Monday, January 26, 2015
"The Unconvincing Case Against Private Prisons"
The title of this post is the title of this intriguing recent article by Malcolm M Feeley just now appearing on SSRN. Here is the abstract:
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them.
In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary.
The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.
Tuesday, January 20, 2015
How Texas prisons struggling with cost concerns innovate with telemedicine
This Dallas Morning News article, headlined "Texas prisons try telemedicine to curb spending," highlights how the Lone Star State and other states struggle to cope with the increased cost of an aging prison population. Here are excerpts:
Christopher Aldridge walks into the clinic, hops onto the edge of the examination table and greets his doctor.... It sounds like a routine medical visit — but patient and doctor are not in the same room or even in the same city. The doctor is in a clinic in Galveston, and Aldridge, an inmate at the Estelle prison in Huntsville, is 135 miles away in the prison clinic, talking to the doctor on a TV screen.
The high-tech medical consultation, known as telemedicine, uses technology to connect prisoners, who are often housed in remote areas, with medical experts throughout the state. It’s just one way that the Texas Department of Criminal Justice is trying to control spending on prison health care. But while telemedicine has shown some success in curbing spending, it hasn’t been enough to stem rising costs due to an aging prison population.
From 2001 to 2008, the cost of providing health care per inmate increased nationally by an average of 28 percent, according to a 2013 report by the Pew Charitable Trusts that examined cost data from 44 states. During that period, Texas and Illinois were the only states to see a reduction in spending. Texas reduced the cost of health care per inmate by 12 percent while Illinois saw a 3 percent decrease.
But that trend has changed in recent years. From 2007 to 2011, Texas prisons have seen a 24 percent increase in health care spending per inmate, according to a more recent study by the Pew Research Center. The July 2014 report looked at cost data for 50 states and found spending increased by an average of 10 percent....
Prison health care is expensive. It cost $7.7 billion to provide health care to U.S. prisoners out of an overall $38.6 billion spent on corrections in 2011, according to the Bureau of Justice Statistics. More than $581 million was spent on health care for Texas’ 152,841 prisoners in 2011.
Texas is trying to lower that cost by subcontracting prison health care to the University of Texas Medical Branch and Texas Tech University. The partnership reduces medication costs through a federal program and uses cost-saving technology such as telemedicine....
But critics argue that telemedicine isn’t the way to save money in a system plagued with long-standing concerns of poor medical care. The Texas Civil Rights Project has filed dozens of lawsuits against the Texas Department of Criminal Justice and its medical contractors citing medical negligence. Wayne Krause Yang, the project’s legal director, is concerned that telemedicine could shortchange an already vulnerable population....
Telemedicine saved the Texas Department of Criminal Justice $780 million from 1994 to 2008. Those savings are set to increase as the number of telemedicine consultations rises. About 100,000 telemedicine encounters take place in Texas state prisons each year....
But a steady increase in the number of older prisoners is stretching the prison health budget. Costs for their medical care are two to three times higher than for younger prisoners....
While some states begin to enroll inmates in health insurance under the new Medicaid expansion part of the Affordable Care Act — an option not available to prisoners in Texas — others look to Texas for cues on expanding telemedicine and accessing federal drug pricing programs.
SCOTUS rules in favor of prisoner's RLUIPA claim and capital defendant's AEDPA contention
The Supreme Court handed down a few opinions this morning, and two of them involve notable victories for criminal defendants (and notable reversals of the Eighth Circuit).
Via a unanimous ruling in Holt v. Hobbs, No. 13- 6827 (S. Ct. Jan 20, 2015) (available here), the Court explains why a rigid prison beard policy wrongfully infringes religious rights. Here is how the opinion, per Justice Alito, gets started:
Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1⁄2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correction’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatological condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq., which prohibits a state or local government from taking any action that substantially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest.
We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.
Via a summary reversal in Christeson v. Roper, No. 14-6873 (S. Ct. Jan 20, 2015) (available here), the Court explains why lower federal courts were too quick to preclude a capital defendant from arguing a habeas deadline ought to be tolled. Here is how the Court's per curiam decision gets started:
Petitioner Mark Christeson’s first federal habeas petition was dismissed as untimely. Because his appointed attorneys — who had missed the filing deadline — could not be expected to argue that Christeson was entitled to the equitable tolling of the statute of limitations, Christeson requested substitute counsel who would not be laboring under a conflict of interest. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit summarily affirmed. In so doing, these courts contravened our decision in Martel v. Clair, 565 U. S. ___ (2012). Christeson’s petition for certiorari is therefore granted, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings.
Notably, in Holt, Justices Ginsburg and Sotomayor concurred in a little separate opinion to provide a bit of their own spin on RLUIPA. And in Christeson, Justices Alito and Thomas dissent from the summary reversal because they would have preferred full briefing concerning a "question of great importance" regarding "the availability of equitable tolling in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)."
Sunday, January 18, 2015
Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations
This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:
More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes. Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.
Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.
Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."
Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.
Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.
Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.
Saturday, January 17, 2015
"If crime is falling, why aren’t prisons shrinking?"
The title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:
The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here. But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons. You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies. Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
• Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
• Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
• Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform. Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making. For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.
Thursday, January 15, 2015
"Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email"
The title of this post is the title of this timely student note by Brandon Parker Ruben now available via SSRN. Here is the abstract:
The attorney-client privilege protects confidential, legal communications between a party and her attorney from being used against her. It is among American jurisprudence’s most sacrosanct evidentiary principles. Unsurprisingly, federal prosecutors cannot eavesdrop on inmate-attorney visits or phone calls, or read inmate-attorney mail. Courts are currently divided, however, on whether or not the government can be prevented from reading inmate-attorney emails.
This Note explores the incipient body of case law that addresses whether federal prosecutors can read inmates’ legal email. As courts have unanimously held, the Bureau of Prison’s email monitoring policy destroys the emails’ privilege, thus allowing prosecutors to lawfully read them. Accordingly, despite misgivings about the practice’s propriety, four courts have ruled that there is no legal basis to prevent it. Two courts, however, pursuant to no clear authority, have prevented prosecutors from reading defendants’ legal email, even while acknowledging the practice’s legality.
This Note argues that prosecutors should be prevented from reading defendants’ legal email, because doing so unjustifiably degrades the adversary system, and that there are legal bases to so prevent them. It asserts that BOP’s email monitoring policy unconstitutionally restricts inmates’ Sixth Amendment right of access to counsel, a challenge prisoners’ rights advocates have yet to bring. In cases where BOP’s email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes, federal courts should prevent prosecutors from reading inmates’ legal email by exercising their congressionally delegated authority under the McDade Amendment to enforce state ethics rules. Specifically, courts should apply Rule of Professional Conduct 8.4(d), which prohibits attorneys from engaging in conduct prejudicial to the administration of justice.
Monday, January 12, 2015
County budget woes forces a official jail break in Ohio
A helpful reader altered me to this remarkable local story from Ohio, headlined "Summit County releases 72 inmates from jail," which highlights the extreme measures some officials feel they have to take when budget pressures and prisoner overcrowding reaches a breaking point. Here are the details that explain this picture:
Summit County closed a wing of its jail Sunday for financial and safety reasons and began releasing inmates. Seventy-two people — some with low-level felony charges and most nonviolent — filed out of the correctional facility shortly after noon.
They were greeted in the parking lot by family and social agencies, and then headed either to shelters, alternative sentencing programs or home.
“For the safety of everyone in this facility, not only the staff but the inmates as well, we’re doing what we have to do due to the financial situation of this county,” Sheriff Steve Barry said. Barry, whose career began with the sheriff’s office in 1979, could not recall another time when the county released a large number of inmates for budgetary reasons.
The sheriff had announced the release plan last month, saying he doesn’t have enough deputies to safely oversee the jail. The county already has cut recreation time and programming for inmates because of staffing.
In late 2013, a national jail expert recommended that the county hire at least 50 more workers or close a portion of the facility. Then last fall, county voters rejected a sales tax increase that would have funneled most of the money to jail operations. The facility, on East Crosier Street in Akron, can hold 671 inmates, but will be reduced to 522. “I don’t want these people out,” Barry said. “I got no choice.”
Asked what the county would do in the future, the sheriff responded: “That’s a very good question” and acknowledged he doesn’t know what the solution is. The release Sunday was complicated by the fact that the jail received about 50 new inmates over the last two days, Barry said. That meant some people charged with assaults, domestic violence and other crimes not expected to be let go were set free.
No one charged with murder or rape was released, the sheriff said. It was unclear if any of the inmates were released early from a sentence or if they were all awaiting trial. Sheriff’s officials could not say Sunday.
Barry credited the jail staff for handling the background reviews of all inmates. “They have been working around the clock the last four to five days on who could go and who could not go,” Barry said. He added that authorities attempted to contact every victim of the inmates who were released.
Former inmate Antonio Spragling, 50, of Akron had been in the jail for 47 days. He was arrested last year on drug charges and violation of a protection order and is awaiting trial. “All I could do is thank God,” he said. “I’m spiritual. God is my savior. … Unfortunately I’ve been in situations like this before and there was talk of release and it never happened. I look at it as a second chance and I’m not going to let anyone down. No judge. The system. And more important, I’m not going to let myself down.”
David Kennedy of Barberton and Joseph Griffin Jr. of Akron came to the jail to pick up relatives. As they stood in the parking lot waiting, they said they wished there were more programs to help former inmates and more businesses willing to hire them. Without training and jobs, they’ll just end up back in jail, they said. “They’ve got some good people in there,” Kennedy said. “They just had a bad turn. Somebody didn’t help them out. Nobody gave them that momentum, encouraging them to do the right thing. Some of the people in there you can tell have a good heart.”
Sunday, January 11, 2015
Toledo Blade urges "No more prisons" for Ohio as it deals with overcrowding issues
This new editorial from The Toledo Blade makes the case for sentencing reform to deal with Ohio's prison overcrowding problems. Here are excerpts:
Fueled largely by growing numbers of nonviolent, drug-addicted offenders from rural counties, Ohio’s crowded prison system is at a crossroads: The state must either increase capacity or take the far more sensible, humane, safe, and cost-effective route of finding community-based alternatives to incarceration.
Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community sanctions could handle more effectively, at a fraction of the $25,000 a year it costs to lock up each prisoner. Ohio’s prison system costs $1.5 billion a year.
Nearly 45 percent of inmates who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison. Expanding drug courts in Ohio would ensure that more offenders who struggle with addiction were sentenced to treatment instead of prison.
Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, prudently and courageously rules out building more prisons, though he said crowding statewide could force Ohio to reopen a prison camp.... “As a state, we’re going to have to make some policy decisions,” Mr. Mohr told The Blade’s editorial page. “Are we going to invest in brick and mortar, spending $1 billion over the next 20 years to build and run another prison, or are we going to invest in people? ... I’m not going to build another prison, not with so many nonviolent people coming into the system.”
The rest of the state should listen to its prison chief. Mr. Mohr recently convened a working group of judges and state politicians to find ways to divert more low-level offenders from prison. He said he would expand halfway houses and other community alternatives to incarceration, and support sentencing reforms that could emerge from the General Assembly this year.
Roughly 30 percent over capacity, Ohio’s prison system holds 50,382 inmates, including 4,049 women. That’s up about 2 percent from August, 2012. The prison population would be far higher if the recidivism rate in Ohio were not at a record low 27.1 percent, compared to nearly 50 percent nationwide. The state could lower that rate even further by starting drug treatment, including medication-assisted treatment, before prisoners are released and continuing that treatment after they go home....
The number of offenders coming from Ohio’s six largest counties, including Lucas, is down, Mr. Mohr said. But a growing number of new prisoners from the rest of the state has more than offset decreases from major urban areas. Ohio’s goal should not be to manage its prison population. It should be to reduce that population significantly, by acting now to expand cost-effective alternatives to incarceration.
Some recent related posts:
- Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs
- Editorial laments how some part of Ohio are "addicted to prisons"
- Gendered perspective on Ohio's challenges with opioids and prison growth
Wednesday, January 07, 2015
Mapping facilities in incarceration nation which "has more jails than colleges"
The terrific Washington Post wonkblog has this notable post by Christopher Ingraham with a fascinating map and discussion of prisoners and incarceration facilities in the United States. The post is titled "The U.S. has more jails than colleges. Here’s a map of where those prisoners live." Here is an excerpt:
There were 2.3 million prisoners in the U.S. as of the 2010 Census. It's often been remarked that our national incarceration rate of 707 adults per every 100,000 residents is the highest in the world, by a huge margin. We tend to focus less on where we're putting all those people....
Much of the discussion of regional prison population only centers around inmates in our 1,800 state and federal correctional facilities. But at any given time, hundreds of thousands more individuals are locked up in the nation's 3,200 local and county jails....
To put these figures in context, we have slightly more jails and prisons in the U.S. -- 5,000 plus -- than we do degree-granting colleges and universities. In many parts of America, particularly the South, there are more people living in prisons than on college campuses. Cumberland County, Pa. -- population 235,000 -- is home to 41 correctional facilities and 7 colleges. Prisons outnumber colleges 15-to-1 in Lexington County, S.C....
[S]tates differ in the extent to which they spread their correctional populations out geographically. Florida, Arizona and California stand out as states with sizeable corrections populations in just about every county. States in the midwest, on the other hand, tend to have concentrated populations in just a handful of counties.
I encourage everyone to click through to see the map of all this in the WaPo posting.
Tuesday, January 06, 2015
Notable discussions of children as mass incarceration’s "collateral damage"
The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces." Here is an excerpt:
A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....
A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.
Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.
Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....
Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....
John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”
I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders. And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:
Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”
Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.
Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.
Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.
In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.
January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack
Sunday, January 04, 2015
Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs
This weekend brought two similar stories from two heartland states struggling with similar persistent prison problems. Here are links to the stories with their headlines and highlights:
From Indiana here, "Despite code changes, state's prisons will grow":
Amid other demands the Legislature will be juggling starting this month is a request from the Indiana Department of Correction for money to build and operate new prison cells. Without those cell units, department officials told legislators recently, the state will run out of beds for male inmates in about two years....
One reason is that the criminal code revisions, in addition to sending more prisoners back to the county, tightened the credit-for-time-served formula for other types of prisoners, keeping them in state prisons longer. It's not yet clear exactly how much more pressure that will put on the prison system, but DOC officials believe they would have had to increase capacity soon anyway. Indiana's prison population numbered 6,281 in 1980. At the end of 2013, it was 29,377. That's more than 4½ times as many prisoners.
From Ohio here, "Emergency early release of prisoners is considered":
As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners.
In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.” The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds....
As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.
The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.
Mohr’s budget letter said the state is at a “significant decision point for criminal justice policy. Do we invest in people or in bricks and mortar? To build and operate one prison for two decades would cost Ohioans one billion dollars.”
New projections have the population hitting 50,794 by July 1, and rising to 52,844 by 2023. Ohio’s all-time high was 51,273 on Nov. 10, 2008. The prison population is increasing despite an overall drop in the crime rate and the fact that Franklin and the other five largest counties are sending fewer people to state prisons. The other 82 counties are making up for it....
State lawmakers have in recent years passed a host of laws adding offenses or increasing prison time for existing ones. Reform efforts to rein in the growth have helped, but the slow creep in prison population continues.
As outlined in law, Mohr would submit a declaration of an overcrowding emergency to the Ohio Correctional Institution Inspection Committee, a legislative watchdog agency, which would forward a recommendation to Gov. John Kasich. The governor could then declare an official emergency, clearing the way for early release of qualifying nonviolent offenders. That would exclude inmates serving sentences for murder, voluntary manslaughter, felonious assault, kidnapping, rape, aggravated arson and aggravated robbery.
"Switzerland has too many criminals and too few prisons"
The title of this post is from the first sentence of this recent AP article headlined "Switzerland mulls plan to export prisoners." Here is more about a notable European nation having a problem all to common in the US:
Now the Justice Ministry is reportedly considering a proposal to export convicts to neighboring France and Germany. Swiss prisons chief Thomas Freytag told public broadcaster SRF in a program aired late Friday that the country's correctional facilities are at more than 100 percent capacity.
Prisons in the French-speaking cantons (states) of western Switzerland are said to be particularly overcrowded. It's unclear when the Justice Ministry would decide on the plan, and whether France or Germany would be prepared to let Swiss inmates do their time there.
Left out of this brief story is the basic fact that Switzerland, at recent count, has less than 7,000 prisoners in the whole country and an incarceration rate that is only about 1/8th of the incarceration rate in the United States. For comparison, consider that the US state of Virginia has a state-wide population that is a little lower than Switzerland's, but it has more than 30,000 prisoners (and that count excludes a few thousand federal prisoners coming from Virginia).
Sunday, December 21, 2014
"U.S. Incarceration: Still Mass; The shrink-the-prisons movement hasn’t moved the numbers."
New Bureau of Justice Statistics figures out this morning measured a slight decrease — about half of a percent — in the number of adults incarcerated in the United States last year. The decline comes from a drop in inmates of local jails. The number of people in local jails last year fell by almost 2 percent — to 731,200. At the same time, despite a growing national concern with the costs and consequences of mass incarceration, the number in prisons grew a tiny bit, one-third of a percent from the previous year, to 1,574,700.
The increase in the prison population comes entirely from state facilities — reversing a three-year downward trend. The number of inmates in federal prisons actually declined for the first time since 1980.
There are real lives behind these numbers: every percentage point accounts for approximately 22,200 people. But the rate of change is almost negligible. If the nation’s incarcerated adult population continued to decrease at this pace, it would take 215 years — until 2228 — to drop below the number of adults incarcerated in 1985.
Looking at changes over the long term, the number of inmates in jails and prisons is down from 2010, but remains up more than 14 percent from what it was at the turn of the century.
Recent related post:
Friday, December 19, 2014
New BJS data show continued (very) slow decline in correctional populations in US
This official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Correctional Population Declined By Less Than 1 Percent For The Second Consecutive Year," provides highlights from the latest official accounting of who is subject to criminal justice control in the United States. Here are some of the details:
The number of persons under adult correctional supervision fell by 41,500 persons during 2013, dropping to 6.89 million by yearend, the Bureau of Justice Statistics (BJS) announced today. The decline in the correctional population (down 0.6 percent) was less than 1 percent for the second consecutive year.
By yearend 2013, the number of persons under adult correctional supervision was the smallest number observed since 2003. About 7 in 10 offenders under adult correctional supervision were supervised in the community on probation (3.91 million) or parole (853,200) at yearend 2013, compared to about 3 in 10 incarcerated in state and federal prisons (1.57 million) or local jails (731,200).
The entire drop in the correctional population during 2013 was due to a decline in the number of probationers (down 32,100) and persons held in local jails (down 13,300). The parole population (up 2,100) and prison population (up 4,300) increased, partially offsetting the overall decline in the total correctional population.
While the U.S prison population increased during 2013, the number of inmates under the jurisdiction of the Federal Bureau of Prisons decreased (down 0.9 percent or 1,900) for the first time since 1980. The growth in the U.S. prison population was attributed to the increase in the number of inmates under the jurisdiction of state prisons (up 0.5 percent or 6,300).
About 1 in 35 adults in the United States (or 2.8 percent of the adult resident population) was under some form of correctional supervision at yearend 2013. This rate was unchanged from 2012, when it dropped to the lowest rate observed since 1997. About 1 in 51 adults was on probation or parole at yearend 2013, compared to 1 in 110 incarcerated in prisons or local jails....
In 2013, females accounted for almost 25 percent of the probation population, up from about 22 percent in 2000. They made up 14 percent of the jail population in 2013, up from about 11 percent in 2000. The percentage of females on parole or incarcerated in state or federal prisons remained unchanged between 2000 and 2013. Since 2010, the female jail population has been the fastest growing correctional population, increasing by an average annual rate of 3.4 percent.
The full report with all these data and a whole lot more it titled simply "Correctional Populations in the United States, 2013," is available at this link.
Thursday, December 18, 2014
"End Solitary Confinement for Teenagers"
The title of this post is the headline of this New York Times op-ed authored by Ian Kysel. Here are excerpts:
Solitary confinement can be psychologically damaging for any inmate, but it is especially perverse when it is used to discipline children and teenagers. At juvenile detention centers and adult prisons and jails across the country, minors are locked in isolated cells for 22 hours or more a day. Solitary confinement is used to punish misbehavior, to protect vulnerable detainees or to isolate someone who may be violent or suicidal. But this practice does more harm than good. It should end.
A major study by the Department of Justice in 2003 showed that more than 15 percent of young people in juvenile facilities, some as young as 10, had been held in solitary. My own research, for Human Rights Watch and the American Civil Liberties Union, suggested that the practice of putting teenagers in solitary was more widespread in adult jails and prisons. A recent Justice Department investigation found that at any given time in 2013 as many as a quarter of adolescents held at New York City’s Rikers Island were in solitary confinement. Dozens had been sentenced to more than three months in solitary. Still others were held longer, for more than six months.
Only six states have laws on the books that prohibit certain forms of isolation in juvenile facilities. No state — nor the federal government — has banned the solitary confinement of teens in adult jails and prisons....
A recent Justice Department review of suicides in juvenile facilities found that more than half of the minors who had killed themselves had done so in isolation. And in adult jails, department data released this fall identified more than 40 teenagers who had committed suicide since 2000; the suicide rate for minors in adult prisons was twice as high as that for older inmates. A recent study at Rikers Island found that adolescents there were significantly more likely to harm themselves....
Attorney General Eric H. Holder Jr. should immediately direct the Bureau of Prisons to outlaw the solitary confinement of juveniles. The federal government already prohibits the detention of juveniles with adults in federal prisons (a rule that states should emulate). Mr. Holder could also direct the bureau to develop new policies to strictly regulate any use of even short periods of isolation.
Mr. Holder could then direct the Justice Department’s Office of Juvenile Justice and Delinquency Prevention to promote these policies as model practices, much like the national guidelines on education in juvenile facilities that Mr. Holder and Secretary of Education Arne Duncan announced last week....
That the practice [of solitary confinement] is widespread remains a disturbing indicator of how poorly we treat the hundreds of thousands of minors arrested each year in the United States. They are still maturing into adulthood. Solitary confinement can sabotage both their rehabilitation and their growth. It should be banned.
Tuesday, December 16, 2014
Split en banc First Circuit reverses judgment that sex-change operation was medically necessary for imprisoned murderer
As reported in this AP article, a "divided federal appeals court on Tuesday overturned a ruling ordering Massachusetts prison officials to provide taxpayer-funded sex-reassignment surgery for an inmate convicted of murder." Here are the basics:
Michelle Kosilek, born Robert Kosilek, is serving a life sentence for killing spouse Cheryl Kosilek in 1990. Kosilek has waged a protracted legal battle for the surgery she says is necessary to relieve the mental anguish caused by gender-identity disorder.
In 2012, U.S. District Judge Mark Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate's gender-identity disorder. Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, but most have ordered hormone treatments and psychotherapy, not surgery.
Wolf's decision was upheld by a three-judge panel of the 1st U.S. Circuit Court of Appeals, but prison officials appealed and won a rehearing before the full appeals court.
In a 3-2 ruling Tuesday, the full 1st Circuit found that Kosilek failed to demonstrate that prison officials violated the Eight Amendment prohibition against cruel and unusual punishment by not providing the surgery.
The court noted that the state Department of Correction has provided treatment for Kosilek's gender-identity disorder, including female hormones, laser hair removal and psychotherapy. The court also noted the department's concerns about protecting Kosilek from sexual assaults if she completes her gender transition. She is currently housed in a male prison but hoped to be transferred to a female prison after the surgery.
"After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment," Judge Juan Torruella wrote for the majority.
Two judges disagreed with the majority. In a sharply worded dissenting opinion, Judge Ojetta Rogeriee Thompson suggested that Kosilek would not have had to fight a long battle for constitutionally adequate medical care if she was not seeking "a treatment that many see as strange or immoral."
"Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction," Thompson wrote.
The full 100+ page ruling is available at this link, and the majority opinion gets started this way:
This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction ("DOC") has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek ("Kosilek"). More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment -- a treatment which would give rise to new concerns related to safety and prison security.
After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.
Prior related post:
Friday, December 12, 2014
Federal task force on corrections getting geared up for (big?) work in 2015
As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced. Here is the context for this notable development:
[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia. They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.
There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...
Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."
The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012. Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.
Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House. He is a member of the conservative justice-reform group Right on Crime. Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."
Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House. Mollohan has presided over many hearings on corrections issues. In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...
The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."
The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance. A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....
Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.
In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year. The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.
This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system. And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.
Monday, December 08, 2014
Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?". The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.
I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:
Not to worry -- this post is not psychobabble about my feelings. It's about a question I was asked by two journalists with whom I spoke recently.
The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform. Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.
Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.
Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.
But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.
The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise. The liberal bubble is big. It's also, for the most part, impenetrable.
And it's one more thing -- wrong.
If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones. One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....
[T]there are some prominent people in the Republican Party on board with "sentencing reform." But the great majority of Republicans, and the center of the Party, are not being fooled. The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....
So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform." Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.
There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.
Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party). Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey." Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.
But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform. Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years. And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.
Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons. According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws. But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.
(Notably, these generational and demographic realities concerning sentencing reform are not only a GOP story. Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform. But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)
Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works." Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working. That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.
Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties. But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo. Whether and how these competing groups views as to "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950.
Notable new resources from DOJ and DOE to improve education in juve justice systems
I am pleased and intrigued to see this new DOJ press release titled "Attorney General Holder, Secretary Duncan, Announce Guidance Package on Providing Quality Education Services to America's Confined Youth." Here are notable excerpts from the press release which, inter alia, links to a whole array of additional related resources:
Attorney General Eric Holder and Secretary of Education Arne Duncan today announced a Correctional Education Guidance Package aimed at helping states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day....
“In this great country, all children deserve equal access to a high-quality public education — and this is no less true for children in the juvenile justice system,” said Attorney General Holder. “At the Department of Justice, we are working tirelessly to ensure that every young person who's involved in the system retains access to the quality education they need to rebuild their lives and reclaim their futures. We hope and expect this guidance will offer a roadmap for enhancing these young people's academic and social skills, and reducing the likelihood of recidivism.”
“Students in juvenile justice facilities need a world-class education and rigorous coursework to help them successfully transition out of facilities and back into the classroom or the workforce becoming productive members of society,” said Secretary Duncan. “Young people should not fall off track for life just because they come into contact with the justice system.”...
“High-quality correctional education is thus one of the most effective crime-prevention tools we have,” Attorney General Holder and Secretary Duncan wrote in a dear colleague letter to chief state school officers and state attorneys general. “High-quality Correctional education – including postsecondary correctional education, which can be supported by Federal Pell Grants — has been shown to measurably reduce re-incarceration rates. Less crime means not only lower prison costs — it also means safer communities.”...
Providing young people in confinement with access to the education they need is one of the most powerful and cost-effectives strategies for ensuring they become productive members of their communities. The average cost to confine a juvenile is $88,000 per year — and a recent study showed that about 55 percent of youth were rearrested within 12 months of release. Inmates of all ages are half as likely to go back to jail if they participate in higher education — even compared to inmates with similar histories.
Sunday, December 07, 2014
Blanket prohibition of tobacco now officially the law of the federal prisons land
As reported in this US News article, the "Federal Bureau of Prisons is officially banning smoking and possession of tobacco in any form by prison inmates." Here is more:
The prohibition takes effect 30 days after publication of a final regulatory rule Monday in the Federal Register. Prison guards still will be allowed to possess tobacco, but inmates will be permitted to smoke only for religious purposes.
“I’m a little surprised to be getting calls about this,” says Bureau of Prisons spokesman Ed Ross. Tobacco use by inmates, he says, is already banned in practice due to a 2006 policy taking tobacco products off the shelves of prison commissaries. Cigarettes became contraband when commissaries stopped selling them, despite regulations technically allowing for outdoor smoking.
“If an inmate is found to be in possession of tobacco they are subject to discipline,” possibly including loss of phone or visitation privileges, Ross says. “I think it’s just formalizing the policy that’s in place.”...
Prisoners are historically more likely to smoke than the general public. Before the 2006 policy change, an estimated 60 to 80 percent of prison and jail inmates were smokers — far higher than the national average — alarming public health advocates who noted poor ventilation at facilities exposed nonsmokers to significant amounts of secondhand smoke.
But there's a flip side to banning tobacco. The New York Daily News reported in 2013 tobacco prohibitions led to a surge in black market prices, with individual cigarettes selling for an average of $30 on New York City’s Rikers Island. The Daily Beast reported the restrictions created a “cash cow” for prison gangs like the Aryan Brotherhood.
The new rule applies only to the 212,438 inmates housed in federal facilities. Many state and local jails, however, have independently banned tobacco use.