Sunday, December 13, 2015

"The Effect of Prison Sentence Length on Recidivism: Evidence from Random Judicial Assignment"

The title of this post is the title of this notable new empirical paper authored by Michael Roach and Max Schanzenbach available via SSRN. Here is the abstract:

Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison.  On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called “specific deterrence,” through learning or the rehabilitative effect of prison.

We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington.  Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge’s proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories.  However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison’s rehabilitative role.

December 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Thursday, December 10, 2015

"Mass Incarceration: The Whole Pie 2015"

Pie2015The title of this post is the title of this valuable new on-line report from the Prison Policy Initiative. Everyone interested in the details essentials of modern mass incarceration ought to check out the full report (and the larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.4 million or more than 2 million people in prison? And do the 636,000 people released every year include the people getting out of local jails?  Frustrating questions like these abound because our systems of federal, state, local, and other types of confinement — and the data collectors that keep track of them — are so fragmented.  There is a lot of interesting and valuable research out there, but varying definitions and other incompatibilities make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories.  And we go deeper to provide further detail on why people in the various systems of confinement are locked up.

While the numbers in each slice of this pie chart represent a snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and therefore the many more lives that are affected by the criminal justice system.  In addition to the 636,000 people released from prisons each year, over 11 million people cycle through local jails each year.  Jail churn is particularly high because at any given moment a majority of the people in local jails have not been convicted and are in jail because they are either too poor to afford bail and are being held pretrial, or because they have just been arrested and will make bail in the next few hours or days.  The remainder of the people in jail — almost 200,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.... 

Now, armed with the big picture of how many people are locked up in the United States in the various types of facilities and for what offenses, we have a better foundation for the long overdue conversation about criminal justice reform.  For example, the data makes it clear that ending the War on Drugs will not alone end mass incarceration, and it demonstrates why the policymakers and advocates who see ending the War on Drugs as a politically acceptable first step towards ending mass incarceration must take great care that their actions both constitute actual progress for people with drug offenses and do not make further reforms more difficult.  Looking at the “whole pie” also opens up other conversations about where we should focus our energies:

  • What is the role of the federal government in ending mass incarceration? The federal prison system is just a small slice of the total pie, but the federal government can certainly use its financial and ideological power to incentivize and illuminate better paths forward.

  • Are state officials and prosecutors willing to rethink both the War on Drugs and the reflexive policies that have served to increase both the odds of incarceration and length of stay for “violent” offenses?

  • Do policymakers and the public have the focus to also confront the geographically and politically dispersed second largest slice of the pie: the 3,283 local jails? Given that the people behind bars in this country are disproportionately poor and shut out of the economy, does it make sense to lock up millions of people for a few days at a time for minor offenses? Will our leaders be brave enough to ask the public to support smarter investments in community-based drug treatment and job training? Or will they support the continued use of jails as mass incarceration’s front door?

December 10, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, December 07, 2015

Notable new BJS data on veterans in state and federal prisons and local jails

As reported in this official press release, titled "Fewer Veterans In Prison And Jail In 2011-12 Than 2004," the Bureau of Justice Statistics released a new report on incarcerated vets. Here are excerpts from the first page of this detailed, data-heavy report:

In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities. This represented a decrease from the estimated 206,500 incarcerated veterans (9% of the total incarcerated population) in 2004, and was consistent with the decline in the number of veterans in the U.S. general population. While the number of veterans in prison and jail increased along with growth in the overall number of persons incarcerated between 1980 and 2008, the proportion of incarcerated veterans has declined, down from an estimated 24% of all persons incarcerated in state prison and jail in 1978 (federal inmates were not surveyed in 1978).

In 1978, 19% of U.S. adult residents, 24% of prisoners, and 25% of jail inmates were military veterans. By 2011–12, veterans accounted for 9% of the general population, 8% of state and federal prisoners, and 7% of jail inmates....

The total incarceration rate in 2011–12 for veterans (855 per 100,000 veterans in the United States) was lower than the rate for nonveterans (968 per 100,000 U.S. residents). „

Non-Hispanic black and Hispanic inmates made up a significantly smaller proportion of incarcerated veterans (38% in prison and 44% in jail), compared to incarcerated non-Hispanic black and Hispanic nonveterans (63% in prison and 59% in jail). „

A greater percentage of veterans (64%) than nonveterans (48%) were sentenced for violent offenses....

„ More than three-quarters (77%) of incarcerated veterans received military discharges that were honorable or under honorable conditions.... „

„ A quarter of veterans in prison (25%) and less than a third of veterans in jail (31%) reported that they had been in combat while in the military. „

About half of all veterans in prison (48%) and jail (55%) had been told by a mental health professional they had a mental disorder. „ Incarcerated veterans who saw combat (60% in prison and 67% in jail) were more likely than noncombat veterans (44% in prison and 49% in jail) to have been told they had a mental disorder.

December 7, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"Are debtors' prisons returning?"

The title of this post is the headline of this recent lengthy CNN commentary authored by Van Jones and Jessica Jackson. Here are excerpts:

Debtors' prison is supposed to be illegal in the United States. But in too many American cities, it has made a shocking return.  This [past] week, a bipartisan group of leaders, and a few A-list celebrities, gathered at the White House to do something about it.

The problem: Faced with ballooning costs of America's massive incarceration industry, local jurisdictions have started billing people for time they spend behind bars.  They are also charging them for electronic supervision services. Not to mention DNA collection, juries and constitutionally mandated public defenders.

The trouble here is obvious: Recently incarcerated people often do not have jobs.  Therefore, they cannot possibly keep up with an increasingly aggressive list of fees and fines.

So believe it or not: Cities are throwing them BACK into jail -- for not being able to pay!  From Detroit to Dallas, America's criminal justice system is trapping poor people in a perpetual cycle of prisons and poverty....

On top of the stated fees and fines, many jurisdictions are adopting practices employed by shady payday lenders, not public safety agencies.  For example, Washington state charges a 12% interest rate on all its criminal debt.  Florida adds a 40% fee that goes into the pockets of a private collections agency.  And in Arizona, an 83% surcharge turns a $500 fee into a $915 bill.  A portion of those proceeds go to finance electoral campaigns, creating a strong incentive to preserve the status quo.

One study revealed that most people with a felony conviction can expect to be saddled with an average $11,000 in debt.  In total, about 10 million Americans collectively owe more than $50 billion in outstanding fines and fees. Repaying this debt would be challenging for the average American family, half of whom would have trouble finding $400 on short notice.  But for those already struggling to get on their feet after prison, the debt from fees and fines often carry carries with it an air of impossibility.

The current system has dire consequences for millions of Americans that can be permanently debilitating and perpetuates a cycle of poverty and incarceration.  Failure to pay fines can result in lost income, depressed credit ratings, housing instability, suspended drivers' licenses, arrest warrants, loss of Social Security benefits or further incarceration.  These consequences can permanently affect an individual's life and reduce the ability ever to get his or her life back on track.

The system is not supposed to work this way.  A Supreme Court ruling in 1983 prohibited putting people in prison for failure to pay their fines and fees without an indigency hearing.  And yet at least 15 states have found ways to ignore this mandate.  They have made this a standard practice....

The Sunlight Foundation is supporting the collection of data so we can understand the scope of the problem and how we can better address the issue.  The Laura and John Arnold Foundation is funding a comprehensive research and litigation-based approach to reform.  And #cut50 is dedicated to highlighting this injustice and amplifying leadership from around the country.

Together, we can roll back these policies that ultimately have little to do with public safety.  Our challenge strikes at the heart of our criminal justice system: Are we a nation of second chances, or will we sit by and watch a perpetual punishment machine run wild?  Let us ensure our elected representatives and government agencies live up to the highest values of our society.

This ABC News column authored by Lz Ganderson, headlined "To Be Poor, Black and Jailed," discusses similar issues and concerns.

December 7, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, December 06, 2015

Latest USSC retroctivity data suggest prison savings over $1.4 billion from drugs-2 guideline amendment retroactivity

I just noticed on the US Sentencing Commission's website this new document titled simply "2014 Drug Guidelines Amendment Retroactivity Data Report." This report, dated December 2015, provides "information concerning motions for a reduced sentence pursuant to the retroactive application of Amendment 782 [the so-called drugs -2 amendment]. The data in this report reflects all motions decided through September 30, 2015 and for which court documentation was received, coded, and edited at the Commission by November 30, 2015.

The subsequent official data indicate that, thanks to the USSC's decision to make its "drugs -2" guideline amendment retroactive, well over 20,000 federal prisoners have had their federal drug prison sentences reduced by an average of just about two years.

So, using my typical (conservative) estimate of each extra year of imprisonment for federal drug offenders costing on average $35,000, the USSC's decision to make its "drugs -2" guideline amendment retroactive so far appears to be on track to save federal taxpayers over $1.4 billion dollars. As I have said before and will say again in this context, kudos to the US Sentencing Commission for providing at least some proof that at least some government bureaucrats inside the Beltway will sometimes vote to reduce the size and costs of the federal government.

December 6, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, December 02, 2015

"The Promises and Perils of Evidence-Based Corrections"

The title of this post is the title of this notable new paper authored by Cecelia Klingele and now available via SSRN. Here is the abstract:

Public beliefs about the best way to respond to crime change over time, and have been doing so at a rapid pace in recent years.  After more than forty years of ever more severe penal policies, the punitive sentiment that fueled the growth of mass incarceration in the United States appears to be softening. Across the country, prison growth has slowed and, in some places, has even reversed.  Many new laws and policies have enabled this change. The most prominent of these implement or reflect what have been called "evidence-based practices" designed to reduce prison populations and their associated fiscal and human costs.  These practices "which broadly include the use of actuarial risk assessment tools, the development of deterrence-based sanctioning programs, and the adoption of new supervision techniques" are based on criminological research about "what works" to reduce convicted individuals' odds of committing future crimes.

Because evidence-based practices focus on reducing crime and recidivism, they are usually promoted as progressive tools for making the criminal justice system more humane. And while many have the potential to do just that, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state.  In their reliance on aggregate data and classification, many such practices have as much in common with the "new penology" that enabled mass incarceration as with the neorehabilitationism they are ordinarily thought to represent.

Without denying the contribution that such practices are making to current reform efforts, this Article seeks to highlight the unintended ways in which evidence-based tools could be used to expand, rather than reduce, state correctional control over justice-involved individuals. It explains what evidence-based practices are, why they have gained traction, and how they fit into existing paradigms for understanding the role of the criminal justice system in the lives of those subject to its control.  Finally, it calls on policymakers and practitioners to implement these practices in ways that ensure they are used to improve the quality and fairness of the criminal justice system and not to reinforce the institutional constructs that have sustained the growth of the penal state.

December 2, 2015 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, November 27, 2015

"Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns"

The title of this post is the title of this notable new paper by John Major Eason available via SSRN.  Here is the abstract:

The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color.  Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted.

Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods.  For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting.  Furthermore, later in the boom, prison building protected towns against additional economic decline.  Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation.  Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.

November 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Spotlighting why ending the drug war could make a big dent in mass incarceration

This new Washington Post Wonkblog posting by Christopher Ingraham, headlined "Drug offenders make up nearly one-third of prison admissions, new analysis shows," details one reason why I think ending the so-called "war on drugs" would be a very important first step toward tackling the problem of modern mass incarceration.  Here is how it starts (with links from the source):

Drug policy activists long have said that decriminalizing parts of the drug trade would relieve some of the burden on overcrowded prisons.  But some researchers have pushed back against this notion in recent years.  They point out that drug offenders account for only about 1 in 5 state and federal inmates.  The Urban Institute showed earlier this year that cutting drug admissions in half would reduce the state prison population by only about 7 percent.  Facts like these have led some to conclude that ending the drug war will do little to end the mass incarceration crisis.

But in a new analysis published this week, Brookings Institution fellow Jonathan Rothwell says that arguments about the impact of drug reforms on prison populations have overlooked one key distinction: the difference between the number of people in prison at any given time, and the number of people moving into and out of prison.  Rothwell calls this "stock and flow."

He points out that while drug offenses account for only 20 percent of the prison population, they make up nearly one-third — 31 percent — of the total admissions to prison.  The reason for the difference?  Drug offenders typically serve shorter sentences than, say, murderers or other violent criminals.  So simply looking at the number of people in prison at a given point in time understates the true impact of drug laws on incarceration.

"Drug crimes have been the predominant reason for new admissions into state and federal prisons in recent decades," Rothwell writes.  "In every year from 1993 to 2009, more people were admitted for drug crimes than violent crimes."

Rothwell agrees that rolling back the drug war won't totally solve the incarceration problem. "But it could help a great deal, by reducing exposure to prison," he writes.  Even a brief jail or prison sentence — even just an arrest — can have dire consequences for people at the poorer margins of society.  A 30-day jail term for a pot bust, for instance, can mean the loss of a job, the loss of income, and an eventual turn to crime to survive.

November 27, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, November 25, 2015

"The Gaping Hole in the Prison Early Release Program: Mental Health Care"

MentalhealthThe title of this post is the headline of this lengthy National Journal article which carries this subheadline: "Much has been made of this latest effort, but inmates who suffer mental illness will continue without the services they need — in and out of prison."  Here are excerpts:

In Oc­to­ber, the Obama ad­min­is­tra­tion an­nounced the early re­lease of more than 6,000 fed­er­al in­mates.  While a surfeit of data on Amer­ica’s over-in­car­cer­a­tion ap­pears to sup­port the ad­min­is­tra­tion’s ra­tionale for the early-re­lease of in­mates serving time for non­vi­ol­ent of­fenses, a cru­cial as­pect went un­ad­dressed in the hoopla sur­round­ing the announce­ment: What kind of men­tal-health re­sources are avail­able in com­munit­ies for in­mates des­ig­nated for early re­lease?

And, across the board, as the ad­min­is­tra­tion and ad­voc­ates un­der­take strategies to ad­dress mass in­car­cer­a­tion, what is the fate of the es­tim­ated hun­dreds and thou­sands of in­mates in Amer­ic­an jails and pris­ons who are men­tally ill?

The U.S. Sen­ten­cing Com­mis­sion’s early-re­lease pro­gram put a point on grow­ing na­tion­al aware­ness about the implcations of Amer­ica’s vast in­car­cer­a­tion uni­verse.  It res­ul­ted from a bi­par­tis­an ef­fort to re­make harsh drug-re­lated sen­ten­cing guidelines that had spurred the mass in­car­cer­a­tion of mostly black and Latino men be­gin­ning in the mid-1980s.  By year end 2014, 2.2 mil­lion people were locked up in Amer­ica’s jails and pris­ons, rep­res­ent­ing the highest rate of in­car­cer­a­tion among de­veloped na­tions world­wide.  The pop­u­la­tion of in­mates who are sched­uled to re­ceive early re­lease is com­posed primar­ily of drug of­fend­ers who will be un­der the watch of pro­ba­tion of­ficers after they return to ci­vil­ian life, ac­cord­ing to Sally Yates, Deputy U.S. At­tor­ney Gen­er­al.

But the ab­sence of a com­pre­hens­ive plan to serve the men­tal health needs of in­mates in the early-re­lease pro­gram high­lights a long-stand­ing con­cern among pris­on re­form ad­voc­ates: the tight in­ter­sec­tion of drug or al­co­hol ab­use, men­tal ill­ness, and in­car­cer­a­tion.  Men­tal health ex­perts cite the “co-oc­cur­ring” pres­ence of drug or al­co­hol ab­use and men­tal ill­ness among in­mates as a ma­jor chal­lenge, one that makes both the daily pro­cess of safely hous­ing pris­on­ers par­tic­u­larly com­plex, and which also com­plic­ates the re­turn of in­mates to com­munit­ies....

A 2014 re­port by the Na­tion­al Re­sources Coun­cil (NRC) showed that men­tal ill­ness in the na­tion’s jails and pris­ons is per­vas­ive.  Pro­duced by an in­ter­dis­cip­lin­ary com­mit­tee of re­search­ers, the re­port ex­amined data from cor­rec­tions-department sur­veys and un­covered the pres­ence of “men­tal-health con­cerns” among 64 per­cent of in­mates in the nation’s jails, 54 per­cent of state pris­on­ers, and among 45 per­cent of in­mates at fed­er­al fa­cil­it­ies.... Con­sequently, a grow­ing num­ber of crim­in­al-justice and pris­on­er-re­hab­il­it­a­tion ex­perts are fo­cus­ing in on men­tal health as a key compon­ent of Amer­ica’s mass in­car­cer­a­tion, both as a primary in­stig­at­or of im­pris­on­ment, and also as a ma­jor challenge that must be ad­dressed in shap­ing re­lease policies and pro­to­cols....

Amer­ica’s jour­ney on the path to be­com­ing the de­veloped na­tion with the most in­car­cer­ated people in the world — and the na­tion where pris­ons and jails are de facto men­tal-health catch­ments — gained steam with the “War on Drugs,” a col­lec­tion of re­gion­al and fed­er­al tough-on-crime policies and harsh sen­ten­cing laws that es­cal­ated dur­ing the 1980s as crack co­caine use in urb­an loc­ales drove up vi­ol­ent-crime rates and gen­er­ated nightly news cov­er­age of com­munit­ies in crisis.  But the spark that lit the fire un­der mass in­car­cer­a­tion in the U.S. was struck long be­fore the mid-1980s.

Be­gin­ning in the 1960s, states began rad­ic­ally re­du­cing tax­pay­er-fun­ded men­tal-health hos­pit­als and in­pa­tient cen­ters, re­leas­ing hun­dreds of thou­sands of men­tally ill or chal­lenged pa­tients in­to com­munit­ies.  Known as deinstitutionala­tion, the pro­cess was deemed ne­ces­sary by state law­makers and gov­ernors in or­der to shut­ter hos­pit­als that of­ten resembled 19th-cen­tury “snake pits” — large, poorly run fa­cil­it­ies in which thou­sands of vul­ner­able men­tally ill citizens were ware­housed, un­der-served, and for­got­ten....

Dur­ing the same era, from Cali­for­nia to New York, a per­fect storm of factors af­fect­ing in­car­cer­a­tion rates loomed and then broke: na­tion­wide, thou­sands of res­id­ents who needed men­tal health at­ten­tion but couldn’t af­ford private care or ac­cess af­ford­able ser­vices turned to self-med­ic­at­ing be­ha­vi­or — through drug or al­co­hol use — which led to crim­in­al activ­ity, which in turn brought them in­to the crim­in­al-justice sys­tem at the very mo­ment when judges and elec­ted of­fi­cials coast to coast pushed for severe sen­ten­cing of those in­volved in drug-re­lated activ­ity.

In city after city, those without money to af­ford private drug treat­ment or men­tal-health care — or private at­tor­neys — were swept in­to jails and pris­ons, some­times fa­cing terms of a dec­ade or longer un­der new man­dat­ory-min­im­um sen­ten­cing rules for pos­sess­ing or selling small or mod­er­ate amounts of nar­cot­ics.  A raft of new sen­ten­cing guidelines nar­rowed av­en­ues for pro­ba­tion for those with mul­tiple drug of­fenses.  These ‘three strikes’ laws, as they came to be known, were ap­proved by a dec­ade’s worth of Con­gress mem­bers, as well as by Demo­crat­ic and Re­pub­lic­an pres­id­ents.

Thou­sands of low-level de­fend­ants, many suf­fer­ing from emo­tion­al- or men­tal-health chal­lenges that they had been "street treat­ing" by us­ing il­leg­al drugs, then pro­duced the co-oc­cur­ring dy­nam­ic of in­di­vidu­als strug­gling with men­tal ill­ness and drug or al­co­hol ad­dic­tion.  Plunged in­to state or fed­er­al pen­it­en­tiar­ies, thou­sands re­ceived poor treat­ment or no treat­ment, and their men­tal health de­teri­or­ated.  In some in­stances, men­tally ill in­mates fell prey to vi­ol­ence from oth­er in­mates, harmed or killed them­selves, or de­veloped deep­er drug or al­co­hol ad­dic­tions.  A Feb­ru­ary study from the Vera In­sti­tute for Justice found that 83 per­cent of jail in­mates in the U.S. do not re­ceive men­tal-health services or treat­ment after be­ing ad­mit­ted....

Justice De­part­ment of­fi­cials and some state judges have star­ted to dis­play act­iv­ist tend­en­cies, for­cing loc­al jur­is­dic­tions to be­gin find­ing solu­tions for the grow­ing num­ber of men­tally ill in­mates with­in the vast net­works of loc­al ­correc­tion­al fa­cil­it­ies.  In Au­gust, for ex­ample, Los Angeles County agreed to im­ple­ment ma­jor re­forms aimed at improv­ing the con­di­tions of men­tally ill in­mates fol­low­ing strong pres­sure from DOJ....  [I]n the state that came to em­body the ac­cel­er­a­tion of mass in­car­cer­a­tion, a blue­print is tak­ing shape for achiev­ing hu­mane and fisc­ally re­spons­ible out­comes for men­tally ill people who come in­to con­tact with the crim­in­al-justice sys­tem.

November 25, 2015 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, November 22, 2015

Stray kittens strut their stuff in prison

DownloadI am not sure that catblogging is really an internet thing anymore, but I am sure that this local article from Washington state headlined "This Humane Society is sending stray cats to prison," is blog-worthy as a feel-good story about a local prison program.  Here are excerpts:

The Kitsap Humane Society has a new approach for stray cats: send them to prison. Inmates at the Mission Creek Corrections Center for Women, near Belfair in Mason County, are rehabilitating 10 stray cats until they are ready to be adopted by the public.

The women raising the cats say they offenders benefit as well. "It's a win-win for everybody involved," said Cydney Berthel, who is locked up on a theft conviction. "We're rehabilitating the lives of these little kittens and rehabilitating our lives too," said Berthel. She said working with the cats has been therapeutic.

It's taught the offenders how to nurture a living thing, something they didn't always do in their past lives. "We definitely made mistakes," said Shauna Teagle, "I feel this is my little bit of payback I can do." Teagle, who was sentenced to three years in prison for dealing drugs, said caring for the cats will help her be a better mother when she's released.

To participate in what the inmates call the "Pawsitive Prison Program," offenders must be infraction-free for the past six months.

Though some may view this post a fluff piece, I have heard enough anecdotes about "pets for prisoners" to wonder seriously if any systematic research has been done on recidivism rates after particitation in one of these kinds of programs.  At the very least, I hope there is no reason to fear that prisoners involved in these positive programs do not later get caught up in kitty porn.

(Sorry folks, like cats drawn to catnip, I could not resist my favorite bad cat-crime pun.)

November 22, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Friday, November 20, 2015

"Prison Time Surges for Federal Inmates"

PSPP_PrisonTime_fig1The title of this post is the headline of this notable Issue Brief released this wqeek by the Pew Public Safety Performance Project. Here is how it gets started (with notes omitted):

The average length of time served by federal inmates more than doubled from 1988 to 2012, rising from 17.9 to 37.5 months. Across all six major categories of federal crime — violent, property, drug, public order, weapon, and immigration offenses — imprisonment periods increased significantly. (See Figure 1.)  For drug offenders, who make up roughly half of the federal prison population, time served leapt from less than two years to nearly five.

Mandatory minimum sentencing laws, the elimination of parole, and other policy choices helped drive this growth, which cost taxpayers an estimated $2.7 billion in 2012 alone.  Despite these expenditures, research shows that longer prison terms have had little or no effect as a crime prevention strategy — a finding supported by data showing that policymakers have safely reduced sentences for thousands of federal offenders in recent years.

Two factors determine the size of any prison population: how many offenders are admitted to prison and how long they remain. From 1988 to 2012, the number of annual federal prison admissions almost tripled, increasing from 19,232 to 56,952 (after reaching a high of 61,712 in 2011). During the same period, the average time served by released federal offenders more than doubled, rising from 17.9 to 37.5 months.  These two upward trends ...caused a spike in the overall federal prison population, which jumped 336 percent, from 49,928 inmates in 1988 to an all-time high of 217,815 in 2012.  One study found that the increase in time served by a single category of federal offenders — those convicted of drug-related charges — was the “single greatest contributor to growth in the federal prison population between 1998 and 2010.”

The long-term growth of this population has driven a parallel surge in taxpayer spending.  As Pew reported in February 2015, federal prison spending rose 595 percent from 1980 to 2013, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Taxpayers spent almost as much on federal prisons in 2013 as they spent in 1980 on the entire U.S. Justice Department — including the Federal Bureau of Investigation, the Drug Enforcement Administration, and all U.S. attorneys.

November 20, 2015 in Data on sentencing, Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, November 19, 2015

"States of Women's Incarceration: The Global Context"

The title of this post is the title of this effective new on-line report by the Prison Policy Initiative.  Here is how it gets started:

We already know that when it comes to incarceration, the United States is truly exceptional.  As we have reported previously, the United States incarcerates 716 people for every 100,000 residents, more than any other country. Worldwide, and within the U.S., the vast majority of those incarcerated are men.  As a result, women's incarceration rates are overshadowed and often lost in the data.  As a first step in documenting how women fare in the world's carceral landscape, this report compares the incarceration rates for women of each U.S. state with the equivalent rates for countries around the world.

Across the globe, the 25 jurisdictions with the highest rates of incarcerating women are all American states.  Thailand, at number 26, is the first non-U.S. government to appear on this high-end list, followed closely at number 27 by the Unites States itself.  The next 17 jurisdictions are also American states.

Overall, with the exception of Thailand and the U.S. itself, the top 44 jurisdictions throughout the world with the highest rate of incarcerating women are individual American states.  Nearly 30% of the world's incarcerated women are in the United States, twice the percentage as in China and four times as much as in Russia.

Putting U.S. states in a global context is sobering; even the U.S. states that have comparatively low rates of incarceration far out-incarcerate the majority of the world. Illinois' incarceration rate for women is on par with El Salvador, where abortion is illegal and women are routinely jailed for having miscarriages.  New Hampshire is on par with Russia, and New York with Rwanda.

Rhode Island, which has the lowest incarceration rate for women in the U.S., would have the 15th highest incarceration rate in the world if it were a country.  In other words, only 14 countries (not including the United States) incarcerate women at a higher rate than Rhode Island, the U.S. state that incarcerates women at the lowest rate of imprisonment.

November 19, 2015 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, November 18, 2015

Is it appropriate for condemned's lawyers to give up capital fight at 11th hour?

The question in the title of this post is prompted by this extended Dallas Morning News article headlined "Condemned man’s lawyers stop helping, cite ‘false hope’." Here is the start and end of the story involving a murderer scheduled to be executed today in Texas:

From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.

Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.

Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying. But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.

Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.

Lawyers James “Wes” Volberding and Seth Kretzer said they worked diligently to find new evidence on which to base additional appeals for Holiday, but that none exists. Seeking clemency from Abbott, a staunch death penalty supporter, would be pointless, they say. The two contend they are exercising professional judgment and doing what’s best for their client.

“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

But others say the law under which death row lawyers are appointed doesn’t allow that kind of discretion. It requires attorneys to make every possible effort to save a client’s life, if that’s what the inmate wants. “This seems unconscionable,” said Stephen Bright, president and senior counsel of the Southern Center for Human Rights and a teacher at Yale Law School. “Lawyers are often in a position of representing people for whom the legal issues are not particularly strong, but nevertheless they have a duty to make every legal argument they can.”

So far, appeals courts have sided with Volberding and Kretzer. Last Thursday, the 5th U.S. Circuit Court of Appeals denied a motion to have them replaced. On Monday, Sween appealed to the Supreme Court.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together. Volberding and Kretzer were appointed in February 2011 to represent Holiday in his federal appeals. They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.... In decades of practicing, Bright said he had never seen a case like Holiday’s in which appointed lawyers so vociferously fought to keep a death row inmate from retaining a different attorney. In some cases, he said, new lawyers have discovered evidence others overlooked pointing to an inmate’s innocence or showing people’s intellectual disabilities made them incompetent for execution. “Most people don’t get executed for crimes they committed,” Bright said. “They get executed for mistakes their lawyers made.”

November 18, 2015 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 17, 2015

"Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety"

Screen-Shot-2015-11-11-at-12.11.33-PMThe title of this post is the title of this notable new report from published by the Center for Justice at Columbia University.  Here is the report's executive summary:

Columbia University’s Center for Justice, with Release Aging People in Prison/ RAPP, the Correctional Association of New York, the Osborne Association, the Be the Evidence Project/Fordham University, and the Florence V. Burden Foundation, coordinated a symposium in Spring of 2014 to discuss the rapidly growing population of elderly and aging people in prison. In attendance at the symposium were researchers, policy advocates, current and former policy makers and administrators, elected and appointed officials, and those who have directly experienced incarceration.

All agreed that while the overall prison population of New York State has declined in the past decade, the number of people aged 50 and older has increased at an alarming rate. The symposium provided the time and space for key stakeholders and actors to think critically about how best to address the phenomenon of New York’s aging prison population without compromising public safety.

A series of papers emerged from the symposium.  Together, they provide a rich overview and analysis of aging people in prison from some of the best thinkers in this field.  While the authors differ in opinion over some issues, they share several key observations and recommendations:

In New York State, the aging prison population continues to rise.  The population of incarcerated people aged 50 and older has increased by 81% since the early 2000’s. Currently, people aged 50 and older comprise more than 17% of the prison population.  The well-documented racial disparities in the criminal justice system are also reflected in the aging prison population — a vastly disproportionate percentage of aging people in prison are Black men and women.

Prisons were not meant to be nursing homes and are poorly equipped to house an aging population.  Basic structural limitations create formidable difficulties for elderly people in prison who often have limited mobility. The lack of medical or correctional staff with specialized knowledge in geriatric care significantly impairs prisons from providing appropriate care to people experiencing chronic medical problems.

Incarcerating the elderly has serious financial implications.  The cost of incarcerating someone aged 50 and older is two to five times the cost of incarcerating someone 49 and younger. An economist who presented at the symposium estimated that the United States spends at least $16 billion annually on incarcerating elderly people.

The explosion in the aging prison population undermines basic fairness, justice, and compassion.

The boom in the aging prison population is largely the result of tough-on-crime sentencing laws and release policies.  Legislators across the political spectrum are rethinking such policies because they have proved ineffective at addressing crime and have a deleterious impact on the wellbeing and safety of poor people and people of color.

Public safety does not require that we keep aging people in prison when they pose no risk to society.  People in prison aged 50 and older are far less likely to return to prison for new crimes than their younger counterparts. For example, only 6.4% of people incarcerated in New York State released age 50 and older returned to prison for new convictions; this number was 4% for people released at the age of 65 and older. Nationally, arrest rates are just over 2% for people aged 50+ and are almost 0% for people aged 65+.

There are several measures New York State should implement to reform parole policy and release aging people from prison.  These measures are consistent with public safety and will result in significant cost savings for New York State. In addition, there are several measures New York State must implement if it is to provide humane care for its aging prison population. Lastly, reentry services specifically tailored to elders released from prison will help ensure the protection of their human rights and dignity, as well as enhancing public safety and preventing any risk of recidivism.

We are pleased to report that the symposium resulted in the creation of a model pilot project for discharge planning and reentry — the report on this pilot is attached to this series of papers as an appendix.  We hope that the knowledge collected in the symposium, the pilot on reentry, and our continued commitment to improving New York State’s justice system serve as resources for you in your efforts to create a safer and healthier New York for all its residents.  The groups and individuals who participated in the symposium and the Aging Reentry Task Force remain ready to provide expertise and resources to help our policy makers in these efforts.

November 17, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Monday, November 16, 2015

Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else.  But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term.  But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain.  Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions.  Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler.  Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives.  But there's a difference between elusive remedies and illusory ones.  For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve.  If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions.  Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

November 16, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

"Risk, Race, & Recidivism: Predictive Bias and Disparate Impact"

The title of this post is the title of this notable new and timely empirical paper by Jennifer Skeem and Christopher Lowenkamp now available via SSRN.  Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections.  These instruments figure prominently in current reforms, but controversy has begun to swirl around their use.  The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor.  Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime).

First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores).  So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria.  Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines.  Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest.  Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

November 16, 2015 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Sunday, November 15, 2015

"Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System"

The title of this post is the title of this interesting and important new paper by Craig Lerner digging deeply into the realities of LWOP sentencing in eight states. Here is the abstract:

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.”  One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP).  The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP.  Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses.  There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences.  The author conducted a detailed study of every inmate sentenced to LWOP in eight states.  In a few states, it is impossible to find a single inmate sentenced to LWOP for any crime other than murder or the most serious violent crimes.  Even in jurisdictions that impose LWOP for crimes labeled “nonviolent,” the inmates are few in number and often present aggravating factors, such as extensive criminal histories or previous violent crimes. Inevitably, criminals sentenced to LWOP will vary in culpability, and some will appear not to merit this punishment.  Drawing attention to their plight can spur executive clemency in individual cases. But accusations that the American legal system is rife with “ugly disproportionalities,” at least insofar as this claim is applied to LWOP sentences in the states, appear to have little merit.

November 15, 2015 in Detailed sentencing data, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (6)

New York Times editorial makes case that California prison releases are working

The New York Times had this notable recent editorial, headlined "California’s Prison Experiment," highlighting why California is the most dynamic state to watch amidst the national debate over sentencing reform and mass incarceration.  Building on two recent reports, the editorial makes the case that California is finding success with decarceration reforms.  Here are excerpts:

Until recently, California locked up more people per capita than any other state. It has been under federal court order since 2009 to bring its severely overcrowded prison system below 137.5 percent of capacity, or about 114,000 inmates.

It met that modest goal in February, thanks in part to a 2014 ballot initiative that reclassified six low­level offenses as misdemeanors instead of felonies. The initiative, Proposition 47, was expected to lead to the release of thousands of inmates, and cut new admissions by about 3,300 per year.  It also required that the cost savings — estimated to be more than $150 million this year — be reinvested into anticrime services like drug rehabilitation,  antitruancy efforts and mental health treatment.  Victims’ services receive funding, too.

Proposition 47 followed two other major reforms: A 2011 law diverted low­level offenders from state prisons into county jails, and a 2012 ballot initiative scaled back a “three strikes” law. The latter led to the release of more than 2,100 people who had been sentenced to life without parole, some for a third strike as minor as shoplifting.

After each reform, law enforcement officials predicted that crime would rise, but it continued to drop around the state. Recidivism rates of those released under the three­-strikes reform are far below the state average.

Now, two new reports, by the American Civil Liberties Union and the Stanford Justice Advocacy Project, look at the effect of Proposition 47.  The most easily measurable impact is on the state’s prison and county jail population, which has fallen by about 13,000, with more than 4,400 prison inmates released by the end of September.  But the law remains controversial.  Some in law enforcement argue that they can’t arrest people for small crimes anymore, and point to crime upticks in some counties.

In fact, crime rates vary widely throughout the state. In Los Angeles County, property crime is up 8 percent, while the rate for all crime remains at record lows in San Diego County.  One sign that Proposition 47 is working is the recidivism rate. It is less than 5 percent for people released under the law; the state average is 42 percent....

It may be too soon to understand the full impact of Proposition 47, but the damage done by the indiscriminate and lengthy lockup of low­level offenders is all too clear. California’s voters, who have in the past given in to their most punitive impulses, have now opened the door to a more intelligent and humane justice system.

A few (of many) prior related posts on Prop 47 and its impact:

November 15, 2015 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2)

Thursday, November 12, 2015

Notable new ACLU report on impact of California's Prop 47 one year later

ACLUcaCoverIn this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47.  I have just seen that the ALCU of California has this week released its own report on this important topic.  This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47.  Here are excerpts from its six main findings (which has its numbering a bit off):

For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.

1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away.  As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing.  Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision.  According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....

2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity.  They determine who will be booked into jail and who will be released, how and under what conditions.  Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015.  During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....

3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.)  Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....

4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....

4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....

5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.

A few (of many) prior related posts on Prop 47 and its impact:

November 12, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"How Parental Incarceration Affects a Child’s Education"

The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper.  Here are excerpts from the Atlantic article:

Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...

The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”

Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.

Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”

November 12, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, November 11, 2015

How many vets, after serving to secure liberty, are now serving LWOP sentences?

The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.

The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population.  Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

"What Mass Incarceration Looks Like for Juveniles"

The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:

After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City.  It was a rude awakening.

The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time.  In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells.  Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.

My staff and I quickly uncovered more abuses.  Staff members were sexually harassing the kids and one another.  One of my corrections officers married a youth shortly after the boy was released from custody.  A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later.  The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.

These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites.  In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....

In New York, where I ran the probation department, I didn’t witness the same hair­raising institutional abuse, mostly because we didn’t run any facilities.  But probation officers reported that they routinely re­incarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account.  As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington.  When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.

Two things surprised me about my experiences on the inside.  First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....

The second major surprise was how much I liked many of my staff members.  I charged into my job with an air of moral superiority.  Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves.  But it was far more complicated.  Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs.  After all, our facility housed only about 200 young people, roughly the size of a small middle school.

Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety.  They attended our football games and plays and cheered the youths on, sitting in the stands with their parents.  They were the good guys, rendered complicit by years in a corrupt system....

From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime­-control efforts.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Tuesday, November 10, 2015

"Battle Scars: Military Veterans and the Death Penalty"

BattleScarsCoverThe title of this post is the title of this notable new report from the Death Penalty Information Center.  Here are excerpts from its Executive Summary:

In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded.  But some veterans with debilitating scars from their time in combat have received a very different reception.  They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.

Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice.  The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans.  However, looking away and ignoring this issue serves neither veterans nor victims....

PTSD is now formally recognized in the medical community as a serious illness.  But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear.  Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.

Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries.  Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy.  In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems.  But many of those death sentences still stand today when the country knows better.

Unfortunately, the plight of veterans facing execution is not of another era.  The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness.  Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop.  The Pardons Board refused him clemency.  Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq.  He was sentenced to death by a judge, even though the jury recommended life.  The U.S. Supreme Court turned down a request to review his case this year.

This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment.  Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service.  Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes.  Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.

November 10, 2015 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (4)

Monday, November 09, 2015

New research suggests overcrowding in California prisons increased post-release parole violations

Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform.  In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates.    The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:

Objective

This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).

Background

Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.

Methods

Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....

Conclusions

Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.

November 9, 2015 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (8)

Saturday, November 07, 2015

Thanks to retroactive drug guidelines, federal prison population under 200,000 for first time in nearly a decade

I was pleased to discover from this webpage providing a weekly updating of the official federal prisoner headcount that, for the first time in nearly a decade, the federal prison population is now officially under 200,000.  I believe that the official count last week was around 205,000, and thus it would seem that this milestone was achieved officially as a result of the implementation of the first set of drug-2 retroactivity early prisoner releases.

I have heard talk in various settings of an interest in having the federal prison population down eventually to 150,000 (which, I believe, would still have the facitlities officially a bot above their standard capacity).  I think the passage and effective implementation of the bipartisan federal sentencing reform bills now in Congress would likely go a long way to getting to that goal in a responsible way.     

November 7, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, November 05, 2015

"Proposition 47 Progress Report: Year One Implementation"

The title of this post is the title of this recently-released report from the Stanford Justice Advocacy Project, which "was involved in the drafting of Proposition 47 and currently assists its implementation, including litigation on behalf of individual prisoners seeking reduced sentences under the new law."  Perhaps unsurprisingly, this report tells a much more positive story about the impact of Proposition 47 than has been reported by law enforcement officials and various others.  Here are the short report's "Key Findings" (without the many footnotes):

Since the enactment of Proposition 47 on November 14, 2014, the number of people incarcerated in California’s prisons and jails has decreased by approximately 13,000 inmates, helping alleviate crowding conditions in those institutions. Proposition 47 has also reduced the number of jail inmates released from custody early due to overcrowding and should generate over $150 million in state savings this fiscal year. County governments stand to save even more money: over $200 million annually, in aggregate.

According to the Legislative Analyst’s Office, prior to Proposition 47 approximately 40,000 people per year received felony sentences for the drug and property crimes targeted by the initiative.  Those offenses are now punished as misdemeanors, significantly reducing sentence lengths and costs for incarceration, litigation and law enforcement.

According to the Department of Corrections, 4,454 state prisoners have been released under Proposition 47 as of September 30, 2015.  In addition, the state will incarcerate an estimated 3,300 fewer prisoners every year because these offenders will receive misdemeanor jail sentences under Proposition 47 rather than new prison terms. In February, the prison population dropped below the capacity level ordered by the U.S. Supreme Court in Plata v. Brown, one year ahead of schedule.

According to the Board of State Community Corrections, the total statewide jail population has dropped by almost 9,000 inmates since the enactment of Proposition 47.9 Early releases from county jails due to overcrowding are down approximately 35 percent statewide.

Financial savings to the state from reduced prison costs under Proposition 47 is estimated at over $156 million this fiscal year.  Long term annual savings are estimated at $93.4 million.  These savings will be directed to the Safe Neighborhoods and Schools Fund to support mental health and drug treatment, K-12 public schools, and services for crime victims.  In May, the Governor cut over $70 million dollars from the state prison budget because of population reductions from Proposition 47.

Fewer than five percent of state prisoners released early under Proposition 47 have been convicted of a new crime and returned to prison.  Although law enforcement officials in some jurisdictions have recently complained about increasing crime rates, there is no evidence that state prisoners released early under Proposition 47 are committing those crimes. Statewide data on crime rates is not currently available, making it impossible to measure any impact on crimes rates by Proposition 47.

November 5, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Wednesday, November 04, 2015

Notable USSC member, Judge Bill Pryor, responds to Rep Goodlatte's attack on USSC

As noted in this prior post, titled "House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform," a notbale member of Congress recently authored this notable attack on the recent work of the US Sentencing Commission reducing federal drug sentences.  Interestingly, a notable member of the Commission, 11th Circuit Judge Bill Pryor (who was the attorney general of Alabama from 1997 to 2004), has now authored this response, which runs in the National Review under the headline "In Defense of the U.S. Sentencing Commission."  Here are excerpts:

On November 2, Representative Bob Goodlatte, who chairs the House Judiciary Committee, published an article in National Review Online attacking the 2014 decision of the U.S. Sentencing Commission to reduce sentencing guidelines for federal drug offenders. If you were to read Chairman Goodlatte’s article with no knowledge of federal law, you would think that the Sentencing Commission operates “irresponsibly” and “recklessly,” without congressional oversight, and sets sentencing guidelines “without regard to an inmate’s criminal history and public safety.” Nothing could be further from the truth....

When the commission votes to amend the sentencing guidelines, its decision becomes effective no sooner than six months later — that is, only after Congress has had an opportunity to exercise its statutory authority to reject the proposed change. Congress, of course, did not exercise that authority last year after the commission proposed modest changes in sentencing for drug cases. Instead, several members of Congress publicly supported those changes, and few said anything in opposition. In fact, Chairman Goodlatte did not even schedule a hearing to review our decision.

Now that the commission’s decision is being implemented without objection from Congress, Chairman Goodlatte objects to making the changes in drug sentencing retroactive, but he fails to mention that Congress gave the commission that authority. Indeed, Congress required the commission, whenever it lowers any guideline, to consider whether to make that change retroactive. And every retroactive change becomes effective only after Congress has had the opportunity to reject that decision. Congress again did not reject the decision to make the changes in drug sentencing retroactive, and Chairman Goodlatte did not schedule a hearing about it.

Moreover, when the Commission makes a change retroactive, each inmate must go before the sentencing judge, who must then consider whether the inmate should receive a reduced sentence under the new guideline. A retroactive guideline is not a get-out-of-jail-free card: That is, an inmate does not automatically receive a reduced sentence. Every sentencing judge must separately consider each inmate’s request together with any prosecution objection and then weigh concerns about each inmate’s criminal history and the need to protect public safety before reducing any inmate’s sentence....

Chairman Goodlatte referred to the commission as a group of “unelected officials” that is “going about sentencing reform in the wrong way,” but he failed to mention that Congress, with the support of the Reagan administration, created the commission as a permanent agency to consider and make needed sentencing reforms. The commission has seven members appointed by the president and confirmed by the Senate for fixed terms. By law, at least three members must be federal judges, and the membership must be bipartisan. For example, I was appointed to the commission by President Obama based on the recommendation of Senate Republican leader Mitch McConnell. The commission conducts public hearings and considers thousands of public comments before changing any guideline. And our decision to change the drug guideline and to make it retroactive was unanimous....

I and other members of the commission support Chairman Goodlatte’s goal of saving taxpayer dollars, reducing prison overcrowding, and making drug sentencing fair and responsible. We look forward to working with him and other members of Congress toward those ends. But he should not pretend that the independent and bipartisan Sentencing Commission is some sort of bogeyman working against those interests. Nothing could be further from the truth.

November 4, 2015 in Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Tuesday, November 03, 2015

"Banishing Solitary: Litigating an End to the Solitary Confinement of Children in Jails and Prisons"

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

The solitary confinement of children is remarkably commonplace in the United States, with the best available government data suggesting that thousands of children across the country are subjected to the practice each year. Physical and social isolation of 22 to 24 hours per day for one day or more, the generally accepted definition of solitary confinement, is used by juvenile detention facilities as well as adult jails and prisons to protect, punish and manage children held there.

The practice is neither explicitly banned nor directly regulated by federal law. Yet there is a broad consensus that the practice places children at great risk of permanent physical and mental harm and even death, and that it violates international human rights law. Policymakers and judges in the U.S. are beginning to reevaluate the treatment of children in the adult criminal justice system, drawing from new insights and old intuitions about the developmental differences between children and adults. This welcome trend has only recently begun to translate into any systematic change to the practice of subjecting children to solitary confinement in adult jails or prisons, with significant reform in New York City at the leading edge.

Despite the beginnings of a trend, there have been few legal challenges to the solitary confinement of children and there is a consequent dearth of jurisprudence to guide advocates and attorneys seeking to protect children in adult facilities from its attendant harms through litigation – or policymakers seeking to prevent or eliminate unconstitutional conduct. This article helps bridge this significant gap. It contributes the first comprehensive account of the application of federal constitutional and statutory frameworks to the solitary confinement of children in adult jails and prisons, with reference to relevant international law as well as medical and correctional standards. In doing so, this article seeks to lay the groundwork for litigation promoting an end to this practice.

November 3, 2015 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (4)

Sign of the sentencing reform times: Louisiana Gov candidates spar over prison reform plans

Louisiana-prisons-jailsThis local article, headlined "Gubernatorial candidates spar about Louisiana’s high incarceration rate," provides a report on the notable and telling political debate over prison policies now going on in the Bayou. Here are details:

Republican David Vitter’s first television ad against his Nov. 21 runoff opponent Democrat John Bel Edwards takes aim at Edwards’ position on criminal justice — specifically, Edwards’ talking points about Louisiana’s high incarceration rate. The ad claims Edwards, who is being backed by the Louisiana Sheriffs Association, wants to release “5,500 violent thugs” from prison — a position that Edwards says has been misconstrued and taken out of context.

In reality, both candidates support some form of prison reform, including the expansion of early release programs for nonviolent offenders. Edwards and Vitter won the top two spots in Louisiana’s Oct. 24 primary, sending them to a head-to-head runoff to succeed Gov. Bobby Jindal, who can’t seek re-election due to term limits and has set off on a presidential campaign.

Lafayette Parish Sheriff Michael Neustrom, one of the sheriffs backing Edwards in the governor’s race, said he thinks progressive programs that aim to reduce the prison population responsibly are needed in Louisiana. “We have to do things differently,” he said. He said Louisiana prisons are overcrowded with minor, nonviolent offenders and that reform would be both economical and smart for the state.  He noted that Texas could be a model for the types of reform that should be implemented here.

Louisiana has earned the dubious distinction of having — not just the nation’s — the world’s highest incarceration rate.  There are nearly twice as many people jailed in Louisiana per capita as the national average. As of 2014, there were nearly 40,000 people behind bars in the state.  The prison system costs Louisiana nearly $350 million a year.  It’s an issue that the Louisiana Legislature has grappled with for several years, slowly winnowing away some of the mandatory minimum sentencing requirements implemented decades ago.

“We have to look at proven strategies that have been implemented elsewhere,” Edwards said in an interview Friday.  He said he thinks Louisiana should take a serious look at pretrial diversion programs, including sobriety and drug courts, as well as special programs for the mentally ill and veterans. Edwards is a military veteran. “That’s the type of approach we should take,” he said, adding that the reduced costs on incarceration could be reinvested to reduce crime.

He said Vitter’s characterization of his views is misleading. The 5,500 figure, which Edwards has noted in several speeches — not just the Southern University speech the Vitter ad cites — is the number of prisoners that puts Louisiana above the state with the No. 2 incarceration rate.  He’s used it as a hypothetical number that Louisiana would need to reduce by just to get out of the No. 1 spot.  “I have never said I have a plan to release anybody,” he said, noting that the state has to set goals that it would like to achieve.

Asked about his views on sentencing reform and Louisiana’s high incarceration rate, Vitter referred reporters to his policy plan, “Together, Louisiana Strong.” The plan includes a chapter on “fighting violent crime and reforming criminal justice,” but it doesn’t specifically outline efforts to reduce Louisiana’s prison population. It mentions that Vitter wants to implement “cost-effective work release and monitoring programs,” but doesn’t provide details on those ideas. “I support common sense,” Vitter said Friday. “It is fundamentally different from John Bel Edwards.”

Vitter said he had not read recent legislative proposals that have aimed to reduce penalties for nonviolent offenses as a way to rein in the prison population.  He repeatedly characterized Edwards’ comments as a “proposal” that his opponent has made and said his main objection is to the figure named. “We don’t need to pick an arbitrary number,” he said. “That’s a completely irresponsible proposal.”

November 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Sunday, November 01, 2015

"Bar None? Prisoners' Rights in the Modern Age"

The title of this post is the title of this notable paper by Daniel Medwed available via SSRN. Here is the abstract:

The American public is perhaps more sensitized to the flaws in our criminal justice system than at any time in our history.  News accounts of wrongful convictions, racial profiling, violent police-citizen encounters, and botched executions have called into question the policies of a nation that imprisons more people than any other developed nation — upwards of 1.5 million people housed in state or federal prisons according to the Bureau of Justice Statistics.  To some extent, this period of questioning and reflection has produced gains; we have witnessed a modest shift away from mandatory minimum sentencing and toward the decriminalization of some narcotics.  Parole boards have shown a rising awareness that inmates’ claims of innocence should not be held against them in their release decisions. Even more, some states — most notably, Michigan — have formulated innovative re-entry programs to assist prisoners in making the perilous transition from their cell blocks to residential and commercial blocks in neighborhoods throughout the country.  These events have prompted some observers to envision an end to mass incarceration in the United States.

Yet this vision is a mirage.  Despite all of the talk about criminal justice reform and “decarceration,” we still live in a country where large swaths of people, especially young men of color, languish behind bars or under the restrictions of probation, parole, or some other form of community supervision.  This is likely to remain the case absent dramatic changes to policing practices, wealth inequalities, and the lobbying tactics of corrections officials and affiliated industries.  The danger with the decarceration rhetoric is that it deflects attention from those who continue to suffer under horrid conditions of confinement.  Indeed, this Symposium explores the contemporary prison experience against this complicated backdrop and asks a fundamental question: what are the gravest problems that inmates face during an era in which many people might naively think that the situation has improved?

November 1, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

SCOTUS back in action with week full of criminal law arguments

The US Supreme Court Justices return from a few weeks traipsing around the country (see SCOTUSblog mapping) to hear oral arguments this week in six cases, four of which involve criminal law issues.  Drawing from this SCOTUSblog post by Rory Little, here are summaries of the criminal cases the Court will consider this week:

Monday, Nov. 2

Foster v. Chapman:  Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky when state prosecutors struck all four prospective black jurors, offering “race-neutral” reasons, and it was later discovered that the prosecution had (1) marked with green highlighter the name of each black prospective juror; (2) circled the word “BLACK” on the questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3”; (4) ranked the black prospective jurors against each other if “it comes down to having to pick one of the black jurors.”  (Georgia Supreme Court)

Tuesday, Nov. 3

Lockhart v. United States:  Whether 18 U.S.C. § 2252(b)(2), requires a mandatory minimum ten-year prison term for a defendant convicted of possessing child pornography if he “has a prior conviction … under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” is triggered by a prior conviction under a state law relating to “aggravated sexual abuse” or “sexual abuse,” even though the conviction did not “involv[e] a minor or ward.” (Second Circuit)

Torres v. Lynch:  Whether, for immigration removal purposes, a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. (Second Circuit) 

Wednesday, Nov. 4 

Bruce v. Samuels:  Whether the twenty-percent-of-income “cap” in the Prison Litigation Reform Act (28 U.S.C. § 1915(b)(2)), requiring in forma pauperis prisoners to still pay something toward the fee for filing federal cases, applies on a “per case” or “for all cases” basis. (D.C. Circuit)

November 1, 2015 in Offense Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, October 29, 2015

More notable comments from Deputy AG Yates about "how badly we need" sentencing reforms

Earlier today Deputy Attorney General Sally Quillian Yates spoke at Columbia Law School about criminal justice reform. Her full speech, available at this link, merits a full read. Here are excerpts:

These days, there’s a lot of talk about criminal justice reform. We are at a unique moment in our history, where a bipartisan consensus is emerging around the critical need to improve our current system.  About a month ago, a coalition of republican and democratic senators unveiled a bill — called the sentencing reform and corrections act — to address proportionality in sentencing, particularly for lower level, non-violent drug offenders.  In short, we need to make sure that the punishment fits the crime.  Last week, I had the privilege of testifying before the Senate Judiciary Committee about the many promising pieces of that legislation.

And I know how badly we need reform.  As the Deputy Attorney General, I oversee day-to-day operations for the Justice Department, which includes not just our nation’s federal prosecutors, but also the FBI, DEA, ATF, U.S. Marshals Service and the federal prison system.  I see all sides of our criminal justice system and I can tell you confidently: the status quo needs to change.

We need a new approach and we need a better approach.  We need to be willing to step back, look at how we’ve managed criminal justice in the past and be willing to adjust our way of thinking....

We need to think differently.  We need to look beyond our own experiences and accept that there may be new and better, ways of doing things.  I saw one example of that just this morning. I visited a drug court in federal court in Brooklyn that focuses on giving offenders a chance to escape the grip of drugs.  Instead of lengthy prison sentences, the program is designed to hold the defendants accountable, but to do it in a way that offers support, drug treatment and job opportunities.  While it’s true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense.

This new way of thinking is beginning to resonate in federal and state systems all across the country.  At the Justice Department, to achieve more proportional sentencing, we have directed prosecutors to stop charging mandatory minimum offenses for certain low-level, non-violent drug crimes.  The president has granted clemency to scores of individuals who received sentences longer than necessary under our harshest drug laws — with more to come in the months ahead.  Twenty-nine red states and blue states across the country have passed innovative reforms.  Even Congress — which doesn’t agree on much these days — is on the cusp of significant sentencing reform legislation.

But if we are really serious about building safe communities, if we are really committed to justice, as a country, we have to be willing to invest in stopping crime before it starts. We have to be willing to invest in breaking the cycle of generational lack of access to educational opportunity and resulting illiteracy and poverty.  We have to be willing to invest in real prevention and prisoner reentry opportunities and do it in a big systemic way, not just a smattering of pilot programs.  We all know that we can’t simply jail our way into safer communities.  But until we are willing to invest in preventing crime the same way we are willing to invest in sending people to prison, our communities will not be as safe nor will our system be as just as it should be.

When we talk about prevention, we need to include in that rehabilitation. Because prisoner rehabilitation is crime prevention.  The fact is, more than 95 percent of all prisoners will eventually be released from prison.  And we know that as things currently stand, about 40 percent of federal prisoners and two-thirds of those released from state prisons will reoffend within three years.  We have to break that cycle.

We also know that the best way to reduce recidivism is to reintegrate ex-offenders into our communities — they need stability, support and social ties to turn away from the errors of their past.  They need jobs and homes; friends and family.  Yet so many people in our society want nothing to do with anyone with a rap sheet.  There are too many people willing to pin a scarlet letter on those who have spent time in prison.  The irony, of course, is that this view is self-defeating — that by ostracizing this class of citizens, we only increase the risk of recidivism and we make our country less safe, not more.

It is up to all of us to reject this way of thinking.  Rather than creating even greater distance between ex-offenders and the communities they’re re-joining, we should be focusing our energy on developing more effective paths for reentry....

Achieving meaningful criminal justice reform will not be easy.  And we must all participate in this process, government and private citizens alike.  Three decades ago, when our country was focused just on being “tough on crime,” it was impossible to imagine that we would ever find a way to return proportionality to our sentencing laws. But we are closer than ever, thanks to the sustained efforts of those willing to call out injustices and demand meaningful change.  It’s time that we collectively discard old assumptions and embrace new ideas.  In other words, it’s time we all collectively put two fingers to our temples.  Our nation and our fellow citizens deserve nothing less.

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (16)

NY Times debates "Will Crime Rise If More People Are Kept Out of Prison?"

The Room for Debate section of the New York Times has this new set of pieces exploring the potential crime impact of reduced use of incarceration.   Here is the section's set up (with links from the source):

Even many of the nation’s police chiefs have called for reducing the number of people, particularly minorities, sent to prison.  But the news that a man suspected of murdering a New York City police officer had been given break after break, and was free because he had been allowed to enter a diversion program rather than be jailed on drug charges, have led even supporters of such programs to raise questions about them.

With some already saying that crime may be rising, are we moving too fast to embrace limits on incarceration, such as diversion programs and drug courts? Could such measures actually increase the risk of crime?

Here are the contributions, with links via the commentary titles:

October 29, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Monday, October 26, 2015

Interesting takes on California developments since passage of Prop 47

Download (1)I have long asserted that California has long been among the most interesting states to watch closely when it comes to crime and punishments.  The latest round of developments involve the state's passage of an initiative, Proposition 47, reducing the severity of many offenses and subsequent reactions thereto.  This new Los Angeles Times op-ed, authored by Robert Greene and headlined "California's Prop. 47 revolution: Were the voters duped?," provides a notable take on all this and a preview of more to commentary come.  Here are exerpts:

Police and prosecutors have lately attempted to link increases in crime to last year's Proposition 47. Based on their overwrought statements, it would be understandable for Californians to start wondering whether they had been duped into completely decriminalizing drug possession and petty theft....

As is the case with all large bureaucracies, it is difficult for courts and for city and county agencies — police departments, sheriff's departments, district attorneys, probation officers, county supervisors — to understand and constructively respond to changed circumstances. And Proposition 47 no doubt brought change, by converting six felonies to misdemeanors and allowing many people serving sentences for those crimes, and those who served their time long ago, to be resentenced and have their rap sheets adjusted....

Crime in Los Angeles and some other communities throughout the state has increased this year after many years of decline. But is that because of Proposition 47? Other American cities, where Proposition 47 has no effect, have seen similar increases.

If the ballot measure is connected to rising crime, that's probably because public officials have been too slow to recognize the options that the measure gives them. And it's likely that their decisions — a deputy's decision not to arrest, for example, or the sheriff's not to make room in the jail for a recidivist offender pending trial, or county supervisors' not to use any of the hundreds of millions of dollars currently available for non-jail alternatives — are based on suppositions about how the other links in the public safety chain will react....

The gist of the reaction against Proposition 47 is that we as a society simply have no choice but to make possession of drugs and petty theft into felonies punishable by more than a year in prison if we want to control more serious crime. Similar warnings were issued about the consequences of modifying the three-strikes law, yet recidivism among strikers released from prison after voters adopted Proposition 36 is astonishingly low. And similar arguments were made against redirecting some felons from state prison and state parole to county jail and county probation, yet crime rates after realignment continued to fall.

In the coming week, The Times' Opinion section — the Opinion L.A. blog, the editorial board and the Op-Ed page — will explore the repercussions of Proposition 47, and compare this episode in criminal justice history with similar recent changes that also produced periods of adjustment. The goal is not to defend the voters' decision but rather to seek some honest talk, some accountability and some effective action on the part of public officials who are responsible for providing public safety, justice and wise and effective spending.  

These follow-up opinion pieces provide, as their headlines suggest, pro and con views of the pros and cons of Prop 47:

California's Prop. 47 revolution: Voters were sold a bill of goods

California's Prop. 47 revolution: Give reform a chance to work

October 26, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Sunday, October 25, 2015

FCC finally puts limits on (over)charging inmates for all phone calls

A helpful reader reminded me that I ought not let go unmentioned the valuable work (finally!) completed by the Federal Communications Commission to place some limits on the oftn-extreme prices charged by phone companies to a truly captured consumer group.  This AP piece, headlined "FCC Votes to Further Cut Cost of Calls for Inmates," provides the basic details:

A federal commission's decision Thursday to further reduce the cost of jail and prison phone calls led some to hail it as a money saver for inmates' families, but immediately prompted phone companies to threaten legal action.  Mignon Clyburn, a Democratic commissioner with the Federal Communications Commission who voted in favor of the additional cutting, said the cost of the calls have placed "incredible burdens" on the family members of the more than 2 million people incarcerated in the U.S.

Among them is Dorothee Warner, who said she has spent more than $2,000 over the past year so she and her family can talk to her jailed son.  "It is a very predatory system that is unfair," the Overland Park, Kansas, woman said.  "People who are incarcerated, it is very difficult on their families. It is almost like the family is being punished as well."

Over the years, defense attorneys also have joined in the fight for lower rates. But phone companies have defended the costs, saying some of the money generated is used for things like activities for the incarcerated and that the calls require costly security features.  The FCC has countered that the cost of security features was built into the rate structure.

Securus Technologies Inc. CEO Richard Smith said in a written statement that the FCC's decision is a "colossal error" that threatens the financial stability of his company and other inmate phone providers.  He said Securus, one of the largest providers of inmate phone services, would join other companies in a request for court intervention.

Two years ago, the FCC voted to restrict rates on inmate calls made from one state to another. The new changes go further, capping rates on all local, in-state long distance, interstate and international calls.  The vast majority of inmate calls will cost no more than $1.65 for 15 minutes, although slightly higher rates will be allowed in some smaller institutions. And fees and other costs, which in some cases have boosted calls to $17 to $25 for 15 minutes, also would be limited.  The changes will take effect in prisons early next year and in jails by midyear.

Commissioners Ajit Pai and Michael O'Rielly, both Republicans, dissented, saying they believed they didn't have the authority to take such action.  Jonathan Thompson, executive director of the National Sheriffs' Association, said the group is "very disappointed."

"We believe also that inmates should have this capability to call, but unfortunately these new rates in all likelihood will mean that inmates will go without the ability to call and talk to their family members," he said.  "How many, we don't know."

The changes don't ban profit-sharing commissions that have benefited jail and prison operators and in some cases made calls costlier, although the amount of money coming in will likely be lower.  Even before Thursday's vote in Washington, however, some states had voluntarily moved to reduce or ban the commissions.

October 25, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (6)

Saturday, October 24, 2015

Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"

This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:

Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.

“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.

Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.

Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.

The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.

October 24, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (43)

Thursday, October 22, 2015

Looking closer at (unexpected?) states investing more in incarceration than higher education

I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal.  For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions.  That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:

A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades.  Many states are now contributing only a small fraction of the cost of "state" colleges and universities.

One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak.  But it could also be deceptive.  To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.

In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14.  In every case, the numbers are expressed as the percent higher or lower than the national average.

We found that beneath the headline, those 15 states actually were quite varied.  Some clearly underinvest in higher education, while others have high incarceration rates.  Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right.  Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.

Some of the states that underspend will surprise you. Reputations do not always match reality.

October 22, 2015 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 21, 2015

"Separation by Bars and Miles: Visitation in state prisons"

SeparationByBarsAndMiles_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This press release about the report provides this overview:

Less than a third of people in state prison receive a visit from a loved one in a typical month [according to] a new report by the Prison Policy Initiative, Separation by Bars and Miles: Visitation in state prisons. The report finds that distance from home is a strong predictor for whether an incarcerated person receives a visit.

“For far too long, the national data on prison visits has been limited to incarcerated parents. We use extensive yet under-used Bureau of Justice Statistics data to shed light on the prison experience for all incarcerated people, finding that prisons are lonely places,” said co-author Bernadette Rabuy, who recently used the same BJS dataset for Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned.

Separation by Bars and Miles finds that most people in state prison are locked up over 100 miles from their families and that, unsurprisingly, these great distances — as well as the time and expense required to overcome them — actively discourage family visits. Given the obvious reluctance of state prison systems to move their facilities, the report offers six correctional policy recommendations that states can implement to protect and enhance family ties. Rabuy explained, “At this moment, as policymakers are starting to understand that millions of families are victims of mass incarceration, I hope this report gives policymakers more reasons to change the course of correctional history.”

October 21, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (12)

Saturday, October 17, 2015

Remarkable Fusion series on "Prison Kids"

Pk_bannerThe multi-platform media company Fusion puts a number of its platforms to great use in this massive series of videos and articles under the banner "Prison Kids: A crime against America's children." Here is just a partial list (with links) of some of the pieces in the series:  

October 17, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Making a case for prison abolition, not just sentencing and prison reform

This notable article in The Nation authored by Mychal Denzel Smith seeks to make the case for a prison abolition movement that would go far beyond the kinds of sentencing reform garnering bipartisan support these day.  This commentary is headlined, "The Senate’s Bipartisan Criminal Justice Reform Bill Only Tackles Half the Problem: If we don’t face the injustice of the very existence of prisons, the root causes of mass incarceration will go unaddressed."  Here are excerpts:

The Sentencing Reform and Corrections Act, as it is currently known, reduces mandatory minimum sentences for some nonviolent drug offenders, replaces life sentences for “three strikes” violations with 25 years, provides judges more discretion in sentencing low-level drug offenders, mostly ends solitary confinement for juveniles, and funds reentry programs, among other reforms.  The bill is expected to pass in the Senate, be supported in the House (which introduced its own reform bill earlier this year), and ultimately be signed into law by President Obama.

In the immediate future, it will mean shorter sentences for some nonviolent drug offenders in federal prison; when applied retroactively, it will lead to the release of others.  The prison population will shrink slightly, and the federal government will save a bit of money. But the United States will remain free to continue locking away millions of people.

Many reform advocates have praised the Senate proposal, and understandably so. Organizing around prisons and incarcerated people — those written off as the dregs of society—is tough, and any win is a welcome one, particularly one that will directly benefit people currently serving unjust sentences....  [But]changes only affect federal sentencing guidelines and don’t end mandatory minimums (in fact, the bill imposes new minimums, on certain crimes related to domestic violence and gun possession or sale linked to terrorist activity).  Despite such moderate reforms, it is being hailed as “historic,” “major,” and a “game changer.”  Why?  Because a true agenda for change has been ceded to the language of reform.  The debate started and has effectively ended without considering the injustice of the very existence of prisons.  We never considered abolition....

Abolition makes sense, though, only if we see prisons as a site of injustice in and of themselves.  And they are — not only because of the violence of rape and murder that exists within prison walls, the psychological damage, the lack of educational opportunities, and the denial of due process that locks up innocent people.  Prison is the means by which we tell ourselves we are dealing with our societal ills, but only creating more.  Prison makes us lazy thinkers, hungry for revenge instead of justice.  Prison is a violent representation of our failure to fight inequality at all levels.  In abolishing prison, we force ourselves to answer the difficult question: How do we provide safety and security for all people?

Abolition will not win right now.  But an abolitionist framework for crafting reforms would lead to more substantial changes in the US prison system.  An abolitionist framework makes us consider not only reducing mandatory minimums but eliminating them altogether.  An abolitionist framework would call for us to decriminalize possession and sale of drugs.  Abolition would end the death penalty and life sentences, and push the maximum number of years that can be served for any offense down to ten years, at most.

With these reforms in place, we as a society would have a huge incentive to rehabilitate those in prison, and we would ensure the incarcerated are capable of socialization when they are released.  And without being able to depend on prison as a site of retribution, we would have to find new ways to address things like gender-based violence, sexual assault, and domestic violence.  And we could then start making the kinds of investments in alleviating poverty that [advocates] call for.

But we can’t do that so long as prison exists as a fail-safe.  Abolition may not win today, but neither did it win when it was first introduced as solution for slavery or segregation.  So long as we allow the terms of the debate to be shaped by what is politically possible, we’ll only ever be taking tiny steps and calling them major.

October 17, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Thursday, October 15, 2015

"Ending the war on drugs would not end mass incarceration" ... but it would help, perhaps a lot

NixonDrugWarBThe title of this post is the headline of this new Washington Post opinion piece authored by Charles Lane, plus a little commentary from me. The piece serves as fitting fact-check of recent sloppy statements about prison populations by Prez candidates (as do other recent similar pieces via PolitiFact and The Marshall Project).  But, like lots of commentary highlighting the statistical realities of modern prison populations, I fear Lane here underplays the potential import and impact of significant changes in state and federal drug laws. Here are excerpts, with my extended commentary at the end:

It seems that no presidential debate this year would be complete without denunciations of the drug laws, which, it is alleged, result in long prison terms for thousands of people, disproportionately African Americans, who are guilty only of low-level offenses, thus fueling “mass incarceration.”

At the last Republican debate, on Sept. 16, former Hewlett-Packard chief executive Carly Fiorina charged that “two-thirds of the people in our prisons are there for nonviolent offenses, mostly drug-related.”

Apropos of former Florida governor Jeb Bush’s admitted youthful marijuana use, Sen. Rand Paul (Ky.) observed that “there is at least one prominent example on the stage of someone who says they smoked pot in high school, and yet the people going to jail for this are poor people, often African Americans and often Hispanics, and yet the rich kids who use drugs aren’t.”

When Democrats faced off Tuesday night, Sen. Bernie Sanders (I-Vt.) said he is for marijuana legalization, “because I am seeing in this country too many lives being destroyed for nonviolent offenses. We have a criminal justice system that lets CEOs on Wall Street walk away, and yet we are imprisoning or giving jail sentences to young people who are smoking marijuana.”

“I agree completely with the idea that we have got to stop imprisoning people who use marijuana. . . . We have a huge population in our prisons for nonviolent, low-level offenses that are primarily due to marijuana,” the front-running former secretary of state, Hillary Clinton, chimed in.

Too bad this bipartisan agreement is contradicted by the evidence. Fiorina’s numbers, for example, are exaggerated: In 2014, 46 percent of all state and federal inmates were in for violent offenses (murder, rape, robbery and aggravated assault), according to the latest Justice Department data. And this is a conservative estimate, since the definition of violent offense excludes roughly 30,000 federal prisoners, about 16 percent of the total, who are doing time for weapons violations.

Drug offenders account for only 19.5 percent of the total state-federal prison population, most of whom, especially in the federal system, were convicted of dealing drugs such as cocaine, heroin and meth, not “smoking marijuana.”

Undeniably, the population of state prisons (which house the vast majority of offenders) grew from 294,000 in 1980 to 1,362,000 in 2009 — a stunning 363 percent increase — though it has been on a downward trajectory since the latter date. But only 21 percent of that growth was due to the imprisonment of drug offenders, most of which occurred between 1980 and 1989, not more recently, according to a review of government data reported by Fordham law professor John Pfaff in the Harvard Journal of Legislation. More than half of the overall increase was due to punishment of violent offenses, not drugs, Pfaff reports....

Given the relatively small share of drug offenders, ending the war on drugs would not significantly alter the racial disparity in incarceration rates, contrary to the conventional wisdom. Blacks make up 37.5 percent of all state prisoners, about triple their share of the population as a whole, according to the Justice Department. If we released all 208,000 people currently in state prison on a drug charge, the proportion of African Americans in state prison would still be 37 percent. In short, ending the “war on drugs” is not quite the panacea for mass incarceration that politicians imply.

Marijuana legalization could help reduce arrest rates, to be sure; and to the extent fewer people get busted for smoking pot, that would, indeed, cut down on the resulting undue negative personal and social consequences. Otherwise, the bipartisan consensus in favor of looser drug laws is just the latest political free lunch, served up by politicians who would rather discuss anything except real public policy trade-offs.

Republicans and Democrats alike are propounding the crowd-pleasing notion that we can have less incarceration — saving the country billions of dollars and international shame — without risking an increase in violent crime, or other harms. In truth, if we released all 300,000 drug offenders from state and federal prison, the U.S. incarceration rate would still be far higher than it was three decades ago, and far higher than the rates of other industrial democracies.

The only way to lower it dramatically would be to reduce the frequency and duration of imprisonment for violent crimes, while continuing to reduce violent crime itself. If any of the candidates has a plan to do that, he or she should speak up.

Images (1)Lane is quite right to highlight the statistical reality that lots more imprisoned offenders are behind bars for violent offenses than for drug crimes.  But he fails to ackowledge that a considerable amount of violent crime is related to black market turf wars and that the failure to treat effectively drug addictions and related woes often drive property crimes.  American legal and social history should provide a ready reminder of these realities: violent and property crimes (and incarceration rates) spiked considerably during alcohol Prohibition not because of greater alcohol use but due to enhanced incentives for otherwise law-abiding people to profit in the black market from others' desire for a drink.

Regular followers of this blog likely recall the case of (my former client) Weldon Angelos, which provides a clear example of a low-level marijuana dealer serving decades in federal prison based technically on "violent firearm crimes."  The modern federal drug war explained why an informant (himself fearing a long federal drug sentence) told authorities Angelos was a major drug dealer, why federal prosecutors threated Angelos with over 100 years mandatory imprisonment if he did not forgo his right to a trial after te informant arranged to buy marijuana from Angelos, and why even after his acquittal on some charges, a federal judge was bound by law to give Angelos 55 years in federal prison for having firearms nearby as he sold the informant a relatively small amount of marijuana.

I bring all this up because, again to recall American history, four score ago the ending of alcohol Prohibition indeed did itself significantly help to "reduce violent crime itself."  I am cautiously hopeful that ending marijuana prohibition will help have the same effect in the modern era.  More broadly, I sincerely believe we would further reduce violent crime by ending a drug war that relies on state violence and condemnation and investing monies saved (and taxes earned) into a significant public-health commitment to address serious drug addictions using evidence-based treatments.

October 15, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (12)

Tuesday, October 13, 2015

"Can Architecture Cure Crime?"

The question in the title of this post is the headline of this interesting Ozy article discussing a novel prison design for a women's prison in southern California.

The campus is spacious and green, with a grassy amphitheater and palm trees, volleyball nets, even a yoga studio.  Inside, the earthy tones continue: abundant natural light, murals of waves crashing into the cliffside.  From his second-floor office, Edwin Schroeder reflects on his view: “You don’t get that gut-dropping feeling anymore.”

Schroeder isn’t a professor and the vista isn’t of a liberal arts college.  He runs a women’s jail, but one that emphasizes the avant-garde over security guards.  “We’re not here to punish,” says Schroeder, which isn’t exactly a line you’d expect from a gatekeeper.  But this San Diego County jail, which houses everyone from petty criminals to accused murderers and was once known for its sickening decrepitude, is at the forefront of a new and, of course, controversial movement in prison design, one that manifests a counterintuitive idea: You could build a lockup so pleasant and thoughtfully devised that inmates would never come back....

It’s a lofty goal. And while it remains to be seen whether administrators will succeed at rebuilding lives, few would doubt that they’ve built a one-of-a-kind facility.  This will surely raise hackles among tough-on-crime folks, but this isn’t one of those pay-to-stay country club prisons for stock brokers.  It’s more of a social experiment.  In an era when more women than ever are imprisoned — the female incarcerated population in the U.S. shot up nearly tenfold between 1980 and 2010, to 205,000 — Las Colinas is testing a new theory: by treating inmates as autonomous, responsible human beings, they might actually behave like autonomous, responsible human beings.  Some would say it’s taking a woman’s touch.  There’s not a barbed wire in sight (they’re there, just not visible), and long outdoor walkways provide a feeling of freedom.  Thus, when a woman needs medical attention, she walks across that green campus to a waiting room that looks like one in any other doctor’s office.  Even booking looks less like a holding room and more like a health clinic, with separate walk-up windows for arrestees to take care of various intake procedures.

Critics will argue that comfy prisons have little deterrent effect. But the design, proponents say, is gender responsive.  For decades, conventional wisdom was that the only difference between a men’s prison and a women’s is that one has urinals.  But there are countless differences between the sexes, including, for instance, that women prefer communal spaces whereas guys value solitude.  The Bureau of Justice Statistics has found that 75 percent of women in the corrections system have suffered abuse over their lifetimes, and the dorms at Las Colinas are sensitive to that: The lowest-level offenders sleep in open-concept rooms with shoulder-height dividers, instead of individual cells. Recent research reveals that building designs, floor plans and overall ambiance affect prisoner interactions and their relationships with staff.  And as it turns out, one year in, the sheriff’s department already reports a decline in incidents of inmate-on-inmate and inmate-on-staff violence.  “Almost every sense of well-being is affected by environment,” says Barb Toews, a justice professor at the University of Washington Tacoma who studies incarcerated women....

Even if this little social experiment is successful, it will be difficult to replicate. Although there wasn’t much political bickering within San Diego over the cushy living quarters for its criminals, there likely would be elsewhere.  Las Colinas, which cost $221 million to build, is expensive, and the staffing intensive; the programmatic efforts require even more hands on deck.  And, to be clear, less than half the population gets to take advantage of the open campus; violent and other serious offenders are still housed in more traditional cell blocks — though they, too, are painted in calming colors.  Meanwhile, plenty of architects believe they shouldn’t be putting resources toward locking people away at all, on the grounds that doing so strengthens the prison-industrial complex....

Sure enough, an unholy number of variables would have to align for Las Colinas to succeed in changing its prisoners’ lives.  But officials believe failing at something different beats failing at the same thing, over and over.  “If it doesn’t work, we haven’t lost anything,” Schroeder says. “Why wouldn’t we go for it?”

October 13, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Sunday, October 11, 2015

"Number of Older Prisoners Grows Rapidly, Threatening to Drive Up Prison Health Costs"

StatelineAgingPrisonersLineGraphThe title of this post is the title of this informative Stateline posting from The Pew Charitable Trusts.  Here are the primary passages: 

In a year when the nation’s overall prison population dropped, the number of older inmates grew rapidly in 2014, continuing a trend that translates into higher federal and state prison health care spending....

In 1999, inmates age 55 and above — a common definition of older prisoners — represented just 3 percent of the total population.  By 2014, that share had grown to 10 percent.

Like senior citizens outside prison walls, older inmates are more likely to experience dementia, impaired mobility, and loss of hearing and vision, among other conditions.  In prisons, these ailments present special challenges and can necessitate increased staffing levels and enhanced officer training, as inmates may have difficulty complying with orders from correctional officers.  They can also require structural accessibility adaptions, such as special housing and wheelchair ramps.  For example, in Florida, four facilities serve relatively large populations of older inmates.  These units help meet special needs, such as palliative and long-term care.

Additionally, older inmates are more susceptible than the rest of the prison population to costly chronic medical conditions.  In 2011-12, for example, 73 percent of state and federal prisoners age 50 years or older reported to the Bureau of Justice Statistics that they had experienced a chronic medical condition such as hypertension, arthritis, asthma, or diabetes, among others.  Younger inmates age 18 to 24 (28 percent) or 25 to 34 (41 percent) were much less likely to have reported such a condition.

All of these challenges create additional health and non-health expenses for prisons, which are constitutionally required to provide adequate medical attention and respond to the unique needs of these inmates.

The National Institute of Corrections pegged the annual cost of incarcerating prisoners 55 and older with chronic and terminal illnesses at, on average, two to three times that of the expense for all other inmates.  More recently, other researchers have found that the cost differential may be wider.

In May, the Department of Justice’s inspector general found that within the Federal Bureau of Prisons, institutions with the highest percentages of aging inmates spent five times more per inmate on medical care — and 14 times more per inmate on medication — than institutions with the lowest percentage of aging inmates.

A few (of many) recent and older related posts:

October 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Friday, October 09, 2015

Lots of interesting and notable pieces this week from The Marshall Project

Regular readers are likely tired of my regular recommendation of the work being done at The Marshall Project.  But this array of notable original pieces from just this past week reinforces why the site it is on my daily-must-read list:

October 9, 2015 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, October 08, 2015

"Mass Incarceration: An Annotated Bibliography"

The title of this post is the title of this notable new document prepared by Nicole Dyszlewski, Lucinda Harrison-Cox and Raquel Ortiz now available via SSRN. Here is the abstract:

This annotated bibliography is a scholarly supplement to the 2015 Roger Williams University School of Law Symposium "Sounding the Alarm on Mass Incarceration: Moving Beyond the Problem and Toward Solutions." It contains texts selected to facilitate further study by symposium attendees, researchers, lawyers, policy analysts, law librarians, public officials, law students, criminologists, casual readers, undergraduate professors and activists. The selected monographs have been briefly summarized and critiqued by the authors.

A quick scan of this scholarly supplement reveals it to be an extraordinary resource that I am likely to use on a regular basis.  I highly recommend this document (and I hope it will get updated and re-posted periodically).

October 8, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, October 07, 2015

"Why 21 year-old offenders should be tried in family court"

The title of this post is the headline of this notable Washington Post commentary authored by Vincent Schiraldi and Bruce Western. Here are excerpts:

Just over 100 years ago, there was no separate court for juveniles anywhere in the world. Adolescents were viewed as smaller versions of adults, were prosecuted under the same laws and often sent to the same prisons.

But in 1899, a pioneering group of women — Jane Addams, Lucy Flower and Julia Lathrop — persuaded the state of Illinois to create a separate court to handle juveniles’ cases individually, be more rehabilitative and less punitive and ensure that youthful mistakes wouldn’t haunt youngsters throughout their lives.  The family court was a smashing success, spreading to 46 states and 16 countries by 1925 and decidedly reducing recidivism compared with trying children as adults.

But while family court’s founding mothers got a lot right, the setting of 18 as the court’s maximum age was an arbitrary choice based on the mores of the time rather than hard evidence. It’s time we expanded the protections and rehabilitative benefits of the family court to young adults.

Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways. They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Furthermore, adolescence itself has become elongated compared with that of previous generations. Today’s young people finish college, find jobs, get married and leave home much later than their parents did. Just 9 percent of young adults were married in 2010, compared with 45 percent in 1960.

Non-criminal law and practice frequently recognize these developmental differences. States prohibit young adults from smoking cigarettes, consuming alcohol, possessing firearms, gambling and adopting children. You can’t serve in the House of Representatives until age 25, it costs more to rent a car as a young adult and you can stay on your parents’ health insurance until 26. However, despite the developmental differences between young and fully mature adults, criminal law draws a stark, scientifically indefensible line at 18. This has disastrous public safety outcomes. For example, 78 percent of 18- to 24-year-olds released from prison are rearrested and about half return to prison within three years, the highest recidivism rate of any age cohort.

Fortunately, there has been growing innovation overseas along with some noteworthy U.S. experiments designed to address the challenges and opportunities this transition-aged population presents. The age of family court jurisdiction in Germany and the Netherlands is 21 and 23, respectively. Many European countries have separate correctional facilities for young adults. In Finland, young people can earn accelerated release from prison by participating in educational and professional training programs....

Attorney General Loretta E. Lynch recently convened an expert panel to explore developmentally appropriate responses to young adults caught up in the justice system. “Research indicates that . . . we may have a significant opportunity, even after the teenage years, to exert a positive influence and reduce future criminality through appropriate interventions,” she said. This “offers a chance to consider new and innovative ways to augment our criminal justice approach.”

Such thinking will undoubtedly face political head winds in some places, but improved outcomes can be used to build support with the public. Frequently, U.S. juvenile justice practice moves adolescents in the opposite direction — from family court into adult court and, too often, adult prisons. An estimated 247,000 people under 18 were tried as adults in 2007, and more than 5,000 adolescents are incarcerated in jails and prisons. There, they are at greater risk of sexual assault and experience higher rearrest rates vs. youth retained in the juvenile justice system. Any reforms for young adults need to also reduce this destructive practice of transferring young people into the maw of the adult system.

Given advances in research and successful innovation here and abroad, now is the time for practice to catch up with science — whether it is raising the family court’s age to 21 or 25 or otherwise creating a separate approach to young adults that reflects their developmental needs and furthers public safety.

October 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Sunday, October 04, 2015

Highlighting how state education spending decreases as state corrections spending increases

Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years.  The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding."  Here are excerpts (with links from the original):

Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences.  According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.  

That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said.  "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."

A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools.  And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."

According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut. 

Prior recent related post:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, October 02, 2015

"What happens when Americans in prison come home?"

The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:

We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester.  We asked them: what did prison do, or undo, in you?  What do you see now that you didn’t see then?  And what don’t we know about you?

It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s.  Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison.  Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too.  As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?

Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Tuesday, September 29, 2015

Is the "don't blame the drug war for mass incarceration" counter-narrative problematically incomplete?

As more serious folks have started to take the problem of modern mass incarceration more seriously, I see a couple key narratives about the problem and potential solutions emerging.  The predominant narrative, espoused by Michelle Alexander in The New Jim Crow and by long-time critics of the so-called "war on drugs," is that mass incarceration is principally a product of the drug war and its associated severe sentencing laws.  This narrative always struck me as a bit too simplistic and incomplete. 

Lately an important counter-narrative has taken hold: fueled by prison population data and prosecutorial practices stressed by John Pfaff and a few others, more folks are asserting that the drug war and its severe sentencing laws are not central to mass incarceration and that their reversal is not really a solution to the problems of mass incarceration.  This counter-narrative is today well-explained in this New York Times column by David Brooks.  Here are highlights:  

Pretty much everybody from Barack Obama to Carly Fiorina seems to agree that far too many Americans are stuck behind bars.  And pretty much everybody seems to have the same explanation for how this destructive era of mass incarceration came about.

First, the war on drugs got out of control, meaning that many nonviolent people wound up in prison. Second, mandatory­minimum sentencing laws led to a throw­-away-­the-­key culture, with long, cruel and pointlessly destructive prison terms....

The popular explanation for how we got here, however, seems to be largely wrong, and most of the policy responses flowing from it may therefore be inappropriate.  The drug war is not even close to being the primary driver behind the sharp rise in incarceration. About 90 percent of America’s prisoners are held in state institutions.  Only 17 percent of these inmates are in for a drug­-related offense, or less than one in five.

Moreover, the share of people imprisoned for drug offenses is dropping sharply, down by 22 percent between 2006 and 2011.  Writing in Slate, Leon Neyfakh emphasized that if you released every drug offender from state prison today, you’d reduce the population only to 1.2 million from 1.5 million.

The war on drugs does not explain the rocketing rates of incarceration, and ending that war, wise or not, will not solve this problem.  The mandatory-­minimum theory is also problematic.  Experts differ on this, but some of the most sophisticated work with the best data sets has been done by John Pfaff of Fordham Law School....

His research suggests that while it’s true that lawmakers passed a lot of measures calling for long prison sentences, if you look at how much time inmates actually served, not much has changed over the past few decades.  Roughly half of all prisoners have prison terms in the range of two to three years, and only 10 percent serve more than seven years.  The laws look punitive, but the time served hasn’t increased, and so harsh laws are not the main driver behind mass incarceration, either.

So what does explain it?  Pfaff’s theory is that it’s the prosecutors.  District attorneys and their assistants have gotten a lot more aggressive in bringing felony charges.  Twenty years ago they brought felony charges against about one in three arrestees.  Now it’s something like two in three.  That produces a lot more plea bargains and a lot more prison terms.

I asked Pfaff why prosecutors are more aggressive.  He’s heard theories.  Maybe they are more political and they want to show toughness to raise their profile to impress voters if they run for future office.  Maybe the police are bringing stronger cases.  Additionally, prosecutors are usually paid by the county but prisons by the state, so prosecutors tend not to have to worry about the financial costs of what they do.

Pfaff says there’s little evidence so far to prove any of these theories, since the prosecutorial world is largely a black box.  He also points out that we have a radically decentralized array of prosecutors, with some elected and some appointed. Changing their behavior cannot be done with one quick fix.

Some politicians and activists suggest that solving this problem will be easy — just release the pot smokers and the low­-level dealers.  In reality, reducing mass incarceration means releasing a lot of once-­violent offenders.  That may be the right thing to do in individual cases, but it’s a knotty problem.

Generally speaking, the "don't blame the drug war for mass incarceration" counter-narrative makes important points and is an essential consideration for serious researchers and reform advocates. Pfaff's data highlights critical factual realities that fully justify the essential message that modern mass incarceration is, in Brooks' phrase, a "knotty problem."

But I fear that the counter-narrative is also too simplistic and incomplete as it fails to consider sufficiently how the the drug war and associated sentencing laws remain at the beating heart of the mass incarceration knot.  In my view, federal and state prosecutors were only able to become "more aggressive" in recent decades because the drug war and associated severe sentencing laws made their jobs much, much easier in various ways.  The relative simplicity of securing drug convictions (and of threatening severe sanctions for those who fail to plea and cooperate) has made it much, much easier for prosecutors to turn more arrests for drugs and many other crimes into many more charges and convictions.   (Tempered constitutional limitations on police, prosecutors and severe sentences through the Rehnquist Supreme Court era is also a part of this story, which I also think can and should be linked directly to the drug war.)

This chart has charging data for the federal system from 1982 to 2010, and it shows federal the number criminal cases commenced (i.e., when federal prosecutors brough charges) doubling from under 33,000 in 1982 to 67,000 in 2002.  During those two decades, the number of drug cases commenced jumped from 4,200 in 1982 to over 19,000 in 2002.  In my view, the drug war and severe federal sentences not only significantly accounted for why federal prosecutors had the ability/resources to bring 15,000 more drug cases in 2002 than in 1982, but it also significantly contributed to why federal prosecutors had the ability/resources to bring 15,000 more other federal criminal cases in 2002 compared to 1982.  I think we would see somewhat similar dynamics playing out in many states during this period, and the federal data further shows that once prosecutors got really good at bringing lots of charges thanks to the help of the drug war, they became consistently adept at bringing lots more of other charges even as the number of drug prosecutions started to level off.

I make these points not to contend that "ending the drug war" (whatever that means) and/or repealing all mandatory minimums will alone "solve" the problem of mass incarceration.  The counter-narrative remains very important in highlighting that modern incarceration levels in the US are a complicated matter requiring complicated solutions.  But I am now growing concerned that, especially as the counter-narrative grows in significance, serious researchers and reform advocates may sometimes under-appreciate how critical the drug war and associated sentencing laws have been as the source of many troublesome elements in the growth of criminal justice expenditures and significance over the last four decades.

September 29, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)