Saturday, June 01, 2013

"Convicted rapist asks Supreme Court for death penalty"

The title of this post is the headline of this notable piece from my local Columbus Dispatch.  The story reinforces my views that (1) at least for some offenders, an LWOP sentences is worse that the death penalty, and (2) those who advocate strongly for a "right to die" for the terminally ill ought also think about whether and how some LWOP prisoners ought be permitted to exercise this right.  Here are the details of the story:

Ricardo V. Dodson wants to die for his crimes. Dodson, 50, a Franklin County man imprisoned since 1991, will ask the Ohio Supreme Court to issue an immediate order for his execution.  The thing is Dodson is a rapist, not a murderer, and is not under a death sentence.

Nevertheless, Dodson said in a letter to The Dispatch, “I don’t want to stay alive just to die in prison...I would like to be put to death.”  He said it would save taxpayers money by not having to pay for additional years of incarceration.  Taxpayers pay the $65.77 daily cost, or about $24,000 a year, to feed, clothe, and provide medical care and security for each inmate.

So far, two courts have turned down Dodson’s death wish. “Although appellant was convicted of very serious crimes, he was not convicted of aggravated murder and, therefore, the death penalty cannot, nor could it have been imposed at the time of sentencing,” a three-judge Franklin County Court of Appeals panel said.  Franklin County Prosecutor Ron O’Brien’s office opposed Dodson’s motion.

Dodson was convicted of four counts of rape, two counts of kidnapping and one count of attempted rape. His appeals and requests for parole have been rejected.  He is serving an indefinite sentence of up to 130 years.

In a self-filed motion with Franklin Common Pleas Court, Dodson argued it is an unconstitutionally “cruel and unusual punishment” to keep him in imprisoned for the rest of his life. He said he suffers from excessive anxiety and depression, has been “pressured to enter homosexual situations in order to obtain small amounts of money,” is “angry all the time,” has been exposed to alcohol and drug addictions,” and has a loss of “morals and values.”

Among the reasons for everyone to be concerned about a story like this is the unfortunate modern reality concerning the only viable way for Dodson to now get the death penalty: murdering a guard or fellow prisoner. There are at least a few recorded examples of prisoners claiming that they murdered in prison in order to be able to get the death penalty, and Dodson will at some point discover that committing murder may now be the only way to "free" himself from his LWOP sentence.

I sincerely hope Ohio prison officials are aware of the unique risks now posed by this LWOP prisoner with a death wish. And I sincerely wish that Ohio laws might someday change in order to give prisoners like Dodson either the right to die and/or the opportunity to have at least some hope of earning an eventual release from prison.

June 1, 2013 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (17) | TrackBack

Friday, May 31, 2013

"Lawsuit alleges 'barbaric' conditions at Mississippi prison"

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

A Mississippi prison for severely mentally ill inmates is infested with rats that prisoners sell to one another as pets, two civil liberties groups claimed in a federal lawsuit filed on Thursday.

Inmates at the East Mississippi Correctional Facility near Meridian live under "barbaric" conditions, in filthy quarters without working lights or toilets, forcing them to defecate on Styrofoam trays or into trash bags, the American Civil Liberties Union and the Southern Poverty Law Center claimed in the lawsuit.

Beatings, rape, robbery and riots are commonplace, and inmates are denied access to medication and psychiatric care, the 83-page complaint stated. The privately run prison "is an extremely dangerous facility operating in a perpetual state of crisis" and inmates' human rights are violated daily, according to the groups. Some prisoners set fires in a desperate attempt to get medical attention in emergencies, the lawsuit said.

"I've been in prisons all around the country, and this is the worst I've ever seen," said Gabriel B. Eber, staff counsel for the ACLU's National Prison Project.

The Mississippi Department of Corrections, whose top officials were named as defendants, declined to comment on the allegations in the lawsuit, said department spokeswoman Grace Fisher.

The class action lawsuit says state prison officials have been aware of the conditions at the facility for years but have not remedied the problems. In one instance, according to the lawsuit, an otherwise healthy inmate had to have a testicle removed after prison officials repeatedly denied his request for medical help when it swelled to the size of a softball from cancer.

The abundance of rats has resulted in some prisoners using them as currency, trading the captured animals for cigarettes or selling them as pets with makeshift leashes, the lawsuit said.

East Mississippi Correctional Facility houses some 1,500 inmates, almost all of whom are mentally ill, Fisher said. It is operated by Utah-based Management & Training Corporation, a private contractor that took over management of the prison last year.

This webpage via the ACLU and this webpage via the Southern Poverty Law Center provides more information about the lawsuit.  Both pages include a link to this notable YouTube video concerning the prison being sued.

A few recent related (guest) posts on mentally ill offenders and prison conditions:

May 31, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Monday, May 27, 2013

Another guest post from Prof Lea Johnston concerning mentally ill inmates

Lea Johnston here again.  In my first guest blog, I discussed the mental health findings of a recent Department of Justice report on sexual victimization in prisons and jails in 2011-12.  In a nutshell, the report found that inmates with current symptoms of serious psychological distress — and those who had received diagnoses of, or treatment for, mental health problems — reported rates of sexual victimization that were 1.6 to 9 times higher than those experienced by other inmates.  Thus, mental disorder is a potent risk factor for sexual victimization in correctional facilities.

This guest blog will explore the sentencing ramifications of these findings. In the interest of full disclosure, my recent work — inspired by the important contributions of Professors David Enoch, Adam Kolber, and others — takes the position that the state has the moral obligation to factor foreseeable, substantial risks of serious harm, proximately caused by the state, into sentencing.

A number of states and the federal government (to some extent) recognize vulnerability or excessive offender hardship as a mitigating factor for purposes of sentencing. Many state statutes frame the mitigating factor in general, source-neutral terms (i.e., whether “the imprisonment of the defendant would entail excessive hardship to the defendant”), while other states only consider hardship from certain sources, such as an “obvious and substantial mental or physical impairment or infirmity.”

Under these statutes, an offender’s likely hardship in prison may affect his sentence in one of two ways. First, his vulnerability to harm may militate towards a suspended sentence of incarceration with probation.  Some offenders will not qualify for probation, however, given the seriousness of their crime, their criminal history, or the threat they pose to the public if released.

Second, some jurisdictions allow sentencing discounts, in the form of shorter prison terms, for the anticipated severity of a vulnerable offender’s sentence.  Sentencing discounts cohere with the equal-impact principle, articulated by Professors Andrew von Hirsch and Andrew Ashworth, among others. The equal-impact principle acknowledges the foreseeable, typical, and serious side-effects that penalties like incarceration hold for vulnerable populations and seeks to adjust sanctions so that members of vulnerable classes receive penalties of roughly equivalent severity as non-vulnerable individuals. Applying this theory, scholars have suggested that reduced terms of incarceration would be appropriate to effectuate proportionate punishment for mentally ill individuals, the physically disabled, and the elderly.

However, shortening a prison sentence on the basis of anticipated harm would only be morally permissible if a legitimate aim of punishment could justify that anticipated harm.  For instance, as Professor Mary Sigler has argued in this article, courts that grant reduced prison sentences for vulnerability to sexual assault may, in practice, be sentencing those individuals to prison terms “at rape.”  Since sexual victimization can never be justified, a sentencing judge should not predicate a discounted term of confinement on its occurrence. 

So then how can a judge, mindful of an offender’s vulnerability to serious harm if incarcerated, structure a just sentence that will avoid the foreseeable (and unjust) harm to the offender, when the offender’s crime calls for a term of confinement? Judges today have few options.

As I have argued in this new working paper, legislatures should consider authorizing judges to tailor conditions of confinement to ensure that the sentences imposed are humane and to effectuate the purposes of sentencing.  Conditions of confinement, as long as they surpass constitutional minima, are typically the province of prison authorities.  However, legislatures have delegated the placement of prisoners to courts in the past and possess the inherent authority to provide for the proper care and treatment of inmates.  Recognizing the unique needs and obvious harms that incarceration poses to some mentally ill offenders, legislatures could authorize courts to identify offenders in need of special treatment in prison and even tailor their conditions of confinement to meet these needs.

A number of possibilities for tailoring conditions of confinement are possible, each infringing on correctional affairs to a different degree and carrying varying efficiency benefits.  For instance, evidence suggests that correctional authorities fail to detect some inmates’ mental disorders, resulting in a withholding of treatment and perhaps placement in an inappropriate environment.  As a partial remedy to this problem, judges could designate seriously disordered individuals as presumptively in need of treatment, or require comprehensive mental health evaluations by qualified mental health professionals at intake.  More intrusive options could include disqualifying facilities particularly likely to exacerbate an individual’s disorder as potential sites of confinement, designating facilities with certain treatment or protective options, and mandating that offenders receive — or not receive — certain treatment in prison.

Again, the goal of such conditions would be to mitigate the risks of serious harm that prison poses to a particular vulnerable offender, rendering the term of incarceration a humane and just response to the offender’s criminal act. 

Recent related post:

May 27, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (14) | TrackBack

Saturday, May 25, 2013

"Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement"

The title of this post is the title of this new paper by E. Lea Johnston now available on SSRN. Here is the abstract:

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison.  In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing.  In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement.  Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison.

This article argues that judges should possess the authority to tailor the conditions of vulnerable, disordered offenders’ carceral sentences to ensure that sentences are humane, proportionate, and appropriate for serving the intended aims of punishment.  To equalize, at least in part, conditions of confinement for this population, judges should consider ordering timely and periodic mental health evaluations by qualified professionals, disqualifying facilities with insufficient mental health or protective resources, specifying the facility or unit where an offender will serve or begin his sentence, and mandating certain treatment in prison.  Allowing judges to exercise power over correctional conditions in this way will allow judges to fulfill better their institutional function of meting out appropriate, humane, and proportionate punishments, subject prison conditions to public scrutiny and debate, and help reform the image and reality of the criminal justice system for some of society’s most vulnerable individuals.

May 25, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, May 23, 2013

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

ImagesCA6ZGXG7I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link.  Here is a bit more from the NACDL press release about the resource (and also my role therein):

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders.  The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012.  They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....

In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:

The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.

The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.  The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law.  Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs.  The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.

I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months.  For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).

May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, May 21, 2013

Guest post on DOJ Report: Victimization of Mentally Ill Prison and Jail Inmates

Hello, all. I'm Lea Johnston, and I'd like to thank Doug Berman for inviting me to guest-blog about the new Department of Justice report released last week on sexual victimization in prisons and jails. I write in the area of mental disorder and sentencing, so I will focus on the mental health aspects of the data.

The DOJ report is based on inmate surveys conducted in over 600 state and federal prisons, local jails, and special correctional facilities between February 2011 and May 2012, and it includes the first national estimates of the sexual victimization of inmates with mental health problems.

The report found that inmates with serious psychological distress — elevated levels of nervousness, hopelessness, restlessness, depression, fatigue, or feelings of worthlessness — reported high rates of sexual victimization by staff and other inmates in 2011-12. In the words of the report:

The report also found that inmates with a history of mental health problems had higher rates of victimization than other inmates. The report ascertained that these characteristics were correlated with significantly elevated rates of sexual victimization:

These findings are significant because they demonstrate that mental disorder serves as a potent risk factor for victimization in correctional facilities. The report reinforces what academics — particularly Professor Nancy Wolff and her colleagues in important articles such as this one — have shown in recent years, but it goes further in detailing the current and historical offender characteristics that may signal risk of victimization.

There are three points related to this report that I think are worth making:

1)      Victimization rates may vary among facilities due to operational differences. The DOJ report shows that victimization rates vary widely among facilities for inmate populations as a whole. I suspect that victimization rates are especially likely to vary for mentally disordered prisoners, given differences in facilities’ housing policies for inmates with mental illnesses. Many facilities house offenders with serious mental illnesses (including clinical syndromes like schizophrenia, bipolar disorder, and major depression) with the general prison population until they reach a state of crisis — a potentially dangerous arrangement for a vulnerable inmate.  Some prisons, however, house disordered, vulnerable inmates in special facilities, wings, or units.  These arrangements may be temporary (designed to equip the offender, for instance, with coping mechanisms) or last for the entirety of the inmate’s confinement. Segregated housing may protect disordered inmates from abusive prisoners in the general population and yield lower rates of victimization.

2)      Victimization rates may improve under national standards released by the DOJ in May 2012 under the Prison Rape Elimination Act.  The PREA standards are aimed at detecting and preventing sexual abuse in correctional facilities and impose new screening, monitoring, reporting, and investigating requirements on prisons and jails.  Beginning in August, audits of facilities will take place every three years.

3)      Sexual victimization is not the only source of serious harm that mentally ill offenders face when incarcerated. They are prone to physical victimization due to their inability to assess danger sufficiently and to modify their behavior to ward off attacks. Cognitive and behavioral limitations can render strict conformance with prison rules difficult, and thus offenders with mental illnesses have elevated rates of disciplinary infractions. Consequently, disordered inmates are disproportionately punished in isolation, where they are especially susceptible to decompensation, psychotic breaks, and suicide ideation.  (I have explored this body of research in several articles, including one article on vulnerability and just desert.) 

As the aforementioned correlation between offenders’ history of mental disorder and sexual victimization suggests — and as the federal government has recognized in the PREA standards — it is possible to identify individuals at a heightened risk of sexual victimization at intake. This information is also available to judges at sentencing. 

My next guest blog will explore whether — and how — vulnerability to serious harm might inform the sentencing of offenders with mental illnesses.

May 21, 2013 in Offender Characteristics, Prisons and prisoners, Who Sentences? | Permalink | Comments (6) | TrackBack

"Colorado Department of Corrections to Pilot Telemedicine for Prisoners"

The title of this post is the headline of this interesting report, which starts this way:

In June, the Colorado Department of Corrections (DoC), in partnership with Denver Health Medical Center, will launch a pilot project designed to treat inmates using telemedicine. Doctors will start by providing consultations in areas like rheumatology, orthopedics, infectious disease and general surgery.  Nineteen correctional facilities will participate in the pilot.

Driving prisoners to the hospital can be costly.  Transportation usually happens after hours, which means that the DoC has to pay overtime wages to security officers.  Also, prisoners could potentially escape during the trip.  "The program improves accessibility to specialty care, and there’s been some use cases throughout the U.S. about inmates escaping, so this decreases the risk," explained Chris Wells, who is director of health IT architecture for Colorado's Governor's Office of Information Technology.

May 21, 2013 in Prisons and prisoners, Technocorrections | Permalink | Comments (1) | TrackBack

Tuesday, May 14, 2013

Gov Brown bringing California prison fight back to SCOTUS

As reported in this local article, headlined "Gov. Jerry Brown on Monday followed through with his vow to turn to the U.S. Supreme Court in a bid to end years of judicial control over California's overcrowded prison system." Here is more about the latest legal development in a seemingly never-ending California corrections saga:

In a three-page filing, the governor and his top prison officials notified a three-judge panel the state is appealing an April order requiring California to shed at least 10,000 more inmates by the end of December.  The attorney general's office now has 60 days to file its full legal arguments with the Supreme Court....

In the recent order, the federal judges found that California prisons remain over capacity, and that the state has various ways to improve medical care and release inmates without jeopardizing public safety.

The governor responded to that order with a plan that would remove about 7,000 inmates by the end of this year, still thousands short of the judges' demands.  But state officials do not want to take those measures, arguing a reduction of more than 25,000 inmates over the past few years has solved the overcrowding issue.

Lawyers for the inmates contend the state must do more to end the legal battle.  The Supreme Court, in a 5-4 ruling, upheld the 2009 orders to reduce prison overcrowding.  The justices would likely decide next fall whether to review the issue again.

May 14, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, May 13, 2013

Noting some new GOP sentencing reform voices inside the Beltway

Cap hillThis notable new article, amusingly headlined "An End to the Jailhouse Blues?", authored by By John Gramlich and appearing in CQ Weekly discusses what I am inclined to call the "new right on criminal justice reform" on the Hill.  Here are excerpts:

Congressional Democrats have argued for years that too many low-level drug offenders are locked away in federal prisons and that mandatory-sentencing laws disproportionately harm minorities and tie judges’ hands.  Lately, they have been joined in those criticisms by Sen. Rand Paul, a tea-party-backed Republican with White House aspirations.  “I think the Republican Party could grow more if we had a little bit more of a compassionate outlook,” the Kentuckian says.

Paul is emblematic of a quiet but unmistakable shift among conservatives in Congress when it comes to criminal justice.  Not only are Republicans engaging in a serious debate about relaxing federal criminal penalties — an idea that was once anathema to lawmakers who worried that their next campaign opponent would label them “soft on crime” — they are leading the discussion.

The House Judiciary Committee, which has poured cold water on Democratic priorities since Republicans regained control of the chamber in 2010, last week created a bipartisan, 10-member task force that will conduct a six-month analysis of the estimated 4,500 crimes on the federal books.

The task force will examine “overcriminalization” in the federal justice system and evaluate what Judiciary Chairman Robert W. Goodlatte calls an “ever-increasing labyrinth” of criminal penalties, some of them for relatively minor crimes in which perpetrators may not have realized they were breaking the law. The Virginia Republican cited the example of an 11-year-old girl who “saved a baby woodpecker from the family cat” but received a $535 fine because of a federal law banning the possession of a migratory bird.

The panel will be led by law-and-order Wisconsin Republican Jim Sensenbrenner and Virginia Democrat Robert C. Scott, an outspoken critic of more-contentious criminal policies such as mandatory minimum sentencing, which the task force will also evaluate. A diverse range of groups endorses the effort, including the American Civil Liberties Union, the Heritage Foundation and the U.S. Chamber of Commerce.

At the same time, the Republican chairman of the House Appropriations subcommittee that oversees federal prison spending, Frank R. Wolf of Virginia, plans to work with his Democratic ranking member, Chaka Fattah of Pennsylvania, to create a separate task force to review all aspects of the rapidly growing federal correctional system. Wolf is outraged that federal prisoners are not provided more opportunities to gain work experience and believes the Bureau of Prisons is holding too many people, including ill older inmates who no longer pose a threat to society. A report by the Justice Department’s inspector general recently came to the same conclusion.

“If you’re 68 years old and you’re dying of cancer and your life expectancy is seven months, why do we want to keep you in prison?” Wolf says.

Then there is Paul, who perhaps more than any other Senate Republican aligns with Democrats on sentencing issues. Paul is co-sponsoring a bill with Democratic Judiciary Chairman Patrick J. Leahy of Vermont that would allow federal judges to depart from mandatory minimum sentences under certain conditions — a so-called “safety valve” that effectively would do away with congressionally mandated punishments in many cases. Similar House legislation is co-sponsored by Scott and another Kentucky Republican, Thomas Massie. “Some of the sentencing has been disproportionately unfair to African-Americans, and so I am for getting rid of the mandatory minimums or letting judges override them,” Paul says.

He argues that young drug offenders, in particular, are vulnerable to overly harsh punishments and points out that each of the past three presidents — Barack Obama, George W. Bush and Bill Clinton — was “accused of doing drugs as a kid.... Had they been caught, none of them would have ever been president,” he says. “Just by luck of not being caught, they did fine. But a lot of kids don’t.”...

If Republicans sound kinder and gentler on criminal justice today than they did two decades ago, their perspective has been guided by cold, hard numbers.

Goodlatte last week cited statistics showing that Congress has added an average of 500 new crimes to the law books in each of the past three decades. Those federal crimes overlap with scores of existing penalties for the same crimes enacted by the states, which handle the vast majority of the nation’s criminal trials.

The creation of hundreds of new federal crimes, combined with mandatory minimum sentencing laws and the 1984 elimination of parole for federal offenders, has resulted in a steady and costly uptick in the federal prison population. The federal corrections system is now the largest in the country, much larger than state systems in Texas and California.

In fiscal 2006, the Bureau of Prisons had 192,584 inmates. Five years later, the number had grown 14 percent to 218,936, according to a November report by the Justice Department inspector general.

Massie, formerly the top elected official in Lewis County, Ky., says his perspective has been shaped by his experience managing a local budget, where he says his “biggest line item” was incarceration. The first-term lawmaker backs a bipartisan corrections overhaul that Kentucky enacted in 2011 and said Republicans on the federal level should embrace similar changes because mass incarceration runs counter to established GOP principles on government spending. “I call it socialism with constrained mobility,” Massie says. “You’re paying for all their medical costs. You’re paying for all their food, all their housing. You’ve got to have air conditioning. Jails are not cheap.”

While the dialogue may be changing, passing legislation, as always, is another story. Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor....

While the challenges are clear, those who support the GOP-led discussion surrounding criminal justice say it is encouraging that the debate is happening at all. It’s a significant step forward that a bipartisan group of legislators is really for the first time looking in a very serious way at ways to try to get their arms around this behemoth,” says John G. Malcolm, a senior legal fellow at the Heritage Foundation.

Some recent and older related posts:

May 13, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, May 12, 2013

Ohio prosecutor upset public unwilling to pay higher taxes to make his job easier

The title of this post is my proposed alternative headline for this local article discussing recent sentencing law reforms in Ohio (made by a Republican legislature and signed in law by GOP Governor John Kasich).  The actual headline from the local paper is "Prosecutor: Sentencing changes damaging judicial system," and here are excerpts (with the prosecutor's telling comments highlighted by me):

In light of a recent trial in which a Springfield man was convicted in Athens County Common Pleas Court of three counts of trafficking in cocaine, Prosecutor Keller Blackburn discussed how the man will face a lesser sentence thanks to House Bill 86 and said the legislation changes in sentencing is hurting the state’s judicial system.

Michael Turner, 29, sat through a four-day trial before a jury found him guilty of two third-degree felony counts of trafficking in cocaine and one second-degree count of trafficking in cocaine.  When he was indicted in August of 2011, the charges he faced carried a maximum prison sentence of 18 years with at least eight years being mandatory. However, after House Bill 86 passed through legislation, the maximum he can now be sentenced is only nine years.  A sentencing date has yet to be set.

Blackburn explained that House Bill 86 not only made a distinction between cocaine and crack cocaine and the weights of the drugs, but it also significantly changed the prison sentences associated with lower level felony crimes.  Prior to the changes, fifth-degree and fourth-degree felonies carried the real possibility of prison time.  Now, probation or jail time is more likely for first-time offenders.  Third-degree felony crimes carried a maximum of five years in prison but now only three can be ordered....

“It’s balancing the budget on the backs of local taxpayers on felony cases,” he added. “There’s a reason things are felonies and others are misdemeanors.  Local communities are supposed to pay for misdemeanors and the state is supposed to pay for felonies.  Now felony fives, fours and some threes are paid for by the counties.” 

While Blackburn does not believe the sentencing changes affects the criminal mind much, he does point out the differences it makes after the fact.  “When you change the numbers, then negotiations get more difficult.  If someone is only risking six additional months by not taking a deal, they’ll go to trial.  It harms negotiations and pass costs to local communities,” Blackburn said.

According to Blackburn, there are around 600 cases that come across his desk in a year. He said it’s not possible for the prosecution and defense to try that many cases, nor is it possible for the courts to handle such a load and taxpayers cannot afford that many cases. He said there is also additional stress placed on the probation department.

“The principles and purposes of sentencing used to be to punish the offender and protect the public.  It’s now to punish the offender and protect the public in the most economical manner.  That’s not what’s supposed to be happening but that’s what legislation has decided,” Blackburn said....

You start taking tools out of the toolbox.  Maybe the person with 24 balloons of heroin does need an intensive treatment program but maybe we know they just sold twice and we just missed them,” the prosecutor said.  “Maybe they are one of the major spokes in the wheel and all I can do is put them on probation when the probation department is underfunded.”

The problem is money and they don’t want to put any more money into prisons so they’re not willing to make many changes,” said Blackburn.

Based on the prosecutor's comments here, it does not seem at all accurate to say, as does this article's headline, that a new sentencing law is "damaging [Ohio's] judicial system" in any way.  Rather, by enabling more defendants to go to trial and by making sure communities cover certain costs, it would appear the new sentencing law may actually be strengthening the judicial system in the Buckeye State.

Rather, what really seems to be bothering Prosecutor Keller Blackburn is that Ohio's new sentencing laws make plea negotiations "more difficult" and may lead to more defendants exercising their constitutional right to a jury trial.  Pulling back the curtain as to what prosecutors really care about, Backburn laments that he is losing one of the tools he wants in his toolbox so he can determine the fate of a defendant's future without the complications or challenges of proving to a jury or judge why this fate is appropriate or cost effective.  And dang those voters and legislators, concludes Blackburn, they are unwilling to put more of their hard-earned money into making his job as a prosecutor easier.

May 12, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Thursday, May 09, 2013

"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"

The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:

California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.

We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?

May 9, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, May 08, 2013

"The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate"

The title of this post is the title of this notable new paper by Jamila Jefferson-Jones now available via SSRN. Here is the abstract (which prompts for me a reaction of "cool" rather than "yuck"):

Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010.  This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery.  The price of their liberty: Gladys’ kidney.

The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” — a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.

What happens, then if the Scott Sisters’ story is replicated — if it is multiplied across prison populations?  Were programs put into place that allowed prison inmates to trade their kidneys (or portions of their lungs, livers or pancreases) for liberty, it follows that the “yuck factor” would be multiplied exponentially.  However, it must be noted that in confecting his peculiar clemency condition, Governor Barbour chose a course of action that was, ironically, unobjectionable to the civil rights community (including the state’s Black activist community) that was clamoring for the release of the Scott Sisters.  If one were to cast the civil rights community as guardians of (or at least stakeholders regarding) the interests of poor and minority communities, the Scott Sister’s clemency case is particularly intriguing in that they cheered, rather than crying, “Yuck!” and objecting to the terms of release imposed by the Governor.  The outcry from some bioethicists notwithstanding, this scenario begs the question of why we should not allow other prisoners — those to whom serendipity has not provided an ailing sister — to do the same and whether it is in fact possible to do so while avoiding, or at least mitigating repugnance.

This article contemplates whether the National Organ Transplant Act’s (“NOTA”) prohibition against the trading of organs for “valuable consideration” should include an exception that would allow state and federal prison inmates to donate organs in exchange for release or credit toward release.  Such a stance surely raises questions regarding whether the state would be coercing the forfeiture of body parts as punishment or in exchange for freedom.  Moreover, critics may question the potential effects on the criminal justice system of allowing those facing incarceration to bargain their bodies, and conceivably, their long-term health, in exchange for reduced prison terms.  Therefore, such an inmate organ donation program is only feasible if a system is confected to remove the “yuck factor” ostensibly by removing coercion from the equation and by addressing the other concerns that mirror those addressed in the living donor sales debate.  Such a program would need to reframe the legal context in which the Scott Sisters’ clemency condition was crafted into one in which a great measure of power and choice resides instead in the hands of the inmate participants.

May 8, 2013 in Clemency and Pardons, Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, May 06, 2013

New bipartisan House Judiciary Committee task force to examine overcriminalization

Overcrim graphicAs reported in this Wall Street Journal article, Congress is creating a new federal criminal justice task force to address the problem of Congress creating too much federal criminal justice.  The article is headlined "Task Force Aims to Lighten Criminal Code: Bipartisan Congressional Initiative Targets Bloated Federal Provisions Cited by Critics for Driving Up Incarceration Rates," and here are excerpts:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats.  It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

Rep. Bobby Scott (D., Va.) said he expected the committee to work through consensus. "We've been warned it's going to be a working task force and it means we'll have to essentially go through the entire code," he said.

Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force.  He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

In a city with deep political divisions, the expansion of federal criminal law has created a coalition of allies from opposite sides of the aisle, including the conservative Heritage Foundation, the libertarian Cato Institute, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union and the American Bar Association. Legal experts estimate there are 4,500 criminal statutes and tens of thousands of regulations that carry criminal penalties, including prison.

The Administrative Office of the U.S. Courts figures some 80,000 defendants are sentenced in federal court each year. In recent years, states have reversed years of steady increases by reducing their prison populations while the number of people held at the federal level has continued to climb.  Federal lawmakers and legal experts attribute part of the continuing increase to the rise in criminal offenses and regulations that carry prison time and the creation of laws that don't require knowledge of wrongdoing.

Democrats have long opposed the growth of parts of the system, blaming mandatory minimums for the increase in the federal prison population, especially the rise in African-American inmates.  For Republicans, the encroachment of federal law into areas that could be handled by the states is a top concern....

Other committee members include Rep. Raul Labrador (R., Idaho) and Rep. Karen Bass (D., Calif.). Recommendations made by the task force will be taken up by the House Judiciary Committee, Chairman Robert Goodlatte (R., Va.) said in an interview.

As the first sentence of this post suggests, I am not especially optimistic about the prospects for a new federal criminal justice entity doing a robust job of curtailing the size and scope of the federal criminal justice system.  Nevertheless, simply the creation of this new task force, as well as its composition and commitment to work via consensus, suggests that at least a few persons inside the Beltway have come to realize there can and should be bipartisan efforts to shrink the considerable costs of the massive modern federal criminal justice system.

May 6, 2013 in Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, May 04, 2013

"Guantanamo camp burns through $900,000 a year per inmate"

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

It's been dubbed the most expensive prison on Earth and President Barack Obama cited the cost this week as one of many reasons to shut down the detention center at Guantanamo Bay, which burns through some $900,000 per prisoner annually.

The Pentagon estimates it spends about $150 million each year to operate the prison and military court system at the U.S. Naval Base in Cuba, which was set up 11 years ago to house foreign terrorism suspects. With 166 inmates currently in custody, that amounts to an annual cost of $903,614 per prisoner.

By comparison, super-maximum security prisons in the United States spend about $60,000 to $70,000 at most to house their inmates, analysts say. And the average cost across all federal prisons is about $30,000, they say.

The high cost was just one reason Obama cited when he returned this week to an unfulfilled promise to close the prison and said he would try again. Obama also said that the prison, set up under his Republican predecessor George W. Bush and long the target of criticism by rights groups and foreign governments, is a stain on the reputation of the United States....

The cost argument could be a potent weapon at a time of running budget battles between Obama and the Republican-controlled House of Representatives, and of across-the-board federal spending cuts that kicked in in March. The "sequestration" as it is known, is due to cut some $109 billion in spending up to the end of September and has cut government services small and large.

Just one inmate from Guantanamo, for example, is equivalent to the cost of 12 weeks of White House tours for the public - a treasured tradition that the Secret Service says costs $74,000 a week and that has been axed under sequestration.

A single inmate is also the equivalent of keeping open the control tower at the Northwest Arkansas Regional Airport for 45 months. That control tower, another victim of cuts, costs $20,000 per month to run.

The $900,000 also matches the funding for nearly seven states to help serve home delivered meals to the elderly. Sequestration has cost Meals on Wheels a median shortfall of $129,497 per state, the organization says.

I do not blog much about GTMO because the inmates held there have not be duly convicted and sentenced. That said, I think it is notable just how high the price tag seems to be on keeping that facility in operation.

May 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Friday, May 03, 2013

"What I Saw at San Quentin"

The title of this post is the title of this interesting new post at Crime & Consequences by Michael Rushford, President of Criminal Justice Legal Foundation.  The post describes at great length a recent tour of what was California's first prison.  Here are excerpts from the start and end of a fascinating read:

While I have been through some other state prisons, San Quentin was different. It was opened in 1852 as the state's first prison.  It was located on a 432 acre point facing the San Francisco Bay because, at the time, the city was overrun with crime.  Although it's obvious that the prison has been expanded over the years, walking through the main gate into the actual prison compound is like stepping back in time.  The gate itself is original and large enough to accommodate a stagecoach. Inside the compound is a grassy quad flanked by the gate wall, a cell block, a hospital and a building housing several small churches.  In addition to death row, which is isolated from the rest of the prison, roughly 4,500 inmates are housed inside the main prison.

The cell block we saw was identical to those portrayed in the movies: long rows of 5 x 9 foot cells, each with sliding bar doors, a metal toilet, sink, and two bunks, stacked five stories high.  Inmates who are able to get along with their colleagues share cells in the largest cell block.  There is a fairly large building called the adjustment center for inmates, including about 200 condemned murderers who are either too violent or too vulnerable to mix with other inmates.  Richard Allan Davis, for example, lives in the adjustment center because the other inmates hate child killers....

Anyone who believes that murderers in California are living comfortably on death row should take this tour.  It is a miserable existence.  I now understand why we receive letters from death row inmates asking for our help in expediting their executions. Legislators, bleeding hearts and judges who think that they are helping these murderers by preventing executions are hopelessly naive.  Those who think we should improve their living conditions are missing a critical point: these murderers have been sentenced to death for murdering innocent people.  Keeping them alive any longer than necessary to confirm their guilt is an injustice.

Finally, San Quentin is a very old, dilapidated facility sitting on 442 acres of the most valuable real estate in California.  It should be torn down and the property sold off.  Some fraction of the profit should be used to built a modern prison in a less expensive part of California.

May 3, 2013 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Thursday, May 02, 2013

Alabama mass shooter wants (but cannot get) a death sentence rather than LWOP

A helpful readers sent me this fascinating article from Alabama, which is headlined "Man charged in Copper Top shooting writes in letter to judge that he is sorry and had asked for death penalty."  Here are the fascinating details:

Nathan Wilkins, the man charged with injuring 18 people in a July 2012 shooting at The Copper Top bar in downtown Tuscaloosa, told a judge in a letter that he is sorry and that he has asked for a death sentence.

In the letter dated April 22 sent to Tuscaloosa County Circuit Judge Brad Almond and filed Tuesday morning, Wilkins wrote that he has issues with his court-appointed attorney. "I know I can't get a fair trial in Tuscaloosa," the letter states. "It is obvious by your actions so far in making me keep the same lawyer that you appointed. I have written you telling you the problems with him but instead of taking care of it you chose to ignore it. Why would I want a lawyer representing me who has me already convicted and sentenced me to life in his mind."

In a letter sent to the judge in December, Wilkins asked for a new attorney and told the judge that he had no memory of the night. He also wrote that he had been prescribed medication that made him suicidal.

Wilkins, 45, was indicted in August on 68 counts in connection with a July rampage that included a late July 16 shooting in the Indian Lake subdivision in Northport and an early July 17 shooting at the Copper Top in downtown Tuscaloosa's Temerson Square. He is accused of using an assault-style rifle in the shootings and of setting fire to his former employer's property in Brookwood and in Northport.

Wilkins turned himself in on July 17 at a FedEx store in Jasper. He remains in the Tuscaloosa County Jail on $2 million bond. A trial has been scheduled to begin Monday.

"I had asked Ted Sexton and my lawyer to give me the death penalty but instead they want to put me in prison for life because it wasn't bad enough because no one died," the letter states. "Why send me to prison for life and support me with taxpayer money. That used to make me so mad when I wasn't in jail and paying taxes and had to support people like that. You can ask anyone who knows me that this is what I believe. So I am taking this out of your hands and sentencing myself to death."

Attempted murder is not included with capital offenses under Alabama law. "I cannot bear to be away from my family especially my grandkids for life," the letter states. "I would like to tell all involved I am sorry. I wish this incident would bring attention to prescription sleeping pills, especially Ambien, before it ruins someone elses (sic) life!  I want to say I'm sorry to everyone involved. Thank you for giving me no other choice."

This story raises so many interesting and challenging issues, I am not sure where to start.  Just discussion purposes, let me ask three different questions of three different groups of potential readers:

1. For strong death penalty opponents: "Do you think this defendant, who seems all but certain to get an LWOP sentence for his many crimes, should be allowed/enabled to commit suicide if and when he gets an LWOP sentence?"

2. For strong death penalty proponents: "Doesn't this case demonstrate that there are some defendants who truly view an LWOP sentence to be worse than death?"

3. For everyone else interested in a constitutional debate: "Do you think that, because (a) death has been deemed by the US Supreme Court to be a "cruel and unusual" punishment for Nathan Wilkins's crimes and (b) he really seems to view LWOP a punishment worse than death, is there at least a reasonable basis for his lawyers to claim that LWOP for Nathan Wilkins should also be considered "cruel and unusual" because their client (genuinely?) views such a punishment to be crueler than death?"

May 2, 2013 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (11) | TrackBack

Wednesday, May 01, 2013

DOJ review confirms government waste and mismanagement of BOP's handling of compassionate release

Public policy groups have long criticized the many terrible ways in with the federal Bureau of Prisons (BOP) administered the authority Congress provided it for the early release of prisoners in dire condition. Most notably, late last year, as discussed here, Human Rights Watch and Families Against Mandatory Minimums today released a major report criticizing the poor administration of the federal compassionate release program. Today, this big new report from the Justice Department's Office of Inspector General confirmed what critics have long said. Here are key excerpts from the final portion of the report:

We concluded that an effectively managed compassionate release program would result in cost savings for the BOP, as well as assist the BOP in managing its continually growing inmate population and the resulting capacity challenges it is facing.  We further found that such a program would likely have a relatively low rate of recidivism.  However, we found that the existing BOP compassionate release program is poorly managed and that its inconsistent and ad hoc implementation has likely resulted in potentially eligible inmates not being considered for release.  It has also likely resulted in terminally ill inmates dying before their requests for compassionate release were decided.  Problems with the program’s management are concentrated in four areas.

First, the BOP’s regulations and Program Statement do not establish appropriate medical and non-medical criteria for compassionate release consideration and do not adequately define “extraordinary and compelling” circumstances that might warrant release....

Second, the BOP has failed to put in place timeliness standards at each step of the review process....

Third, the BOP does not have procedures to inform inmates about the compassionate release program....

Fourth, the BOP does not have a system to track all compassionate release requests, the timeliness of the review process, or whether decisions made by institution and regional office staff are consistent with each other or with BOP policy....

The BOP also does not track the time it takes to process requests and has no formal or standard means of determining the date the review process begins.  Consequently, the BOP cannot monitor its process effectively.  This is especially problematic for inmates with terminal medical conditions, and we found that 13 percent of inmates whose requests had been approved for compassionate release by a Warden and Regional Director died before a decision was made by the BOP Director....

Further, the BOP does not maintain cost data associated with the custody and treatment of inmates who may be eligible for compassionate release.  Despite this lack of data, the BOP reported to Congress that it could save $3.2 million by expanding the compassionate release program....

Finally, we found the rate of recidivism for inmates approved and released through the existing compassionate release program to be low compared with the overall rate for federal inmates released into the community.

Some recent related posts:

May 1, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, April 28, 2013

Lawyers and prisoners using Yelp to review lock-ups

Yelp_logo.svgAs reported in this new Washington Post piece, headlined "With few other outlets, inmates review prisons on Yelp," one can find more than restaurant reviews on-line these days.   Here are excerpts from this article:

Lawyer Robert Miller has visited five prisons and 17 jails in his lifetime, but he has reviewed only three of them on Yelp. One he found “average,” with inexperienced and power-hungry officers. Another he faulted for its “kind of very firmly rude staff.”  His most recent review, a January critique of Theo Lacy jail in Orange County, Calif., lauds the cleanliness, urban setting and “very nice” deputies.  Miller gave it five out of five stars.

“I started reviewing because I needed something to kill time while I waited to see clients,” said Miller, who has worked as a private defense lawyer in Southern California for 18 years.  “But I think the reviews are actually helpful for bail bondsmen, attorneys, family members — a lot of people, actually.”...

Because Yelp does not break out statistics by business type, it’s difficult to tell how many jails and prisons have been reviewed in the 19 countries covered by the site.  (Yelp declined to comment for this article, aside from noting that users may review any business with a physical address, as long as the review follows site guidelines.)  In the Washington region, six incarceration facilities have earned reviews, including two in 2013....

Accuracy is, of course, a major concern with Yelp reviews of any type, and an especially big one when reviewers make serious complaints.  In June 2012, a reviewer alleged that five guards at the Men’s Central Jail in Los Angeles beat him for no reason and laughed about it afterward. Other reviews of the jail mention rat infestations, violence and racial tensions.

“Every allegation we get, we investigate,” said Stephen Whitmore, spokesman for Los Angeles County Sheriff Lee Baca.  He notes that the jail has also its share of four- and five-star reviews.  “But this Yelp phenomenon I find curious,” Whitmore said. “Jail isn’t a restaurant. It isn’t seeing a movie. You’re doing time for committing a crime.”

Bad reviews aren’t unique to Los Angeles.  In New York, one user wrote that officers pressure inmates going through drug withdrawal to lie about their symptoms, presumably so the jail doesn’t have to provide treatment....

Although some look upon the reviews as weird novelties — “like Lonely Planet for career criminals,” one Buzzfeed post put it — they could reflect serious flaws in the U.S. prison system.  Because of a 1996 law called the Prison Litigation Reform Act, inmates cannot sue over prison conditions until they have “exhausted” administrative procedures, and they can ask for only limited changes to prison policy.  Just a few states, such as Texas and New York, have outside inspectors who watch for abuse within the system....

David Fathi, director of the National Prison Project of the American Civil Liberties Union ... said his group receives 300 to 400 written complaints each month about prison conditions.  That number does not include the phone calls and e-mails the project receives or the complaints addressed to the ACLU’s state branches.  Almost none of those grievances make it to court.  So Yelp reviews, Fathi said, could prove to be pretty powerful.  “Prisons and jails are closed institutions, and the lack of outside scrutiny and oversight sometimes facilitates mistreatment and abuse,” Fathi said.  “So anything that increases public awareness of prison conditions is a positive thing.”

Not all of those reviews are accurate, of course, and many may come from pranksters who don’t care about the travails of prison life.  The reviews also won’t necessarily prompt systemic change — it’s not like a detention center relies on good Yelp reviews for business the way some restaurants and small businesses do.

But Miller, the California lawyer, said the reviews can help educate professionals who work with the prison system and inform the public about the conditions inmates face.  “It helps elevate consciousness of the problems and brings transparency and oversight to a system that isn’t used to being transparent,” Miller said.  “That’s a very valuable tool.”

April 28, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, April 26, 2013

A data-based exploration of prison growth and the drug war

I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story.  Here are his first three posts in a series that is a must-read for a number of reasons:

April 26, 2013 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, April 24, 2013

"Four female prison guards impregnated by same inmate"

0423-13-officers-indicted_jpg_full_600The headline of this post is arguably the most sensational facet of a huge federal corruption prosecution this week emerging from the jail system in Baltimore, Maryland.  The basics are reported in this story:

Four female prison guards in Baltimore fell pregnant to the same inmate, according to authorities who have busted a major smuggling gang inside the jail system. Two of the women tattooed the inmate's name on their bodies and he showered three of

The four women are among 25 people who face federal charges, including 13 female prison guards, CBS Baltimore reports. The scheme involved smuggling drugs and cell phones into Baltimore City Detention Center.

U.S. Attorney Rod Rosenstein said the 25 defendants participated in running the activities of the Black Guerilla Family - a prison and street gang - from behind bars in Baltimore City. Thirteen female corrections officers, seven inmates and five alleged co-conspirators are charged with racketeering, money laundering and possession with the intent to distribute....

The affidavit says the corrections officers helped members of the notorious Black Guerilla Family gang smuggle cell phones, marijuana, prescription pills and cigarettes into the jail to sell to other inmates and make thousands of dollars. "This situation enabled BGF members to continue to run their criminal enterprise within the jail and the streets of Baltimore," said Steve Vogt, FBI....

The indictment says the ringleader, inmate Tavon White, reportedly made $16,000 in one month from the smuggled contraband.

Four corrections officers-Jennifer Owens, Katera Stevenson, Chania Brooks and Tiffany Linder, who are also facing charges -- allegedly fell pregnant to White while he was behind bars. Charging documents reveal Owens had "Tavon" tattooed on her neck and Stevenson had "Tavon" tattooed on her wrist....

Secretary of Public Safety & Correctional Services Gary Maynard said he was taking full responsibility. "It becomes embarrassing for me when we expose ourselves and we participate in an investigation that's going to show what's going on in our jails that I am not proud of," he said.

This press release from the Maryland U.S. Attorney's office concerning the indictments has a little extra fun with the most prurient aspects of this sordid story in its heading: "Correctional Officers Smuggled in Cell Phones and Drugs and Were 'in Bed' with BGF Inmates."  And though this story is hardly a laughing matter, I hope readers will forgive me after a few weeks of very serious news if I encourage commentors to perhaps add some additional levity by suggesting alternative headlines for this notable new federal corruption case.

April 24, 2013 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (20) | TrackBack

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

April 24, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 21, 2013

Do recent California prison reforms demonstrate Plata ruling was a success or a failure?

There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons.   Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post.  The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:

On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels.  Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.

By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility.  In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....

California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system.  But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.

Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....

The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”

Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.

The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....

A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.

In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.

California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.

Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”

Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.

April 21, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 18, 2013

"What if NY invested more in dairy farms and less in prisons?"

Milknotjails4The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:

There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.

One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy.  That group's called "Milk Not Jails."...

This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact.  She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.

"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says.  "And oftentimes we would take bus trips up to the farm where we received our produce from.  And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."

Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives. "I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility.  And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town.  That's absolutely real for people."

Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders.  "There's all this spin-off economic activity that goes hand-in-hand with agriculture.  You have processing, you have distribution, you have tourism.  We can't say the same thing for prisons.  They don't have that kind of economic growth opportunity."...

"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community."  That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs. 

Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie.  Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.

"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says. "What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."

April 18, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

"Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"

The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN.  Here is the abstract:

The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians.  The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources.  The role of the federal, state, and local governments in the PIC has been to allocate resources.  This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.

The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks.  When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs.  The result was the privatization of prisons, private companies handling the management of federal and state inmates.

This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.

This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players.  Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources.  Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.

Some related posts about private prisons: 

April 18, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, April 17, 2013

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

Charting a New Justice ReinvestmentThe title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S."  The full 36-page report is available at this link, and this webpage provides an overview of the contents.  Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

April 17, 2013 in Pot Prohibition Issues, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, April 15, 2013

Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here).  The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on.  I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011).  But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences.  Indeed, that is precisely how the district court approached Douglas’s original sentence in this case.  Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency.  District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.”  We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Prior posts concerning Cameron Douglas's federal sentencings:

April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Interesting coverage of media coverage of crime and prison punishments

Marchapril2013cover_300x400Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories.  I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility." 

As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States.  Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."

With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:

April 15, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, April 14, 2013

"New Utah law allows organ donations from prisoners; nearly 250 sign up"

The title of this post is the headline of this new article via NBC News.   Here are excerpts:

Joanne Ford was a designated organ donor for decades, years before she was sentenced to time in Utah’s Draper Prison for possession and distribution of methamphetamines.  But it wasn’t until two weeks ago that the 48-year-old inmate was guaranteed the right to honor her wishes if she happened to die while incarcerated.

Utah’s governor, Gary R. Herbert, signed the first state law on March 28 that explicitly permits general prisoners to sign up for organ donation — and cracks the door to the controversial option of allowing death-row inmates to donate as well. 

“I think, why not?” says Ford, who is among 247 Utah prisoners who’ve signed up to donate their organs. “If you have healthy organs, why would you not be able to help someone else?”

Whether to accept organs from prisoners has long been a thorny issue.  Ethics experts say it pits questions of coercion of a vulnerable population against the desperate need for organs in a country where nearly 118,000 people are waiting for hearts, kidneys, livers and other life-saving transplants, according to the United Network for Organ Sharing.

In most states, accepting organs from inmates who die while in custody is permitted only rarely and under strictly controlled circumstances.  No state allows donation of organs from executed prisoners....

Utah state Rep. Steve Eliason, who pushed the law through the legislature, said he was inspired by the 2010 death of Ronnie Lee Gardner, a murderer who wanted to donate his organs but was prohibited from doing so.  “How disappointing is that, there’s somebody who maybe wants to atone for his sins in some way,” says the Republican from Sandy, Utah. “It’s a waste of perfectly good organs that could help others.”

Eliason first proposed a bill allowing prisoners to donate organs last year, but time ran out before it could be fully considered.  The next time, it passed unanimously....

Now that the law has passed, records of inmates who want to donate have been sent to Intermountain Donor Services, the agency that manages organ donations in Utah.  They’ve been added to the state donor registry.   “Any time we can expand the donor pool or make people aware of organ donation, we’re supportive of that,” says Alex McDonald, a spokesman.... 

[E]very organ donor can save the lives of up to eight people and tissue donors can help more than 50 people, transplant experts say....  The Utah law does not discriminate between general population prisoners and death-row inmates, Eliason noted. “Any prisoner is able to do this,” he says....

Some may wonder whether people in need would accept organs from prisoners, but Lori Haglund of Salt Lake City says there’s no question.  Her son, Brock Butler, had a progressive liver disease.  He died in September, a week before his 21st birthday, after spending three years on a waiting list for a liver.  “We were acutely aware of what we were asking someone to be giving,” says Haglund, 51.  “For anyone who would be willing, it gives them a chance to give something back.”

Joanne Ford agrees. Although she may have damaged her organs, particularly her liver, with drug use, she still hopes she may one day help others.  “There still may be one or two things that could still possibly be used,” she says.  Donating her organs after death would be one way to atone for her actions — in addition to prison time.  “I feel like I owe society a big debt,” she says.  “I caused a great damage out there.  I feel good about this.”

April 14, 2013 in Prisons and prisoners | Permalink | Comments (2) | TrackBack

Weekend crime and punishment headlines from California

California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction.  Here are just some of the headline from the state which caught my eye this weekend:

April 14, 2013 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 09, 2013

Guest post on federal sentencing data and costs of incarceration for child porn offenses

Average fed sentencesExperienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me this "accounting" of the latest year-end federal sentencing data:

"Yesterday, the U.S. Sentencing Commission published its Annual Report to Congress, and Sourcebook of Federal Sentencing Statistics for fiscal year 2012.  Increasingly, this part of the Commission’s work is becoming of central importance to its mission.  Indeed, the stats reveal something rather startling, if not outright shocking, about the cost of incarceration. 

"Since United States v. Booker, the federal government has spent nearly $30 BILLION on incarceration, which exceeds the GDP of many countries including North Korea.  Of this, over $2 BILLION was spent on incarcerating child pornography offenders; 12,115 have been sentenced (not all to imprisonment, but most) under the guidelines since 2006.  What makes this rather startling is looking at other major offense categories.  For example, in the same period of time, over four times as many people have been sentenced for fraud offenses (54,813), however, the total cost of incarcerating those individuals was almost a billion dollars LESS!  ($2.1 billion for child pornography; $1.3 billion for fraud).  In other words, incarcerating 12,115 child pornography offenders cost the public fisc $2.1 billion, while incarcerating nearly 55,000 fraud offenders cost (only) $1.3 billion.

"So, why the big difference in cost?  Easy.  The increasingly longer sentences imposed on child pornography offender than for any other major offense category.  What that translates into is that the actual annual cost per offender is far higher for child pornography offenders than for any other major offense category.  We spend nearly $25,000 incarcerating child pornography offenders than fraud offenders, who cost only $3,500 per year.  Fraud is comparatively cheap because a substantial number do not receive any term of incarceration, and those that do often serve less than a year.  Here is a chart showing the AVERAGE sentences over the past 6 years for all major offense categories.  A quick glance shows how out of the ordinary child pornography offenses are, or more accurately, how obscenely out of whack they are.

"After spending $2 Billion over the last six years, it’s far past time to rein in this madness.  The Commission’s recent report on Federal Child Pornography Offenses effectively disavowing the sentencing guideline for non-production offenses is an enormous leap in the right direction.  We simply cannot afford to continue being fiscally foolish on child pornography sentencing; these data put the magnitude of the madness in sharp relief.  Hopefully Congress acts quickly to grant the Commission’s wish to have 'enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.'

"[NOTE ON CALCULATION METHODS: the statistics were derived from table 13 and the BOP’s recent cost of incarceration estimate from FY 2012.  I simply took the total number sentenced each year (06-12), multiplied that by the MEDIAN sentence in months from each (to be conservative in my estimate; the mean or average would have resulted in much higher figures) and divided that by 12 to get the number of “Inmate Years” for a category.  I then multiplied the Inmate Years by $26,359, which is the average annual cost of incarceration per BOP.  This gives you the Total Cost FY06-12 for a category, e.g. $2,118,989,027 for Child Porn.  The Total Sentenced FY 06-12 is just exactly what it says.  Per Inmate, Per Year Cost is just the total cost divided by the total sentenced, then that number divided by 7 (7 years inclusive of FY2006-2012).]"

April 9, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Sunday, April 07, 2013

Federal judge decides California still cannot run its prison without monitoring

As reported in this article, which is headlined "Judge refuses to end prison monitoring," the California prison system appears not to be getting out of federal court monitoring anytime soon. Here is the story:

Treatment of 32,000 mentally ill inmates in California prisons remains seriously deficient, with staff and facilities shortages and a high number of preventable suicides, a federal judge declared Friday in rejecting Gov. Jerry Brown's request to end more than 17 years of court monitoring.

Brown's insistence that prison mental health care now exceeds constitutional standards, after billions of dollars of expenditures, conflicts with evidence from an ongoing series of prison inspections, said U.S. District Judge Lawrence Karlton of Sacramento.

"Systemic failures persist in the form of inadequate suicide-prevention measures, excessive administrative segregation of the mentally ill (in isolated lockups), lack of timely access to adequate care, insufficient treatment space and access to beds, and unmet staffing needs," Karlton said.

He said the inmate suicide rate, which had been declining for several years, has soared since 2009 to nearly 24 per 100,000 inmates, or 60 percent above the national average. More than 70 percent of the suicides might have been prevented with adequate treatment, Karlton said....

Friday's decision is a signal that the population-reduction order is still needed and will be upheld, said Michael Bien, a lawyer for mentally ill inmates who sued the state in 1991. After finding constitutional violations, Karlton appointed a monitor, called a special master, to inspect the prisons and report on mental health care in January 1996. The judge's refusal to end the monitoring "allows us to get back to the real work of fixing a dangerously flawed mental health care system that's shamed California for more than 20 years," Bien said....

Karlton said the evidence, from experts on both sides as well as the court-appointed monitor, showed that the prisons have not implemented their own suicide-prevention plans, keep too many mentally ill inmates in high-security lockups and are understaffed by more than 20 percent.

April 7, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, April 05, 2013

Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"

I am very pleased to have seen from this new Politico article that Attorney General Eric Holder last night stressed the need for national criminal justice reform at the end of a major speech delivered at the 15th Annual National Action Network Convention. The full text of the lengthy speech is available at this link, and here is some of the context for the potent quotable stressed above:

[W]e must also move to improve our nation’s criminal justice system — and to promote public safety, deterrence, efficiency, and fairness at every level. We’re providing increased support for programs offering quality legal representation to those who cannot afford it, in accordance with the Supreme Court’s decision in Gideon v. Wainwright — a landmark ruling, handed down 50 years ago last month, which held that every defendant charged with a serious crime has the right to an attorney.

We’re also asking larger questions about the mechanisms of our criminal justice system as a whole – and, where appropriate, exploring ways to recalibrate this system and ensure that it’s as fair and effective as possible.

Already, this urgent need has driven the Administration to advocate — successfully — for the elimination of the unjust 100-to-1 sentencing disparity between crack and powder cocaine.  As we speak, it is propelling us to become both smarter and tougher on crime by facilitating more effective policing at the state and local levels; broadening the impact of innovative prevention, intervention, enforcement, and reentry programs; using intelligence-based strategies to target federal law enforcement resources and assistance to the areas where they’re most needed; and seeking new ways to help crime victims — especially victims of sexual assault — to make their lives whole again.

Our reform efforts are also driving us to engage allies like the Department of Education — and others — to confront the “school-to-prison pipeline” that transforms too many educational institutions from doorways of opportunity into gateways to the criminal justice system.  They are informing essential programs like the Department’s Defending Childhood Initiative and the National Forum on Youth Violence Prevention — which are helping to rally federal leaders, state officials, private organizations, and community groups to examine how we can better understand, address, and prevent youth exposure to violence — as victims or as witnesses.  And these efforts are inspiring us to forge new partnerships like the Federal Interagency Reentry Council — a group I first convened in 2011, which brings together leaders from 20 federal agencies to address barriers that formerly incarcerated individuals face in rejoining their communities, to promote best practices, and to confront these and related issues as more than just criminal justice problems.

The sheer number of Americans contending with these challenges is staggering. Well over two million people are currently behind bars in this country.  As a nation we are coldly efficient in our incarceration efforts. One in 28 children has a parent in prison.  For African American children, this ratio is roughly 1 in 9.  In total, approximately 700,000 people are released from state and federal prisons every year.  Nine to 10 million more cycle through local jails.  And 40 percent of former federal prisoners — along with more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release.

Now, there’s no question that incarceration has a role to play in our criminal justice system.  But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes a significant economic burden — totaling nearly $83 billion in 2009 alone — along with human and moral costs that are impossible to calculate.  As a nation — and as a people — we pay a high price whenever our criminal justice policies fall short of fairly delivering outcomes that deter and punish crime, keep the American people safe, and ensure that those who pay their debts to society have the chance to become productive, law-abiding citizens.

This is why — as we look toward the future — we must promote public safety and deterrence while at the same time ensuring efficiency and fairness. I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that — in recent years — black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes. The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups — like the American Bar Association — to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and — where appropriate — to explore ways to give judges more flexibility in determining certain sentences.  Too many people go to too many prisons for far too long for no good law enforcement reason.  It is time to ask ourselves some fundamental questions about our criminal justice system.  Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works.  We need to ensure that incarceration is used to punish, to rehabilitate, and to deter — and not simply to warehouse and forget.

I am so excited to now see that our nation's top law enforcement officer is now expressly saying, without reservation and in no uncertaint terms, what I have long believed about the big government waste in our massive modern criminal justice systems: "Too many people go to too many prisons for far too long for no good law enforcement reason."  I hope that, in addition encouraging that "ask ourselves some fundamental questions about our criminal justice system," that he will actively take the many possible steps within his power to get some of the people in prison for too long to ensure those who are now being just warehoused are no longer forgotten.

April 5, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (43) | TrackBack

New ACLU of Ohio report documents "contemporary debtors’ prisons"

DebtorsPrisonAs reported in this local article, headlined "Poor unfairly jailed for failing to pay fines, report says," a new report by the ACLU of Ohio makes a set of provocative assertions about crime, punishment and modern economic realities. Here are the basics:

Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.

Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”

While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.

The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan....

Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director. The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said....

The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling.  Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.

Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed.  “It is not a good deal for the taxpayers.  (The defendants) aren’t not paying because they don’t feel like it.  They’re not paying because the literally have no money,” Brickner said.   Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.

The ACLU of Ohio's report is titled "The Outskirts of Hope" and is available at this link.  Here are a few paragraphs from the report's introduction:

The resurgence of contemporary debtors’ prisons sits squarely at this intersection of poverty and criminal justice. While this term conjures up images of Victorian England, the research and personal stories in this report illustrate that debtors’ prisons remain all too common in 21st century Ohio. In towns across the state, thousands of people face the looming specter of incarceration every day, simply because they are poor.

Taking care of a fine is straightforward for some Ohioans — having been convicted of a criminal or traffic offense and sentenced to pay a fine, an affluent defendant may simply pay it and go on with his or her life.  For Ohio’s poor and working poor, by contrast, an unaffordable fine is just the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time.  The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines. The U.S. Constitution, the Ohio Constitution, and Ohio Revised Code all prohibit debtors’ prisons. The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay.  Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors’ courts across the state continue this draconian practice. Moreover, debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them.

The Outskirts of Hope documents how contemporary debtors’ prisons work in Ohio and profiles some of the real people who have been impacted by this system.  The constant threat of incarceration has left an imprint on each of these individuals’ lives, interfering with their families, health, employment, and housing.  By shining a light on this dark practice in Ohio, this report hopes to move our state towards the promise of greater justice and fairness for those with the fewest resources.

April 5, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, April 04, 2013

"Pretrial Detention and the Right to Be Monitored"

The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it.  In the context of pretrial justice, however, we have the opposite problem.  Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system.  Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention.  But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims.  First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk.  In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).  Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action.  The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts.  Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically.  To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them.  The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary.  Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint."  I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.

April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 02, 2013

Protests scuttle private prison group's plans to get name on university stadium

As reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return.  But, as highlighted in this new Huffington Post piece, the deal is off:

It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.

But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.

"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.

Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."

The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.

Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.

The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...

The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....

In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...

It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.

Some recent and older related posts: 

April 2, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, March 26, 2013

New York Times editorial urges "Shrinking Prisons, Saving Billions"

While on the road, I missed this notable New York Times editorial from this past weekend.  Here are excerpts:

The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year.  Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009.  A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.

Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages.  California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties.  Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.

Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s.  But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....

States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.

March 26, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Monday, March 25, 2013

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

March 25, 2013 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Friday, March 22, 2013

A moving memorial to Colorado prison chief Tom Clements from the Vera Institute of Justice

As reported in this new article, headlined "Colorado Parolee Killed in Texas Chase Likely Guilty of Slaying Prisons Chief," it looks like the person responsible for the murder of head of the Colorado prison system earlier this week may have already faced the ultimate punishment for the crime. But that reality does little to make up for the senseless loss; this new item posted at the Vera Institute of Justice blog, headed "In Memoriam: Tom Clements, Vera partner and friend," provides a sense of how great a loss this is. Here are excerpts:

The Vera Institute of Justice mourns the loss of Tom Clements, Executive Director of the Colorado Department of Corrections, who was shot and killed at his home on March 19, 2013. The Vera family is shocked and saddened at this tragic news, and our hearts go out to Director Clements' family, friends, and colleagues. Many of us had the opportunity to work with Tom—some of us for many years. Most recently, he was a key leader and partner in Vera's European-American Prison Project, an initiative funded by the Prison Law Office which aims to advance an international dialogue around what works in corrections and stimulate reform efforts in the United States. Just last month, as part of this project, several Vera staff members had the privilege of spending a week travelling with Tom and the Colorado delegation, along with our other partners in the project, to tour prisons in Germany and the Netherlands.

"We are heartbroken by this news," said Michael Jacobson, president and director of Vera, who was on the European trip last month. "Tom was a thoughtful and dynamic leader, not only of his agency but as an important and influential national voice in the field of corrections. In addition, he was simply a lovely, warm, generous and thoughtful man."

Director Clements is deservedly recognized for his openness to smart and efficient corrections reform, which he brought to Colorado, where he came to help transform its system. Clearly, he was a great asset to the state. In just two years, he made significant progress in reducing the use of segregation, improving reentry, working with challenging populations such as gang members, and tackling the needs of the mentally ill and elderly incarcerated persons. After the trip to Europe, Tom and his team were eager to start planning and implementing ways to better prepare offenders to reenter the community, for instance with a mother-child unit and strategies to encourage inmate savings.

Most importantly, Tom was a deeply kind and thoughtful person whom we were fortunate to have had the opportunity to know. He will be deeply missed. According to Peggy McGarry, who directs Vera’s Center on Sentencing and Corrections, "Tom Clements was exactly the kind of gentle, kind, and good person who you want in charge of prisons. He only wanted what was best for those in his care—with no desire to control or hurt anyone. His smile was warm and reassuring, his intelligence quick and apparent. It is beyond comprehension that anyone would want to hurt this good man."

[In this post], we share some of the thoughts and remembrances of our colleagues who worked with Tom on the European-American Prison Project. We will add to this list as other colleagues contribute to it.

March 22, 2013 in Prisons and prisoners, Who Sentences? | Permalink | Comments (30) | TrackBack

Wednesday, March 20, 2013

Talk of reforming prison realignment in California

As reported in this new AP piece, "Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons."  Here is more:

The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms.  The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.

"Republicans recognize that we must close the worst realignment loopholes," said Assembly Minority Leader Connie Conway, R-Tulare.

The bills' chances are uncertain in a Legislature controlled by Democrats.  The measures were proposed nearly 18 months after Gov. Jerry Brown's prison realignment took effect, sending inmates convicted of lower-level crimes to county jails instead of state prisons....

A related bill was rejected last week on a party-line vote in the Assembly Public Safety Committee.  The bill, AB2 by Assemblyman Mike Morrell, R-Rancho Cucamonga, would have sent paroled sex offenders back to state prisons, instead of county jails, if they fail to register as sex offenders.

The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding.  Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.

"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out."

Other bills in the Republican package would impose prison instead of jail time for criminals who remove their GPS-linked tracking devices; send all sex offenders who violate their parole back to prison' and have state parole agents, rather than county probation agencies, supervise all released sex offenders.  The proposals come amid rising concerns over the consequences of Brown's realignment law that took effect in October 2011.

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before realignment; counties are housing more than 1,100 inmates serving sentences of five years or more in jails designed for stays of a year or less; and inmate advocacy groups are beginning to sue counties over the same type of poor housing and treatment conditions that led to years of litigation and billions in additional costs for the state.

March 20, 2013 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Manhunt after head of Colorado Department of Corrections killed answering doorbell"

The title of this post is the headline of this disturbing breaking news from Colorado.  Here are the basics:

The head of the Colorado Department of Corrections was fatally shot when he answered the doorbell at his home Tuesday night, authorities say.

Sheriff's Lt. Jeff Kramer says Tom Clements was shot to death around 8:30 p.m. in the town of Monument, which is north of Colorado Springs.  It is unclear if his wife and two daughters were home at the time of the shooting and police are searching for the gunman....

In a letter to DOC employees, Governor John Hickenlooper confirmed that the 58-year-old had been killed, KDVR.com reported.  "We have no more details than that," Hickenlooper wrote.  "I am so sad. I have never worked with a better person than Tom, and I can’t imagine our team without him. … As your Executive Director, he helped change and improve DOC in two years more than most people could do in eight years."

March 20, 2013 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

Tuesday, March 19, 2013

BOP director puts numbers of federal correction costs for FY2011

Via this new Federal Register entry, the Director of the Bureau of Prisons announced the latest annual determination of the average cost of incarceration.  Here is the heart of the announcement:

28 CFR part 505 allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates.  We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.

Under § 505.2, the Director of the Bureau of Prisons determined that, based upon fiscal year 2011 data, the fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2011 was $28,893.40.  The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2011 was $26,163.

March 19, 2013 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, March 14, 2013

"Rethinking the Use of Community Supervision"

The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele.  As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to incarceration are critically important "real world" sentencing issues that only rarely get sustained attention from the legal academy.  I am so pleased that Cecelia Klingele is a leading voice help ensuring these important legal and policy issues get the scholarly attention they need and deserve.  Here is the abstract of her latest work in this regard:

Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration.  For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration.  Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole.  It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.

This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.  While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation.  To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense.  Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

March 14, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

Saturday, March 09, 2013

"The Conservative Case Against More Prisons"

Mar-apr-cover-archiveThe title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

March 9, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

Friday, March 08, 2013

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

March 8, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, March 07, 2013

Noting the intersection of mental illness and gender in incarceration nation

This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes.  Here is how the piece starts:

The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.

The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.

"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."

While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.

"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."

The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.

In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.

That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.

The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.

The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.

March 7, 2013 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Monday, March 04, 2013

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

March 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, March 01, 2013

Proof of bad people or bad punishments or bad programming?

PA infographic_page2The quirky question in the title of this post is prompted by this notable local article from Pennsylvania, which is headlined "6 in 10 will re-offend: State prison study sets baseline for progress." Here are the details:

Secretary of Corrections John Wetzel on Thursday morning released what he's calling a "landmark study" into recidivism rates at Pennsylvania's state prisons, and the study is noted not for the progress shown, but rather for the lack of change demonstrated.

For more than a decade, a consistent six in ten people released from Pennsylvania state prisons were either re-arrested or put back in prison within three years. What's "landmark" about the study is in part its scope -- more than 12 years -- but largely the fact is sets a "baseline" for going forward.

Wetzel said it marks the first step toward measuring progress. "Citizens of the Commonwealth should have every expectation of a corrections system that actually helps people correct themselves; one that is based on research, not on anecdotal stories and innuendo," said Wetzel.

While population and cost "remain essential measurements" in Gov. Tom Corbett's Corrections Reform initiative, he said, "The 'new normal' is to expect and require quantifiable results."

The study, which Wetzel called "the keystone of the Corbett Corrections Reform initiative," also helps the Department of Corrections and the Board of Probation and Parole understand who is most likely to re-offend and how.  “To get a true picture of whether our state prison system is meeting its goal of reducing future crime, we need to look at more than just the reincarceration of an individual,” Wetzel said.  “We need to look at re-arrests as well to see the whole picture of how and when individuals come into contact again with the criminal justice system.”

For example, the study found that more than half of those who will return to prison within three years after release will do so within the first years, which is by far the most risky period for recidivism.  Younger offenders are more likely to recidivate than older offenders.  Individuals most likely to reoffend appear to be property offenders. Individuals least likely to reoffend are those incarcerated for driving under the influence of intoxicants, rape and arson.

The study looked prisoners' background as well and found a released inmate who has 10 or more prior arrests is greater than 6 times more likely to recidivate than a released inmate with no prior arrest history other than the arrest for the current stay in prison.

According to the study, nearly two-thirds of all reincarcerations within three years of release from prison are for technical parole violations.  Nearly three-fourths of rearrests within three years of release from prison are for less serious offenses.

The study also confirmed the damning portrait of Community Corrections Centers outlined in an earlier study performed by Dr. Edward Latessa of the University of Cincinnati.  From 2005 through 2011, inmates paroled to a Community Corrections Center were actually more likely to be back in prison within a year as inmates paroled directly home.

Wetzel said the Department of Corrections can save taxpayers $44.7 million annually by reducing the one-year reincarceration rate by 10 percentage points.

The full 45-page report referenced in this article is available at this link, and the cool infographic that explains the reports key findings comes from the PA Department of Corrections website.  One key finding reflected in the infographic is that less than one in five new arrests are for an act of violence.  The majority of rearrests are for drug or public order offenses or parole violations.

Obviously, lots of different conclusions and responses can be based in this new recidivism data.  But I think most important is to stay ever open-minded about what can be the most effective and efficient kinds of criminal justices responses.  This report apparently reveals that for some offenders in some cases recidivism may be lower in the absence of a certain kind of punishment or programming.  It is, of course, bad enough when the work of a department of corrections fails to actual help "correct" people.  But the ultimate form of government waste exists when there is evidence that the taxpayer funded work of the criminal justice system may be making people worse criminals.

March 1, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, February 28, 2013

New Sentencing Project report notes recent changing racial make-up of prison populations

As summarized in this New York Times article, "[i]ncarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women, while the rate of imprisonment for whites and Hispanics rose over the same decade, according to a report released Wednesday" by The Sentencing Project. Here is more:

The declining rates for blacks represented a significant shift in the racial makeup of the United States’ prisons and suggested that the disparities that have long characterized the prison population may be starting to diminish.

“It certainly marks a shift from what we’ve seen for several decades now,” said Marc Mauer, the executive director of the Sentencing Project, whose report was based on data from the federal Bureau of Justice Statistics, part of the Justice Department. “Normally, these things don’t change very dramatically over a one-decade period.”

The decline in incarceration rates was most striking for black women, dropping 30.7 percent over the ten-year period. In 2000, black women were imprisoned at six times the rate of white women; by 2009, they were 2.8 times more likely to be in prison. For black men, the rate of imprisonment decreased by 9.8 percent; in 2000 they were incarcerated at 7.7 times the rate of white men, a rate that fell to 6.4 times that of white men by 2009.

For white men and women, however, incarceration rates increased over the same period, rising 47.1 percent for white women and 8.5 percent for white men. By the end of the decade, Hispanic men were slightly less likely to be in prison, a drop of 2.2 percent, but Hispanic women were imprisoned more frequently, an increase of 23.3 percent.

Over all, blacks currently make up about 38 percent of inmates in state and federal prisons; whites account for about 34 percent. More than 100,000 women are currently incarcerated in state or federal prisons. The overall rate of incarceration varies widely from state to state, as does the ratio of blacks to whites and Hispanics.

But the trend is clear, Mr. Mauer said, adding that no single factor could explain the shifting figures but that changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women.

Alfred Blumstein, an expert on the criminal justice system at Carnegie Mellon University, said his own findings from research he conducted with Allen J. Beck of the Bureau of Justice Statistics also indicated that the rate of incarceration for blacks was declining compared with that for whites. “A major contributor has been the intensity of incarceration for drug offending,” Dr. Blumstein said, “and that reached a peak with the very long sentences we gave out for crack offenders, stimulated in large part by the violence that was going on in the crack markets.”

But crack cocaine has become far less of an issue in recent years, he noted, a fact reflected in revisions of federal sentencing laws. And inmates serving time for crack offenses are now emerging from prison, “so there would be a disproportionate black exodus from prison that as a result would be reflected in a lowering of the incarceration-rate ratio,” he said.

Mr. Mauer said that especially for black women, the drop in incarceration compared with whites was “all about drug offenses.” In New York State, for example, where the overall prison population has dropped substantially, for women “virtually the entire decline was a decline in drug offenses,” he said. Increasingly severe drug laws and stiff sentences for drug offenses resulted in disproportionate numbers of black women going to prison, he said, “and now they are disproportionately benefiting from reductions in that area.”

The full 26-page report from The Sentencing Project is titled "The Changing Racial Dynamics of Women’s Incarceration," and it is available at this link.

February 28, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Wednesday, February 27, 2013

"Sequestration Will Wreak Chaos On U.S. Federal Prisons"

The title of this post is the headline of this very interesting new piece from Business Insider.  Here are excerpts:

Sequestration will hit each and every aspect of the U.S. government, but for the Bureau of Prisons, the impact could be horrifying. According to the Attorney General's office, the federal Bureau of Prisons (BOP) will have to handle a rising number of inmates with a major budget reduction, a cut of $338 million.

And while other agencies can find ways to do more with less — for example, by reducing procurement, enacting hiring freezes or cutting services — BOP has to maintain constant security at federal prisons around the country with even less money. The solutions will not be pretty.

In an email to Business Insider, a spokesperson from the Department of Justice said that they are "acutely concerned about staff and inmate safety should sequestration occur." The Department indicated that it may at times maintain a minimum level of staff for security purposes, and that lock-downs may be required.

The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies.  Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012.

According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels.

Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."

Complicating all of this is the fact that the federal prison system is already severely overcapacity. According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness. But efforts to find a solution will be thwarted by the sequester.

In 2013, the BOP was slated to activate 5 new prisons throughout the system, alleviating the crunch with 8,100 new beds. In addition to cuts in guards, those projects will have to be delayed, exacerbating the overcrowding problem further. On top of these issues, Holder reported that the BOP will be forced to curtail or cancel some of the crucial rehabilitation programs that bring long term savings to the criminal justice system....

Jesselyn McCurdy, an attorney at the American Civil Liberties Union who specializes in civil liberties in the criminal justice system, is very concerned about the impact that the cuts will have on inmates. “"Sequestration could result in disaster for people in federal prisons who already live in dangerously overcrowded conditions,”" McCurdy said.

The private prison industry, which is largely dependent on federal contracts, is also worried about the cuts. Damon Hininger, CEO of Corrections Corporation of America, one of the largest private prison companies, voiced these concerns on a February 14 call to investors.

Through not mentioned in this article, it is interesting to consider that the passage of reduced crack guidelines which were made retroactive likely has help prevent this bad situation from being even worse.  Absent the sentencing reductions from reduced crack guidelines passed in 2007 and 2010, the current federal prison population would perhaps already be creeping up near 250,000.

Recent related post:

February 27, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, February 25, 2013

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

February 25, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack