Wednesday, March 30, 2016
Harvard Law School launches "Fair Punishment Project"
While I was on the road yesterday, I received an email with some exciting news from my law school alma mater. Here is the text of the email announcement:
We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.
We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it. Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.
The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society. The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.
The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.
And here are titles and links to some of the notable sentencing-related content already up at the FPP website:
- Life Without Parole – From Bad Lawyers to No Lawyer At All
- Report Finds Juvenile LWOP Sentences Concentrated in a Few Counties, Disproportionately Impact Youth of Color
Monday, March 28, 2016
Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"
I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing. Here are the event/paper details sent my way:
Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model. The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.
The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world. Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population. This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.
The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment. We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes. Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.
Workshop Contacts: andré douglas pond cummings (ADCummings @ indianatech.edu), Adam Lamparello (AXLamparello @ indianatech.edu) and Yvonne Lindgren (YFLindgren @ indianatech.edu)
Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont (LGLaMont@indianatech.edu) with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.
Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.
Friday, March 25, 2016
"Poor white kids are less likely to go to prison than rich black kids"
The title of this post is the headline of this Wonkblog posting via the Washington Post discussing some recent empirical research on sentencing outcomes appearing in the latest issue of the journal Race & Social Problems. Here is the post's discussion of the research:
It's a fact that people of color are worse off than white Americans in all kinds of ways, but there is little agreement on why. Some see those disparities as a consequence of racial discrimination in schools, the courts and the workplace, both in the past and present. Others argue that economic inequalities are really the cause, and that public policy should help the poor no matter their race or ethnicity. When it comes to affirmative action in college admissions, for example, many say that children from poor, white families should receive preferential treatment, as well.
In some ways, though, discrimination against people of color is more complicated and fundamental than economic inequality. A stark new finding epitomizes that reality: In recent decades, rich black kids have been more likely to go to prison than poor white kids. "Race trumps class, at least when it comes to incarceration," said Darrick Hamilton of the New School, one of the researchers who produced the study.
He and his colleagues, Khaing Zaw and William Darity of Duke University, examined data from the National Longitudinal Survey of Youth, a national study that began in 1979 and followed a group of young people into adulthood and middle age. The participants were asked about their assets and debts, and interviewers also noted their type of residence, including whether they were in a jail or prison.
The researchers grouped participants in the survey by their race and their household wealth as of 1985 and then looked back through the data to see how many people in each group ultimately went to prison. Participants who were briefly locked up between interviews might not be included in their calculations of the share who were eventually incarcerated.
About 2.7 percent of the poorest white young people — those whose household wealth was in the poorest 10th of the distribution in 1985, when they were between 20 and 28 years old — ultimately went to prison. In the next 10th, 3.1 percent ultimately went to prison.
The households of young people in both of these groups had more debts than assets. In other words, their wealth was negative. All the same, their chances of being imprisoned were far less than those of black youth from much more affluent circumstances. About 10 percent of affluent black youths in 1985 would eventually go to prison. Only the very wealthiest black youth — those whose household wealth in 1985 exceeded $69,000 in 2012 dollars — had a better chance of avoiding prison than the poorest white youth. Among black young people in this group, 2.4 percent were incarcerated.
Hispanic participants who were less affluent in 1985 were more likely to be eventually incarcerated than their white peers with similar wealth, but less likely than black participants....
It could be that the white participants in the study still had other advantages over their black peers, even if they had been incarcerated. Perhaps they went to better schools, or lived in areas where it was easier to find work. At the same time, another reason for the disparity between black and white wealth could be that employers make negative inferences about black workers' pasts, even those who have never been to prison....
In a way, untangling economic and racial inequalities is a chicken-and-egg problem. In criminal justice, though, you can't just explain away the disproportionate rates at which black and Hispanic youths end up in prison by pointing out that many people of color did not grow up with the same economic advantages as their white peers.
The full research article discussed here, which is titled "Race, Wealth and Incarceration: Results from the National Longitudinal Survey of Youth," can be accessed at this link.
Thursday, March 24, 2016
Pew develops new "punishment rate" metric to provide more nuanced perspective on state incarceration levels
Via email today I learned of this intriguing new report from the folks at Pew Trusts titled "The Punishment Rate: New metric evaluates prison use relative to reported crime." Here is the short data-heavy report starts and ends:
Researchers, policymakers, and the public rely on a variety of statistics to measure how society punishes crime. Among the most common is the imprisonment rate — the number of people in prison per 100,000 residents. This metric allows for comparisons of prison use over time and across jurisdictions and is widely seen as a proxy for punishment. States with high imprisonment rates, for example, are considered more punitive than those with low rates.
A more nuanced assessment of punishment than the ratio of inmates to residents is that of inmates to crime— what The Pew Charitable Trusts calls the “punishment rate.” This new metric gauges the size of the prison population relative to the frequency and severity of crime reported in each jurisdiction, putting the imprisonment rate in a broader context.
Using the punishment rate to examine the U.S. criminal justice system, Pew found that all states became more punitive from 1983 to 2013, even though they varied widely in the amount of punishment they imposed. The analysis also shows that the nation as a whole has become more punitive than the imprisonment rate alone indicates....
The long-term rise in U.S. imprisonment is a familiar story. Although the imprisonment rate is an essential tool in understanding correctional trends, it paints an incomplete picture of the nation’s and individual states’ punitiveness because it does not take crime rates into account. The punishment rate provides a more nuanced assessment by placing each jurisdiction’s imprisonment rate in the context of the severity and frequency of its crime.
Analysis of punishment rates over time and across jurisdictions makes clear that the nation has become more punitive. What’s more, many states punish crime significantly more—or less—than their imprisonment rates alone indicate. States with particularly high or low punishment rates and those that experienced significant increases in their punishment rates over time may benefit from identifying and examining the policy choices responsible for their rankings and trends.
Helpfully, the folks at The Marshall Project have this interesting piece discussing what the new Pew metric does and does not tell us. That piece is headlined "The Tricky Business of Measuring Crime and Punishment: Pew researchers release a new prison scorecard, but it ain’t perfect," and here are excerpts:
We’ve grown accustomed to a quantified world of ever more complicated data available at our fingertips, on everything from how we sleep and eat to how often left-handed pinch hitters hit ground rule doubles on rainy days. “The incredible databases of what we have for sports just blow away anything there is in criminal justice. It's kind of crazy,” said Adam Gelb, director of Pew’s Public Safety Performance Project, adding, “We can't answer some of the most basic questions about one of the most important functions of a society.”
Nearly five years ago, Gelb and Pew started by looking at recidivism — how often people released from prisons are arrested again for new offenses. But using recidivism alone to compare how states are doing at rehabilitating prisoners fell short. One state could have a lower recidivism rate simply because it tended to have more low risk offenders in its prisons. So then, Gelb said he began thinking about how to assess whether the “right” people are in prison, that is the serious, violent and repeat offenders most likely to commit new crimes.
Pew’s punishment rate focuses on the most serious felony offenses that lead to a year or more in state prison. The calculation divides each state’s imprisonment rate in a given year by the rate of crimes reported there, using the FBI’s Uniform Crime Reporting system. To account for some crimes being more serious and more likely to lead to longer prison sentences, Pew weights the annual crime rates by calculating the average time served for those crimes each year. After all of these calculations, Pew found that as America's imprisonment rate has gone up in the past three decades and as crime has dropped, the “punishment rate” rose by 165 percent.
While the methodology makes sense and is probably the best available considering the shortcomings of federal crime data, the punishment rate is not yet the magic metric. Unpacking the components of Pew’s punishment rate illustrates how tricky measuring criminal justice progress can be. The punishment rate depends on the number of crimes reported by the FBI. But the Uniform Crime Report, created in the 1920s, tracks only seven key crimes: murder, assault, rape, robbery, arson, burglary, larceny, motor vehicle theft. It excludes dozens of offenses — most notably drug crimes, which have been a major factor in the growth of prison populations. Pew’s report readily acknowledges that the Uniform Crime Report omits crimes for which roughly one-fifth of state prisoners are serving time.
“What that means is not to say that drug trafficking is not a serious crime, just that it's not reported and tracked in a way that you can support adding it to this formula,” Gelb said. “It does mean that — other things being equal — a state that has a lot of drug enforcement activity and stiff sentencing for drug offenses will have a higher punishment rate.”
The other trouble with the punishment rate is in the lag between crime and judgment. Pew is comparing the crime rate each year to the current prison population at that moment. It doesn't account for the people being sentenced each year or the prison intakes. It also doesn't look at what crimes those in prison were convicted of. So there is an inherent lag between when crimes happen and when someone might go to prison for them. Despite plummeting crime since the 1990s, the growth in the punishment rate didn’t overtake the rise in imprisonment until 2011. That may be partially explained by the gap in time between crime and incarceration, though Gelb contends that effect is ameliorated by calculating rolling averages for offense severity (but not the crimes themselves or the imprisonment rate). He said the adjustment is meant to be a barometer of the seriousness of crimes in a year rather than a “fine-tuned calculation.” But that lack of precision could undercut Pew’s implicit argument that in some states we are “punishing for punishment’s sake.”
I find especially important and notable Gelb's astute comment that the "incredible databases of what we have for sports just blow away anything there is in criminal justice." Especially as I am starting to prepare for my upcoming fantasy baseball draft, it is more than a bit disconcerting that I can easily find dozens of statistical projections for the Cleveland Indians' battery but no on-line sources to help predict how many batteries might be committed in Cleveland.
Tuesday, March 22, 2016
"Looking Forward: A Comprehensive Plan for Criminal Justice Reform in Ohio"
The title of this post is the title of this notable new report produced by the ACLU of Ohio and the Ohio Justice and Policy Center. Here is the report's introduction:
Ohio has a mass incarceration crisis. There are currently 50,600 Ohioans in prisons designed to hold 38,600; that’s at least 12,000 too many of our neighbors and fellow citizens in cages. And beyond these inhumane numbers, there is a fundamental misuse of criminal-justice tools to attack social and health problems. We have responded to poverty, drug and alcohol addiction, mental illness, or an overall lack of opportunities with punishment.
Instead of treating people with mental illness, we criminalize them and block access to the care they so desperately need. We allow low-income people to be victimized by steep fines and costs, with many languishing in local jails because they cannot afford to pay a court fine or make bond. People who have a small amount of drugs are not given treatment for their addiction, but instead offered prison sentences and a felony conviction. Those who try to re-enter society have the door slammed shut by mounting collateral sanctions that prevent them from getting a job, housing, education, reliable transportation, and more.
The result is a system that is costing our state in every sense of the word. Ohio has the sixth largest prison population in the nation. In the last decade, the prison population has increased 12 percent despite the fact that the violent crime rate has reached a 30-year low. In 2014, taxpayers spent over $1.7 billion to operate the state prison system alone. Every dollar spent on prisons is a dollar not spent on crime-survivor services, schools, addiction treatment, mental healthcare and other services that enrich our communities and that keep people out of the criminal justice system in the first place. Nowhere are the negative effects of mass incarceration felt more than in communities of color. African Americans account for nearly half the state’s prison population but only a little more than a tenth of the total state population. Mass incarceration has decimated neighborhoods, leaving many communities of color with countless people unable to find employment and cycling in and out of the justice system.
State leaders have begun to recognize that mass incarceration is simply not working and must be dismantled. In 2011, a bi-partisan group of legislators, along with advocates and activists, passed House Bill 86 (HB 86). This legislation was part of the federal Justice Reinvestment Initiative that sought to reform state criminal justice systems and provide resources for strategies that depopulate prisons and jails. While HB 86 promised modest reforms, it was never fully implemented or funded, and despite a short plateau, Ohio’s prison population is growing.
The time for modest, incremental steps is over. We must challenge ourselves to imagine a fundamentally different justice system that is truly just, and not merely focused on punishment. We must usher in an era of being smart on crime, not just tough on crime, where accountability does not mean punishment for punishment’s sake. We can create forms of accountability that restore the law-breaker to being a productive member of society while also offering more robust healing and restoration to crime victims.
Currently, the Ohio General Assembly has created a Criminal Justice Recodification Committee that is tasked with rewriting our criminal laws. Once again, state leaders have invited members of that committee to use this opportunity to change our justice system. However, the problem does not begin or end simply with the contents of Ohio’s criminal code, nor does the solution reside solely with the Committee. Their work represents a meaningful opportunity to bring about substantive reform — that opportunity must not be squandered on narrow, technical edits to statutory language. Now is the chance for the legislature to precisely identify and fundamentally change the policies that drive excessive incarceration. It is with this approach that we can perhaps finally begin looking forward to a new justice system that makes our communities stronger and lifts up the people of Ohio, rather than keeping them down.
Thursday, March 17, 2016
Thoughtful nuanced comments from George Will on modern crime and punishment
The Washington Post has published this astute new commentary by Geoge Will under the headline "Sentencing reform alone won’t fix crime and punishment in America." I recommend the full piece, and here is how it starts and ends:
Sen. John Cornyn recalls visiting a Texas prison where some inmates taking shop classes could not read tape measures. Cornyn, who was previously a district court judge and Texas Supreme Court justice, knows that prisons are trying to teach literacy and vocations, trying to cope with the mental illnesses of many inmates and trying to take prophylactic measures to prevent drug-related recidivism by people imprisoned for drug offenses. “The criminal-justice system,” he says, “has become by default a social services provider.”
It is not, however, equipped to perform so many functions. Cornyn, a Republican, is part of a bipartisan congressional group negotiating sentencing reform, one of many needed repairs of the criminal-justice system. What justice requires, frugality encourages: Too many people are in prison for too long, and too often, at a financial cost disproportionate to the enhancement of public safety....
Old theories about the causes of crime need to be rethought. During the Great Depression, unemployment soared to 25 percent, yet in many cities crime fell. Demographic factors? Crime rates often vary with the size of society’s cohort of young males: Crime declined considerably during World War II not just, or even primarily, because unemployment was negligible but also because so many young males were in military discipline.
In 2010, one year after the Great Recession’s jobs destruction doubled the unemployment rate, the property crime rate fell and violent crime reached a 40-year low. Current high incarceration rates had something to do with that. But how much? James Q. Wilson, the most accomplished social scientist since World War II, accepted the estimate that increased incarceration explains “one-quarter or more of the crime decline.” Wilson also suggested an environmental factor: “For decades, doctors have known that children with lots of lead in their blood are much more likely to be aggressive, violent and delinquent.” Since the 1970s, lead has been removed from gasoline and paint for new homes, and “the amount of lead in Americans’ blood fell by four-fifths between 1975 and 1991.” Wilson cited a study that ascribed more than half the 1990s’ decline in crime to the reduction of gasoline lead. Clearly, sentencing reform is just one piece of a complex policy puzzle.
Tuesday, March 15, 2016
Another disconcerting report about the failings of the Obama clemency initiative and Clemency Project 2014
Regular readers know that, ever since Prez Obama and his Aministration started talking up efforts to get serious about using clemency powers, I have been regularly expressing concerns about how structurally peculiar and procedurally belabored the new (and now not-so-new) clemency push has been. Here are just a few of my prior related posts on this front:
- Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Extraordinary review of messiness of Prez Obama's clemency push
- Circa mid-2015, Clemency Project 2014 will go down as an abject failure if it does not submit more petitions before 2016
Still more reason for concern has now emerged via this new Reuters article headlined "Obama's prisoner clemency plan faltering as cases pile up." Here are excerpts:
In April 2014, the administration of President Barack Obama announced the most ambitious clemency program in 40 years, inviting thousands of jailed drug offenders and other convicts to seek early release and urging lawyers across the country to take on their cases.
Nearly two years later the program is struggling under a deluge of unprocessed cases, sparking concern within the administration and among justice reform advocates over the fate of what was meant to be legacy-defining achievement for Obama.
More than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review, lawyers involved in the program told Reuters. That is in addition to about 9,000 cases that are still pending at the DOJ, according to the department's own figures.
Only 187 inmates have had their sentences commuted, far below the thousands expected by justice reform advocates and a tiny fraction of the 2.2 million people behind bars in the United States, which has the world's highest incarceration rate....
A senior DOJ official told Reuters it is calling on the lawyers' group -- Clemency Project 2014 -- to simply hand over the outstanding cases without further vetting, saying it is not working fast enough. So far, the group estimates it has handed over around 200 cases.
But criminal justice experts say the administration itself should bear much of the blame. The idea to tap pro-bono attorneys to help vet the cases originated with the DOJ, and critics say it should have prepared its own staff to handle the large volume of applications. “It’s unfair to criticize the volunteer group that you asked to help,” said Rachel Barkow, a criminal law professor at New York University who has studied clemency in U.S. prisons. She estimates that about 1,500 prisoners should be eligible for commutation, saying the 187 granted so far does not "fulfill the promise of the program."...
The delays have left prisoners like Linda Byrnes, 69, in limbo. “I thought clemency was for people like me,” Byrnes told Reuters through an electronic messaging system from a federal prison in Alderson, West Virginia. Byrnes, who has spent 20 years in prison for distributing marijuana and has two years left on her sentence, was recently diagnosed with mouth cancer and has yet to hear whether she has been assigned a lawyer after submitting her application to Clemency Project in August 2014....
Clemency Project 2014 said it does not comment publicly on the individuals it represents. The group vets the applications, writes the petitions and sends them to the Justice Department’s Office of the Pardon Attorney, which oversees all pardons and sentence commutations and makes recommendations for the president's approval.
So far, 25,000 of 34,000 applications received by Clemency Project have been rejected for failing to meet the basic criteria - no record of violence, no significant ties to a gang or drug cartel, good behavior in prison and completion of at least 10 years of sentence. About 10,000 inmates did not go through the Clemency Project and either applied directly to DOJ or through a paid attorney. "It really would be a sad state of affairs if individuals who had asked for a lawyer weren't considered in time because their petitions never reached the pardon attorney's office," a DOJ official told Reuters on the condition of anonymity.
A large number of mostly unqualified applications, a shortage of lawyers and the complexity of the cases have slowed progress, said Cynthia Roseberry, project manager for Clemency Project 2014. "There are a lot of gray areas," said Roseberry, who estimates it takes 30 days for one lawyer to review one case on average. "We've got to unpack each of these applicants to see specifically what factors affect them... and so that takes a little more time."
This includes finding pre-sentencing reports for each case, determining if the person would have received a shorter sentence under current law and reviewing prison behavior records. Roseberry said the group was unaware of any request from the Justice Department to hand over the pending applications. Roseberry said the group's initially slow pace has picked up in recent months....
Roseberry said about 3,000 applicants still need to be assigned to a lawyer, and that it was not certain whether the group will be able to submit all of the applications it has received before Obama leaves office. The group has more than 570 law firms and 30 law schools contributing to the effort.
Some rejected prisoners and those who have yet to hear a decision say they believe they would have had a better chance if they had sent their clemency petition directly to the government.
Josie Ledezma was sentenced to life for conspiracy to transport cocaine and applied for clemency through Clemency Project 2014. She said she did not hear from them for six months and later learned that her assigned lawyer had shut down her legal practice. In January, nearly one year after applying, she was told Clemency Project 2014 could not help her and encouraged her to apply directly. “I wrote back and asked what was it that made me not qualify, but never got a response,” Ledezma told Reuters through an electronic messaging service for federal prisoners.
Saturday, March 12, 2016
Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget
Bill Otis here at Crime & Consequences flagged this interesting local article from Indiana headlined "Prison officials say lighter sentences aren't saving money." The article discusses a report issued by the Indiana Department of Correction asserting that "costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities" as a result of a sentencing reform law enacted in 2014. Bill seems to think this article reveals that sentencing reforms do not deliver on promised cost savings, but a read of the full article (and not just the parts highlighted by Bill) reveals that some funny math is behind the latest cost claims now coming from the Indiana DOC:
Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”
Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups. But, according to the department's report, there's no money to send. This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014....
Corrections officials say the new law will cost an additional $400,000 in the first six months of this year - for jail costs alone. That expense is expected to climb before the year’s end. That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report. The department claims it can house the same inmate in a prison for just under $10 a day.
Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims. Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.
A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold. Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.
Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.
Promised savings from sentencing reform was key to getting it passed and to winning support from sheriffs, judges and local officials who feared it presented another unfunded mandate by the state. The Legislature set aside an initial $60 million for communities to offset initial costs. But lawmakers assured critics that the sentencing reform would eventually pay for itself.
House Judiciary Committee Chairman Greg Steuerwald, R-Avon, who helped craft the sentencing reform law with Steele, also questioned the validity of the Corrections Department's report. But, he noted, “We’re in a transition year.” “I expect to see much different numbers by next year," he said.
Thursday, March 10, 2016
Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms
One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:
Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?
The lives and property of innocent Americans are at stake. Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....
Supporters of lower prison sentences also argue that judges need more discretion. They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.
But prior experience with judicial discretion in sentencing counters this claim. It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences. Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.
The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion. Criminals receive equal punishment for equal crimes. And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....
In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision. Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years. Early release programs don’t appear to be working.
Mandatory minimums help keep these individuals behind bars where they belong. That’s one explanation for why crime rates remain down. The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people. Releasing prisoners too soon could condemn many Americans to becoming victims of violence. This can be avoided if prisoners are not released before their sentences have been served.
Wednesday, March 09, 2016
"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"
The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:
Why can’t most people in prison vote? Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin. But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.
The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.
The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.
But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery. This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.
Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement. Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....
A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment. However, that reasoning falls doubly short. Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal. Why is the right to vote excluded? Also, the social contract may not need civil death to defend it. The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.
Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country. They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere. In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths. Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.
International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico. Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.
The sky hasn’t fallen in Vermont or Maine either. Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else. Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout. At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States. The death of civil death doesn’t kill democracy.
As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":
Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief. "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."
Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.
US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"
I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:
Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.
The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.
The Commission also found that:
- Most offenders who recidivated did so within the first two years of the follow up period;
- Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
- An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
- An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).
I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.
Friday, March 04, 2016
"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"
The title of this post is the title of this new article now available via SSRN authored by Michael Tonry. Here is the abstract:
Concern for equality and human dignity is largely absent from American sentencing. Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer. The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies. The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.
The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems. Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.
Thursday, March 03, 2016
Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"
As reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:
As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."
The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.
In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.
Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.
Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.
For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.
Tuesday, March 01, 2016
Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:
The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.
As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.
We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.
Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.
That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.
Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....
The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.
Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.
The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.
Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.
Some recent prior related posts on SRCA:
- Basic elements of Sentencing Reform and Corrections Act of 2015
- Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015
- Senate Judiciary Committee moving forward next week on Sentencing Reform and Corrections Act of 2015
- Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available
- SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5
- US Sentencing Commission provides estimates on likely impact of sentencing reforms in SRCA 2015
- Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform
March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)
Monday, February 29, 2016
No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case
The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases. For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year. Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.
On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186. The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner. But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:
Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together. The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups. Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....
Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.
Sunday, February 28, 2016
Profiling a federal district judge eager to make the case for federal sentencing discretion
The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:
Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.
But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....
Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created. The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts. Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range. And any discretion on the part of judges was intended to be restricted to the limits of that range. But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic. What’s the point of a judge if he is discouraged from offering his judgment?
Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction. At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?
Coughenour’s position is clear. He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....
[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced. And then, he started visiting prisons all over the country with the same purpose. To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private. A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.
During these meetings, the judge always asked the same questions: “How much time do you have left? What are you doing to prepare yourself for getting out? Are you dealing with anything you can’t handle? Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food. The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy. But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.
Friday, February 26, 2016
"Internalizing Private Prison Externalities: Let's Start with the GED"
The title of this post is the title of this interesting and timely new piece by David Siegel recently posted on SSRN. Here is the abstract:
Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way. Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts. Although these costs are real and substantial to the inmates who bear them, because the inmates are not parties to the contract, these costs are externalities.
Imposing these social costs on prison operators could improve the conditions for inmates in their custody and is very likely to improve these inmates’ success after release. Unlike more complex strategies for imposing incentives on correctional programs to reduce recidivism, prison education is a known, straightforward rehabilitative strategy whose provision can be measured quite easily at the point of release. There is even a well-accepted metric for prison education administered by an independent third party: the General Educational Development Test (GED). This article proposes using the GED to internalize the cost of reduced or poor inmate education by imposing financial penalties on private prison operators whose inmates do not obtain, or make progress toward, a GED during their incarceration. This would provide the social benefits of inmate education, alter private prison operators’ behavior at minimal administrative cost, and most importantly, benefit inmates being released.
Wednesday, February 24, 2016
Vera Institute of Justice launches "The Human Toll of Jail"
I received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:
The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.
The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others. Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails. Stories in the project include:
INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.
RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son. His story is told here as comics journalism.
THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success. The result is a jail that looks nothing like the ones you’ve seen on TV.
A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.
JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.
Thursday, February 18, 2016
"U.S. Prison Population Trends 1999-2014: Broad Variation Among States in Recent Years"
The title of this post is the title of this notable short "fact sheet" from The Sentencing Project. Here is the text that goes with the graphical state-by-state data in the document
The number of people in prison in the United States has stabilized in recent years, but incarceration trends among the states have varied significantly. While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest. In addition, 11 states have had continuing rises in imprisonment.
Twelve states have produced double-digit declines within this period. Four states have reduced their prison populations by over 20%: New Jersey (31% since 1999), New York (28% since 1999), Rhode Island (25% since 2008), and California (22% since 2006, though partly offset by increasing jail use). Southern states including Mississippi and South Carolina, which have historically had high rates of incarceration, have also significantly downsized their prison populations. These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. Moreover, the states with the most substantial reductions have had no adverse effect on public safety.
The overall pace of change, though, is quite modest given the scale of incarceration. The total U.S. prison population declined by 2.9% since its peak in 2009. Of those states with declining prison populations, 20 have had less than a 5% decline since their peak years. The reduction in the federal prison population has been of this magnitude as well, 2.9% since 2011. And of the states with rising prison populations, four have experienced double-digit increases in the last five years, led by Nebraska (22%) and Arkansas (18%). While sharing in the national crime drop, these states have resisted the trend toward decarceration.
Just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, so too have declines reflected changes in both policy and practice. These have included such measures as drug policy sentencing reforms, reduced admissions of technical parole violators to prison, and diversion options for persons convicted of lower-level property and drug crimes.
Wednesday, February 17, 2016
Is federal bail reform key to making a serious dent in mass incarceration?
The question in the title of this post is prompted by this notable This Week commentary by Ryan Cooper, headlined "President Bernie Sanders couldn't stop mass incarceration by himself. But this one reform would be a very good start." Here are excerpts (with a few links from the original):
[Many have] badly understated the extent to which federal policy affects incarceration outside of federal prisons — particularly jails. It's a great opportunity for Sanders to clarify his message [about reducing incarceration] and seize on bail reform — a vastly overlooked part of the mass incarceration problem. While it probably wouldn't move the U.S. from the top spot by itself, bail reform could make an enormous difference....
First, federal crime policy exerts a strong gravitational pull on state behavior. Federal sentencing guidelines heavily influenced the state versions; state-level lawyers, judges, and policymakers tend to look to the higher-status federal system for cues and ideas, and there is much back-and-forth staff movement. Hence, if the federal criminal justice system were to make a sharp turn against harsh punishments, it's virtually certain that would percolate through some if not most of the state systems and thus reduce the prison population over time. Federal leadership matters here.
This effect also holds for bail policy, which is the primary determinant of the size of the jail population. As I covered extensively last year, about 62 percent of the people in jail are legally innocent. A major reason why is the Bail Reform Act of 1984, which made it dramatically easier to keep people locked up before federal trials; most of the states followed suit. Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they've just been arrested and will make bail in the next few days. Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.
This is a human rights atrocity for many reasons, but perhaps the biggest one is that the first 48 hours or so in jail is extremely traumatic for people with no experience in the prison system. It's why the suicide rate in jails is 2.5 times greater than in actual prisons — witness Sandra Bland, an ordinary middle-class person who apparently committed suicide very soon after being thrown in jail.
Now, it would be unconstitutional for Congress to simply force states to change the way they do bail. But there are four less direct avenues to pursue: First, pursue reform for federal prisoners, to take advantage of the percolation effect mentioned above. Second, put conditions on the many grants the feds dole out for the states' criminal justice systems, requiring bail reform as a condition of getting the money. Third, pass a law declaring current use of money bail a violation of the 14th Amendment's due process protection, which Congress has power to protect. Fourth, there is a very strong case that current bail policy is a violation of the 8th Amendment, so the Department of Justice could pursue a lawsuit and attempt to get a Supreme Court ruling allowing the feds to step in. The last two of these are a bit of a long shot, but taken together this would be a powerful package.
But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards. Second, very sharply reduce the use of money bail. If used, it should never be beyond a person's ability to pay. No person should ever rot in jail waiting for a trial because he can't scrounge up the cash to make bail — poverty should not be a crime. Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial. In most cases, it simply isn't needed — basic pretrial supervision works much better.
There is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014. Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once. It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry. At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.
At any rate, even very aggressive bail reform wouldn't get us to the Chinese figure of 1.66 million prisoners quoted above, and it would require congressional action. But bail reform would be a gigantic step in the right direction. When it comes to fighting mass incarceration, it's the easiest and most obvious first step.
Tuesday, February 16, 2016
"Texas prisons are filling up with the old and the ill — at enormous expense"
The title of this post is the sub-headline of this lengthy new Texas Observer article. Here are excerpts:
Benito Alonzo is a short, 140-pound 80-year-old. His quiet-spoken manner, drooping jowls and gray hair, trimmed in a buzz, give him the appearance of a benevolent grandfather, and indeed, he is a grandfather. In thick-framed black eyeglasses, he bears a resemblance to the defanged and aging Henry Kissinger. But Alonzo is neither a celebrity nor a statesman. He’s a convict who has lately grown infirm. He says he’s been diagnosed with prostate cancer and he’s afflicted with Hepatitis C. For several years he’s been prescribed a drug called Lactulose, which Dr. Owen Murray, chief of medical affairs for the Texas penal system, says “we use for people whose livers are at the end of their lives.”...
Alonzo has been waiting since at least March for the start of a 12-week course of a new liver drug that might keep him alive for years to come. He’s been told that the treatment will cost $94,500. Were he back on the streets, Medicare would pick up the tab. But because federal courts have ruled that states must guarantee the safety and health of their inmates, Texas will have to pay. Alonzo frets that because of the expense, prison bureaucrats will stall the treatment until it’s too late.
The state of Texas operates 109 prisons holding about 148,000 inmates. Some 27,000 of them are, like Alonzo, over the age of 50. They account for about 18 percent of the prison population, and are the fastest-growing demographic group among prisoners. By most estimates, they are also the most expensive to keep under lock and key. According to TDCJ spokesman Robert Hurst, the average cost of housing Texas inmates is about $20,000 a year, but medical and end-of-life expenses hike that figure to some $30,000 for elderly inmates. In other jurisdictions, the cost is even higher. A 2012 report from the ACLU calculates the average national expense for keeping a prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.
Both demographic factors and get-tough sentencing have transformed what were once mere penal institutions into hospitals, assisted living centers and nursing homes, too. The University of Texas Medical Branch operates a freestanding hospital in Galveston for TDCJ, which also contracts with UTMB and the Texas Tech medical school to send prisoners to 146 community hospitals. Texas prisons now boast of “respiratory isolation rooms,” “brace and limb services” and hospice facilities in which 90 Texas inmates were eased into eternity last year. More than 300 inmates in Texas prisons use wheelchairs, Dr. Murray says....
Alonzo’s life has been one of alternating spans of heroin addiction and confinement. He served three separate stints in prison — for theft, burglary and heroin possession — from 1958 to 1974. After his parole in 1974, allegedly under the influence of two of his brothers, Pedro and Adolfo, he delivered a pair of pistols to a warden’s trustee who then smuggled them into Huntsville’s Walls Unit. San Antonio gangster Fred Carrasco used those guns in an 11-day hostage-taking and stand-off that culminated in a shootout. Alonzo is serving a life sentence for his connection to the incident....
The state of Texas does have a process for releasing old and infirm prisoners on humanitarian parole, but the record is underwhelming. A bureaucracy dating to 1987, the Texas Correctional office on offenders with Medical or Mental Impairments, usually named by the clunky acronym TCOOMMI, was assigned to process medically recommended intensive supervision, or MRIS, paroles. MRIS is a way to move inmates rendered harmless by their frailty or age back into the civilian world.
TCOOMMI reports to the Texas Board of Pardons and Paroles on an inmate’s health status, leaving the final parole decision to the board. In a February 2015 biennial report, TCOOMMI reported that of the 1,133 MRIS applications that had been submitted in fiscal year 2014, 318 had been found sufficiently meritorious for presentation to the parole board. Of those, the board had granted 67 releases — a mere 6 percent approval rate.
In a 2012 statement, TDCJ admitted that “the Parole Board’s approval rates of MRIS cases remain low.” But the board’s performance hasn’t shown signs of improvement. In the 2015 fiscal year, 445 prisoners older than 60 filed for medical paroles — but only 24 paroles were granted, all of them on the basis of infirmity, none on the basis of age. The roadblock is a provision of the law allowing the parole board to conclude that a prisoner constitutes a threat despite what doctors say....
Benito Alonzo would today have a hard time exacting any revenge or harming anybody, and whether he lives or dies is of little concern except to a coterie of kin and perhaps in the circles of the Mexican Mafia. If he dies in prison, as we must currently expect, though he’d prefer to be interred in San Antonio, his corpse will be eligible for a casket and a grave at public expense, in the prison cemetery, of course.
Monday, February 15, 2016
US Sentencing Commission to conduct hearing on compassionate release and conditions of supervision
As reported in this official notice, the US Sentencing Commission is scheduled to conduct a public hearing the morning of Wednesday, February 17, 2016. This hearing agenda suggests that the main focus of the hearing is so-called "Compassionate Release" and that all of the leading and most important voices in this space will be speaking to the USSC.
Some prior related posts:
- Effective commentary urges greater us of "compassionate release"
- New report assails (lack of) compassionate release in federal system
- NY Times editorial laments lack of compassionate release
Thursday, February 11, 2016
Notable data on racial and gender dynamics of recent changes in incarceration rates
This new Wonkblog post via the Washington Post reports on provides an interesting analysis of modern incarceration data under the headline "There’s been a big decline in the black incarceration rate, and almost nobody’s paying attention." Here are the details:
After decades of growth, the U.S. imprisonment rate has been declining for the past six years. Hidden within this welcome overall trend is a sizable and surprising racial disparity: African-Americans are benefitting from the national de-incarceration trend but whites are serving time at increasingly higher rates.
The pattern of results, evident in a series of reports from the Bureau of Justice Statistics, is most stark among women. Since 2000, the imprisonment rate among African-American women has dropped 47 percent, while the rate among white women has risen by 56 percent. These trends have combined to shrink the racial disparity in women’s imprisonment by two-thirds.
A similar pattern emerges for men, who compose a much larger share of the prison population. The rate of imprisonment among African-American men remains very high, but nonetheless it has tumbled 22 percent since 2000. The rate for white men in contrast is 4 percent higher than it was in 2000. As a result, the racial disparity has shrunk by nearly one quarter.
In responding to the data, Fordham University Professor John Pfaff echoed several criminologists when he said that“This is one of the most surprising pattern of results I have seen in corrections in a long time.” Pfaff said that “law enforcement attitudes getting tougher in rural areas and softer in urban areas may be contributing to this change."
Adam Gelb, who directs the public safety performance project of the Pew Charitable Trusts, suggested that “changes in drug use and enforcement over the past 15 years could be at play.” Gelb said the methamphetamine, prescription opioid and heroin epidemics have affected whites more than did the crack cocaine epidemic, which increased incarceration among blacks in the 1980s and 1990s but has since waned.
Stanford Law School Professor Joan Petersilia noted another possible cause: “sex offenders, who are disproportionately white and tend to receive long sentences, are a new target for the war on crime.” Consistent with this explanation, a larger proportion of white inmates have been convicted of sex crimes (16.4 percent) than have black inmates (8 percent)....
Whatever cultural and macroeconomic forces are producing these changes could conceivably also be driving increased involvement in the criminal justice system by whites, including rising imprisonment in an era of de-incarceration.
Tuesday, February 09, 2016
Is California conducting an "unprecedented experiment in mass forgiveness"?
The question in the title of this post is prompted by the headline of this lengthy new Washington Post article, which suggests the Golden State has become a unique criminal justice laboratory. Here are excerpts:
[Jose] Gonzalez is among thousands of felons benefiting from a grand experiment, an act of mass forgiveness unprecedented in U.S. history. In California, once a national innovator in draconian policies to get tough on crime, voters and lawmakers are now innovating in the opposite direction, adopting laws that have released tens of thousands of inmates and are preventing even more from going to prison in the first place.
The most famous is a landmark ballot measure called Proposition 47, which in 2014 made California the first state in the nation to make possession of any drug — including cocaine and heroin — a misdemeanor. More astonishing is the state’s decision to show leniency toward violent offenders, including murderers like Gonzalez.
For example, the state has ordered parole hearings for longtime inmates convicted of committing violent crimes before they turned 23, requiring authorities to consider anew whether immaturity at the time of the inmates’ offense argues for their release.
Meanwhile, Gov. Jerry Brown (D) has approved parole for roughly 2,300 lifers convicted of murder and about 450 lifers sentenced for lesser offenses — a revolution in a state that released only two lifers during former governor Gray Davis’s entire four-year term. And more reforms could be in store. Last month, Brown unveiled a ballot measure that, if approved by voters in November, would grant early release to nonviolent felons who complete rehab programs and demonstrate good behavior.
Progressives across the nation have applauded California’s U-turn. “There is a gathering sense that the public is considerably less punitive than people had thought,” said Joe Margulies, a professor of law and government at Cornell University.
But with crime in some of California’s largest cities ticking up after years of sustained decline, many law enforcement leaders and victims’ advocates say the state has gone too far. “Our hope was folks getting out of prisons are going to come out and be model citizens,” said Christine Ward, executive director of the Crime Victims Action Alliance. “Unfortunately, we’re not seeing that.”...
So far, 250 inmates have been released under the Youth Offender Parole law, most of them violent offenders. As many as 16,000 more remain eligible. Meanwhile, a study by Stanford Law School found that Proposition 47 had unlocked the cell doors of nearly 4,500 prisoners since taking effect in late 2014.
Sheriffs, police chiefs and prosecutors speculate that Prop 47 has contributed to a recent rise in crime and homelessness in major California cities, arguing that the law eliminated a useful billy club: the threat of a felony conviction to steer addicts into treatment. “It’s a vicious cycle,” said Kirk Albanese, deputy chief of the Los Angeles Police Department. “You’ve got an addiction, we are not holding you accountable, and you’re back into the cycle of using. How do you support that habit? Stealing. Our burglaries are up, car theft is up, break-ins are up — they are all up.”
Hilary Chittick, a veteran judge for the Superior Court of Fresno County, said Prop 47 has “decimated” her ability to force addicts into treatment. “The public had a house with a leaky roof and bad pipes,” she said. “So they blew up the house.”
Prop 47 supporters acknowledge the problem and say efforts are underway to address it. More drug courts, for instance, are opening their doors to misdemeanants as well as felons, said Prop 47 co-author Lenore Anderson, executive director of the advocacy group Californians for Safety and Justice. “If you think that you need a stick in order to mandate treatment, that option is available with a misdemeanor,” Anderson said. But Prop 47 supporters reject the notion that the ballot measure contributed to localized spikes in crime. Early reports indicate that recidivism among inmates released under the full range of reforms has been low....
In general, more than half of inmates released from California prisons — 54 percent — return to prison within three years. Among lifers paroled under Brown, the Los Angeles Times found, fewer than 2 percent have committed new crimes. Among the 2,100 inmates released after the softening of the state’s three-strikes law, only about 6 percent have returned to prison. Michael Romano, director and co-founder of the Stanford Law School Three Strikes Project, attributes the success of this cohort in part to extensive rehab, but also to a kind of forgiveness psychology.
Because I do not live in California, it is hard for me to judge whether the state is genuinely engaged in "mass forgiveness" when passing laws designed to reduce its prison population and the severity of its sentncing laws. But there is little doubt that all sorts of significant criminal justice reforms are now playing out in California, and it will be quite valuable and important for criminal justice advoates and researchers to watch and study crime and punishment developments in the state in the months and years to come.
Mark you calendar for ASKS, a big alternative sentencing summit next month in DC
I am pleased to be able to promote an exciting event taking place next month: the Alternative Sentencing Key-Stakeholder Summit (ASKS), at Georgetown University Law Center, DC on March 7-8, 2016. Here is a link for registration, and here is the ASKS gameplan and a Q&A via its website:
Summit Overview: Alternative sentencing has been at the heart of improving public safety and includes successful sentencing, reentry and other fiscally responsible criminal justice policies and programs both in the U.S. and around the globe. As the U.S. starts 2016 with commitments from the President and Congress to pass meaningful federal criminal justice reform legislation, the time is right to evaluate the role alternative sentencing can play in furthering the key objectives of public safety and fiscal responsibility.
More Info: Who will participate in the ASKS Summit? The summit will bring together an unprecedented number of current and former leaders and senior government officials who have served on the front lines of day-to-day operations in the criminal justice system, including law enforcement, government, judiciary, defense, forensic social workers and psychologists, and nonprofits, as well as formerly incarcerated people, victims and advocacy groups.
What are the ASKS Summit objectives? Beyond education, ASKS will use plenary, breakout and interactive sessions to generate substantive dialogue between all delegates and identify key priorities for:
- Expanding the use of effective alternative sentencing programs while enhancing public safety, including the mechanisms of discretion (police, prosecutorial and judicial) and legislative reforms;
- Addressing public safety concerns over its broadened use and practical barriers to expansion and launching effective new programs in new jurisdictions, including operational limitations, program evaluation and public education;
- NGOs that can help to support broader application of effective alternative sentencing, eg. ubiquity of access and other measures and peripheral programs to help ensure successful reentry.
Saturday, February 06, 2016
"Instead of building 'super prisons,' let's build super schools"
The title of this post is the headline of this notable commentary by an Alabama state rep in response to a recent proposal by the state's Governor. Here is how the commentary begins:
During his State of the State Address Tuesday night, Gov. Bentley laid out his four-year plan, which included spending up to $800 million to build four new super prisons. The next day, the governor announced that he wants to transfer $181 million out of the education budget and put it in the general fund budget, which also pays for prisons.
Don't get me wrong. There are some very serious problems with our state prisons. What's happening at the Julia Tutwiler Prison for Women is unacceptable! Changes need to be made, and more prison reform is absolutely needed.
But how can the governor — or any legislators, for that matter — justify spending almost a billion dollars on new accommodations for prisoners while thousands of our children are going to school in run-down facilities that have broken windows and no air conditioning?
Instead of building "super prisons" like what the governor is talking about, how about we build "super schools" instead? Why is the governor willing to invest hundreds-of-millions of dollars in our prison population's future, but wants to cut hundreds-of-millions from our children's future?
Among other points, this commentary highlights the reality that, for states with fixed and limited budgets, any and all extra taxpayer investments in cells can often require a reduction in taxpayer investment in classrooms.
Wednesday, February 03, 2016
"American Exceptionalism in Probation Supervision"
The title of this post is the title of this notable new data brief published by Robina Institute of Criminal Law and Criminal Justice. The core product is this interesting graphic (which is really hard to see here, but is very worth checking out). Here is some of the Robina Institute's text that explains some of the graphic's data details:
It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. Such stark differences exist despite the fact that many countries in Europe have overall crime rates that are quite similar to the U.S.
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision. Over the past several decades, the number of people under probation supervision in the U.S. has increased greatly. Nearly 4 million adults were under probation supervision across America at year-end 2013. In all reporting European countries, with roughly twice the population of the U.S., only 1.5 million adults were under probation supervision.
These findings lead to many important questions of law and policy. Most states should closely reexamine the numbers of people who are placed on probation each year, and the lengths of terms they are required to serve. Options for “early termination” of the lowest-risk and most successful probationers should be explored. Some experts in the field allege that probationary sentences do little to control crime, and frequently do more harm than good. Community supervision can make offenders’ “reentry” into the law-abiding community more difficult than it needs to be, such as when meetings with probation officers interfere with work responsibilities, or supervision and program fees block probationers’ ability to support themselves and their families.
Concerns of this kind should be carefully evaluated by lawmakers in every state. If some uses of probation are counterproductive to the reentry process, or outright “criminogenic,” it should be a high priority everywhere to discontinue them. The financial expense and opportunity costs of “mass probation” should also be assessed nationwide. High probation supervision rates cost American taxpayers a great deal of money, and not just in the funding of probation agencies. National data suggest that a large share of all prison admissions come from probation revocations — a substantial number of which are for “technical” violations of sentence conditions rather than new criminal conduct. Far from being an “alternative” to incarceration, probation has been a “feeder” institution or a “conduit” to our prisons and jails. In this respect, misguided probation policy has almost certainly been a major contributor to America’s excesses in prison policy. The problems of mass incarceration and mass probation are intimately linked, and they must be tackled together.
Sunday, January 31, 2016
Highlighting the highlights of the Colson Task Force report on improving federal justce system
As reported in this recent post, last week the Charles Colson Task Force on Federal Corrections issued numerous recommendations to reform the federal criminal justice system in a big report titled Transforming Prisons, Restoring Lives. The helpful folks at Vice subsequently published this helpful overview of the report in an article headlined "A Bipartisan Congressional Panel Just Agreed on Ways to Send Fewer Americans to Prison." Here are excerpts:
Chief among the recommendations of the nine person, bipartisan Charles Colson Task Force on Federal Corrections is sending fewer low-level drug offenders to federal prison, and sentencing offenders to far fewer years behind bars, which would reverse two of the changes that have driven the federal prison population to grow by 700 percent since 1980.
But the task force also dug into the minutiae of how the prison system is operated, including how it evaluates the success of its programs, the recidivism rate, and how it uses its resources. In their final report, members suggest that the prisons should actually devote more resources to addiction treatment, cognitive behavioral therapy, classes, and faith programs, and incentivize participation by offering offenders reducing time from their sentences and a "second look" at their cases by a federal judge after they've served certain number of years.
"If their behavior is good in the program, they've taken part in programs, they can have their sentence looked at again. It's an incentive to have people behave well and participate in programs that are evidence-based to improve behavior," said Laurie Robinson, a criminal justice professor and former Assistant Attorney General who served on the task force....
Robinson described her experience working with the task force as "terrific." Despite 30 years working in the criminal justice system, she said she learned both from the diverse viewpoints of her colleagues and the federal prisoners she met on site visits. "Some were in their late 60s or 70s, and at least one of those individuals was in very bad health and said he had applied several times for compassionate release," she said. "And it just made you think: Why are we spending so much in the way of taxpayer dollars to keep people behind bars?"...
Robinson and her colleagues were meeting with senior staff at the White House ... to brief them on the report and point out which actions could be taken without a Congressional vote or legislation. "There are things in there that the director of the BOP could do tomorrow, she said, noting that there are also steps the DOJ and president could take that focus on management, resource allocation, and best practices. Others of them I think might not happen necessarily quickly but maybe are things that will get into the public conversation that will have to happen at a later time," she said....
Going forward, the report says, sentences should be individualized, policy should emphasize public safety, data should guide policies, and the costs should be more carefully considered. Most importantly, the report says, the lawmakers who receive the recommendations "must capitalize on this rare moment in time" of political will and public awareness to make effective change.
Prior related post:
Tuesday, January 26, 2016
"Why we must rethink solitary confinement"
The title of this post is the headline of this new Washington Post commentary authored by the President of the United States Barack Obama. Here are excerpts from the piece, which concludes with a pitch for broader sentencing reforms:
Solitary confinement gained popularity in the United States in the early 1800s, and the rationale for its use has varied over time. Today, it’s increasingly overused ... with heartbreaking results — which is why my administration is taking steps to address this problem.
There are as many as 100,000 people held in solitary confinement in U.S. prisons — including juveniles and people with mental illnesses. As many as 25,000 inmates are serving months, even years of their sentences alone in a tiny cell, with almost no human contact.
Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones. Prisoners in solitary are more likely to commit suicide, especially juveniles and people with mental illnesses.
The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance. Those who do make it out often have trouble holding down jobs, reuniting with family and becoming productive members of society. Imagine having served your time and then being unable to hand change over to a customer or look your wife in the eye or hug your children.
As president, my most important job is to keep the American people safe. And since I took office, overall crime rates have decreased by more than 15 percent. In our criminal justice system, the punishment should fit the crime — and those who have served their time should leave prison ready to become productive members of society. How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity....
The Justice Department has completed its review [on the use of solitary], and I am adopting its recommendations to reform the federal prison system. These include banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells. These steps will affect some 10,000 federal prisoners held in solitary confinement — and hopefully serve as a model for state and local corrections systems. And I will direct all relevant federal agencies to review these principles and report back to me with a plan to address their use of solitary confinement.
Reforming solitary confinement is just one part of a broader bipartisan push for criminal justice reform. Every year, we spend $80 billion to keep 2.2 million people incarcerated. Many criminals belong behind bars. But too many others, especially nonviolent drug offenders, are serving unnecessarily long sentences. That’s why members of Congress in both parties are pushing for change, from reforming sentencing laws to expanding reentry programs to give those who have paid their debt to society the tools they need to become productive members of their communities. And I hope they will send me legislation as soon as possible that makes our criminal justice system smarter, fairer, less expensive and more effective.
In America, we believe in redemption. We believe, in the words of Pope Francis, that “every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes.” We believe that when people make mistakes, they deserve the opportunity to remake their lives. And if we can give them the hope of a better future, and a way to get back on their feet, then we will leave our children with a country that is safer, stronger and worthy of our highest ideals.
Sunday, January 24, 2016
Making a pitch for judicial second looks while asking "Did I Sentence a Murderer or a Cooperative Witness?"
The question in the second half of the title of this post is the headline of this New York Times commentary authored by Stefan Underhill, a federal district judge in Connecticut. But the headline does not reflect what thus commentary is really about: it makes a pitch for creating a significant new judicial second-look mechanism in federal sentencing. I recommend this commentary in full, and here are excerpts:
In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since. As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.
He was the enforcer for a brutal gang of drug dealers in Bridgeport, Conn., known as the Terminators, and had sold heroin, assaulted rival dealers and murdered a potential witness. But after a falling-out with the head of the gang, he turned over a stash house to the police and fled the state. When captured in 2001, he immediately confessed to the murder and later testified as a star witness for the prosecution.
Thus arose my problem: He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them. So which man was I sentencing? The murderer or the remorseful cooperator?
The prosecutor rewarded his cooperation by filing a socalled 5K motion, which allowed me to ignore the mandatory life sentence he otherwise would have faced. Still, after weighing the seriousness of his crimes, I sentenced him to 18 years, which was more time than even the prosecutor wanted....
In the years that followed, I often wondered whether his remorse was strong enough to overcome his past. In 2012, I had the chance to find out. While attending a conference on sentencing issues, I learned that he was serving time in a prison nearby. I wanted to know whether he had become a better citizen or a better criminal. So I asked a prison staffer if I could meet with him in private.
That the warden felt no need to post a guard was my first clue that he had changed for the better. He was working in his first real job at the prison industries factory and had been promoted to supervisor. He showed me recommendations from prison employees for good jobs on the outside. He brought a folder full of certificates he had earned for attending classes. He talked lovingly about his girlfriend and daughter, with whom he planned to live as a family after his release.
The meeting made me proud of his accomplishments, but sad that I had not been more confident in him. He still had several years left on his sentence, but it was clear that he had served enough time. After I returned to my office, I contacted the prosecutor and his lawyer and encouraged them to find a way to get him released early. But they told me there was no straightforward way to shorten a federal inmate’s sentence, even if prison officials acknowledge that more jail time is a waste of time and money. So he had to stay in prison, at an annual cost of $30,000 to taxpayers.
The tragedy of mass incarceration has recently focused much attention on the need to reform three-strikes laws, mandatory minimums and the federal sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to reevaluate the sentences they’ve imposed. It’s true that federal prisoners can earn up to 15 percent off the length of their sentences if they stay out of trouble. But this doesn’t incentivize prisoners to take advantage of work or study opportunities.
Instead, Congress should enact legislation that would allow every sentenced defendant one opportunity to petition his sentencing court for a reduction based on extraordinarily good conduct and rehabilitation in prison.
This “second-look review” should be available only to prisoners who are supported by their wardens. To minimize the increased workload on busy federal judges, each prisoner should be allowed only a single opportunity to seek early release and do so only after serving at least half of the sentence imposed (or two-thirds of a mandatory minimum sentence).
Factors in support of an early release should include more than just clean disciplinary records in prison. Job readiness, success with drug treatment, completion of vocational and educational training and extraordinary family or health circumstances should count as well....
I don’t advocate for a return to the flawed federal parole system that was essentially abolished in the 1980s. In that system, a judge who believed that a defendant should spend three years locked up would impose a nineyear sentence because parole was likely to be granted after he served one-third of it. But if that defendant’s parole was delayed or denied, the judge’s original intent was impeded. In contrast, my proposal would give the sentencing judge control. This makes sense because judges know whether a particular defendant got a break at sentencing or not and can best gauge the extent of positive change in a person....
A “second look” to adjust sentences would give inmates an incentive to prepare themselves for productive lives on the outside, and allow judges like me to correct sentences that turn out, in hindsight, to be unnecessarily long. This would improve the fairness of our criminal justice system and increase the public’s confidence in our courts.
UPDATE: Intriguingly, since I posted this piece, the New York Times changed its on-line headline to "Did the Man I Sentenced to 18 Years Deserve It?". And, echoing my own gut instincts, it seems that more than a few commentors think that someone who murdered a potential witness deserves at least 18 years in prison. In light of that view, I think the most notable aspect of this sentencing story is fact that the initial 18-year prison sentence "was more time than even the prosecutor wanted."
January 24, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)
Friday, January 22, 2016
"Incarceration Incentives in the Decarceration Era"
The title of this post is the title of this notable new paper by Avlana Eisenberg now available via SSRN. Here is the abstract:
After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.
This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.
Wednesday, January 20, 2016
"Free computers for inmates? It’s latest deal at Sacramento County jail"
The title of this post is the headline of this encouraging Sacramento Bee article which reinforces my long-standing belief that lots of modern technology could and should be put to good use in our not-so-modern jails and prisons. Here are excerpts from the piece:
On the surface, the notion seems preposterous: Hand out Samsung computer tablets to dozens of Sacramento County Main Jail inmates. But 40 of the tablets have been in use at the Main Jail downtown for two months, and officials say they have had virtually no problems. Inmates have used them to take classes toward high school diplomas, for parenting and domestic violence courses and, once they have earned enough points from studying, to watch preapproved movies or listen to music.
The project, which officials hope soon will offer 500 tablets to inmates, is similar to others that have been launched in jails nationwide and is not costing taxpayers a dime, sheriff’s Sgt. Brian Amos said. Instead, the tablets, which cost about $200 each, are paid for through an inmate fund that collects revenues from commissary and other purchases. “An inmate can work on their GED, they can take anger management classes,” Amos said as he stood on the fifth floor of the jail Thursday as inmates drifted toward a table holding dozens of tablets and earphones. “There’s even parenting classes. We had an inmate here during this pilot who was learning how to fix carburetors on a car or fix brakes. There’s thousands of hours of content.”
The computers cannot be used for email or be hooked up to wireless Internet, Amos said. Instead, they can only connect with a secure network operated by a Chicago-based company called Edovo that offers the service. If someone somehow managed to hack into the system, “they’d end up at Edovo,” Amos said.
Although Amos acknowledges the notion originally worried some deputies at the jail, which houses about 2,000 inmates, the pilot program has proved to have a calming effect on inmates who have been given access to the devices. On two visits last week to the day room where the devices are being used, there was something present that is entirely out of the ordinary for the cacophonous jailhouse: silence.
Jason Rogers, 43, who has been in the jail for eight months on drug charges, sat with one of the tablets studying a chapter book and taking notes on a pad. “I think it’s great,” Rogers said, adding that he has used the device to study current events, such as the ongoing war in Syria, or to watch movies. Without access to a tablet, Rogers said, he’d most likely be writing letters or watching television in the day room.
Steve Wilson, 52, who is awaiting the results of an appeal on a federal white-collar crime case, said he uses the devices to listen to TED talks and watch documentaries. In a previous stint at the jail while awaiting trial, Wilson said disputes among bored inmates were common. “At least twice a week, when those doors popped open, there was a fight,” Wilson said. “Now that I’m back I haven’t seen a fight yet. People are taking their issues and instead of taking it out on each other, they have a mechanism of escape where they can bury themselves into that. And there’s going to be more, there’s going to be games, there’s going to be magazines.”
The tablets, which officials say can also be used to eliminate paperwork by allowing inmates to request medical care or to read up on jail policies and procedures, are designed so they cannot be altered to allow communication with the outside. “You’d have to be a genius to figure out how to do that,” Rogers said. The seven-inch tablets cannot be taken into cells, and must be locked in a charging cart at night.
Deputy Brent Snyder, who was watching over inmates on Wednesday, said he was skeptical when he heard inmates would be given access to the small computers, noting that he wanted assurances they could not access the Internet or communicate outside the jail. Since then, Snyder said, he has been won over by the program and the effect it has had on inmates. They are calmer, quieter and eager to use them to study and to listen to music ... and officials say they do not expect any serious violations because the inmates do not want to lose their access to the devices.
Edovo and its tablet programs are the brainchild of Sacramento native Brian Hill, a 2002 Del Campo High School graduate who says his company has about 1,000 tablets in fewer than 10 facilities nationwide, but expects to more than double that in the coming year. As prisons and jails try to focus more on reform than simply punishment, the need for programs that can be made available to inmates is greater than ever, Hill said, and the use of tablets can help. “You’ve got 2 million people behind bars in the nation watching daytime television,” Hill said. “That’s not a recipe for success. With this, there’s a window, there’s a chance for success.”...
The tablets are encased in hard plastic that protects them and prevents them from being opened by inmates. And, Hill said, if someone smuggled a cellphone or other device into the jail and hacked into the secure system, they would only gain access to the coursework Edovo offers. “It’d be the most depressing hack ever,” he said. Hill acknowledged that there is hesitation from some — especially guards — when they first hear about the program. “It generally takes about five minutes,” Hill said. “The minute you see it live and 100 inmates put on headphones and they are quiet for six hours, it really changes people’s perspectives.”
Such programs have been put into use from San Francisco to Pennsylvania using iPads and other tablets and are generating a surprisingly positive response from some. “It’s a good thing,” said Christine Ward, executive director of the Crime Victims Assistance Network Foundation in Sacramento. “I know you don’t often hear that from me.” But, Ward said, as long as inmates are being held accountable for their crimes, it is important for institutions to offer prisoners the ability to improve and educate themselves.
Sunday, January 17, 2016
Notable Yale Law Journal Forum essays respond to big report on solitary confinement
As reported in this prior post from this past fall, the Association of State Correctional Administrators with researchers at Yale Law School together produced an important report about solitary confinement titled Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison. This report provided updated information, as of the fall of 2014, on the numbers and the conditions of prisoners in restrictive housing nationwide.
Now the folks at the Yale Law Journal have put together through its on-line Forum this impressive collection of essays that respond to Time-In-Cell. Here are the contents with links via the essay titles:
Only Once I Thought About Suicide by Reginald Dwayne Betts
Worse than Death by Alex Kozinski
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails by Marie Gottschalk
Time-In-Cell: Isolation and Incarceration by Judith Resnik, Sarah Baumgartel & Johanna Kalb
Time-In-Cell: A Practitioner's Perspective by Ashbel T. ("A.T.") Wall
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.