Wednesday, January 13, 2016
In wake of Obergefell, Alaska legislator introduces bill to ban marriage between inmates
In this post right after the Supreme Court's landmark marriage ruling in Obergefell v. Hodges, I asked in my post title "Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?". To date, I have not yet seen many stories suggesting post-Obergefell prison problems. But this local Alaska story, headlined "Bill would ban prison marriages, but not for the reason you think," suggests the Last Frontier could be one of the first states to change its prison marriage laws since the ruling. Here are the basics:
In his younger years, Anchorage Republican Rep. Bob Lynn served as a police officer in Tucson, Arizona. Last year, when the U.S. Supreme Court legalized same-sex marriage nationwide, that decision and Lynn’s firsthand experience merged in his mind.
On Friday, Lynn introduced House Bill 218, which would prohibit marriages at the state’s prisons. Lynn said the bill is a matter of fairness. If a same-sex couple falls in love within a prison’s walls, he doesn’t want them to have the ability to get married and share a cell with their spouse. “We’ve got a lot of prisoners who have a spouse outside the prison,” he said. “That’s not fair to them where somebody in the jail can have their spouse in there.”
Lynn said the bill would apply to same-sex and heterosexual couples alike; a person would not be able to get married to an inmate on prison grounds....
To accommodate a married same-sex couple who commit a crime together, Lynn’s bill includes a provision that would prohibit the Department of Corrections from putting the couple into the same facility. It also toughens the ban on conjugal visits — currently a regulation of the department — by putting it into law. That makes the ban tougher to overturn.
I suppose I can (sort of) see the logic of wanting to preclude two convicted spouses from being able to live together while serving their prison terms, but I have a hard time fully understanding why that concern would or should justify a blanket prohibition on allowing prisoners to marry the person of their choice if that other person also happens to be in custody. And because the Supreme Court has long suggested that only "legitimate security concerns" can justify "placing reasonable restrictions upon an inmate's right to marry," I could readily see a successful constitutional challenge to this blanket prisoner marriage ban if it were ever to become the law in Alaska.
Monday, January 11, 2016
Lots of notable Atlantic reads on range of criminal justice topics
The folks over at The Atlantic always have a lot of worthy criminal justice (and other) reads, and these recent pieces struck me as especially blogworthy:
"The Steep Costs of Keeping Juveniles in Adult Prisons:Despite federal statues prohibiting it, many states imprison those under 18 alongside adults, where they are much more likely to suffer sexual abuse and violence."
Saturday, January 09, 2016
"Keeping It REAL: Why Congress Must Act to Restore Pell Grant Funding for Prisoners"
The title of this post is the title of this new paper by SpearIt now available via SSRN. Here is the abstract:
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.
Friday, January 08, 2016
Is mass incarceration contributing to the dumbing down of America?
The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education." As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:
According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending. Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.
According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States. Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.
That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....
The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....
Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.
In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”
Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”
The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link. The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).
Wednesday, January 06, 2016
Two new Slate commentaries assailing the modern death penalty and modern prisons
The on-line magazine Slate has these two notable new commentaries on two topics that are often the focal point of this blog:
Monday, January 04, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)
Wednesday, December 30, 2015
"Shouldn't Criminal Defense Lawyers Prepare Clients for Prison?"
The question in he title of this post is the headline of this notable commentary authored by Jay Berger and appearing in The Legal Intelligencer: Here are excerpts:
I was an attorney in Pennsylvania for over 30 years. I was also, more recently, a federal prisoner for almost five years. In 2007, I was charged with one count of mail fraud affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded guilty and served my sentence in five facilities of varying security classifications from June 2008 until April 2013. During the entire time I was incarcerated, I do not recall hearing of a single instance, my case included, where the defense lawyer provided any meaningful prison preparation or counseling for his or her client as part of the representation.
What completely baffles me about that omission is that there is roughly a 97 percent conviction rate in today's federal criminal justice system, almost all of which derives from guilty pleas, and the outcome in most cases is incarceration. Because this inevitability of serving time in prison is known well in advance of actual confinement, there are numerous prison-related matters that can and should be addressed during that interim period....
To me the solution is fairly obvious. It must be the responsibility of the defense attorneys to provide prison preparation services to their clients. Having been both a lawyer and a criminal defendant, I understand how imperative it is for clients to feel they can look exclusively to their defense attorneys for guidance in all areas of their cases. This is especially true where one of those areas ultimately involves a journey through prison. Therefore, the attorneys must either acquire enough knowledge to offer these services themselves, or in the alternative, retain a legitimate prison consulting service to work closely in conjunction with them. I view the latter approach no differently than when a defense attorney deems it necessary to retain any reliable, independent expert to provide essential skills related to the case....
I submit that any defense attorney who offers clients the strategies they need to manage through confinement and emerge successfully would add substantial value to the legal representation provided. It would bring an element to a criminal defense practice that is not typically available, and there is no better testimonial for an attorney than former clients who are satisfied that they were well represented in all facets of their cases. Word would spread and potential criminal defense clients might just be inclined to gravitate to a law firm that provides a more comprehensive representation by including prison counseling. In my opinion, this would significantly set that particular criminal defense practice apart from its competitors.
Those of us who have taken that shameful and lonely walk through prison doors could have desperately used some help from our defense attorneys to prepare us for what we were about to encounter. I assure you that we would have been eternally grateful for the consideration given to this most important aspect of our cases.
Tuesday, December 29, 2015
New BJS data show continued (very) slow decline in correctional populations in US
One of the many joys of the holiday season for data junkies is new releases of new official reports from the Bureau of Justice Statistics. This latest one, excitingly titled "Correctional Populations in the United States, 2014," was released today at this BJS webpage where one can also find this summary of the report's basic coverage main findings:
Presents statistics on persons supervised by adult correctional systems in the United States at yearend 2014, including offenders supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2014. It details the downward trend in the correctional population and correctional supervision rate since 2007. It also examines the impact of changes in the community supervision and incarcerated populations on the total correctional population in recent years. Findings cover the variation in the size and composition of the total correctional population by jurisdiction at yearend 2014. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for select years.
- Adult correctional systems supervised an estimated 6,851,000 persons at yearend 2014, about 52,200 fewer offenders than at yearend 2013.
- About 1 in 36 adults (or 2.8% of adults in the United States) was under some form of correctional supervision at yearend 2014, the lowest rate since 1996.
- The correctional population has declined by an annual average of 1.0% since 2007.
- The community supervision population (down 1.0%) continued to decline during 2014, accounting for all of the decrease in the correctional population.
- The incarcerated population (up 1,900) slightly increased during 2014.
Would-be Prohibition offenders make huge donation to ACLU help real ex-offenders
Via The Marshall Project, I just saw this Washington Post story, headlined "Total Wine co-founder funding $15 million push to aid ex-convicts," on a notable private funding effort for a notable public cause. Here are the details:
A Maryland couple is donating $15 million to the American Civil Liberties Union to expand a campaign to cut prison populations and promote private initiatives to rehabilitate and employ ex-convicts, the ACLU announced. The grant from David Trone, co-founder of Bethesda-based Total Wine & More, and his wife, June, is among the largest in the ACLU’s history.
The Trones, both 60, join a growing cadre of wealthy businesspeople funding a coalition of liberal, conservative and libertarian groups pushing the Obama administration and Congress to unwind sentencing laws from the era of the drug war. Those advocates argue that draconian punishments have gone too far and cost too much, incarcerating 2.2 million Americans, pouring $80 billion a year into prisons and jails and hollowing out families — particularly in low-income and minority communities.
David Trone, of Potomac, cited Total Wine’s support of the “ban the box” movement — which seeks removal of the criminal-record check box from job applications — as a factor in his gift and an example of what private-sector partners can accomplish. “Yes, people make mistakes,” he said. “But if they paid the price and now want to build a better life, why should that mistake have to carry with them the rest of their lives?”
The Trones’ grant comes one year after George Soros’s Open Society Foundations pledged $50 million over eight years to the ACLU’s political arm to push for sentencing and other criminal-justice policy changes in local, state and national elections. Unlike Soros’s grant, the Trones’ gift will pay for traditional ACLU litigation and educational activities and is tax-deductible.
The six-year bequest will establish the Trone Center for Criminal Justice and boost state-level projects — including ones in the District, Florida, Texas, Oklahoma, Michigan, Pennsylvania and Indiana — where incarceration rates and the prospect of bipartisan cooperation are greatest, said Anthony D. Romero, executive director of the ACLU.
Romero said that while attention is focused on a gridlocked Congress, momentum for change is growing among state and local governments, which house more than 90 percent of the nation’s prisoners and spend more than 90 percent of incarceration-related tax dollars. He likened the momentum to the push for same-sex marriage, where business leaders who threatened to leave hostile states added an economic argument to the moral and legal case for anti-discrimination laws. “If business leaders take a big stake in pushing these reforms, it ensures the sustainability of long-lasting reform,” Romero said. “If you can tie the power of the private sector to this sled, then Congress and the president will be dragged into taking real action.”...
The ACLU said David Trone will chair a new private-sector advisory council that will include business and university leaders. The council will promote efforts to return former prisoners to the workforce and reduce the stigma of employing past offenders, Romero said. It also may consider the value of education and economic incentives such as tax credits for workers and companies. Council members include Michael L. Lomax, president and chief executive of the United Negro College Fund, and Paul Lewis Sagan, former chief executive of Akamai Technologies, the Web- content delivery company.
Ex-prisoners face a variety of federal and state rules that restrict their ability to get jobs, housing, student and business loans, occupational licenses and public assistance, said another member, Mark V. Holden. Holden is general counsel at Koch Industries, whose billionaire founders, Charles and David Koch, are key sentencing reform backers....
David and June Trone, who are graduates of the Wharton School at the University of Pennsylvania, have been longtime ACLU supporters, giving more than $1 million since 1994. David Trone said the new gift was timed as he and his brother, Robert, co-founders of the Total Wine chain, are bringing on a new chief executive so they can step back from daily operations. Total Wine has stores in 18 states, with 4,000 workers and $2.1 billion in annual sales. Romero said Trone’s success and status outside the “usual suspects” of supporters gives him added credibility with businesspeople.
The Trones were disrupters of the liquor industry. Their “big box” model of beer and wine stores triggered bitter battles with competitors and drew scrutiny from regulators and criminal charges related to volume discounts. Cases against the family were dismissed. One of David Trone’s attorneys, Roslyn M. Litman, is an ACLU board member.
“I was lucky. I had the resources and the representation to fight an injustice and win . . . [but] there are hundreds of thousands of people who don’t,” David Trone said. With the gift, he said, he hoped the ACLU “can stand up for those who are silenced . . . and figure out how folks who have made mistakes can become great workers with great jobs and drop recidivism.”
As the title of this post highlights, I think an interesting (and likely easily overlooked) aspect of this story is the fact that the Trones made their fortune through innovation in an industry that was entirely a criminal enterprise (and the progenator of considerable violent crime) less than 100 years ago during the Prohibition era.
Sunday, December 27, 2015
"Prisons as addiction treatment centers?"
The question in the title of this post is the headline of this local article from the Buckeye State. Here are excerpts:
With at least four of five inmates struggling with addiction, Ohio's prisons are beginning to look more like drug treatment centers.
Prisoners participate in group counseling sessions, visit with prison "alumni" who have remained sober after leaving incarceration and enroll in Medicaid to help pay for counseling and medication-assisted treatment after they are released. Money from the state budget, $27.4 million through June 30, is paying for more counselors to treat addiction inside Ohio's prisons, said Tracy Plouck, director of the Ohio Department of Mental Health and Addiction Services.
The concept is relatively simple: people addicted to drugs commit crimes like possessing drugs, selling drugs, stealing money or property to buy drugs and hurting others because they are under the influence of drugs. Take away the compulsion for drugs and alcohol, and these lower-level offenders might not return to prison, Ohio Department of Rehabilitation and Correction director Gary Mohr said. "What we’re attempting to do is reduce crime victims out in Ohio," Mohr said.
Before changes in July, Ohio prisons were releasing 8,000 to 9,000 people with serious addiction problems each year without treating half of them, Mohr said. Staying for less than six months? You weren't eligible. Too many inmates on the waiting list? There wasn't not enough staff to help. Now, people who will be released in three months can start counseling in prison and have their medical records sent to a halfway house when they leave. By signing released prisoners up for Medicaid, the insurance program might pay for medication-assisted treatment and counseling — a combination considered by many physicians to be the gold standard of treatment.
"I can tell you right now we are going to be treating thousands of people that we weren’t treating before," Mohr said. When an inmate enters prison, he goes to a short-term reception center, and takes a test designed to spot mental health and addiction concerns. From there, he is sent to the prison where he will serve out his term. If the inmate isn't a violent offender, he might participate in a therapeutic community, groups of 70 to 180 inmates who live together, attend group counseling sessions and commit to good behavior while in prison, or a reintegration unit, where inmates work eight to 10 hours a day to simulate life outside prison.
Plouck wants to triple the number of inmates in therapeutic communities by mid 2017 by expanding the number of communities from four to eight. Madison Correctional Institution and Noble Correctional Institution are next on the list. In 2014, 569 inmates participated; by 2017, prison officials hope to have 1,500 enrolled.
Mohr also wants to have every prison enrolling eligible inmates in Medicaid by the end of 2016. Currently, 10 of 27 prisons are enrolling inmates in the low-income insurance program expanded by Gov. John Kasich. About 2,400 people have signed up since the program began in earnest this fall, Mohr said. Medicaid can pay for counseling and medication-assisted treatment after prisoners leave incarceration....
A smooth transition from treatment in prison to treatment outside of prison is critical. It's easy to remain sober in prison with no access to drugs or alcohol. The challenge comes when they are released back to homes where relatives or friends might still be using drugs or alcohol, Plouck said.
Tuesday, December 22, 2015
Could a profit motive help improve recidivism rates (and criminal justice programming more generally)?
The question in the title of this post is prompted by this intriguing new article by Alana Semuels in The Atlantic headlined "A New Investment Opportunity: Helping Ex-Convicts; A New York program asks outsiders to fund a promising initiative to reduce recidivism. If it gets results, they get a payout." Here is how the article gets started:
Every year, the government spends billions of dollars on programs designed to help America’s neediest citizens. In many cases, whether these programs work is anyone’s guess.
Less than $1 out of every $100 of federal government spending is “backed by even the most basic evidence that the money is being spent wisely,” wrote Peter Orszag, the former head of the Office of Management and Budget, and John Bridgeland, the former director of the White House Domestic Policy Council, in a 2013 piece in The Atlantic. In their article, Orszag and Bridgeland advocate for a “moneyball for government,” arguing that an era of fiscal scarcity should force Washington to become more results-oriented.
A new partnership among New York State, 40 private investors, and a nonprofit called the Center for Employment Opportunities seeks to apply this sort of thinking to an area of policy that has been particularly resistant to interventions: lowering the recidivism rate in an era of growing prison populations.
The investors, including private philanthropists and former Treasury Secretary Larry Summers, have put up a total of $13.5 million to fund an expansion of the work that an organization called the Center for Employment Opportunities (CEO) already does with people coming out of prison. CEO’s model is simple: It prepares people who have criminal records for the workplace, gives them up to 75 days of temporary employment, and then helps them find jobs of their own. With the $13.5 million, CEO will work with an additional 2,000 clients, targeting the highest-risk people.
But the expansion of the program isn’t charity: The project is a so-called “Pay for Success” initiative, modeled after social-impact bonds, which were first used in the United Kingdom five years ago. The basic idea is that investors fund a program that has a promising approach, putting in place extensive data-collection points so that they can track the program’s results. The investors are betting on the idea that the program can do a better — and less expensive — job of providing a given service than the status quo. If they’re right, and the program meets certain expectations — in this case the benchmarks for success are to reduce recidivism by eight percent and increase employment by five percent — the government will have saved money in less prison spending. The government then pays back the investors with its savings. If the program succeeds, investors can earn a return. If it exceeds those goals substantially, investors can get a bigger return, which in this case is capped at 10 percent. The state at no point spends more money than it would have spent incarcerating the 2,000 individuals anyway.
The Pay for Success strategy isn’t just a way to test CEO’s model. It’s a way to bring careful, data-based monitoring of a program’s effect into government spending.
There are dozens of programs that seek to help people re-enter the community once they’re released from prison. They provide job training and housing assistance and college-preparation classes and counseling. But a lot of people still end up back in prison. About 700,000 individuals are released from prison nationally each year; the national recidivism rate is about 40 percent.
CEO can make a dent in this, its backers say, because it gives its clients something more: a job. Clients come in, go through a week of job-readiness training, and then get a pair of steel-toed boots and a spot on one of CEO’s five-to-seven-person crews. The crews rotate through the city, cleaning courtrooms and performing maintenance on community-college buildings and public-housing properties.
Getting clients back into the workforce, even temporarily, is a key part of CEO’s program, Sam Schaeffer, the executive director of CEO, told me. People who have never worked, or who haven’t worked in decades find themselves furnished with a metro card, a place to be every morning, and a supervisor to report to. “You’re earning a daily paycheck, and all of a sudden you’re getting on the subway, with that metro card that you couldn’t afford two weeks ago and you're reading the paper, and you’re sort of like, ‘Yea, I can do this,’” he said.
Monday, December 21, 2015
Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison
As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:
Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.
Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.
The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.
It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.
“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”
The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.
Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.
And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.
The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here: Download Opinion Granting Injunction
December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Saturday, December 19, 2015
"On sentencing reform, we have to talk more about reentry"
The title of this post is the headline of this notable new commentary authored by Ashley McSwain recently published by The Hill. Here are excerpts:
Congress displayed a refreshing and all too rare example of bipartisanship this fall when the Judiciary Committee voted 15 to 5 to move the Sentencing Reform and Corrections Act of 2015 to a floor vote. If it passes, the bill would mark a significant step in fixing our broken criminal justice system. Thirty years of tough-on-crime policies — such as mandatory minimum sentencings and three-strike policies for drug-related crimes — has led to over a 750 percent increase in our prison population. People go in, but they don’t come out.
Congress can change that. But in order to ensure success, our communities need to rethink how we help citizens return to the community once their time is served -- what we call “reentry.” As we talk about sentencing reform, we have to talk more about reentry and rehabilitation. It’s not enough to simply reduce sentences; we need to increase access to education, housing, job training, mentorship, and counseling to prepare people to reenter....
As the executive director of Community Family Life Services — a non-profit organization located in the shadow of the Capitol building – We work with women and men everyday who are returning home following a period of incarceration. When they are released from prison or jail, many are homeless, have limited clothing or any possessions other than what they brought to prison. Many don’t have adequate job training or updated skills to reenter the work force. Finally, they don’t have strong family or community supports which are central to a successful reentry strategy.... Faced with these challenges, returning citizens are at high-risk of drug addiction, recidivism, and even death. Without robust reentry programs, sentencing reform will be all for naught.
Currently, the Sentencing Reform and Corrections Act of 2015 calls for increasing rehabilitation programs for “eligible” prisoners over the next six years and monitoring reentry. That’s a good start, but it’s not nearly enough. But it’s also not up to Congress alone. It takes a village. As we rethink sentencing laws and work towards a more just and equitable criminal justice system, we need to come together — government agencies, foundations, non-profits, individuals — and help create livable communities here in Washington, D.C. and across the country.
The Federal Bureau of Prisons should be encouraged to forge more relationships with reentry programs and encourage those in prison to work towards rehabilitation from day one, regardless of the length or terms of their sentences. We need more citizens to volunteer as mentors and work with men and women both in prison and out of prison to ensure each returning citizen has the support, strength, and resolve necessary to make the transition to open society and live up to their full potential....
As Congress considers a vote on the Sentencing Bill, I invite members to visit us at 3rd and E St NW. Talk to the women returning home to DC so they can better understand the challenges they face and what it will take for them to succeed. Every person who steps into our resource center is capable of a successful reentry, but they need our support — everyone’s support — to achieve it.
Friday, December 18, 2015
Effective accounting of how hard it is to account accurately for intricacies of modern mass incarceration
The strangely named Xenocrypt on the website Medium has a terrific new posting titled "Why You Don’t Understand Mass Incarceration." I recommend a full read of this lengthy post, and here are excerpts highlighting why:
“Mass incarceration” usually refers to the historically high U.S. incarceration rate, which is the share of the population in state and federal prison at any given time. Starting in 1980 or so, incarceration rates had huge growth after decades of relative consistency....
But there’s a big problem. The incarceration rate — who’s in prison right now — follows from two basic questions, which those famous graphs (and phrases like “the prison population”) mash together:
1. Who did we send to prison in the first place, and for what? How much has “mass incarceration” meant expanded incarceration? Which people are going to prison who’d never have gone under other policies? There’s a moral version of the question, too: What should we send people to prison for?
2. How long were they in prison for? How much has “mass incarceration” meant deepened incarceration? Which people would have gone to prison anyway but are spending more time incarcerated, either serving longer sentences or cycling through the system over and over again? Again, there’s a moral version of the question: How long should people be in prison for?
Both of those questions are important, but they’re distinct topics, at right angles to each other analytically and morally: “should drug offenders go to prison at all?” is pretty different from “how long should convicted murderers serve in prison?”. The next time you read an article about incarceration in the popular press or on social media, though, try to see if it’s even aware of the distinction. (For example, “reducing the prison population” is a pretty meaningless phrase — does it mean having fewer people go to prison or having people go to prison for less time? One reason you don’t understand mass incarceration: the phrase “the prison population”.)
It’d be hard enough to understand how those two questions interact if we knew how to answer both of them, but no one knows how to answer either one. There’s been a lot of impressive, interesting work trying to answer who goes to prison for how long (John Pfaff has been a big influence on this piece) and even the best of it is hampered by limited or unreliable data and difficult inferences, while obviously there isn’t much consensus on who should....
Quick: How many people really were sent to state or federal prison in the United States since 1978? Don’t be surprised if you don’t know, since as far as I can tell no one else does either.
If you care about incarceration, then that should trouble you. This is, after all, the set of human beings that we’re talking about when we talk about mass incarceration. If we really understood mass incarceration then we would know a great deal about them. We would know how many were African-American or white, how many served one, two, or ten terms in total, how many had different kinds of criminal histories prior to incarceration, how many only went to prison on drug offenses, how many went to prison on drug offenses then went back on violent offenses, and so on (and how all of those things changed over time and between different states and places).
But we don’t know any of that. We don’t even know how to count them. And if we don’t know how to count how many people have been to prison, then we don’t really know how mass incarceration affected real human beings....
We have some idea of how many prison terms there have been. The Bureau of Justice Statistics (BJS) lists about 12.7 million “new court commitments” to state and federal prison since 1978 in their National Prisoner Statistics (NPS) data, which is my main source here. Of course, that doesn’t mean that 12.7 million different people were sent to prison between 1978 and 2014, since some people had multiple prison terms....
Let’s say I’m right that around 7.5 million people were sent to state and federal prison since 1978. Here’s another question that should be simple: How many of them wouldn’t have gone to prison without “mass incarceration” policies — and what does that mean, anyway? It’s clear that new prison terms did increase after 1978, so presumably a lot fewer people would have gone to prison without whatever it was that changed, but how many fewer people? More like two million or more like six million?
Nobody knows, but we can make up some numbers, and maybe that’s a start. For example we can consider a somewhat arbitrary hypothetical: What if new prison terms (new court commitments) had stayed constant per capita since 1978, when the rate was 57 in 100,000? Under that hypothetical, there would have been about 5.6 million new prison terms since 1978, not 12.7 million. I’ve illustrated this in the [reprinted] chart, which has the incarceration rate since 1978 in black, the rate of new prison terms in red, and the hypothetical of constant new terms per capita in blue.
Thursday, December 17, 2015
"Leaders With Criminal Histories Should Be Included in Reform Debate"
The title of this post is the headline of this notable new Huffington Post commentary authored by Rev. Vivian Nixon Become, who is Executive Director of the College and Community Fellowship and Co-Founder of the Education from the Inside Out Coalition. Here are excerpts:
When tech companies hold panels on diversity consisting entirely of white men, there is an outcry — and rightly so. And when Congressional hearings on women's reproductive rights are devoid of actual women, the public is similarly aghast. The reason for this outrage is easy to understand. The people whose lives, careers, and bodies are impacted by these systems should be allowed to speak from direct experience, and are best positioned to guide meaningful decision-making.
So, why is there no uproar when policy decisions on criminal justice don't consider the recommendations of formerly incarcerated people? It's high time that those who have direct experience with mass incarceration get a seat at the table in policy conversations on reform.
As a country, we've finally come to terms with the impact of a 500 per cent increase in our prison population over the last 30 years. There is a bipartisan dialogue about the best ways to tackle the failures of America's criminal justice system. But when the nation's leading politicians and thinkers gather to address these issues, they rarely include the people who will be most impacted by policy shifts, and who bring a valuable perspective — those who have actually experienced the lifetime consequences of criminal conviction.
Many men and women with criminal history records are leaders actively working to create meaningful change, both behind the bars and once they re-enter society. I know this firsthand — while I was incarcerated in a New York state correctional facility, I spent time tutoring women in basic adult education and high school equivalency courses. Upon my release, I was eager to find a way to pursue higher education. Through the College and Community Fellowship and the Education from the Inside Out Coalition, I've worked with countless individuals who've similarly turned their lives around and helped their peers to do the same.
Why aren't these men and women seen as experts in their own cause? Sadly, society continues to ostracize the formerly incarcerated and devalue their experiences. The "tough on crime" 1990s didn't just increase our prison populations; it also allowed us to dehumanize people in prison, or those who have a criminal record. We assigned them terms like "felon," "con," and "inmate" and reduced them to their crimes — regardless of the length of their sentence and whether or not they were expected to re-enter society.
Demonizing incarcerated and formerly incarcerated individuals permitted us to leave them out of daily American life. Even worse — we excluded them from conversations about their own fates and continued to punish them with collateral consequences, long after they had served their time. In America, every sentence is a life sentence....
[F]ormerly incarcerated leaders are mobilizing. This December, 200 formerly incarcerated men and women from across the Northeast gathered in New York to discuss methods to end mass incarceration, after similar regional conferences held in the South and on the West Coast. They spoke directly and honestly with representatives from the federal government about their personal experiences and stories.
These candid conversations with people who have lived through prison and become leaders in the reform movement are invaluable for shaping criminal justice reform. The more the voices of people with criminal record histories are heard, the harder it will be to silence them — and the more likely we are to be outraged when they are excluded from conversations that impact their lives. With more than 70 million members of our society living with criminal records, we can't afford to ignore their experiences. Let's open up a seat at the table for these leaders.
Wednesday, December 16, 2015
Two notable new papers looking at life sentences from two notable perspectives
Via SSRN, I have recently noticed two new papers providing different perspectives on life sentences. Here are titles, links and the abstracts for both interesting pieces:
Abstract: A comparison between United Kingdom (UK) and Australian law concerning irreducible life sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. In a series of challenges to draconian state laws that remove any possibility of parole from ten notorious murderers, the Australian courts steadfastly refused to intervene. Without clear authority to consider such legislation’s effect on human rights, the judges were careful to avoid creating any perception that they were undemocratically overriding Parliament’s will. But while the UK approach to irreducible life sentences is more desirable than that prevailing in Australia – especially concerning child offenders – Vinter v United Kingdom and succeeding events demonstrate that even courts that have explicitly been empowered to resolve human rights controversies possess far from a complete freedom, or ability, to effect change in this emotive area.
"Some Facts About Life: The Law, Theory, and Practice of Life Sentences" by Melissa Hamilton
Abstract: A diverse band of politicians, justice officials, and academic commentators are lending their voices to the hot topic of correcting the United States’ status as the world’s leader in mass incarceration. There is limited focus, though, upon the special role that life sentences play in explaining the explosion in prison populations and the dramatic rise in costs that result from providing for the increased needs of aging lifers. This Article highlights various ways in which life sentences occupy unique legal and political statuses. For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk. It also situates life sentences within an international moral imperative that reserves life penalties, if permitted at all, for the most heinous offenders and, in any event, demands period review of all long-term prison sentences.
This article provides a novel perspective, too, by presenting an empirical study in order to further investigate the law and practice of life sentences. Utilizing federal datasets, descriptive statistics and a multiple regression analysis offer important insights. The study makes an original contribution to the literature by exploring the salience of certain facts and circumstances (including demographic, offense-related, and case processing variables) in accounting for life sentence outcomes in the federal system. While some of the attributes of life sentenced defendants are consistent with current expectations, others might be surprising. For example, as expected, sentencing guideline recommendations, the presence of mandatory minimums, and greater criminal history predicted life sentences. Results also supported the existence of a trial penalty. On the other hand, lifers in the federal system were not representative of the most violent offenders or worst recidivists. Life sentences were issued across a variety of violent and nonviolent crimes, and in recent years a substantial percentage presented with minimal criminal histories. Regional disparities in the use of life sentences were also indicated. In concluding, this Article reviews potential remedies to the overreliance upon life penalties in the American justice system.
Sunday, December 13, 2015
"The Effect of Prison Sentence Length on Recidivism: Evidence from Random Judicial Assignment"
The title of this post is the title of this notable new empirical paper authored by Michael Roach and Max Schanzenbach available via SSRN. Here is the abstract:
Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison. On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called “specific deterrence,” through learning or the rehabilitative effect of prison.
We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington. Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge’s proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories. However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison’s rehabilitative role.
Thursday, December 10, 2015
"Mass Incarceration: The Whole Pie 2015"
The title of this post is the title of this valuable new on-line report from the Prison Policy Initiative. Everyone interested in the details essentials of modern mass incarceration ought to check out the full report (and the larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:
Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 636,000 people released every year include the people getting out of local jails? Frustrating questions like these abound because our systems of federal, state, local, and other types of confinement — and the data collectors that keep track of them — are so fragmented. There is a lot of interesting and valuable research out there, but varying definitions and other incompatibilities make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.
This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people in the various systems of confinement are locked up.
While the numbers in each slice of this pie chart represent a snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and therefore the many more lives that are affected by the criminal justice system. In addition to the 636,000 people released from prisons each year, over 11 million people cycle through local jails each year. Jail churn is particularly high because at any given moment a majority of the people in local jails have not been convicted and are in jail because they are either too poor to afford bail and are being held pretrial, or because they have just been arrested and will make bail in the next few hours or days. The remainder of the people in jail — almost 200,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year....
Now, armed with the big picture of how many people are locked up in the United States in the various types of facilities and for what offenses, we have a better foundation for the long overdue conversation about criminal justice reform. For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, and it demonstrates why the policymakers and advocates who see ending the War on Drugs as a politically acceptable first step towards ending mass incarceration must take great care that their actions both constitute actual progress for people with drug offenses and do not make further reforms more difficult. Looking at the “whole pie” also opens up other conversations about where we should focus our energies:
What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward.
Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?
Do policymakers and the public have the focus to also confront the geographically and politically dispersed second largest slice of the pie: the 3,283 local jails? Given that the people behind bars in this country are disproportionately poor and shut out of the economy, does it make sense to lock up millions of people for a few days at a time for minor offenses? Will our leaders be brave enough to ask the public to support smarter investments in community-based drug treatment and job training? Or will they support the continued use of jails as mass incarceration’s front door?
Monday, December 07, 2015
Notable new BJS data on veterans in state and federal prisons and local jails
As reported in this official press release, titled "Fewer Veterans In Prison And Jail In 2011-12 Than 2004," the Bureau of Justice Statistics released a new report on incarcerated vets. Here are excerpts from the first page of this detailed, data-heavy report:
In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities. This represented a decrease from the estimated 206,500 incarcerated veterans (9% of the total incarcerated population) in 2004, and was consistent with the decline in the number of veterans in the U.S. general population. While the number of veterans in prison and jail increased along with growth in the overall number of persons incarcerated between 1980 and 2008, the proportion of incarcerated veterans has declined, down from an estimated 24% of all persons incarcerated in state prison and jail in 1978 (federal inmates were not surveyed in 1978).
In 1978, 19% of U.S. adult residents, 24% of prisoners, and 25% of jail inmates were military veterans. By 2011–12, veterans accounted for 9% of the general population, 8% of state and federal prisoners, and 7% of jail inmates....
The total incarceration rate in 2011–12 for veterans (855 per 100,000 veterans in the United States) was lower than the rate for nonveterans (968 per 100,000 U.S. residents).
Non-Hispanic black and Hispanic inmates made up a significantly smaller proportion of incarcerated veterans (38% in prison and 44% in jail), compared to incarcerated non-Hispanic black and Hispanic nonveterans (63% in prison and 59% in jail).
A greater percentage of veterans (64%) than nonveterans (48%) were sentenced for violent offenses....
More than three-quarters (77%) of incarcerated veterans received military discharges that were honorable or under honorable conditions....
A quarter of veterans in prison (25%) and less than a third of veterans in jail (31%) reported that they had been in combat while in the military.
About half of all veterans in prison (48%) and jail (55%) had been told by a mental health professional they had a mental disorder. Incarcerated veterans who saw combat (60% in prison and 67% in jail) were more likely than noncombat veterans (44% in prison and 49% in jail) to have been told they had a mental disorder.
"Are debtors' prisons returning?"
The title of this post is the headline of this recent lengthy CNN commentary authored by Van Jones and Jessica Jackson. Here are excerpts:
Debtors' prison is supposed to be illegal in the United States. But in too many American cities, it has made a shocking return. This [past] week, a bipartisan group of leaders, and a few A-list celebrities, gathered at the White House to do something about it.
The problem: Faced with ballooning costs of America's massive incarceration industry, local jurisdictions have started billing people for time they spend behind bars. They are also charging them for electronic supervision services. Not to mention DNA collection, juries and constitutionally mandated public defenders.
The trouble here is obvious: Recently incarcerated people often do not have jobs. Therefore, they cannot possibly keep up with an increasingly aggressive list of fees and fines.
So believe it or not: Cities are throwing them BACK into jail -- for not being able to pay! From Detroit to Dallas, America's criminal justice system is trapping poor people in a perpetual cycle of prisons and poverty....
On top of the stated fees and fines, many jurisdictions are adopting practices employed by shady payday lenders, not public safety agencies. For example, Washington state charges a 12% interest rate on all its criminal debt. Florida adds a 40% fee that goes into the pockets of a private collections agency. And in Arizona, an 83% surcharge turns a $500 fee into a $915 bill. A portion of those proceeds go to finance electoral campaigns, creating a strong incentive to preserve the status quo.
One study revealed that most people with a felony conviction can expect to be saddled with an average $11,000 in debt. In total, about 10 million Americans collectively owe more than $50 billion in outstanding fines and fees. Repaying this debt would be challenging for the average American family, half of whom would have trouble finding $400 on short notice. But for those already struggling to get on their feet after prison, the debt from fees and fines often carry carries with it an air of impossibility.
The current system has dire consequences for millions of Americans that can be permanently debilitating and perpetuates a cycle of poverty and incarceration. Failure to pay fines can result in lost income, depressed credit ratings, housing instability, suspended drivers' licenses, arrest warrants, loss of Social Security benefits or further incarceration. These consequences can permanently affect an individual's life and reduce the ability ever to get his or her life back on track.
The system is not supposed to work this way. A Supreme Court ruling in 1983 prohibited putting people in prison for failure to pay their fines and fees without an indigency hearing. And yet at least 15 states have found ways to ignore this mandate. They have made this a standard practice....
The Sunlight Foundation is supporting the collection of data so we can understand the scope of the problem and how we can better address the issue. The Laura and John Arnold Foundation is funding a comprehensive research and litigation-based approach to reform. And #cut50 is dedicated to highlighting this injustice and amplifying leadership from around the country.
Together, we can roll back these policies that ultimately have little to do with public safety. Our challenge strikes at the heart of our criminal justice system: Are we a nation of second chances, or will we sit by and watch a perpetual punishment machine run wild? Let us ensure our elected representatives and government agencies live up to the highest values of our society.
This ABC News column authored by Lz Ganderson, headlined "To Be Poor, Black and Jailed," discusses similar issues and concerns.
Sunday, December 06, 2015
Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity
I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.
The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.
So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.
Wednesday, December 02, 2015
"The Promises and Perils of Evidence-Based Corrections"
The title of this post is the title of this notable new paper authored by Cecelia Klingele and now available via SSRN. Here is the abstract:
Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years. After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed. Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs. These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.
Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.
Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control. Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.
December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)
Friday, November 27, 2015
"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"
The title of this post is the title of this notable new paper by John Major Eason available via SSRN. Here is the abstract:
The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color. Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.
Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods. For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting. Furthermore, later in the boom, prison building protected towns against additional economic decline. Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation. Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.
Spotlighting why ending the drug war could make a big dent in mass incarceration
This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration. Here is how it starts (with links from the source):
Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons. But some researchers have pushed back against this notion in recent years. They point out that drug offenders account for only about 1 in 5 state and federal inmates. The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent. Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.
But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison. Rothwell calls this "stock and flow."
He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison. The reason for the difference? Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals. So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.
"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes. "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."
Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes. Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society. A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.
Thursday, November 26, 2015
So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...
I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration. The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment." Here are excerpts:
Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.
Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive. Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.
Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation. The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.
So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....
After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time. Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”
U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.
Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences. Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....
In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.
Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades. In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution. Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....
Some federal prosecutors have declined requests by federal judges for shorter sentences. In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy... Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions. The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014. “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.
U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.
November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Wednesday, November 25, 2015
"The Gaping Hole in the Prison Early Release Program: Mental Health Care"
The title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison." Here are excerpts:
In October, the Obama administration announced the early release of more than 6,000 federal inmates. While a surfeit of data on America’s over-incarceration appears to support the administration’s rationale for the early-release of inmates serving time for nonviolent offenses, a crucial aspect went unaddressed in the hoopla surrounding the announcement: What kind of mental-health resources are available in communities for inmates designated for early release?
And, across the board, as the administration and advocates undertake strategies to address mass incarceration, what is the fate of the estimated hundreds and thousands of inmates in American jails and prisons who are mentally ill?
The U.S. Sentencing Commission’s early-release program put a point on growing national awareness about the implcations of America’s vast incarceration universe. It resulted from a bipartisan effort to remake harsh drug-related sentencing guidelines that had spurred the mass incarceration of mostly black and Latino men beginning in the mid-1980s. By year end 2014, 2.2 million people were locked up in America’s jails and prisons, representing the highest rate of incarceration among developed nations worldwide. The population of inmates who are scheduled to receive early release is composed primarily of drug offenders who will be under the watch of probation officers after they return to civilian life, according to Sally Yates, Deputy U.S. Attorney General.
But the absence of a comprehensive plan to serve the mental health needs of inmates in the early-release program highlights a long-standing concern among prison reform advocates: the tight intersection of drug or alcohol abuse, mental illness, and incarceration. Mental health experts cite the “co-occurring” presence of drug or alcohol abuse and mental illness among inmates as a major challenge, one that makes both the daily process of safely housing prisoners particularly complex, and which also complicates the return of inmates to communities....
A 2014 report by the National Resources Council (NRC) showed that mental illness in the nation’s jails and prisons is pervasive. Produced by an interdisciplinary committee of researchers, the report examined data from corrections-department surveys and uncovered the presence of “mental-health concerns” among 64 percent of inmates in the nation’s jails, 54 percent of state prisoners, and among 45 percent of inmates at federal facilities.... Consequently, a growing number of criminal-justice and prisoner-rehabilitation experts are focusing in on mental health as a key component of America’s mass incarceration, both as a primary instigator of imprisonment, and also as a major challenge that must be addressed in shaping release policies and protocols....
America’s journey on the path to becoming the developed nation with the most incarcerated people in the world — and the nation where prisons and jails are de facto mental-health catchments — gained steam with the “War on Drugs,” a collection of regional and federal tough-on-crime policies and harsh sentencing laws that escalated during the 1980s as crack cocaine use in urban locales drove up violent-crime rates and generated nightly news coverage of communities in crisis. But the spark that lit the fire under mass incarceration in the U.S. was struck long before the mid-1980s.
Beginning in the 1960s, states began radically reducing taxpayer-funded mental-health hospitals and inpatient centers, releasing hundreds of thousands of mentally ill or challenged patients into communities. Known as deinstitutionalation, the process was deemed necessary by state lawmakers and governors in order to shutter hospitals that often resembled 19th-century “snake pits” — large, poorly run facilities in which thousands of vulnerable mentally ill citizens were warehoused, under-served, and forgotten....
During the same era, from California to New York, a perfect storm of factors affecting incarceration rates loomed and then broke: nationwide, thousands of residents who needed mental health attention but couldn’t afford private care or access affordable services turned to self-medicating behavior — through drug or alcohol use — which led to criminal activity, which in turn brought them into the criminal-justice system at the very moment when judges and elected officials coast to coast pushed for severe sentencing of those involved in drug-related activity.
In city after city, those without money to afford private drug treatment or mental-health care — or private attorneys — were swept into jails and prisons, sometimes facing terms of a decade or longer under new mandatory-minimum sentencing rules for possessing or selling small or moderate amounts of narcotics. A raft of new sentencing guidelines narrowed avenues for probation for those with multiple drug offenses. These ‘three strikes’ laws, as they came to be known, were approved by a decade’s worth of Congress members, as well as by Democratic and Republican presidents.
Thousands of low-level defendants, many suffering from emotional- or mental-health challenges that they had been "street treating" by using illegal drugs, then produced the co-occurring dynamic of individuals struggling with mental illness and drug or alcohol addiction. Plunged into state or federal penitentiaries, thousands received poor treatment or no treatment, and their mental health deteriorated. In some instances, mentally ill inmates fell prey to violence from other inmates, harmed or killed themselves, or developed deeper drug or alcohol addictions. A February study from the Vera Institute for Justice found that 83 percent of jail inmates in the U.S. do not receive mental-health services or treatment after being admitted....
Justice Department officials and some state judges have started to display activist tendencies, forcing local jurisdictions to begin finding solutions for the growing number of mentally ill inmates within the vast networks of local correctional facilities. In August, for example, Los Angeles County agreed to implement major reforms aimed at improving the conditions of mentally ill inmates following strong pressure from DOJ.... [I]n the state that came to embody the acceleration of mass incarceration, a blueprint is taking shape for achieving humane and fiscally responsible outcomes for mentally ill people who come into contact with the criminal-justice system.
Sunday, November 22, 2015
Stray kittens strut their stuff in prison
I am not sure that catblogging is really an internet thing anymore, but I am sure that this local article from Washington state headlined "This Humane Society is sending stray cats to prison," is blog-worthy as a feel-good story about a local prison program. Here are excerpts:
The Kitsap Humane Society has a new approach for stray cats: send them to prison. Inmates at the Mission Creek Corrections Center for Women, near Belfair in Mason County, are rehabilitating 10 stray cats until they are ready to be adopted by the public.
The women raising the cats say they offenders benefit as well. "It's a win-win for everybody involved," said Cydney Berthel, who is locked up on a theft conviction. "We're rehabilitating the lives of these little kittens and rehabilitating our lives too," said Berthel. She said working with the cats has been therapeutic.
It's taught the offenders how to nurture a living thing, something they didn't always do in their past lives. "We definitely made mistakes," said Shauna Teagle, "I feel this is my little bit of payback I can do." Teagle, who was sentenced to three years in prison for dealing drugs, said caring for the cats will help her be a better mother when she's released.
To participate in what the inmates call the "Pawsitive Prison Program," offenders must be infraction-free for the past six months.
Though some may view this post a fluff piece, I have heard enough anecdotes about "pets for prisoners" to wonder seriously if any systematic research has been done on recidivism rates after particitation in one of these kinds of programs. At the very least, I hope there is no reason to fear that prisoners involved in these positive programs do not later get caught up in kitty porn.
(Sorry folks, like cats drawn to catnip, I could not resist my favorite bad cat-crime pun.)
Friday, November 20, 2015
"Prison Time Surges for Federal Inmates"
The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):
The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.) For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.
Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone. Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.
Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months. These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012. One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”
The long-term growth of this population has driven a parallel surge in taxpayer spending. As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars. Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.
Thursday, November 19, 2015
"States of Women's Incarceration: The Global Context"
The title of this post is the title of this effective new on-line report by the Prison Policy Initiative. Here is how it gets started:
We already know that when it comes to incarceration, the United States is truly exceptional. As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men. As a result, women's incarceration rates are overshadowed and often lost in the data. As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.
Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states. Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself. The next 17 jurisdictions are also American states.
Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states. Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.
Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages. New Hampshire is on par with Russia, and New York with Rwanda.
Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country. In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.
Wednesday, November 18, 2015
Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?
The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.
But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”
So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.
Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”
Tuesday, November 17, 2015
"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"
The title of this post is the title of this notable new report from published by the Center for Justice at Columbia University. Here is the report's executive summary:
Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.
All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.
A series of papers emerged from the symposium. Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field. While the authors differ in opinion over some issues, they share several key observations and recommendations:
In New York State, the aging prison population continues to rise. The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population. The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.
Prisons were not meant to be nursing homes and are poorly equipped to house an aging population. Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.
Incarcerating the elderly has serious financial implications. The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.
The explosion in the aging prison population undermines basic fairness, justice, and compassion.
The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies. Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.
Public safety does not require that we keep aging people in prison when they pose no risk to society. People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.
There are several measures New York State should implement to reform parole policy and release aging people from prison. These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.
We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix. We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents. The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.
Monday, November 16, 2015
Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else. But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:
Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term. But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.
To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain. Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions. Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler. Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....
In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives. But there's a difference between elusive remedies and illusory ones. For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve. If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions. Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.
November 16, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"
The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN. Here is the abstract:
One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These instruments figure prominently in current reforms, but controversy has begun to swirl around their use. The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor. Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).
First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores). So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria. Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines. Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest. Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.
November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)
Sunday, November 15, 2015
"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"
The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:
Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.
This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences. The author conducted a detailed study of every inmate sentenced to LWOP in eight states. In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes. Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment. Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.
New York Times editorial makes case that California prison releases are working
The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration. Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms. Here are excerpts:
Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.
It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six lowlevel offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year. It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation, antitruancy efforts and mental health treatment. Victims’ services receive funding, too.
Proposition 47 followed two other major reforms: A 2011 law diverted lowlevel offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.
After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three-strikes reform are far below the state average.
Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47. The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September. But the law remains controversial. Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.
In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County. One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....
It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of lowlevel offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.
A few (of many) prior related posts on Prop 47 and its impact:
- "Proposition 47 Progress Report: Year One Implementation"
- Notable new ACLU report on impact of California's Prop 47 one year later
- Interesting takes on California developments since passage of Prop 47
- Spotlighting significant back-end impact of Prop 47 sentencing reform in California
Thursday, November 12, 2015
Notable new ACLU report on impact of California's Prop 47 one year later
In this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47. I have just seen that the ALCU of California has this week released its own report on this important topic. This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47. Here are excerpts from its six main findings (which has its numbering a bit off):
For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.
1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away. As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing. Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision. According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....
2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity. They determine who will be booked into jail and who will be released, how and under what conditions. Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015. During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....
3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.) Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....
4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....
4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....
5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.
A few (of many) prior related posts on Prop 47 and its impact:
- "Proposition 47 Progress Report: Year One Implementation"
- Interesting takes on California developments since passage of Prop 47
- Spotlighting significant back-end impact of Prop 47 sentencing reform in California
"How Parental Incarceration Affects a Child’s Education"
The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper. Here are excerpts from the Atlantic article:
Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...
The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”
Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.
Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”
Wednesday, November 11, 2015
How many vets, after serving to secure liberty, are now serving LWOP sentences?
The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.
The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population. Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.
"What Mass Incarceration Looks Like for Juveniles"
The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:
After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City. It was a rude awakening.
The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time. In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells. Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.
My staff and I quickly uncovered more abuses. Staff members were sexually harassing the kids and one another. One of my corrections officers married a youth shortly after the boy was released from custody. A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later. The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.
These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites. In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....
In New York, where I ran the probation department, I didn’t witness the same hairraising institutional abuse, mostly because we didn’t run any facilities. But probation officers reported that they routinely reincarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account. As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington. When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.
Two things surprised me about my experiences on the inside. First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....
The second major surprise was how much I liked many of my staff members. I charged into my job with an air of moral superiority. Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves. But it was far more complicated. Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs. After all, our facility housed only about 200 young people, roughly the size of a small middle school.
Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety. They attended our football games and plays and cheered the youths on, sitting in the stands with their parents. They were the good guys, rendered complicit by years in a corrupt system....
From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime-control efforts.
Tuesday, November 10, 2015
"Battle Scars: Military Veterans and the Death Penalty"
The title of this post is the title of this notable new report from the Death Penalty Information Center. Here are excerpts from its Executive Summary:
In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded. But some veterans with debilitating scars from their time in combat have received a very different reception. They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.
Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice. The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans. However, looking away and ignoring this issue serves neither veterans nor victims....
PTSD is now formally recognized in the medical community as a serious illness. But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear. Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.
Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries. Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy. In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems. But many of those death sentences still stand today when the country knows better.
Unfortunately, the plight of veterans facing execution is not of another era. The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness. Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop. The Pardons Board refused him clemency. Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq. He was sentenced to death by a judge, even though the jury recommended life. The U.S. Supreme Court turned down a request to review his case this year.
This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment. Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service. Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes. Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.
Monday, November 09, 2015
New research suggests overcrowding in California prisons increased post-release parole violations
Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform. In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates. The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:
This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).
Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.
Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....
Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.
Saturday, November 07, 2015
Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade
I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000. I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.
I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity). I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.
Thursday, November 05, 2015
"Proposition 47 Progress Report: Year One Implementation"
The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law." Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others. Here are the short report's "Key Findings" (without the many footnotes):
Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.
According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative. Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.
According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015. In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.
According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.
Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year. Long term annual savings are estimated at $93.4 million. These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims. In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.
Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison. Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.
Wednesday, November 04, 2015
Notable USSC member, Judge Bill Pryor, responds to Rep Goodlatte's attack on USSC
As noted in this prior post, titled "House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform," a notbale member of Congress recently authored this notable attack on the recent work of the US Sentencing Commission reducing federal drug sentences. Interestingly, a notable member of the Commission, 11th Circuit Judge Bill Pryor (who was the attorney general of Alabama from 1997 to 2004), has now authored this response, which runs in the National Review under the headline "In Defense of the U.S. Sentencing Commission." Here are excerpts:
On November 2, Representative Bob Goodlatte, who chairs the House Judiciary Committee, published an article in National Review Online attacking the 2014 decision of the U.S. Sentencing Commission to reduce sentencing guidelines for federal drug offenders. If you were to read Chairman Goodlatte’s article with no knowledge of federal law, you would think that the Sentencing Commission operates “irresponsibly” and “recklessly,” without congressional oversight, and sets sentencing guidelines “without regard to an inmate’s criminal history and public safety.” Nothing could be further from the truth....
When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition. In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.
Now that the commission’s decision is being implemented without objection from Congress, Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority. Indeed, Congress required the commission, whenever it lowers any guideline, to consider whether to make that change retroactive. And every retroactive change becomes effective only after Congress has had the opportunity to reject that decision. Congress again did not reject the decision to make the changes in drug sentencing retroactive, and Chairman Goodlatte did not schedule a hearing about it.
Moreover, when the Commission makes a change retroactive, each inmate must go before the sentencing judge, who must then consider whether the inmate should receive a reduced sentence under the new guideline. A retroactive guideline is not a get-out-of-jail-free card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence....
Chairman Goodlatte referred to the commission as a group of “unelected officials” that is “going about sentencing reform in the wrong way,” but he failed to mention that Congress, with the support of the Reagan administration, created the commission as a permanent agency to consider and make needed sentencing reforms. The commission has seven members appointed by the president and confirmed by the Senate for fixed terms. By law, at least three members must be federal judges, and the membership must be bipartisan. For example, I was appointed to the commission by President Obama based on the recommendation of Senate Republican leader Mitch McConnell. The commission conducts public hearings and considers thousands of public comments before changing any guideline. And our decision to change the drug guideline and to make it retroactive was unanimous....
I and other members of the commission support Chairman Goodlatte’s goal of saving taxpayer dollars, reducing prison overcrowding, and making drug sentencing fair and responsible. We look forward to working with him and other members of Congress toward those ends. But he should not pretend that the independent and bipartisan Sentencing Commission is some sort of bogeyman working against those interests. Nothing could be further from the truth.
November 4, 2015 in Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Tuesday, November 03, 2015
"Banishing Solitary: Litigating an End to the Solitary Confinement of Children in Jails and Prisons"
The title of this post is the title of this notable new paper by Ian Kysel available via SSRN. Here is the abstract:
The solitary confinement of children is remarkably commonplace in the United States, with the best available government data suggesting that thousands of children across the country are subjected to the practice each year. Physical and social isolation of 22 to 24 hours per day for one day or more, the generally accepted definition of solitary confinement, is used by juvenile detention facilities as well as adult jails and prisons to protect, punish and manage children held there.
The practice is neither explicitly banned nor directly regulated by federal law. Yet there is a broad consensus that the practice places children at great risk of permanent physical and mental harm and even death, and that it violates international human rights law. Policymakers and judges in the U.S. are beginning to reevaluate the treatment of children in the adult criminal justice system, drawing from new insights and old intuitions about the developmental differences between children and adults. This welcome trend has only recently begun to translate into any systematic change to the practice of subjecting children to solitary confinement in adult jails or prisons, with significant reform in New York City at the leading edge.
Despite the beginnings of a trend, there have been few legal challenges to the solitary confinement of children and there is a consequent dearth of jurisprudence to guide advocates and attorneys seeking to protect children in adult facilities from its attendant harms through litigation – or policymakers seeking to prevent or eliminate unconstitutional conduct. This article helps bridge this significant gap. It contributes the first comprehensive account of the application of federal constitutional and statutory frameworks to the solitary confinement of children in adult jails and prisons, with reference to relevant international law as well as medical and correctional standards. In doing so, this article seeks to lay the groundwork for litigation promoting an end to this practice.
Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans
This local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:
Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.
In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.
Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state. He noted that Texas could be a model for the types of reform that should be implemented here.
Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate. There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state. The prison system costs Louisiana nearly $350 million a year. It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.
“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday. He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.
He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate. He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot. “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.
Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”
Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population. He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”
Sunday, November 01, 2015
"Bar None? Prisoners' Rights in the Modern Age"
The title of this post is the title of this notable paper by Daniel Medwed available via SSRN. Here is the abstract:
The American public is perhaps more sensitized to the flaws in our criminal justice system than at any time in our history. News accounts of wrongful convictions, racial profiling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation — upwards of 1.5 million people housed in state or federal prisons according to the Bureau of Justice Statistics. To some extent, this period of questioning and reflection has produced gains; we have witnessed a modest shift away from mandatory minimum sentencing and toward the decriminalization of some narcotics. Parole boards have shown a rising awareness that inmates’ claims of innocence should not be held against them in their release decisions. Even more, some states — most notably, Michigan — have formulated innovative re-entry programs to assist prisoners in making the perilous transition from their cell blocks to residential and commercial blocks in neighborhoods throughout the country. These events have prompted some observers to envision an end to mass incarceration in the United States.
Yet this vision is a mirage. Despite all of the talk about criminal justice reform and “decarceration,” we still live in a country where large swaths of people, especially young men of color, languish behind bars or under the restrictions of probation, parole, or some other form of community supervision. This is likely to remain the case absent dramatic changes to policing practices, wealth inequalities, and the lobbying tactics of corrections officials and affiliated industries. The danger with the decarceration rhetoric is that it deflects attention from those who continue to suffer under horrid conditions of confinement. Indeed, this Symposium explores the contemporary prison experience against this complicated backdrop and asks a fundamental question: what are the gravest problems that inmates face during an era in which many people might naively think that the situation has improved?
SCOTUS back in action with week full of criminal law arguments
The US Supreme Court Justices return from a few weeks traipsing around the country (see SCOTUSblog mapping) to hear oral arguments this week in six cases, four of which involve criminal law issues. Drawing from this SCOTUSblog post by Rory Little, here are summaries of the criminal cases the Court will consider this week:
Monday, Nov. 2
Foster v. Chapman: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky when state prosecutors struck all four prospective black jurors, offering “race-neutral” reasons, and it was later discovered that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) circled the word “BLACK” on the questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.” (Georgia Supreme Court)
Tuesday, Nov. 3
Lockhart v. United States: Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)
Torres v. Lynch: Whether, for immigration removal purposes, a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. (Second Circuit)
Wednesday, Nov. 4
Bruce v. Samuels: Whether the twenty-percent-of-income “cap” in the Prison Litigation Reform Act (28 U.S.C. § 1915(b)(2)), requiring in forma pauperis prisoners to still pay something toward the fee for filing federal cases, applies on a “per case” or “for all cases” basis. (D.C. Circuit)
Thursday, October 29, 2015
More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms
Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:
These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system. About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders. In short, we need to make sure that the punishment fits the crime. Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.
And I know how badly we need reform. As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system. I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.
We need a new approach and we need a better approach. We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....
We need to think differently. We need to look beyond our own experiences and accept that there may be new and better, ways of doing things. I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs. Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities. While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.
This new way of thinking is beginning to resonate in federal and state systems all across the country. At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes. The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead. Twenty-nine red states and blue states across the country have passed innovative reforms. Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.
But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty. We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs. We all know that we can’t simply jail our way into safer communities. But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.
When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention. The fact is, more than 95 percent of all prisoners will eventually be released from prison. And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years. We have to break that cycle.
We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past. They need jobs and homes; friends and family. Yet so many people in our society want nothing to do with anyone with a rap sheet. There are too many people willing to pin a scarlet letter on those who have spent time in prison. The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.
It is up to all of us to reject this way of thinking. Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....
Achieving meaningful criminal justice reform will not be easy. And we must all participate in this process, government and private citizens alike. Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change. It’s time that we collectively discard old assumptions and embrace new ideas. In other words, it’s time we all collectively put two fingers to our temples. Our nation and our fellow citizens deserve nothing less.