davis called it "a safer, humanitarian and more cost-efficient alternative to parole." Spokesman Aaron McLear said Gov. Arnold Schwarzenegger had no comment on Leno's draft proposal. The governor has backed another proposal that would give the University of California control of the prison health care system as a way to cut the costs of treating chronically ill inmates....
But some lawmakers are skeptical. State Sen. George Runner, R-Lancaster, generally a tough law-and-order legislator, said he thinks "it's an illusion" that such large savings could be achieved with medical parole. "Part of the problem is figuring out who this group is," he said. "If someone is truly vegetative then maybe there is a reason to consider this."...
Leno said his Senate Bill 1399 would apply narrowly to certain inmates who cannot function on their own, including inmates bedridden with end-stage Alzheimer's or on ventilators or feeding tubes. He cited the example of an inmate with dementia, paralysis and no speech or bladder control whose two years of outside care has cost $350,000 a year, not counting guards. Another inmate on a ventilator, Leno said, has cost more than $500,000 in the past 18 months. Medical bills for a third inmate with end-stage cardiac disease and other complications have topped more than $1 million a year, he said.
Runner noted that California already has a "compassionate release" policy for prisoners severely incapacitated or near death. But such releases are rare....
Susan Howley, director of public policy at the National Center for Victims of Crime, said that, if California allows prison officials to grant medical parole, victims' concerns should be heard in each case. "It is especially important when you have a situation like this," Howley said, "where budget concerns are driving proposals. When you say it's because of budgets," she said, "that really rubs victims the wrong way – that justice is too expensive."
Leno said he doesn't want to minimize crime victims' suffering. But legislators are facing tough budget choices, he said, and must find ways to contain prison costs, which are consuming nearly 11 percent of the state general fund. "I, for one," Leno said, "would much rather save the jobs of 35 teachers, rather than continue to incarcerate 10 comatose inmates at a quarter of a million dollars a year."
He said 36 other states have a version of medical parole, including Texas, which is putting about 100 to 170 inmates a year into that status.
Valuable recent reviews of federal prision program realities
I often refer people to Alan Ellis, a past president of NACDL who specializesin prison matters and postconviction remedies, whenever I am asked a hard question about federal prison programs. Alan is a co-author of the Federal Prison Guidebook, and he recently sent me two of his recent writings about federal prison programs for posting here.
Alan's recent article in The Champion concerns the federal RDAP program an is titled "Changes to the BOP Residential Drug Abuse Program." It can be downloded here: Download Changes_to_the_BOP_RDAP
Alan's recent article in Criminal Justice concerns federal prison medical facilities and is titled "BOP Health Care: What You (and Your Clients) Need to Know." It can be downlaoded here: Download ABA- BOP Healthcare 3
Saturday, March 27, 2010
Important and timely new paper on judicial sentence modification and early releaseThus coming Tuesday, the Supreme Court will hear oral arguments in important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201). Though I will preview these cases in some coming posts, both cases raise questions about the role of judges and the procedures used to modify sentences and provide for early release from imposed prison terms. Given these SCOTUS plans, this new piece on SSRN from Cecelia Klingele is a timely must-read. The piece is titled "Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release," and here is the abstract:
Last year, as the State of California struggled with a $42 billion budget deficit, its financial inability to correct constitutionally-deficient prison conditions led a federal court to order the release of 40,000 state prisoners. In Oregon, Michigan, Connecticut, Vermont, and Delaware, spending on corrections now exceeds spending on higher education. Across the nation, more than 1 of every 100 Americans is behind bars. When the financial crisis of 2008 dealt its blow, state correctional budgets were already nearing a breaking point. Now, in the wake of unprecedented budget shortfalls, state governments have been forced to confront a difficult reality: the ever-increasing prison population has come at too high a price. The question is no longer whether to reduce the number of prisoners, but how.
Reversing years of ever-harsher sentencing policies, jurisdictions throughout the United States are trying to cut costs by expanding good time credit, increasing parole eligibility, and authorizing new forms of early release. This Article examines judicial sentence modification, an often overlooked ameliorative mechanism that has potential benefits many other forms of early release lack. For states wishing to promote early release in a manner that is both transparent and publicly accountable, judicial sentence modification is a promising, and potentially sustainable, new mechanism for sentence reduction.
Wednesday, March 24, 2010
California continues to struggle with corrections costsThe San Jose Mercury News has this effective new report headlined "California finds that prison costs aren't so easy to cut." Here is how it starts:
The billions of dollars that California pours into its troubled prisons — a number fattened by court-ordered medical spending and sky-high personnel costs — have become an increasingly attractive target for leaders desperate to trim the state's $20 billion deficit.
Gov. Arnold Schwarzenegger in January called for a constitutional amendment that would cap prison spending and put the savings toward public universities. And since last summer, lawmakers have tried to wring more than $2 billion from the Department of Corrections and Rehabilitation, once budgeted for $10 billion.
But despite officials' attempts to clamp down after watching costs double over the past decade, some corrections spending is proving impervious to the budget ax. Already, hundreds of millions in expected savings have failed to materialize, partly because one big expense — more than $1.5 billion for inmate medical care this year — is under the watch of a federal receiver, not the state.
It's also because some legislators, fearing the "soft on crime" sobriquet, balked at cost-saving measures last year that might have released thousands of the state's 160,000 inmates. That alone, the Department of Finance says, has cost nearly $600 million.
Tuesday, March 23, 2010
A sentence of 15 years for trying to break into jail!?!?This local story from Florida, which is headlined "After outburst, man who tried to break into jail gets 15 years," reports on a remarkable case with a remarkable (final?) sentencing chapter. Here are the basics:
Obscenities and claims of injustice marked a hearing Monday for a Cocoa man sentenced to the maximum 15 years in prison for violating probation in a manslaughter case by trying to break back into the Brevard County Detention Center.
Circuit Judge George Maxwell and court deputies called for order as the 25-year-old Sylvester Jiles broke into a profanity-laced tirade andwas led out of the courtroom. " You have no right to disrupt this courtroom and I admonish you to not do it again," Maxwell told Jiles when he was brought back to complete the sentencing. "You've got a family that loves you and there's another family involved. Outbursts like that can lead to people getting hurt, something you seem to not have learned."
Several of Jiles'supporters stormed out and picked up the outburst in the hallway, where they added racial slurs and continued to yellat the judge, the manslaughter victim's family and media until they stepped onto an elevator to exit the building.
Jiles originally was sentenced to eight years of probation under a plea deal in the 2007 shooting death of 19-year-old Dustin Prouse. On Aug. 31 of last year, three days after his release, he returned to the jail and begged deputies to take him back because he feared for his life.
Officials said they told him to file a police report, but he scaled one fence and was attempting to scale a second one, topped with razor-sharp wire, when he fell and suffered deep cuts. Court documents filed after the incident said Jiles violated his probation by trespassing on jail property and resisting an officer....
When Jiles heard he would serve the maximum, minus credit for time served, he became upset because the judge wouldn't allow him to speak. The judge said he heard Jiles' testimony during a January hearing.
Jiles apologized when he was returned to the courtroom. "I just wanted to say I'm not saying I'm the shooter. I only pled guilty to it," he said. "I'm not going against your sentence, sir. You say 15 years. It is what it is."
Monday, March 22, 2010
Notable NYU event on solitary confinementI am pleased to see here that an important prison issue which I fear gets too little attention, solitary confinement, will be the focus of a panel discussion hosted by New York University’s Wagner’s Students for Criminal Justice Reform on Tuesday March 23, 2010. As detailed here, the panel discussion is titled “Segregation and Solitary Confinement: Cruel and Unusual Punishment?”, and the panel includes a host of leading experts on the topic. Folks can RSVP here, and this text describing the issues to be covered comes from the event's promotionional materials:
More than 25,000 people are confined in solitary confinement in the United States. An additional 50,000 to 80,000 are kept in restrictive segregation units, many of them in isolation.
Prison officials say people are placed in isolation because they are the most violent, dangerous prisoners and that this practice protects other vulnerable populations. Opponents of solitary confinement assert that these policies are a form of cruel and unusual punishment and torture. People subjected to these conditions lack human contact, which can have a severe negative impact on a person’s mental state, leading to serious mental illnesses, such as depression and in some instances — death.
Wednesday, March 17, 2010
New Pew report indicates that state prison populations declined in 2009As detailed in this New York Times article and this piece from Stateline, a new report from the folks at Pew indicates that "state prison populations, which have grown for nearly four decades, have begun to dip ... largely because of recent efforts to keep parolees out of prison and reduce prison time for nonviolent offenders." Here is more from the NYT piece:
State prisons held 1,403,091 people as of Jan. 1, nearly 6 percent fewer than a year before, the report said. Prison populations have fallen in 27 states in that period, while they have risen in 23.
“It’s too early to tell whether this is a tap of the brakes or a shift into reverse,” said Adam Gelb, the director of the public safety performance project of the Pew Center on the States in Washington, which produced the report. Still, Mr. Gelb said, seeing the state prison numbers dip for the first time since 1972 “took us a little bit by surprise,” he said.
In the same period, the population in federal prisons increased by nearly 7 percent.
The results broaden the conclusions in a report issued this month by the Sentencing Project, a research and advocacy group in Washington that looked at efforts to reduce the prison populations in Kansas, Michigan, New Jersey and New York. That report found that all four states had achieved reductions, with New York reaching a 20 percent reduction and New Jersey 19 percent over a decade.
Marc Mauer, the executive director of that group, said the reduction was actually overdue, since crime rates have declined for some 15 years. “That’s the puzzling piece — why did this take so long?” he asked. The lag, he said, was partly the result of longer sentences and partly because of tough standards in many states for revoking parole.
The Pew report noted that while the squeeze on state and local budgets had contributed to efforts to reduce prison populations, “financial pressures alone do not explain the decline.” At least part of the fall-off resulted from changes like California’s decision to reduce the number of low-risk people on parole returning to prison because of technical violations, and Texas’ decision to step up its residential and community-based treatment programs. “If you had to single out the most common reform that we’re seeing,” Mr. Gelb said, “it’s various strategies to hold parole violators accountable, short of jamming them back into a $25,000-a-year, taxpayer-funded prison cell.”
The full 10-page Pew report, which includes a state-by-state accounting of prison population changes, can be accessed at this link.
Friday, March 12, 2010
Notable new ACLU suit against private prison in IdahoThanks to TalkLeft, I saw this notable press release from the ACLU, which is titled "ACLU Lawsuit Charges Idaho Prison Officials Promote Rampant Violence." Here is how the release starts:
The American Civil Liberties Union and the ACLU of Idaho today filed a class action federal lawsuit charging that officials at the Idaho Correctional Center (ICC) promote and facilitate a culture of rampant violence that has led to carnage and suffering among prisoners at the state-owned facility operated by the for-profit company Corrections Corporation of America (CCA).
Filed in the U.S. District Court for the District of Idaho, the lawsuit charges that epidemic violence at the facility is the direct result of, among other things, ICC officials turning a blind eye to the brutality, a prison culture that relies on the degradation, humiliation and subjugation of prisoners, a failure to discipline guards who intentionally arrange assaults and a reliance on violence as a management tool.
"In my 39 years of suing prisons and jails, I have never confronted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights violations than this one," said Stephen Pevar, a senior staff attorney for the ACLU. "The level of unnecessary human suffering is appalling. Prison officials have utterly failed to uphold their constitutional obligation to protect prisoners from being violently harmed and we must seek court intervention."
The 81-page complaint in this case is available at this link.
Monday, March 08, 2010
Can and should business leaders be effective advocates for sentencing and prison reforms?The question in this title of this post is inspired by this new editorial from the Detroit Free Press, which is headlined "Business joins fight to right-size prisons." Here are excerpts:
Business leaders have taken a lead role in efforts to reform Michigan's oversized prison system. Legislators should pay attention.
Lansing can't resolve its long-term budget crisis without right-sizing the Department of Corrections. Nor can a state that spends more on prisons than higher education compete in a 21st Century economy.
The Detroit Regional Chamber deserves credit for creating a detailed plan to reduce corrections costs as part of an overall effort to restructure state government. For the first time, the Chamber will devote a session on prison issues and spending at this year's Mackinac Policy Conference.
The Chamber supports bills reinstating good-time credits, and it has recommended reconstituting the state Parole Board into a body of professional civil servants, as well as examining sentencing guidelines and expanding prisoner re-entry programs.
The Chamber's Sarah Hubbard said business groups got interested in corrections in 2007, when the state imposed significant tax increases, while reports showed Michigan's incarceration rates were far higher than surrounding states, costing the general fund an added $500 million a year. With a prison population of nearly 50,000, Michigan spends $2 billion a year on corrections, more than 20% of its general fund.
Republican legislators have spoken eloquently about the need to restructure government and create a leaner, more efficient state bureaucracy. Still, many continue to defend criminal justice policies that have multiplied costs more than fivefold over the last three decades, with no commensurate reduction in crime....
Three years ago, Rich Studley, vice president of the Michigan Chamber of Commerce, asked: "Why is it that Michigan, compared to other states, puts more people in prison for longer periods of time for no difference in crime rates or recidivism?" It's a question Michigan's clear-eyed business leaders continue to ask, and legislators can no longer afford to shrug their shoulders in response.
I am eager to echo this editorial's astute assertion that the Detroit Regional Chamber "deserves credit for creating a detailed plan to reduce corrections costs as part of an overall effort to restructure state government." Indeed, I hope other regional business groups, as well as national organizations concerned about both the size of government and effective use of government resources, will begin to appreciate that there may be a real link between costly and often ineffectual corrections spending and some modern economic woes.
Thursday, March 04, 2010
"As Budget Cuts Free Prisoners, States Face a Backlash"The title of this post is the headline of this new piece from the New York Times. Here is how it gets started:
In the rush to save money in grim budgetary times, states nationwide have trimmed their prison populations by expanding parole programs and early releases. But the result — more convicted felons on the streets, not behind bars — has unleashed a backlash, and state officials now find themselves trying to maneuver between saving money and maintaining the public’s sense of safety.
In February, lawmakers in Oregon temporarily suspended a program they had expanded last year to let prisoners shorten their sentences for good behavior (and to save $6 million) after an anticrime group aired radio advertisements portraying the outcomes in alarming tones. “A woman’s asleep in her own apartment,” a narrator said. “Suddenly, she’s attacked by a registered sex offender and convicted burglar.”
In Illinois, Gov. Patrick J. Quinn, a Democrat, described as “a big mistake” an early release program that sent some convicts who had committed violent crimes home from prison in a matter of weeks. Of more than 1,700 prisoners released over three months, more than 50 were soon accused of new violations.
An early release program in Colorado meant to save $19 million has scaled back its ambitions by $14 million after officials found far fewer prisoners than anticipated to be wise release risks. In more than five months, only 264 prisoners were released, though the program was originally designed to shrink the prison population by 2,600 over two years.
A victims’ rights group in California sued last month to block a state law that expands the credits prisoners can receive to shorten their sentences, and prosecutors in Michigan are challenging release decisions there.
“We’re not saying we shouldn’t reduce the prison population, but we’re saying you have to be very careful, and they’re making mistakes left, right and sideways,” said Jessica R. Cooper, the Oakland County prosecutor in Michigan, where the state prison population shrank by 3,200 inmates last year and where the parole rate is the highest in 16 years. “You cannot measure those mistakes in terms of money,” Ms. Cooper said.
Some recent related posts:
- Two new reports from The Sentencing Project about state prison reductions
- Great reporting on what states (and politicians) are now doing with early release programs
Notable Second Circuit ruling about inmate classification as a sex offenderEarlier this week, the Second Circuit issued an interesting ruling in Vega v. Lantz, No. 08-4748 (2d Cir. Mar. 2, 2010) (available here), in which the panel reverses a district court's ruling granting relief to a Connecticut inmate who complained about his designation as a sex offender based on the fact that he had been acquitted of sexual assault (though convicted of first-degree assault and kidnapping) after horribly abusing a "sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine-years old." Here is how the opinion begins:
Defendants-appellants, who are prison officials, appeal from a judgment of the United States District Court for the District of Connecticut (Dorsey, J.), granting-in-part plaintiff-appellee Joe Burgos Vega’s motion for summary judgment. Vega, a prison inmate, sued Connecticut prison officials alleging, among other things, that they violated his liberty interests and procedural due process rights arising under the Fourteenth Amendment by failing to afford him a hearing before assigning him an inmate classification that, in his view, was tantamount to classifying him as sex offender. The district court granted Vega summary judgment and injunctive relief on this claim and dismissed the remaining ones. Vega v. Lantz, No. 3:03-cv- 23 2248, 2008 WL 3992651 (D. Conn. Aug. 25, 2008). For the reasons set forth below, we reverse.
Wednesday, March 03, 2010
Two new reports from The Sentencing Project about state prison reductionsThis new Washington Post article, which is headlined "States reduce prison populations as budgets shrink," details the major take-away points from two new reports coming today from The Sentencing Project. Here is the start of the Post article:
Many state governments continued last year to reduce their prison populations through sentencing reforms enacted because of shrinking state budgets, according to two reports released Wednesday by a research group that advocates for lower rates of imprisonment.
In 2009, at least 19 states adopted criminal justice policies intended to cut down on the number of prisoners they house by shortening sentences, according to the Sentencing Project. For example, Minnesota, New York and Rhode Island each scaled back mandatory sentencing laws for some drug offenses.
This page from the The Sentencing Project's website provides this overview (and links to) these new report:
As states grapple with the fiscal crisis and confront costly and overburdened criminal justice systems, two reports released today by The Sentencing Project offer roadmaps to successful prison downsizing that maintain public safety. The reports document a growing trend to reform sentencing policies and scale back the use of imprisonment in order to control spending.
"Downscaling Prisons: Lessons from Four States," released by Justice Strategies and The Sentencing Project [and available here], finds that four states -- Kansas, Michigan, New Jersey, and New York -- have reduced their prison populations by 5-20% since 1999 without any increases in crime. This came about at a time when the national prison population increased by 12%; and in six states it increased by more than 40%. The reductions were achieved through a mix of legislative reforms and changes in practice by corrections and parole agencies....
Other states have joined this trend, and 2009 proved to be a high mark for such reforms. The Sentencing Project's report, "The State of Sentencing 2009: Developments in Policy and Practice," by Nicole D. Porter [and available here], highlights reforms in at least 19 states that hold the potential of further prison population reductions.
Monday, March 01, 2010
"Lil Wayne set to test how jails handle celebs"The title of the post is the headline of this new piece concerning the special (or not-so-special) treatment that some celebrity prisoners get. Here are snippets:
Lil Wayne ... is expected to start a yearlong jail term Tuesday after pleading guilty in a New York City gun case....
For now, jail officials say only that they will assess the multiplatinum-selling Lil Wayne as they do every other new arrival and find an appropriate place for him among the city’s roughly 13,000 inmates.
He might follow the path of rapper Foxy Brown, who spent about eight months in 2007 and 2008 in city jails on a probation violation after pleading guilty to assault in a fracas at a nail salon. Because of threats against her, she was held largely in protective custody in a cell of her own, with access to a day room, said Horn.
Defense lawyer Stacey Richman said she intends to ask for protective custody for Lil Wayne, as well as for attention to dental problems that postponed his sentencing by two weeks. “If Wayne had his druthers, he would not be asking for anything for himself,” Richman said, but she said she was concerned for his health and safety.
Some jail officials prefer to hold even famous convicts in circumstances as ordinary as possible — a desire the inmates sometimes share. Prison consultant Herbert J. Hoelter, whose clients have included epic fraudster Bernard Madoff and NFL quarterback Michael Vick, generally tells clients not to request anything special. Otherwise, “you’ll be viewed by other inmates and the prison system as thinking that you’re ’more deserving,“’ he says....
New York state prisons sometimes put celebrities together in protective custody units, where they interact with each other but not the prison population at large, spokeswoman Linda Foglia said.
Ex-New York Giant Plaxico Burress and former “Sopranos” actor Lillo Brancato Jr., for example, have been in the same unit at an upstate prison, she said. Burress is serving two years after pleading guilty to a weapons charge; Brancato is serving 10 years on an attempted burglary conviction.
Friday, February 26, 2010
New report detailing high percentage of inmates with substance abuse problemsThis new press releases from the National Center on Addiction and Substance Abuse (CASA) at Columbia University reports on a new study concerning crime, prisoners and addictions. Here in how the press release starts:
Of the 2.3 million inmates crowding our nations prisons and jails, 1.5 million meet the DSM IV medical criteria for substance abuse or addiction, and another 458,000, while not meeting the strict DSM IV criteria, had histories of substance abuse; were under the influence of alcohol or other drugs at the time of their crime; committed their offense to get money to buy drugs; were incarcerated for an alcohol or drug law violation; or shared some combination of these characteristics, according to Behind Bars II: Substance Abuse and America’s Prison Population. Combined these two groups constitute 85 percent of the U.S. prison population.
The new 144-page report released today by The National Center on Addiction and Substance Abuse (CASA) at Columbia University also reveals that alcohol and other drugs are significant factors in all crime. In 2006, alcohol and other drugs were involved in these inmate offenses:
- 78 percent of violent crimes;
- 83 percent of property crimes; and
- 77 percent of public order, immigration or weapon offenses; and probation/parole violations.
The CASA report found that only 11 percent of all inmates with substance abuse and addiction disorders receive any treatment during their incarceration. The report found that if all inmates who needed treatment and aftercare received such services, the nation would break even in a year if just over 10 percent remained substance and crime free and employed. Thereafter, for each inmate who remained sober, employed and crime free the nation would reap an economic benefit of $90,953 per year.
“States complain mightily about their rising prison costs; yet they continue to hemorrhage public funds that could be saved if they provided treatment to inmates with alcohol and other drug problems and stepped up use of drug courts and prosecutorial drug treatment alternative programs,” said Susan E. Foster, CASA’s Vice President and Director of Policy Research and Analysis.
Joseph A. Califano, Jr., CASA’s Chairman and President and former U.S. Secretary of Health, Education, and Welfare, called the nation’s current prison policies, “Inane and inhuman. Between 1996 and 2006, the U.S. population grew by 12 percent. Over that same period, the number of adults incarcerated grew by 33 percent to 2.3 million inmates and the number of inmates who either met the DSM IV medical criteria for alcohol or other drug abuse and addiction or were otherwise substance involved shot up by 43 percent to 1.9 million inmates. The tragedy is that we know how to sharply reduce the costs of incarceration and the crimes committed by substance-involved offenders.”
The report also noted that in 2005, federal, state and local governments spent $74 billion on incarceration, court proceedings, probation and parole for substance-involved adult and juvenile offenders and less than one percent of that amount -- $632 million -- on prevention and treatment for them.
Wednesday, February 24, 2010
Great reporting on what states (and politicians) are now doing with early release programs
John Gramlich writing at Stateline.org has this great new piece, which is headlined "A crack in the prison door," that takes a close look developments and debates over early prisoner release programs in the states. Here are excerpts:
[A] law that lets some Oregon inmates trim as much as 30 percent from their sentences through expanded “earned-time credits,” which are awarded to prisoners who finish coursework, gain work experience or otherwise work to improve their lives behind bars. Created to save the state money in extremely lean fiscal times, the law has moved up release dates for about 3,500 prisoners, including about 950 who have already been released from prison an average of 55 days ahead of schedule.
But a recent backlash over Oregon’s law serves as a reminder of the political pitfalls that can accompany changes in criminal justice policy, particularly when those changes open prison doors earlier for some inmates. California, Colorado, Illinois, Kentucky, Michigan and Wisconsin are among the other states that have recently accelerated prisoner releases or are considering doing so....
Budget-driven efforts to speed prisoner releases and save states money have touched off political debates elsewhere this year, a major election year in which lawmakers in 46 states face reelection and no candidate wants to be labeled “soft on crime.” The debates have raged even in places where inmates have been released just days earlier than they ordinarily would have been....
[O]ften lost in the debate over accelerated prison releases is that they are relatively common. Besides the 44 states that allow inmates to earn good-time credits, at least 31 also provide some form of earned-time credits for those who enroll in educational or other programs, according to a study last year by the National Conference of State Legislatures. Nevada, for example, allows some inmates to reduce their time by 60, 90 or 120 days if they complete a certificate, diploma or degree while behind bars. In many other states, correctional authorities can grant “compassionate releases” to sick or dying inmates.
In 2003, lawmakers in Washington state passed a law giving some nonviolent drug and property offenders the chance to reduce their sentences by as much as 50 percent in one of the nation’s most aggressive expansions of earned-time credits. A 2009 study by the independent Washington State Institute for Public Policy found that the program has resulted in lower recidivism rates among those who have been released ahead of schedule. But it also found an increase in property crimes after the change went into effect.
The institute’s finding on recidivism has made Washington a model for lawmakers in other states that have sought accelerated prisoner releases, and is frequently mentioned by criminologists. “Length of stay has nothing to do with the recidivism rate,” Todd Clear, the incoming dean of the School of Criminal Justice at Rutgers University in New Jersey, says. “If I let someone out (early), I’m not increasing the chances of them committing a crime. I’m just changing the date.”
Despite the studies, politicians and corrections officials are keenly aware that a single, well-publicized crime by an inmate who has been granted accelerated release can call entire programs into question, virtually overnight. In California, for instance, outrage over the state’s good-time credits has been exacerbated by the early release of a Sacramento County inmate who was arrested in connection with an attempted rape less than 24 hours after walking free.
For that reason, Clear believes, early-release initiatives are a recipe for political disaster. “The minute you let a bunch of people out early, you own everything they do,” he says — a point acknowledged by Granholm. “I think any changes in the corrections system can certainly be exploited by political gain by those who want to do so,” Granholm says. “And it’s true in every state in the country.”
Monday, February 22, 2010
Prisoners writing to death penalty abolitionists urging end to LWOP advocacy
This new press release provides further evidence that the pro-life-imprisonment advocacy by the anti-DP crowd is not appreciated by everyone. This release is headlined "The Other Death Penalty Project Announces Letter-Writing Campaign to Anti-Death Penalty Groups", and here excerpts:
Today, thousands of prisoners around the country will be mailing letters to numerous death penalty abolitionist groups asking them to stop advocating for life without the possibility of parole as a supposedly humane alternative to lethal injection.
The Other Death Penalty Project, a group comprised solely of prisoners serving life without possibility of parole -- the other death penalty -- categorically rejects this hypocritical position taken by too many death penalty abolitionists. Death at the hands of the state, whether by lethal injection or lethal imprisonment, is the death penalty.
The Other Death Penalty Project, similarly, rejects the proposition that life without the possibility of parole is a necessary first step toward ultimate abolition of the death penalty. The distinction is one of method, not kind. Instead of moving to the elimination of death sentences, this tactic of trading slow executions for quick executions has resulted in an explosion of men and women sentenced to the slower method....
The Other Death Penalty Project plans to call these anti-death penalty groups out to a public accounting by speaking for the close to 40,000 men and women sentenced to face "worse than death," in the words of New Mexico Governor Bill Richardson. These prisoners live on the much bigger, much less well-publicized, death rows all around this country.
The home page and additional materials related to The Other Death Penalty Project can be found at this link.
Wednesday, February 17, 2010
"Harsh Punishment Backfires, Researcher Says"The title of this post is the headline of this piece from About.com's Crime/Punishment section. Here is how it gets started:
The current prison system puts too much emphasis on harsh punishment and not enough on rehabilitation and simply doesn't work, according to a criminal justice expert. Focusing on reducing prison populations and offering job skill training could greatly reduce recidivism, research shows.
The current system only provides a breeding ground for more aggressive and violent behavior, according to Joel Dvoskin, PhD of the University of Arizona. "The current design of prison systems doesn't work," said Dvoskin, in a news release. "Overly punitive approaches used on violent, angry criminals only provide a breeding ground for more anger and more violence."
"Prison environments are replete with aggressive behaviors, and people learn from watching others acting aggressively to get what they want," Dvoskin said. In his up-coming book, "Applying Social Science to Reduce Violent Offending," Dvoskin says behavior modification and social learning principles can work inside prison just as they do outside.
Tuesday, February 16, 2010
New York Times again a little off editorializing on "Justice Kennedy on Prisons"The title of this post is the headline of this editorial appearing in today's New York Times. Here are excerpts:
Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote....
Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education. Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”
The criticism was on the mark. The state’s prison population has soared as a result of harsh sentencing laws and parole rules. California has been ordered by the courts to bring down the population of its prison system, which is badly overcrowded and unable to provide inmates with adequate medical care....
Justice Kennedy is right that elected officials and voters should pay more attention to overincarceration. But courts also need to do their part by enforcing constitutional prohibitions on excessive punishment in cases involving people, as well as corporations.
As with many New York Times editorials, this piece raises important issues in an imperfect way. Specifically, though I share the editorial's concern for the Supreme Court's tepid approach to the Eighth Amendment in non-capital cases, I find inane and pernicious the assertion that "[m]uch of the blame" for California's three-strikes law "lies with the Supreme Court."
Though one can (and I think should) fault the Supreme Court for problematic interpretations of various constitutional provisions, the Court does not merit any blame (let alone "much of the blame") for state decisions to pass stupid or harmful criminal laws and punishment. Unless and until we collectively decide to give the Justices constitutional authority to be a super-legislature, they cannot and should not be legitimately "blamed" for failing to invalidate stupid or harmful criminal laws and punishments that states decided to adopt.
Moreover, even if the Supreme Court had struck down one application of California's three-strikes law in the Ewing case, probably only a few hundred of the many tens of thousands incarcerated under this law would have gotten some form of legal relief. In sharp contrast, the recent rulings by a special Ninth Circuit panel ordering a reduction in California's total prison population, has effectively forced elected officials and voters in California to "pay more attention to overincarceration." Indeed, the Supreme Court has been asked by California to undo these ordered prison population reductions, and I suspect Justice Kennedy has played a key role in keeping the Justices from interfering with those important orders.
Thursday, February 11, 2010
"Prisons, Redistricting and the Census"The title of this post is the headline of this new editorial in the New York Times. Here are excerpts:
The Census Bureau struck a blow for electoral fairness recently when it decided to speed up publication of its data on prison populations to ensure it is available for the next round of redistricting. We hope this new data, which will be released in the spring of 2011, will bolster the efforts of reformers who are trying to end prison-based gerrymandering — the cynical practice of drawing legislative districts with populations inflated by inmates who do not have the right to vote and whose actual residences are often far away.
Far too often, redistricting committees pad underpopulated districts by redrawing boundaries to include large prisons. This practice typically increases the political power of rural areas where prisons are built and diminishes the influence of the urban areas to which inmates eventually return....
The decision to release the data early was taken at the behest of Representative William Lacy Clay, a Democrat of Missouri, who has long been concerned about the inequities brought by prison-based gerrymandering. The data will be especially helpful to the 100 or so counties that — at great effort — already remove prison inmates from the count at redistricting time. And it should give fresh impetus to legislation pending in several states — including New York — that would require them to determine the home addresses of inmates and draw legislative districts based on that information.
Thursday, February 04, 2010
Noting big (and wasteful?) budget growth in federal prison spendingFollowing up on an issue I spotlighted in this recent post (which has generated lots of interesting comments), today this article in USA Today takes a look at the Justice Department's proposed 2011 budget numbers. This piece is headlined "2011 budget gives federal prisons $528M," and here are some highlights:
As states cut their budgets by closing prisons and diverting some offenders to probation and treatment programs, the federal government is proposing to dramatically ramp up its detention operations.
The Obama administration's $3.8 trillion 2011 budget proposal calls for a $527.5 million infusion for the federal Bureau of Prisons and judicial security — $227 million more than the proposed increase to Justice's national security program. The boost would bring the total Bureau of Prisons budget to $6.8 billion.
Nearly half of the new funding is proposed to accommodate the administration's plan to close the military detention facility at Guantanamo Bay and move some of the terror suspects to an Illinois prison. The Justice Department also projects that federal prisons, which now hold 213,000 offenders, will hold 7,000 more by 2011.
Also included in the Justice budget is a proposal to hire 652 additional prison guards and fill 1,200 vacant detention positions, far more than the combined 448 new agents planned for the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, and U.S. Marshals Service.
Assistant Attorney General Lee Lofthus says the increased prison system funding does not reflect a de-emphasis of national security, only that the Bureau of Prisons "needs the bed space."...
The federal spending plan contrasts with the criminal justice strategies pursued in many cash-strapped states, including California, Kansas and Kentucky, where officials have closed prisons or allowed for the early release of some non-violent offenders. In Kansas, for example, state officials last year closed three prisons and reduced the number of probation violators sent to prison to reduce detention costs.
Marc Mauer, executive director of the Sentencing Project, which advocates alternatives to incarceration, says states have a "greater sense of urgency" to change policy because of their obligations to balance budgets. "That sense of urgency isn't there at the federal level," Mauer says. "Prison expansion slows the momentum for the reconsideration of some of those policies."
I hope we might hear the usual suspects who usually complain most loudly about excessive federal spending will speak out about the continued (and wasteful?) growth of the federal criminal justice and prison system. I fear, however, that prison spending tends to be an arena in which many persons who are usually advocates for limited government spending become quite willing to endorse the continued growth of big government.
Some recent related posts:
- DOJ budget request for FY 2011 suggests it is not tightening its belt
- How could (or should) proposed spending freeze impact federal crime and punishment?
- President Obama's 2011 budget includes money for obtaining Illinois prison
- The state of cost problems in the states of prison nation
- How many states are being forced by economic realities to consider releasing prisoners?
- Will we invest in classrooms or cells in these tough times?
- Hoping someone in a town hall might ask Prez Obama about government spending for the drug war in prison nation
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
"Justice Kennedy laments the state of prisons in California, U.S."The title of this post is the headline of this notable article in today's Los Angeles Times. Here is how the piece starts:
U.S. Supreme Court Justice Anthony M. Kennedy criticized California sentencing policies and crowded prisons Wednesday night, calling the influence that unionized prison guards had in passing the three-strikes law "sick."
In an otherwise courtly and humorous address to the Los Angeles legal community, Kennedy expressed obvious dismay over the state of corrections and rehabilitation in the country. He said U.S. sentences are eight times longer than those issued by European courts.
"California now has 185,000 people in prison at $32,500 a year" each, he said. He then urged voters and officials to compare that expense to what taxpayers spend per pupil in elementary schools. "The three-strikes law sponsor is the correctional officers' union and that is sick!" Kennedy said of the measure mandating life sentences for third-time criminal offenders.
Justice Kennedy famously spoke out against US punishment and sentencing realities in a 2003 speech to the ABA, and I am pleased that he is continuing to express his concerns about modern American practices. I also cannot help but wonder whether these issues are uniquely on Justice Kennedy's mind because of all the significant sentencing cases before the Supreme Court this term.
Monday, February 01, 2010
"Eighth Amendment Gaps: Can Conditions of Confinement Litigation Benefit from Proportionality Theory?"
The title of this post is the title of this new article from Alex Reinert that is now available via SSRN. Here is the abstract:
The Eighth Amendment’s prohibition of “cruel and unusual punishments” conveys different meanings in different contexts. When challenges are brought to prison conditions, a range of cases that encompasses claims such as overcrowding, excessive uses of force, and failure to provide adequate medical care, a prisoner must show that a particular prison official acted with a sufficiently culpable state of mind to deprive the prisoner of an objectively serious need. When challenges are brought to the proportionality of criminal sentences, the Court compares the severity of the sentence with the seriousness of the criminal offense of incarceration. In both sets of cases, although courts purport to review a “punishment” for its conformity with the Eighth Amendment, different standards contribute to the ultimate resolution. This paper questions whether these differences are justified and whether there are ways to bridge the gap between proportionality review and conditions of confinement review.
In particular, I argue here that there are two ways in which elements of proportionality litigation could invigorate conditions of confinement review. First, I suggest that the focus on subjective state of mind in conditions of confinement litigation is called into doubt by proportionality jurisprudence. Second, I propose that the deference to legislators which is assumed in proportionality litigation is not as easily translated into conditions of confinement cases, where the delegation which such deference implies may not be present or appropriate. I conclude by examining three specific areas of conditions jurisprudence in which proportionality principles could be usefully applied.
The virutes of (faith-based) video-conferencing for prisoners and their familiesThe modern realities of crime and punishment produce precious few feel-good stories, but here is one coming from the Virginia prison system. The local piece is headlined "Videoconferencing lets families visit Va. prison inmates," and here are highlights:
For the five years Tori Chisholm has been held in a mountaintop prison near the Kentucky border, there haven't been many visitors from back home in Richmond. It was snowing in Big Stone Gap on Jan. 2 when he sat down inside Wallens Ridge State Prison and began talking with his mother, Lisa Chisholm, and his 17-year-old brother, Rashawn Brathwaite.
But Chisholm's family did not have to drive six or seven hours from Richmond's East End for the one-hour visit. Instead, they took advantage of a videoconferencing program started by New Canaan International Church in Henrico County, which allowed them to see and speak with one another while almost 400 miles apart.
The Virginia Department of Corrections is allowing the program to expand to nine other prisons -- at no cost to taxpayers. The Rev. Owen C. Cardwell Jr., pastor of the church at 1708 Byron St., said that "to the best of our knowledge, we're the only [faith-based] program like this in the nation."
The church has been using donated equipment and charging $30 for a one-hour visit and $15 for 30 minutes to help cover the costs. In a high-security prison such as Wallens Ridge, using a live video connection enables inmates and "visitors" to see and hear one another as well as -- if not better than -- during in-person visits conducted through clear, but solid, plexiglass windows using phones.
Since starting the program 3½ years ago, New Canaan and two other churches now involved have arranged 650 video visits between Wallens Ridge inmates and their families. The cost for the video visits is considerably less than that of daylong drives and overnight stays often needed to visit some of Virginia's more remote, high-security prisons. "It's taken a long time to pull this together," Cardwell said....
Fran Bolin, the program's executive director, said they will be doing video visits later with inmates at the Bland and Pocahontas correctional centers, the Virginia Correctional Center for Women, and Red Onion State Prison. They have been assisted by a $20,000 grant from The Community Foundation Serving Richmond and Central Virginia.
Bolin said a round-trip drive from Richmond to Red Onion in Wise County is 744 miles. Factoring in mileage, meals and lodging, an in-person visit there could cost hundreds of dollars, making the $15 and $30 fees a bargain, she said....
Larry Traylor, spokesman for the Department of Corrections, said that in addition to helping families, video visitations help inmates. Visits help ease tensions, and long periods without visits can increase the problems of inmates. "The program has been successful at Wallens Ridge, and we felt that the good results we had there warranted expansion to other prisons, on a pilot basis," he said. All such visits are recorded, he said.
The link above to this full story also provides access to a short video that shows how effectively personal these video visits can be. Because of the potential cost savings to both governments and prisoner families, I suspect that these sorts of video visit may before too long become the norm rather than the exception in many major prisons.
President Obama's 2011 budget includes money for obtaining Illinois prisonAs detailed in this local article, which is headlined "Obama’s 2011 budget includes money for Thomson prison purchase," all the recent talk of a proposed spending freeze has not prevents a budget line-item to enable the feds to buy a prison. Here are the details:
The Obama administration’s budget for fiscal year 2011 includes $237 million for the purchase, renovation and staffing of the Thomson Correctional Center. The administration has proposed buying the nearly vacant facility 50 miles northeast of the Quad-Cities and using it to house detainees now held at Guantanamo Bay, Cuba. The prison also would take approximately 1,600 federal prisoners.
An administration official was careful to point out Sunday the figure is not a projected purchase price for the facility. Negotiations still are ongoing with the state and the figure builds in flexibility depending on the final purchase price, said the official, who asked not to be identified because the budget has not been officially released yet.
Despite the uncertainty over the final purchase price, though, this is the most explicit the administration has been publicly about the potential cost of the deal. Peter Orszag, the administration’s budget director, said Sunday the expenditure would be warranted even without the transfer of prisoners from Guantanamo Bay because the Federal Bureau of Prisons needs the extra space.
Congress must approve funding for the purchase, a process that is bound to be contentious.... The figure, while still subject to negotiation, is bound to disappoint some Republicans in the state legislature, who have said the federal government ought to pay more than $300 million for the facility.
Thomson was completed in 2001 for $140 million, but it has sat mostly vacant since then. Pledges to fill the prison with state inmates have gone unfulfilled.
Thursday, January 28, 2010
Second Circuit addresses constitutional claims in challenge to NY felon disenfranchisement
The Second Circuit has already addressed and rejected, en banc, a challenge to New York's felon disenfranchisement law based on federal statutory law. Today, through this new panel opinion in the case now called Hayden v. Paterson, the Circuit addresses (and mostly rejects) constitutional challenges to this New York state law. Here is a summary of the ruling from the opinion itself:
Plaintiffs-Appellants appeal from the portions of a final order and judgment of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) entered on June 14 and 16, 2004, respectively, that dismissed plaintiffs’ claims for relief under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Fifteenth Amendment of the United States Constitution. Because plaintiffs do not state a plausible claim of intentional discrimination and they do not state a plausible claim that New York Election Law § 5-106(2) violates the Equal Protection Clause of the Fourteenth Amendment, we affirm the District Court’s grant of judgment on the pleadings to defendants. We do, however, remand to the District Court to allow plaintiffs to seek leave to amend their deficient complaint as to their intentional discrimination claim. AFFIRMED and REMANDED for further proceedings consistent with this opinion.
Because I am not really an expert in this area, I cannot quickly assess whether this new Hayden ruling is especially noteworthy. But, in light of the holding, this ruling is clearly not as significant as the Ninth Circuit panel ruling earlier this month that Washington state's disenfranchisement of felons violates the federal Voting Rights Act (discussed here).