Friday, May 23, 2014

"Treating Prisoners With Dignity Can Reduce Crime"

The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:

It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."

But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....

For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us.  Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.

In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.

Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish.  They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education.  Inmates are required to save money to ensure that they are not penniless upon release.  There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay.  There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements.  And their maximum time in any kind of punitive solitary is eight hours.

Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home.  The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily.  With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....

Are there challenges to wholesale reform?  Of course.  Money.  Infrastructure. Strains of racial division borne of our history and heterogeneity.  And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S.  Yet we are at a moment of potential for significant shifts.  It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison.  But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.

May 23, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (3) | TrackBack

Thursday, May 22, 2014

Newt Gingrich and Van Jones say "Prison system is failing America"

Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America."  Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:

Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.

Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.

It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.

Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.

When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.

The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.

At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?

We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.

Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....

Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.

Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....

Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.

Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.

Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...

We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.

May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

"Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration"

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

When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear:

-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed.

-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity.

-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.”

-Fourth, LWOP laws should be repealed, or radically narrowed.

-Fifth, truth-in-sentencing laws should be repealed.

-Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.

-Seventh, every state should establish a sentencing commission and promulgate a presumptive sentencing guidelines system.

-Eighth, any state that does not establish an effective set of presumptive sentencing guidelines should establish a system of parole guidelines.

-Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.

-Tenth, every state should enact legislation making all prisoners serving fixed terms longer than five years, or indeterminate terms, eligible for consideration for release at the expiration of five years, and all prisoners aged 35 or over eligible for consideration for release after serving three years.

These proposals are evidence-based, and mostly technocratic.  Those calling for prison population targets and reducing the lengths of sentences being served may appear bold to some.  Relative to the problems they address they are modest and partial.  Reducing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be seen as overly ambitious.

May 22, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Wednesday, May 21, 2014

Fascinating exploration of modern data on modern mass incarceration

7 Trends in State Incarceration RatesIf you like data and like thinking hard about what to think about data about modern mass incarceration (and who doesn't), then you will be sure to like this interesting new posting authored by Andrew Cohen and Oliver Roeder at the Brennan Center for Justice headlined "Way Too Early to Declare Victory in War against Mass Incarceration." Here are excerpts (with some links retained) from an interesting and important bit of number crunching:  

At The Week Monday, Ryan Cooper summarized some dramatic statistical work about mass incarceration undertaken by Keith Humphreys, the Stanford University professor and former Obama administration senior advisor for drug policy. The headline of the piece, “The plummeting U.S. prison admission rate, in one stunning chart,” was accompanied by Cooper’s pronouncement that “whatever the reason” for the drop it “is certainly great news.” Some of the same optimism was expressed over the weekend, in The New York Times Book Review section, by David Cole, the esteemed Georgetown law professor who has written so eloquently recently about many of the greatest injustices in American law. Reviewing Columbia University professor Robert Ferguson’s excellent book, “Inferno,” Cole proclaimed that “we may be on our way out of the inferno” and that “it is just possible that we have reached a tipping point” in the fight against mass incarceration.

Would that it were so. It is far too early, as a matter of law, of policy, and of fact, to be talking about a “plummeting” prison rate in the United States or to be declaring that the end is in sight in the war to change the nation’s disastrous incarceration policies.  There is still far too much to do, far too many onerous laws and policies to change, too many hearts and minds to reform, too many families that would have to be reunited, before anyone could say that any sort of “tipping point” has been spotted, let alone reached.  So, to respond to Humphreys’ work, we asked Oliver Roeder, a resident economist at the Brennan Center for Justice, to crunch the numbers with a little bit more context and perspective. What follows below ought to shatter the myth that America has turned a corner on mass incarceration. The truth is that many states continue to experience more incarceration than before, the drop in national incarceration rates is far more modest than Humphreys suggests, and the trend toward reform could easily stop or turn back around on itself....

[T]he incarceration rate is decreasing, but no, not by much. It’s down 5.5 percent since its 2007 peak. Since 2001, it’s up 1.6 percent. An unscientific word for this trend would be “flat.”

As for individual states’ incarceration rates, experiences over the past decade have varied greatly.... California, New Jersey, and New York have dipped over 20 percent from their 2001 levels, while West Virginia, Minnesota, and Kentucky have seen over 30 percent increases.

Incarceration is a state-specific issue in other senses as well. Clearly the trends can vary dramatically, but so can the rates themselves. In 2012, Louisiana’s incarceration rate was 873, while Maine’s was 159....

So what’s the story? Well one thing it isn’t is crime. There is a body of evidence that indicates that crime doesn’t really affect incarceration. Incarceration, rather, is a policy choice, largely independent of the actual level of crime in the world. (The incarceration rate is not a result of one single policy choice, of course, but rather is a function of many policy choices which compose essentially our willingness or propensity to incarcerate.) Admissions and thus incarceration were increasing because of increased willingness to incarcerate, or reliance on incarceration. I don’t have a good sense as to why admissions and incarceration have been dipping lately, but it does seem to be driven by a minority of (typically large) states.

May 21, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, May 16, 2014

Lots of intriguing "show me" litigation as Missouri prepares for next execution

As reported in this Kansas City Star article, a number of news organizations, "including The Kansas City Star and The Associated Press, filed suit Thursday against the Missouri Department of Corrections over its refusal to reveal the source of drugs used to carry out executions." Here is more about the suit:

The suit, filed in Cole County Circuit Court in Jefferson City, alleges that the Corrections Department is violating the Missouri Sunshine Law by denying repeated requests for information about the “composition, concentration, source and quality of drugs used to execute inmates in Missouri.” By withholding access to information that historically has been publicly available, the department also is violating the First and Fourteenth amendments of the U.S. Constitution, according to the suit....

Thursday’s suit [claims] that public disclosure of the information “reduces the risk that improper, ineffective or defectively prepared drugs are used.”

“The constitution thus compels access to historically available information about the type and source of drugs used in lethal injection executions because disclosure promotes the functioning of the process itself and is essential for democracy to function,” according to the suit.

Joining The AP and The Star in the suit are Guardian US, the New York-based digital news service of England’s The Guardian; the St. Louis Post-Dispatch; and the Springfield News-Leader.

Meanwhile, over in federal court has detailed in this new Reuters report, a "Missouri death row inmate is asking a federal court to allow videotaping his execution, scheduled for next week, to record any evidence of cruel and unusual punishment in violation of the U.S. Constitution." Here is more on this other legal front:

A lawyer filed a motion on Friday in Kansas City on behalf of Russell Bucklew, 45, who is scheduled to die by lethal injection on May 21 for the 1996 murder of Michael Sanders in southeast Missouri. Last week, Bucklew filed a motion in the same court to halt his execution because of a rare health condition that his lawyer, Cheryl Pilate, said would cause him extreme pain and possible suffocation.

A videotape would preserve evidence if he survives and wants to oppose another execution or is injured and wants to file a claim, the motion states. It further states that if the inmate dies but suffers "prolonged and excruciating execution or chokes and suffocates to death," the video would be evidence for a claim by his estate. "If Missouri officials are confident enough to execute Russell Bucklew, they should be confident enough to videotape it," Pilate said in a news release. "It is time to raise the curtain on lethal injections."

May 16, 2014 in Baze lethal injection case, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Thursday, May 15, 2014

AG Holder assails solitary for juves with mental illness

As highlighted by this DOJ press release, "Attorney General Eric Holder on Wednesday called for an end to the excessive use of solitary confinement for youth that suffer from mental illness." Here is more about AG Holder's latest use of his criminal justice bully pulpit:

“Across the country, far too many juvenile detention centers see isolation and solitary confinement as an appropriate way to handle challenging youth, in particular youth with disabilities. But solitary confinement can be dangerous, and a serious impediment to the ability of juveniles to succeed once released.

“In a study released last year by the Office of Juvenile Justice and Delinquency Prevention, 47 percent of juvenile detention centers reported locking youth in some type of isolation for more than four hours at a time. We have received reports of young people who have been held in solitary confinement for up to 23 hours a day, often with no human interaction at all. In some cases, children were held in small rooms with windows that were barely the width of their own hands.

“This is, to say the least, excessive. And these episodes are all too common.

“This practice is particularly detrimental to young people with disabilities – who are at increased risk under these circumstances of negative effects including self-harm and even suicide. In fact, one national study found that half of the victims of suicides in juvenile facilities were in isolation at the time they took their own lives, and 62 percent of victims had a history of solitary confinement....

“We must ensure in all circumstances – and particularly when it comes to our young people – that incarceration is used to rehabilitate, and not merely to warehouse and forget. Our nationwide effort to end the unnecessary or excessive seclusion of youth with disabilities will not be completed solely with one settlement or court filing. But as a department, we are dedicated – and as Attorney General, I am committed – to doing everything possible to ensure the effectiveness and integrity of our criminal and juvenile justice system. In the days ahead, we will continue to make good on our commitment to the best practices of law enforcement and the highest ideals of our nation.” 

May 15, 2014 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, May 13, 2014

"Modifying Unjust Sentences"

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

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.

This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment.

To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.

May 13, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, May 12, 2014

Documenting the enduring challenge of reducing prison populations in Ohio

Prison-boom-art0-gfjsdd1f-10511gfx-prison-boom-population-epsOne of many challenges facing this nation as it works toward trying to ameliorate the worst excesses of mass incarceration is the modern and now-all-too-common social and cultural instinct that significant prison terms must be the "right" way to respond to any and all crimes of concern.  One expression and example of this perspective concerns this recent story of the feds appealing, and calling "substantively unreasonable," a probation sentence for a high-profile tax evader who has already paid in penalties more than 10 times the amount of taxes he tried to evade.  

Another expression of this reality is in this lengthy story from my own Columbus Dispatch headlined "Ohio struggles with rising prison population: One in 175 adults in the state is incarcerated, at taxpayer cost of $22,836 each annually." Here are excerpts:   

When Gary Mohr began his career at the Marion Correctional Institution in 1974, there were 8,516 inmates in state prisons. Forty years later, he manages a system nearly six times as large, packed with 50,639 offenders. One of every 175 adult Ohioans is housed, fed and receives medical care at taxpayer expense in a state prison. The latest two-year budget allocated $3.14 billion for the prison system.

Ohio officials have been unable to consistently tamp down the prison population despite attempts to do so. Major sentencing reforms were enacted, “good time” was reintroduced, community programs were enhanced, and early-release provisions were added.

And still the numbers go up. The latest projections suggest the inmate population in 27 prisons (including two private facilities) will hit 52,000 in two years, and 53,484 in five. Prisons already are bulging with 30 percent more prisoners than they were designed to hold.

“I’m getting a lot of people saying, ‘When are you going to build another prison?’  ” Mohr said in an interview. “I’m a believer in people instead of bricks and mortar. I’m not going to build another prison.” The major reason is the enormous cost, Mohr said. “That’s a commitment of $1 billion for two decades. It would cost $120 million to $150 million to build and $40 million annually to operate.”...

The series of reforms that began with House Bill 86 in 2011 got traction in Ohio’s six largest counties, including Franklin, which reduced the number of offenders being sent to state prisons in the past year. That helped reduce the prison population by about 675. However, the number of inmates being sent to prison from the remaining 82 counties increased, helping push up the population by 11.1 percent from 2003 to 2013. Here’s the math behind the numbers: Each prisoner costs Ohio taxpayers $22,836 per year, so adding 100 prisoners, for example, costs nearly $2.3 million.

A report by the Correctional Institution Inspection Committee, a legislative corrections watchdog, last August listed five contributing reasons why the prison population has gone up: a very small increase in violent crime, longer sentences for higher-level felonies, dramatically fewer prison releases (a 24.3 percent drop in five years), legislation increasing penalties for specific crimes, and adverse court decisions. Another factor may trump all the others: a flood of heroin cases. Men coming into prison still outnumber women more than 4 to 1, but that gap is shrinking as more women are incarcerated for nonviolent drug crimes.

State Sen. Bill Seitz, R-Cincinnati, who has been instrumental in recent prison-reform legislation, says the changes included in House Bill 86 are indeed working, “just not as fast as we had hoped. They’ve certainly ameliorated the situation as opposed to doing nothing. “We didn’t expect a dramatic overnight reduction,” Seitz said. “It takes awhile for the full import of these comprehensive reforms to float down the system.”

Seitz said many judges opposed the reforms because they limited judicial discretion in sentencing. As a result, “some judges are finding creative ways of sidestepping the provision that requires them not to send to prison first-time Felony 4 and Felony 5 non-violent drug and property offenders.”...

The prison-crowding issue is an everyday dilemma for corrections officers represented by the Ohio Civil Service Employees Association. “We were told sentencing reform would flatten out staffing levels, but we keep keeping more people (hired) on the administrative staff and those who work 9 to 5,” said the union’s president, Christopher Mabe. “We know there’s going to be more inmates coming into the system, and that means we need more staff.”

May 12, 2014 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, May 08, 2014

Intriguing new BJS data about national jail populations

I just received notice of a new Bureau of Justice Statistics publication, excitingly titled "Jail Inmates at Midyear 2013 -- Statistical Tables" and available at this link.  Though lacking a thrilling title, the data discussed in this publication are actually pretty interesting  This official BJS press release, excerpted below, provides some highlights:

After a peak in the number of inmates confined in county and city jails at midyear 2008 (785,533), the jail population was significantly lower by midyear 2013 (731,208). However, the estimated decline between midyear 2012 and 2013 was not statistically significant. California’s jails experienced an increase of about 12,000 inmates since midyear 2011....

Local jails admitted an estimated 11.7 million persons during the 12-month period ending June 30, 2013, remaining stable since 2011 (11.8 million) and down from a peak of 13.6 million admissions in 2008. The number of persons admitted to local jails in 2013 was 16 times the estimated 731,352 average daily number of jail inmates or average daily population during the 12-month period ending June 30, 2013....

Males represented at least 86 percent of the jail population since 2000. The female inmate population increased 10.9 percent (up 10,000 inmates) between midyear 2010 and 2013, while the male population declined 4.2 percent (down 27,500 inmates). The female jail population grew by an average of about 1 percent each year between 2005 and 2013. In comparison, the male jail population declined an annual average of less than 1 percent every year since 2005.

White inmates accounted for 47 percent of the total jail population, blacks represented 36 percent and Hispanics represented 15 percent at midyear 2013. An estimated 4,600 juveniles were held in local jails (less than 1 percent of the confined population), down from 5,400 during the same period in 2012.

At midyear 2013, about 6 in 10 inmates were not convicted, but were in jail awaiting court action on a current charge—a rate unchanged since 2005. About 4 in 10 inmates were sentenced offenders or convicted offenders awaiting sentencing. From the first significant decline in the overall jail population since midyear 2009, the unconvicted population (down 24,000 inmates) outpaced the decline in the convicted inmate population (down 12,000 inmates).

May 8, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, May 07, 2014

New Human Rights Watch report bemoans "Nation Behind Bars"

HRWAs reported in this press release, Human Rights Watch has issued a new report highlighting the problems of mass incarceration in the united States. Here are the details (and a link) via the the start of the press release:

The 36-page report, “Nation Behind Bars: A Human Rights Solution,” notes that laws requiring penalties that are far longer than necessary to meet the purposes of punishment have given the United States the world’s highest reported rate of incarceration. These laws have spawned widespread and well-founded public doubts about the fairness of the US criminal justice system.

“The ‘land of the free’ has become a country of prisons,” said Jamie Fellner, co-author of the report and senior advisor to the US Program at Human Rights Watch. “Too many men and women are serving harsh prison sentences for nonviolent and often minor crimes. How can a country committed to liberty send minor dealers to die in prison for selling small amounts of illegal drugs to adults?”....

Momentum to reduce mass incarceration is growing. Human Rights Watch is seeking to build on this momentum and offer a way forward. Federal and state legislators should ground their moves for reform in core principles of human rights, including prudent use of criminal sanctions, fair punishment, and equal protection of the laws.

To put those principles into practice, Human Rights Watch urges legislators at the very least to:

May 7, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Tuesday, May 06, 2014

"The Growth of Incarceration in the United States: Exploring Causes and Consequences"

The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering).  The report runs more than 450 pages and can be accessed at this link

I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way.  Fortunately, the always help folks at The Crime Report have these two great postings about the report:

I hope to be able to provide more detailed coverage of this important report in the weeks to come.

May 6, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

California Supreme Court decides Miller demands altering presumption for juve LWOP

As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state.  Here are the basics:

In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.

Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances.  The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.

The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.

In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.

"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."

Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.

But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.

Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.

Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.

The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.

May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, April 26, 2014

Interesting articles about history and modern prison realities in United States

I just came across a set of interesting papers just made available on SSRN authored by criminologist Jeffrey Ian Ross examining the history and some modern realities about prisons in the United States. Here are links to these pieces via their titles:

April 26, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Friday, April 18, 2014

Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?

The questions in the title of this post are prompted by one of the executive actions suggested earlier this week the Brennan Center for Justice in this new report titled "15 Executive Actions to Overcome Government Dysfunction."  Notably, as listed here, at least three of the suggested actions are focused on criminal justice matters that should be of special interest to sentencing fans:

9. Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”

10. Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.

11. Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.

The first proposal of these three struck me as especially novel and interesting, and here is part of the full report's discussion of the proposal:

With only 5 percent of the world’s population, the United States has 25 percent of its prisoners.  More than 2 million Americans are behind bars.  A quarter of the nation’s adult population has a criminal record.  The prison population has increased sevenfold since 1970. The country spends a quarter of a trillion dollars a year on criminal justice, but true costs are wider: Economic and social impacts on families and children can continue for generations.  The explosion in our correctional population extends far beyond prison: pre-trial detention, parole and probation supervision, and those with arrest records.

Public safety does not compel incarceration of this scope.  More than half of prisoners are serving time for drug or nonviolent crimes.   One in four new prison admissions are for violations of parole. 106 One in five people behind bars are simply awaiting trial. 

Yet, the epidemic of mass incarceration hides in plain sight.  Most Americans are unaware of it.  Those who are aware are not mobilized to act.

Progressives and conservatives have begun to seek action. Several states have taken up reforms in recent years. Momentum is increasing in Washington.  Last year, Attorney General Eric Holder announced the “Smart on Crime” initiative, calling for federal prosecutors to seek harsh sentences only for the most serious drug traffickers and other reforms. 

These federal and states fixes, however, have been piecemeal rather than systemic.  Full change is not possible without wide public support.  Mass incarceration must be identified as a national problem requiring national attention.  Though jurisdictions vary in the minutia of their justice systems, the overall drivers of the incarceration explosion are similar across the country.  

Federal legislation to create a national commission on criminal justice has failed to pass repeatedly.  This year, Congress created the Chuck Colson Task Force, named after the founder of Prison Fellowship.  It will aim to study the federal prison system to alleviate overcrowding.  A similar assessment should be made of the far broader problem.

The president can help make mass incarceration visible by creating a National Commission on Mass Incarceration of leading bipartisan policymakers and civic leaders.  He can do so through an executive order or a presidential memorandum.  And he can avail himself of a high profile venue, such as a commencement address, to announce the commission.  

Such a panel could be modeled after the National Advisory Commission on Civil Disorders (chaired by Illinois Governor Otto Kerner, Jr.).  President Lyndon B. Johnson created the “Kerner Commission” to study the causes of urban riots.  The National Commission on Mass Incarceration should similarly study the current drivers of the growth in federal and state prison and jail populations.  It should examine the accompanying economic and societal toll. And, it should issue concrete policy recommendations to achieve a measureable goal — for example, cutting the nationwide incarcerated population by 25 percent by 2025.

Proposals should focus on “front-end” changes that help stem the influx of people into the pipeline to prison.

The Kerner Commission’s members included New York City Mayor John Lindsay, Sen. Edward Brooke of Massachusetts, Litton Industry founder Charles Thornton, NAACP head Roy Wilkins, and Atlanta police chief Herbert Turner Jenkins.  These prominent public figures helped bring national attention to the issue of race.  The National Commission on Mass Incarceration should include similar public and civic leaders.  Such a commission would draw the nation’s attention to this overlooked issue and, most importantly, catalyze action.

Regular readers will not be surprised to hear I like both the style and substance of this proposal. Thus, to answer my own post-title question, I do think Prez Obama should create a Presidential Commission on Mass Incarceration. (And, of course, I think I should be on this Commission along with Bill Otis and perhaps many other (but not all other) frequent commenters on this blog.)

April 18, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, April 16, 2014

Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized

220px-TrialKafkaThe more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system.  In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:

1.  Cantu's original federal sentencing as guidelines numerology:  My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison.  I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.

2.  Cantu's original federal sentencing as federal actors gone numb:  Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers.  One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right.  But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.

3.  Cantu's dismissed 2255 motion as federal prosecutors possessed:  Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic.  In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants.  But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.  

Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a  typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error.  Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late.  I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.

I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison.  But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse."  In addition, according to the Times reporting, Cantu is married and has 8-year old daughter.  Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common. 

April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25) | TrackBack

Monday, April 14, 2014

Would embrace of "judicial corporal punishment" help remedy mass incarceration?

The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?".  Here are excerpts:

Private prison companies and the guards’ labor unions are biased, of course.  Politicians do not wish to appear soft on crime.  Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining.  Many want prison to be horrible.  Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners.  Businesses don’t sell much to prisoners.  Prison industries lose money and cannot succeed with government control.

The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.

Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive.  Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....

Attacking the supply of illegal drugs did not work.  The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention.  The Constitution is the standard in conditions of confinement litigation.  But when the Constitution was adopted, massive incarceration as we now know it did not exist.  Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.

Incarceration is all Western civilization has known for several generations.  As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method.  Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time.  Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.

Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration.  But some violent offenders deserve their long prison sentences. Prisons will not be abolished.  Real bad folks need to stay behind bars.

We think society moves forward.  Reformers are supposed to be “forward-looking.”  Belief in continual social progress ignores history.  Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution.  Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.

We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.

Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”

April 14, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Friday, April 11, 2014

"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"

The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:

Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.

Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.

April 11, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Thursday, April 10, 2014

Notable NY Times op-ed asks "What is prison for?"

The new Marshall Project's editor in chief, Bill Keller, has this lengthy op-ed in this morning's New York Times under the headline "College for Criminals." There is much of note in the op-ed, and I found these closing paragraphs especially intriguing:

Considering that the United States is the world’s leading warden, we should be able to answer with some conviction this question: What is prison for?

First, punishment, although it is often demeaning, brutal, psychologically debilitating and wildly disproportionate to the offense.  Second, public safety.  Social scientists argue about how much of our recent decline in crime is attributable to a surge in incarceration (I’ve heard estimates from 3 percent to 30 percent).  But common sense says at least some of it is.

Third, rehabilitation.  The bureaucracies that run prisons are called departments of “corrections” for a reason.  This is at least as important as the first two purposes, because nearly 95 percent of the incarcerated are eventually released back into society.

Alas, nearly half of those released are returned to prison within three years for committing new crimes. Clearly we are not doing a good job of “correcting.”

This is not a bleeding­heart cause.  Leading conservatives and red­ state politicians have supported prison college programs as a matter of public safety and fiscal prudence.  A RAND meta­analysis of 58 studies concluded that inmates who participated in these programs were 43 percent less likely to return to a life of crime; even assuming that the most redeemable inmates are the likeliest to sign up, this is an incredible return on a modest investment.  Moreover, wardens and prison guards believe such programs lower the explosive tensions in prison.

Yet while 76 percent of prisons in the country offer high school diploma programs, only a third offer college degrees, which are, more than ever, a prerequisite for decent jobs. Education programs are among the first things to go in a recession.  Now — when the economy is in slow recovery, the crime rate is relatively low, and there is an emerging national awareness that our way of punishment wastes money and lives — should be an opportune time to expand inmate education.  But it has to be sold, not sprung without groundwork.

Experts who have studied the American way of crime and punishment far longer than I have tell me, to quote Michael P. Jacobson, a veteran corrections official who heads a public policy institute for the City University of New York, that they see “almost a complete disconnect between what we know and what we do.”

“The influence of high­profile crimes, fear of crime, issues of race, the acquisition of cheap political capital — all have had far more influence on criminal justice policy than what we know works, or what is fair or just,” Mr. Jacobson told me.

Governor Cuomo is now trying to rally private donors to underwrite his college program for a year, with an understanding that he will get the state to take over in Year 2.  Let’s hope. But apparently the inmates of Sing Sing and Attica are not the only ones in need of correction.

April 10, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

"Death Delayed Is Retribution Denied"

The title of this post is the title of this notable new article by Russell Christopher now available via SSRN. Here is the abstract:

Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended?  Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive.  Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from.  Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment.  Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional.

Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism.  Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.

April 10, 2014 in Death Penalty Reforms, Prisons and prisoners, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Wednesday, April 09, 2014

Reviewing how US prisons now serve as huge warehouses for the mentally ill

This MSNBC article, headlined "Prisons are the ‘new asylums’ of the US: Report," effectively summarizes a new study documenting that that US prisons now "house ten times more people with mental illnesses than its hospitals." Here is more:

The report, released Tuesday by the Treatment Advocacy Center, found that state prisons and county jails house approximately 356,268 people with mental illnesses, while state mental hospitals hold only 35,000. The disparity is also a nationwide problem – only six states have psychiatric hospitals with more people in them than a prisons or jail.

Prisons, according to the report, have become the nation’s “new asylums.” The number of beds available at hospitals for mental health patients has been dropping for decades. And as the population of incarcerated people has exploded, so has the number of people with serious problems....

The report provided a breakdown of the number of mentally ill prisoners in each state’s correctional facilities, the laws governing treatment, and examples of how inmates are treated. Among others, they include a Mississippi prison designed for mentally ill inmates, overrun by rats, where some prisoners capture the rats, put them on makeshift leashes, and sell them as pets to other inmates. There was also a case in which a schizophrenic man spent 13 of 15 of his years in prison in solitary confinement....

“Inmates who linger untreated in jails and prisons become increasingly more vulnerable to their symptoms and the resulting victimization or violence,” the report read. Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center and lead author of the study, said in a statement, “The lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.”...

The report’s authors admit that reducing the number of mentally ill inmates in jails would have to come along with a massive recommitment to high-quality mental health care in hospitals – a tall order in this age of austerity. In the interim, they advocate for more outpatient treatment and jail diversion programs, as well as more planning, both when inmates enter the system and leave it.

The full report released by the Treatment Advocacy Center is titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey," and it can be accessed in full at this link.

April 9, 2014 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11) | TrackBack