Thursday, October 29, 2015

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)

Monday, September 28, 2015

Papal prison priorities: "to care for wounds, to soothe pain, to offer new possibilities"

092715-wpvi-pope-bishop-prison-3-IMGThis local story reports on the messages Pope Francis delivered to prisoners and to all of us society as he visited a local jail during his last day of his trip to the United States.  Here are some details of the visit:

In one of Pope Francis' most anticipated visits on his first trip to the United States, the pastor pope who has made prison reform one of his top priorities did what few in power ever do: He likened himself to criminals. "All of us need to be cleansed, to be washed," Pope Francis said. "And me in first place."

After arriving at the prison on State Road near Rhawn Street via helicopter, Pope Francis walked into the prison's gymnasium to a standing ovation.  "I am here as a pastor, but above all as a brother, to share your situation and make it my own," he said.

Attending the pope's speech were male and female inmates from across the Philadelphia Prison System, their families, prison employees, and local officials. Also present were relatives of Patrick Curran and Robert Fromhold, the former Holmesburg Prison warden and deputy warden, for whom the prison is named — both murdered in the line of duty by Holmesburg inmates in 1973.

Sunday's prisoners were chosen not for their crimes or alleged offenses — which ranged from murder to assault — but rather for their behavior while in custody and their good attendance in prison programs and services.

Several prisoners in the carpentry division of PhilaCor, the prison's job-skills program, even built a 6-foot walnut chair that they gave to Pope Francis. "The chair is beautiful," the pope said. "Thank you very much for the hard work."

Pope Francis began his speech — which he delivered in Spanish — by criticizing countries that are complacent to people in anguish. While not directly naming the United States - which has 25 percent of the world's inmates but only 5 percent of its population - his message was clear.  "Any society, any family, which cannot share or take seriously the pain of its children and views that pain as something normal or to be expected, is a society condemned to remain a hostage to itself, prey to the very things which cause that pain," he said.

Pope Francis spent a good portion of his 15-minute speech talking about how Jesus washed the feet of his disciples because the dirty roads during that time made their feet "dusty, bruised, or cut."  Francis himself has washed the feet of prisoners on more than one occasion since his papacy began, but did not do so Sunday.  "Life means getting our feet dirty from the dust-filled roads of life and history," he said.

But above all, what Jesus wants is for our journeys to continue, the pope said. "He wants us to keep walking the paths of life, to realize that we have a mission, and that confinement is not the same thing as exclusion," he said, and a prisoner applauded.

Just as he did in his speech to Congress on Thursday, Francis underscored the need for hope and rehabilitation in every punishment.  "It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities," he said.

Francis ended his talk to the prisoners by asking that they look to Jesus. "He comes to save us from the lie that says no one can change," the pope said.  After his speech, the pope greeted each prisoner and family members individually.  Some wept; a few embraced him. Others requested a blessing, which he provided by gently laying his hand atop their heads and praying. As he walked among the prisoners, aides followed behind and gave each a photo of the pope and a white rosary that was neatly tucked into a burnt-sienna plastic envelope with the papal crest on the front.

At the request of the prisoners, before Pope Francis left, he blessed them and their rosaries. "May God bless and protect you and may his grace shine upon you," he said. "And may he grant you peace."

A few prior related posts about visit of Pope Francis and his criminal justice perspectives:

September 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion, Who Sentences? | Permalink | Comments (1)

Sunday, September 27, 2015

VICE special prison report, "Fixing the System," to premire tonight on HBO

Images (3)Tonight on HBO will be the first full premire screening of this special report, "Fixing the System," done in conjuntion with VICE.  A partial preview is available here via YouTube, where this summary of the show also apprears: 

VICE and HBO's upcoming special on criminal justice in the US: 'Fixing The System' will air September 27. Watch the full trailer [at this link].

In the first clip to go live from the special, we see the moment that President Obama meets the inmates and sits down with them for an in-depth conversation. Stay tuned for more prison coverage in the weeks to come, and watch the full-length special this Sunday on HBO.

The special offers a panoramic perspective on crime and punishment, and will follow all the key characters in America’s sprawling justice system, including prisoners and their families, members of the judiciary, and community reformers.

It will be hosted by VICE founder and correspondent, Shane Smith, and will also feature President Barack Obama's historic tour of El Reno Federal Correctional Institution in Oklahoma in July, where he met with inmates and prison officials.

"There's an emerging consensus in this country — on both the right and the left — that the way we treat criminal offenders is utterly broken and weakening our society in profound ways," Smith said, explaining the significance of the documentary.

In filming the special, President Obama became the first sitting President to visit a federal prison, signaling that criminal justice reform is a top priority in the final stretch of his presidency. At the medium-security prison for male offenders, Obama met with six inmates. He said the men's stories and the mistakes they made were not dissimilar to those the president made in his own youth, when he admittedly smoked pot and used cocaine.

America needs to distinguish between violent criminals and people "doing stupid things," Obama said, adding that many young people who end up in prison for nonviolent drug crimes grew up in environments where drug trafficking is prevalent. Giving those people decades-long sentences is what is contributing to the country's overcrowded prison system, and more resources should be directed to education, support, and rehabilitation, he said.

"I am really interested in the possibilities, the prospect of bipartisan legislation around the criminal justice system," the president told reporters on June 30. "And we've seen some really interesting leadership from some unlikely Republican legislators very sincerely concerned about making progress there."

The special is the latest in VICE's ongoing coverage of what has become a major civil rights and reform issue in the United States.

September 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Friday, September 25, 2015

Depressing new 2005 released-prisoner recidivism data from BJS (with lots of spin possibiities)

I just received notice of this notable new Bureau of Justice Statistics report titled "Multistate Criminal History Patterns of Prisoners Released in 30 States."  Though the BJS report and this BJS press release and this BJS summary are primarily focused on state prisoners released in 2005 who were thereafter arrested in another state, the biggest big-picture message is that for the BJS cohort of roughly 400,000 studied state prisoners released in 2005, nearly 80% were rearrested within the next five years. I cannot help but be depressed and saddened that only about one in five persons released from state prisons in 2005 was able to avoid significant contact with the criminal justice system over the subsequent five years.

Unsurprisingly, Bill Otis and other supporters and advocates of modern American incarceration levels have generally stressed these disconcerting recidivism data to assert crime is certain to increase if we enact reforms to significantly reduce our prison populations and let more folks out of prison sooner. But it bears remembering that these 2005 released prisoners served their time in state prisons and were released when the national prison population was continuing to grow and limited state resources were generally being devoted toward sending more people to prison and spending less money trying to keep people out of prison (or to aid reentry when prisoners were being released). These data thus also suggest what many reform-advocating criminologists have long said: the life disruptions and other impact of a prison term (especially when followed by poor reentry efforts) is itself criminogenic and thus serves to increase the likelihood an offender will commit crimes once released.

However one thinks about these new BJS data, it is depressingly obvious that the experience of prison for those prisoners released in 2005 seems to have done a very poor job of encouraging past offenders from becoming repeat offenders. I am cautiously hopeful that an array of prison and reentry reforms enacted by many states over the last decade will result in a much lower recidivism rate for state prisoners now being released in 2015. But only time (and lots of careful data analysis) will tell.

September 25, 2015 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

Duchess of Cambridge creates surprising Princess prison diaries in UK

Kate-Middleton-Prison-VisitAs reported in this article from across the pond, headlined "Kate Middleton meets killers on secret visit to high security women's jail," the world's most famous princess made a notable field trip today. Here are the details:

The Duchess of Cambridge has been behind bars today meeting inmates in a women's prison. Kate visited HMP Send in Woking, Surrey to learn how it is helping some of its 282 inmates overcome drug and alcohol addiction to rebuild their lives.

Arriving this morning the royal mum spent 90 minutes inside the high security prison where many are serving life sentences for murder. HMP Send's notable prisoners have included road rage killer Tracie Andrews who served 14 years for murdering her fiancee in December 1996 and the Duchess of York's former dresser Jane Andrews who also spent 14 years in prison for murdering her boyfriend in 2000.

Dressed smartly and showing off her new-look fringe, Kate, 33, was greeted by the governor before meeting prisoners hearing their stories of addiction and crime.  She also met ex-inmates and heard how the programme helped them turn their lives around.

Kensington Palace said in a statement:  “The visit reflects the Duchess's interest in learning how organisations support people living with substance misuse issues, and the impact of addiction within the wider family network.  “As Patron of addiction charity, Action on Addiction, she is aware that addictions lie at the heart of so many social issues and the destructive role that substance misuse plays in vulnerable people's and communities' lives.”

Kate was viewing the work carried out by the Rehabilitation of Addicted Prisoners Trust (RAPt) which operates in HMP Send and 25 other prisons across the country.  Their treatment programme at HMP Send is the only one of its kind for women in Britain.  It is tailored to support female prisoners with addiction who have often experienced deep trauma, focusing on building healthy relationships with partners, children and other family members after the often traumatic and damaging impact of addiction and crime.

September 25, 2015 in Prisons and prisoners, Race, Class, and Gender, Sentencing around the world, Who Sentences? | Permalink | Comments (1)

Wednesday, September 23, 2015

Prez candidate Bernie Sanders: "We Must End For-Profit Prisons"

BernieAs noted in this prior post, last week Senator (and Presidential candidate) Bernie Sanders announced his commitment to ending use of private prison in the United States. This week he has followed up by authoring this Huffington Post commentary under the headline "We Must End For-Profit Prisons." Here are excerpts taken from the start and end of the piece along with its major headings in-between:  

The United States is experiencing a major human tragedy. We have more people in jail than any other country on earth, including Communist China, an authoritarian country four times our size. The U.S. has less than five percent of the world's population, yet we incarcerate about a quarter of its prisoners -- some 2.2 million people.

There are many ways that we must go forward to address this tragedy. One of them is to end the existence of the private for-profit prison industry which now makes millions from the incarceration of Americans. These private prisons interfere with the administration of justice. And they're driving inmate populations skyward by corrupting the political process.

No one, in my view, should be allowed to profit from putting more people behind bars -- whether they're inmates in jail or immigrants held in detention centers. In fact, I believe that private prisons shouldn't be allowed to exist at all, which is why I've introduced legislation to eliminate them.

Here's why:

For-profit prisons harm minorities....

For-profit prisons abuse prisoners....

For-profit prisons victimize immigrants....

For-profit prisons profit from abuse and mistreatment....

Prison industry money is corrupting the political process....

For-profit prisons are influencing prison policy ......

... and immigration policy....

For-profit companies exploit prison families....

Young people are being mistreated and exploited....

I have introduced legislation that will put an end to for-profit prisons. My legislation will bar federal, state, and local governments from contracting with private companies to manage prisons, jails, or detention facilities. Regulators will be directed to prevent companies from charging unreasonable fees for services like banking and telecommunications.

My legislation also takes steps to reduce our bloated inmate population. It reinstates the federal parole system, which was abolished in the 1980s, so that officials can individually assess each prisoner's risk and chance for rehabilitation. It ends the immigrant detention quota, which requires officials to hold a minimum of 34,000 people captive at any given time. And it would end the detention of immigrant families, many of whom are currently held in privately-owned facilities in Texas and Pennsylvania.

It's wrong to profit from the imprisonment of human beings and the suffering of their friends and families. It's time to end this morally repugnant practice, and along with it, the era of mass incarceration.

I have long tended to have an agnotic view of the private prison industry, in part because I generally tend to favor free-market solutions to big problems and in part because I view the public prison industry to be chock full the big problems stressed by Sanders in this commentary.  Nevertheless, Sanders makes a strong case that private prisons exacerbate public harms in incarceration nation.  Moreover, it is now quite interesting and important that a significant rival to Hillary Clinton for the Democratic nomination for President is now making prison reform a big priority on the campaign trail.

Some prior related posts:

September 23, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

"Pope Francis and the case for American criminal justice reform"

The title of this post is the headline of this notable new FoxNews commentary authored by Newt Gingrich and Pat Nolan.  Here are excerpts:

Pope Francis’s visit to the United States is attracting a flood of attention, and preparations have been underway for months in the cities and communities that will welcome him. While the pope will be greeted by thousands as he visits our nation’s famous landmarks and cathedrals, he has also planned a stop where the residents cannot come out to greet him: a local jail in Philadelphia. A jail isn’t a typical location for the fanfare that usually surrounds a papal visit, but Pope Francis’s decision to shine a spotlight on people in jail shouldn’t come as a surprise.

The pope has often implored us through his words and actions to treat the people we put in jail or prison with respect and mercy.  Some of those in jail have committed serious crimes, while others have committed relatively minor offenses. Many struggle with mental illness or drug addiction.  Many simply can’t afford to make bail.  Treating them justly and fairly is a strong Christian, and quintessentially Catholic, imperative.  After all, Jesus taught us to visit those in prison.  He also told us that what we do for the least of our brothers and sisters we do for Him.

When Pope Francis visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect.  Pope Francis continues the tradition of Catholic leaders urging us to offer hope and a second chance to prisoners....

The pope’s visit to the jail in Philadelphia will call attention to a part of our criminal justice system that receives too little notice: local jails.  Prisons are the focus of most of the discussion about criminal justice reform, even though 20 times more inmates (12 million) pass through our jails each year compared to our prisons.  The jail population is different from prisons because most jail inmates are nonviolent offenders awaiting trial, and innocent in the eyes of the law.

Indeed, many of those in jail don’t belong there.  One in six men and one in three women in local jails have serious mental illnesses — rates much higher than in the general public. These people are sick, not always bad.  They need treatment, not necessarily incarceration. Others are held in jail for months and even years because they don’t have the money to post a small bond.  For example, in New York City, almost a third of inmates in 2012 were held until trial because they could not pay a bond of $500 or less.

We see time and time again that overincarceration tears families apart by locking up fathers, mothers, brothers, and daughters mostly for minor crimes.  The vast majority of people in our jails are there for nonviolent offenses like traffic violations or drug use. When they are finally released, most have lost their jobs, which leaves them unable to support their families and puts stress on their loved ones and the community....

We have worked over the last decade to build conservative support for criminal justice reform, rooted in our political views as well as our faith.  Our Catholic beliefs hold that each person is a child of God and worthy of respect.  A cornerstone of the Catholic faith is that redemption is available to everyone, no matter what they have done. We are all sinners, and the ground is level at the foot of the Cross.

You don’t have to be a Catholic to see the importance of Pope Francis’s message.  When he visits the inmates in Philadelphia we hope that all people, no matter what their traditions or beliefs, will heed his call to treat those who are incarcerated with respect, and offer them a second chance to turn their lives around.

September 23, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Religion | Permalink | Comments (1)

Tuesday, September 22, 2015

"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"

Social2The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling.  In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:

In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.

While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.

In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.

That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”

This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.

Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.

Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.

Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.

There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.

September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, September 20, 2015

"Mass Incarceration Has Become the New Welfare"

The title of this post is headline of this interesting recent Atlantic commentary authored by Alex Lichenstein. It is, in part, a response to this major Altantic piece by Ta-Nehisi Coates, titled "The Black Family in the Age of Mass Incarceration," but it has lots more too it.  Here are excerpts:

When Ta-Nehisi Coates says that America’s bloated and enormously expensive dependence on imprisonment has created a “social service program … for a whole class of people,” he hits the nail on the head.  Perhaps correctional expenditures — police, courts, jails, prisons, halfway houses, parole offices, and all the rest — are better classified as “welfare” expenditures.

Mass incarceration is not just (or even mainly) a response to crime, but rather a perverse form of social spending that uses state power to address a host of social problems at the back end, from poverty to drug addiction to misbehavior in school.  These are problems that voters, taxpayers, and politicians — especially white voters, taxpayers, and politicians — seem unwilling to address in any other way.  And even as this spending exacts a toll on those it targets, it confers economic benefits on others, creating employment in white rural areas, an enormous government-sponsored market in prison supplies, and cheap labor for businesses.  This is what the historian Mike Davis once called “carceral keynesianism.”

What created this system? Coates suggests that 50 years ago policymakers and pundits refused to heed — or willfully misread — Daniel Patrick Moynihan’s dire warnings about the dissolution of the “Negro family” and his rather inchoate “case for national action.” Rather than redressing the problem of racism and “Negro” poverty, instead they turned to the expansion of a criminal justice system in the name of “law and order.”  Although Coates is justifiably hard on Moynihan — for his sexism and faith in patriarchy, for his subsequent reactionary politics, and most of all for lacking the courage of his convictions — like the historian Daniel Geary, he sees the Moynihan of 1965 as a closet supporter of affirmative action.

But, in characteristic fashion, he goes beyond this, asking readers to think in new ways about disturbing phenomena that they may take for granted.  Bringing together Moynihan’s concerns about black family structure with the cold fact of mass incarceration produces a striking conclusion: Mass incarceration actually causes crime.  In its long-term impact on the black family, mass incarceration has many of the disintegrative effects that Moynihan attributed to slavery.  It certainly has a similar multigenerational impact; the children of imprisoned people have a much higher chance of themselves being incarcerated as adults....

The terrible failures of America’s criminal-justice system can actually, from a certain perspective, be seen as policy successes.  The high rate of recidivism suggests that prisons fail to rehabilitate those who are locked up.  Yet if two-thirds of parolees return to prison, perhaps it is because the economy offers them no jobs and the welfare state excludes them as ex-felons.  Their return to the social services provided by incarceration, from this angle, makes a degree of sense.  And the point of Coates’s essay is that these people the economy has no room for and the state is unwilling to care for are, as they have always been, disproportionately of African descent.... 

Coates is right: To reform criminal justice requires “reforming the institutional structure, the communities, and the politics that surround it.”  Mustering the requisite political and social resolve to make those changes may seem impossible.  But consider this: How would the nation react if one out of every four white men between the ages of 20 and 35 spent time in prison? 

September 20, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, September 18, 2015

"Cuba to release 3,522 prisoners on the eve of Pope Francis’ visit; why can’t Obama do the same?"

PopeFrancisIsis-v2The provocative question in the title of this post is the title of this notable San Francisco Bay View commentary. Here is how it starts:

Just prior to the visit of Pope Francis to Cuba on Sept. 19, the Cuban government has announced the release of 3,522 people being held in the country’s jails.  This humanitarian gesture will include prisoners who are over 60 years of age, younger than 20, those with chronic illnesses, women and those who are close to their release dates.

Why couldn’t Obama follow the Cuban example before Pope Francis continues on his tour to the U.S. on Sept. 22?  The United States, which has the dubious distinction of having the largest per capita prison population in the world, is overflowing with people who are primarily incarcerated for nonviolent offenses, on drug charges, or being mentally ill and poor.  Of the 2.5 million people in jails and prisons in this country, a vastly disproportionate number are people of color.

As the Obama presidency winds down, with nothing to lose, he could do the right thing by releasing an equal percentage of the prison population as the Cubans did.  Now that would be a humanitarian gesture that a war torn world could appreciate and a gesture of peace with justice to the visiting Pope.  It would amount to the freedom of tens of thousands of people.

Though I am suspect of any accounting of Cuba's incarceration levels (or its propaganda about recent releases), the latest estimate of its imprisoned population is around 57,500.  Consequently, its release of more than 3,500 prisoners amounts to freeing more than 6% of its incarcerated population.  A comparable effort by President Obama, if we focus on the entire local, state and federal incarcerated US population, would require the release of more than 135,000 persons imprisoned in the United States. Even if Prez Obama only released 6% of the current federal prison population, he would still need to grant over 12,000 federal offenders their freedom to make a gesture for the Pope comparable to what Cuba is claiming it has done.

I am not expecting to Prez Obama (or any state's Governor) to make a mass clemency gesture like this for the Pope's visit to the US.  But, as this new NPR story highlights, there are a number of criminal justice reform advocates who are hopeful that, at the very least, the Pope's visit will help kick-start federal criminal justice reform efforts. The NPR piece is headlined "Pope's U.S. Visit Spurs Catholic Support For Criminal Justice Reform," and it highlights that the "Pope will visit a prison in Pennsylvania next week and ... and faith leaders are using the opportunity to press Congress for action."

Some prior related posts on Pope Francis and criminal justice reform:

September 18, 2015 in Clemency and Pardons, Prisons and prisoners, Religion, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, September 17, 2015

Prez Candidate Bernie Sanders announces plan to restore federal parole and eliminate private prisons

Images (1)As reported in this new USA Today piece, headlined "Sanders seeks to ban private prisons," a US Senator on the presidential campaign trail has come out with a distinctive and ambitious criminal justice reform proposal. Here are the basics:

Sen. Bernie Sanders said he hopes to end the “private, for-profit prison racket” with the introduction Thursday of bills to ban private prisons, reinstate the federal parole system and eliminate quotas for the number of immigrants held in detention.

The Vermont independent, who is running for the Democratic presidential nomination, introduced the “Justice is not for Sale Act” with Democratic Reps. Raúl M. Grijalva of Arizona, Keith Ellison of Minnesota and Bobby L. Rush of Illinois. It would bar the federal government from contracting with private incarceration companies starting two years after passage.

“The profit motivation of private companies running prisons works at cross purposes with the goals of criminal justice,” Sanders said. “Criminal justice and public safety are without a doubt the responsibility of the citizens of our country, not private corporations. They should be carried out by those who answer to voters, not those who answer to investors.”...

Ellison said the private-prison industry spends millions each year lobbying for harsher sentencing laws and immigration policies that serve its bottom line. “Incarceration should be about rehabilitation and public safety, not profit,” he said.

The legislation would reinstate the federal parole system, abolished in 1984, and increase oversight of companies that provide banking and telephone services for inmates. It also would end the requirement that Immigration and Customs Enforcement maintain 34,000 detention beds.

Sanders said the bill represents only a piece of the major criminal justice reforms he believes are needed, but he’s convinced the issue can find bipartisan support. “Making sure that corporations are not profiteering from the incarceration of fellow Americans is an important step forward.”

The full text of the Justice is Not for Sale Act of 2015 can be accessed at this link, and it is a very interesting read. Perhaps not surprisingly, the media is so far focused on the provisions of the bill seeking to eliminate use of private prisons. But I think the provisions in the bill that are the most important and could be, by far, the most consequential are those that would reintroduce parole in the federal system.

September 17, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Lots of new data from BJS on prisoners and from USSC on federal sentencing

Sentencing and corrections data junkies have the opportunity for heavy dose of notable new data runs from two federal sources.  Both of these recently released reports have a number of interesting and important modern sentencing stories buried inside lots of notable new numbers:

From the Justice Department’s Bureau of Justice Statistics, "Prisoners in 2014"

From the US Sentencing Commission, "FY 2015 Third Quarterly Sentencing Data Report"

Importantly, the BJS prisoners document has data on only prison populations and thus does not include total incarcerated persons in the US because jail populations are not in the statistics.  With that important statistical reality in mind, here are some highlights identified by BJS concerning "Prisoners in 2014" that I found particularly noteworthy:

September 17, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 16, 2015

"The Literal Cost of Solitary Confinement: Why are prisoners forced to pay fines when they are put in isolation?"

The title of this post is the headline of this notable New Republic piece, and here is an excerpt:

The United Nations has determined that solitary confinement may amount to torture: It can destroy the mind, sometimes the spirit.  And yet many jails and prisons around the country have decided that this punishment alone is not harsh enough.  It’s not widely known, but inmates who are determined to have committed a disciplinary infraction are regularly subjected to fines that can range into the hundreds of dollars on top of weeks or months-long solitary sentences.  Both the psychological damage caused by extreme isolation and the financial burden of the jail debt can hang over these people once they’re released, often making re-entry into society nearly impossible.

“When the system is built on punishment, you find every chance you get to damage people more,” said Glenn Martin, who spent six years in New York state prisons and founded the criminal justice reform group JustLeadershipUSA.  “Unfortunately, prisons in America have evolved into places that are devoid of values such as rehabilitation, fairness and human dignity.”

Prison officials in at least six state systems have the authority to impose fines in addition to solitary for a single rule violation.  Wyoming charges up to $50, Georgia up to $100, Oregon as much as to $200.  Fees in the states of New York, Kansas, and South Dakota range between $5 and $20.  (Wyoming, New York State, Georgia, and Kansas dismiss fines once an inmate is released or put them on hold in case the person returns. South Dakota said it doesn’t use solitary confinement, but the ACLU contends that the state’s isolation policies fit the definition.)...

While some of the state disciplinary fees may sound insignificant, small fines can pile up fast.  They pile up on people who often were homeless or unemployed before they were incarcerated and will face the same situations upon release.  The ACLU of Kansas said inmates could easily rack up thousands of dollars of debt just from disciplinary fines....

For many inmates and their families, disciplinary fines accumulate on top of court and attorney fees, court-ordered restitution, and child support.  And around the country, inmates may be obligated to pay for a seemingly infinite number of additional charges. Some of those costs: drug and alcohol abuse treatment; medical, dental, and psychiatric services; vocational training; toilet paper, laundry, and clothing; phone and video calls, food from the jail store, booking fees, drug testing, and fingerprinting.  In some jurisdictions, inmates pay “room and board” for the time they spend in jail awaiting trial.  Ninety percent of local jails collect revenue from incarcerated people. Those inmates pay an average of $1,259 per person per year to local facilities, according to a recent study by the Vera Institute of Justice.

Prisoners can even be charged for trying to kill themselves.  “I’ve seen it multiple times,” said Elisabeth Owen, the managing director of the Prisoners’ Justice League of Colorado.  “Someone hangs themselves and then they get a medical bill for thousands of dollars.”

September 16, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

"Who Pays? The True Cost of Incarceration on Family"

Download (1)The title of this post is the title of this new report based on research by a number of public policy groups.  Here is the executive summary:

For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation’s unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.

As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.

Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.

Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one’s conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.

Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.

Our nation’s criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.

September 16, 2015 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 14, 2015

Is a capital case the right kind of vehicle for SCOTUS to consider solitary confinement?

The question in the title of this post is prompted by this new New York Times piece by Adam Liptak headlined "Virginia Has Solitary Confinement Case, if Justices Want It." Here are excerpts:

The Supreme Court seems eager to hear a case on the constitutionality of a distinctively American form of punishment: prolonged solitary confinement. “Years on end of near total isolation exact a terrible price,” Justice Anthony M. Kennedy wrote in a concurrence in a case in June. Justice Stephen G. Breyer echoed the point in a dissent in a case later that month.

An appeal from Virginia materialized almost immediately. Now the justices must weigh whether it has the right features — whether it is, in legal jargon, a good vehicle — to serve as the basis for a major decision on extended solitary confinement, which much of the world considers torture.

On the plus side, the case asks the sort of focused and incremental question that the justices often find attractive: May states automatically put all death row inmates in solitary confinement?

Last week, Mark R. Herring, Virginia’s attorney general, filed a brief urging the court to turn down the appeal. It is, he said, the wrong vehicle to address “the broader concerns recently voiced by Justices Kennedy and Breyer.” For starters, Mr. Herring wrote, “the case is likely to become moot before it can be decided.” That is because the state intends to execute the inmate who brought the challenge, Alfredo R. Prieto, on Oct. 1.

More generally, Mr. Herring wrote, Virginia is the wrong state in which to examine the issue of prolonged solitary confinement on death row because its capital justice system is exceptionally efficient. Inmates in other states can spend decades in solitary confinement, he wrote, but Virginia generally executes condemned inmates seven to 10 years after their convictions.

Mr. Prieto has been on death row for about seven years. But that was enough isolation, he told the justices, to have caused him mental agony. In a 2013 deposition, the warden of the prison where Mr. Prieto is serving his sentence seemed to concede the inhumanity of solitary confinement. “There is real importance to getting out and being with other people, I agree, and not being 24/7 in a cell,” said the warden, Keith Davis. “We, as humans, we don’t survive very well that way with lack of human contact.”

Later that year, a federal trial judge ruled in Mr. Prieto’s favor. “He must spend almost all of his time alone,” deprived of contact even with fellow prisoners, the judge, Leonie M. Brinkema, wrote. In theory, family members could visit on weekends in a room with a glass partition. “In actuality,” she said, “no one ever comes.”

Mr. Prieto, she said, “has not engaged in any of the behaviors that would normally support placement in segregated confinement,” and was “by all accounts a model prisoner.” On the other hand, he has a chilling criminal record. Mr. Prieto was on California’s death row for the 1990 rape and murder of a 15-year-old girl when, in 2005, DNA evidence linked him to a 1988 rape and double murder in Virginia. He was extradited to Virginia and found guilty....

In March, a divided three-judge panel of the federal appeals court in Virginia reversed Judge Brinkema’s ruling, though even the majority said the state’s approach was harsh. “Of course,” Judge Diana Gribbon Motz wrote for the majority, “the Supreme Court could prescribe more rigorous judicial review.”

Last week, Mr. Herring, the state’s attorney general, urged the Supreme Court to defer to prison officials in the case, Prieto v. Clarke, No. 15-31. “Death row offenders are sui generis,” he wrote. “States are entitled to make the judgment that death-sentenced offenders, as a class, should be confined in maximum-security conditions.”...

In June, Justice Kennedy lamented that “the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” That seemed to change over the summer. In July, President Obama ordered the Justice Department to review the use of solitary confinement in federal facilities....

This month, California settled a lawsuit brought by the Center for Constitutional Rights by agreeing to cut back sharply on solitary confinement. The next day, a group representing the nation’s corrections officials called for “efforts to limit or end extended isolation.”

Things are changing even in Virginia, perhaps as a consequence of Mr. Pietro’s lawsuit. In a sworn statement filed last month in a different case, Mr. Clarke, the corrections official, said death row inmates can now watch television and play games like chess or checkers with up to three other condemned prisoners for an hour a day. They can also have weekly “contact visits” with family members. These can include “one brief kiss, a handshake and/or an embrace.”

Plans are afoot, Mr. Clarke added, for an outdoor recreation yard that will allow small groups of death row inmates to play basketball and exercise together. It should be completed by the end of October, not long after Mr. Prieto’s scheduled execution.

Regular readers likely know that I believe and often lament that capital cases often get too much attention from the Supreme Court (and others) relative to other cases involving much less serious crimes and much more sympathetic offenders. Nevertheless, as this piece notes, Virginia's blanket policy of putting all death-row defendants in solitary might make this case an appropriate (and certainly interesting) setting for a foray into what the Eighth Amendment might say these days about extreme forms of imprisonment.

September 14, 2015 in Death Penalty Reforms, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, September 11, 2015

"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "

The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:  

Solitary confinement irreparably harms people.  For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”  U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....

[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional.  Yet, despite this unequivocal condemnation of solitary confinement by the nation’s highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation.  Today, conservative estimates place the number of people in solitary confinement at over 100,000.  And they are there largely with the blessing of the federal courts.

While the Eighth Amendment’s prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement.  Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S.  Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation.  Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.

September 11, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7)

Thursday, September 10, 2015

"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"

The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration.  Here is the abstract:

This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa.  Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights.  Rather, she argues, starting right in her subtitle, “liberals built prison America.”  It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.”  Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime.  This argument sounds in perversity — on Murakawa’s account, liberalism’s attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system’s inequities.

The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics.  In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population.  That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they “built prison America.”

Prior related posts:

September 10, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, September 09, 2015

Noting federal prison reforms possible without statutory changes

A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes.  The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:

Many past U.S. Congress’s have drafted criminal reform bills, only to have them lay dormant in committee.  Traditionally, the press releases and sound-bites have only provided false hope to those serving time.  The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress.  Then there’s the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum.  There are others, but none worth mentioning....

There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy.  First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting “earned” good conduct time towards program eligibility.  Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624.  Next, early deportation options should also be explored for those who are in the U.S. illegally.

We have a problem of aging, sick inmates in the federal prison system.  There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy.  It’s expensive with some estimates being as high as $57,000 per year per inmate.  The recidivism studies show far lower rates of recidivism for elderly offenders.

Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC’s are penal or correctional facilities within the meaning of the applicable statues.  “Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate.”  So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....

While we wait for the next prison reform bill, let’s hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.

September 9, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, September 03, 2015

"The simple truth about why mass incarceration happened"

The title of this post is the headline of this effective recent Vox piece by German Lopez. Here are excerpts:

How could US politicians possibly think it was a good idea to incarcerate millions of Americans starting in the 1980s, creating the system of mass incarceration we have today?

It's a question that gets tossed around a lot nowadays, with varied answers — from claims it was an attempt to control the population to arguments that private prisons created a profit motive for locking up millions of Americans.

But there's a much simpler explanation: The public wanted mass incarceration. It's easy to forget now, but the politics of crime were huge in the 1990s.  According to data from Gallup, never before or after the nineties have so many Americans said that crime is the most important problem facing the country today.

Americans had a very good reason for these concerns.  From the late 1960s to the early 1990s, crime was unusually high.  The country was still coming off what was perceived as a crack cocaine epidemic, in which the drug ran rampant across urban streets and fueled deadly gang violence.  So Americans, by and large, demanded their lawmakers do something — and politicians reacted with mass incarceration and other tough-on-crime policies.

It's very easy in hindsight to consider this an overreaction — now that we know crime began its decades-long decline in the early 1990s, and now that research has shown that mass incarceration only partly contributed to this decline.  But people didn't know that at the time. They didn't know crime was about to begin its long-term drop, and the research on mass incarceration was far from conclusive. Politicians thought crime would get worse, not better.

In fact, there were warnings at the time that things were on the verge of getting worse. One prominent concern in the 1990s — based on what turned out to be very bad social science research — suggested that there was an incoming epidemic of superpredators, violent youth who would rob and kill people....

In this context, it was expected that all politicians — liberal and conservative — take a tough stance on crime.  That's partly why liberals like Hillary Clinton, Joe Biden, and Bernie Sanders supported the 1994 crime law that contributed to mass incarceration.  It's why dueling candidates for governor in the liberal state of New York campaigned on who could be tougher on crime.  And it's why practically every state passed tough-on-crime policies throughout the 1980s and 1990s....

Popular demand for tough-on-crime laws in the past doesn't in any way excuse the devastation lawmakers inflicted on millions of people through mass incarceration and other policies.  But based on voters' concerns in the 1990s, if a politician didn't contribute to the problem back then, he or she may not be prominent enough to run for president today.  That's how America ended up with mass incarceration — and the seemingly contradictory Democratic presidential candidates for 2016.

September 3, 2015 in Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Wednesday, September 02, 2015

Prison administrators contribute to new report on solitary confinement

AscatanAs detailed in this press release, the Association of State Correctional Administrators has joined with researchers at Yale to produce an important new report about solitary confinement. Here are the basics via the press release: 

Prolonged isolation of individuals in jails and prisons is a grave problem in the United States. The insistence on change comes not only from legislators across the political spectrum, judges, and a host of private sector voices, but also from the directors of correctional systems at both state and federal levels.  Even as a national outcry has arisen about isolation, relatively little information exists about the actual number of people held in restrictive housing, the policies determining their placement, and whether and how conditions vary in different jurisdictions.  Indeed, the figures cited on the number of people held in isolation vary from 25,000 to more than 80,000.  But that information comes from a decade and more ago.

To rectify the absence of data and to pave the way for changes, the Association of State Correctional Administrators (ASCA) joined with the Arthur Liman Public Interest Program at Yale Law School to develop a national database of the policies and practices on what correctional officials call “restricted housing” and is frequently referred in the media as “solitary confinement.”  ASCA is the only national organization of persons directly responsible for the administration of correctional systems and includes the heads of each state’s corrections agencies, as well as the Federal Bureau of Prisons, the District of Columbia, New York City, Philadelphia and Los Angeles County.

The result is the new report Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison, which is the first to provide updated information, as of the fall of 2014, on both the numbers and the conditions in restrictive housing nationwide.  This Report represents the commitments of correctional leaders to make such changes.  But without a baseline, it is not possible to know the impact of the many efforts underway. Time-in-Cell provides one way to measure and to learn whether the hoped-for changes are taking place, to reduce and to eliminate the isolation of prisoners, so as to enable prisoners and staff to live and work in safe environments, respectful of human dignity. 

This important report, which runs nearly 100 pages, is available in full at this link. Some of its findings and the broaded policy discourse now surrounding solitary confinement are effectively covered in new stories via the New York Times and the Wall Street Journal here and here, respectively.

September 2, 2015 in Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Prison realities and reform insights from "Mr. Smith Goes to Prison"

51Qm5bXG9NL._SY344_BO1,204,203,200_Politico magazine has this fascinating excerpt from a new book titled "Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America’s Prison Crisis."  The book is authored by Jeff Smith, a former Missouri state senator, who spent a year in federal prison for violating federal election laws, and parts of the excerpt read a bit like the Y-chromisone version of Orange is the New Black. But, as these passage highlight, it appears the book covers much more than just the fish-out-of-water elements of prison life for a white-collar offender:

Long story short: Five years after losing the election, I pleaded guilty to two counts of obstruction of justice for impeding the federal investigation Carnahan had initiated. But I requested an unorthodox sentence: two years of home confinement and full-time community service during which I would be allowed to leave my house only to teach civics and coach basketball at a St. Louis charter school I’d co-founded a decade earlier. It would’ve saved taxpayers about $175,000: two years of a teacher’s salary, plus the cost of housing a federal prisoner, since I would’ve paid for my electronic monitoring. More than 300 people, including a bipartisan group of the state’s top elected officials, wrote public letters to the to the judge requesting clemency and arguing that — as the prison counselor in Kentucky would later note — locking me up would be a waste. But the Feds portrayed me as the mastermind of a “textbook case of political corruption” and pushed for a harsh sentence at the top of the federal guidelines. The judge gave me a year and a day in federal prison.

Six months later, I was adrift in a sea of sharks — a professor-turned-politician-turned-felon forced to learn prison patois and the politics of survival. Among other areas, I’d studied and taught criminal justice policy as a political scientist for a decade. But in prison I would be the student, not the teacher.

This is the story of what I learned — about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me — and didn’t — for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders’ lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates....

Prisons have been called “training grounds for rapists,” and according to one estimate based on two decades of surveys, nearly 300,000 rapes occur annually in U.S. prisons. The most recent Justice Department data concluded that from 2003 to 2012, nearly 2 million inmates were sexually assaulted, costing society as much as $51.9 billion annually, including the costs of victims’ compensation and increased recidivism. Advocates hoped that passage of the 2003 Prison Rape Elimination Act (PREA), which sought to prevent, uncover and address sexual assault, would help, but many large states have refused to comply with it (with little consequence). In 2011, a typical prisoner’s likelihood of being raped was roughly 30 times higher than that of a given woman on the outside, suggesting a depressingly steady trendline despite PREA’s passage. And since reporting assaults will only bring more trouble from fellow prisoners and COs alike, most victims remain quiet, rendering official prison data unreliably low.

Exacerbating this is a dearth of post-rape psychological treatment during incarceration and reentry, which increases the likelihood that victims will suffer from PTSD as well as their odds of recidivism — especially for crimes involving sexual assault. Tragically, prison rape often causes compensatory aggression as untreated victims commit rapes upon release to reclaim their manhood in the same way they imagine it was lost. This vicious cycle by which (frequently) nonviolent offenders become violent is the opposite of the duty that “correctional institutions” are meant to perform....

I spent less than a year in prison. In the words of my first cellie, I had less time in prison than he had done on the prison toilet. I had every advantage upon re-entry: I was a white guy with a Ph.D. from a top school, community and family support, and financial savings. Yet getting a decent job was a struggle. I often think about the re-entry of the guys I was locked up. Most had a GED earned in prison; some hadn’t had a visit in years, or even a decade, and had no one to call on the phone; few had savings to fall back on. They would be coming home to a world in which four of five landlords and nine of 10 employers run criminal background checks on prospective tenants and employees to screen out felons, in which many are not allowed to vote or use food stamps and in which they must immediately find money to pay for a halfway house room and urinalysis tests even as they cannot afford clothes for a job interview.

Mass incarceration is driven in large part by sky-high recidivism rates, and when one contemplates the myriad obstacles to successful prisoner re-entry, one grasps that the system is not, as many claim, broken at all; rather, it appears to be a well-oiled machine, keeping millions of people out of our economic mainstream. And only a shift in our cultural mindset — a realization that people who are incarcerated could, to paraphrase President Obama after his recent prison visit to a federal prison, be our brothers, our sons, our mothers, or ourselves — will change that.

September 2, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1)

Tuesday, September 01, 2015

California settles prisoner lawsuit by agreeing to limit use of solitary confinement

As reported in this local AP piece , headlined "California to end unlimited isolation for most gang leaders," a lawsuit concerning California's use of solitary confinement culminated today in a significant settlement. Here are the details:

California agreed Tuesday to end its unlimited isolation of imprisoned gang leaders, restricting a practice that once kept hundreds of inmates in notorious segregation units for a decade or longer.

The state is agreeing to segregate only inmates who commit new crimes behind bars and will no longer lock gang members in soundproofed, windowless cells solely to keep them from directing illegal activities by gang members.  "It will move California more into the mainstream of what other states are doing while still allowing us the ability to deal with people who are presenting problems within our system, but do so in a way where we rely less on the use of segregation," Corrections and Rehabilitation Secretary Jeffrey Beard told The Associated Press.

The conditions triggered intermittent hunger strikes by tens of thousands of inmates throughout the prison system in recent years.  Years-long segregation also drew criticism this summer from President Barack Obama and U.S. Supreme Court Justice Anthony Kennedy.

"I think there is a deepening movement away from solitary confinement in the country and I think this settlement will be a spur to that movement," Jules Lobel, the inmates' lead attorney and president of the Center for Constitutional Rights, said in a telephone interview.

The lawsuit was initially filed in 2009 by two killers serving time in the security housing unit at Pelican Bay.  By 2012, Todd Ashker and Danny Troxell were among 78 prisoners confined in Pelican Bay's isolation unit for more than 20 years, though Troxell has since been moved to another prison. More than 500 had been in the unit for more than 10 years, though recent policy changes reduced that to 62 inmates isolated for a decade or longer as of late July.

The suit contended that isolating inmates in 80-square-foot cells for all but about 90 minutes each day amounts to cruel and unusual punishment.  About half the nearly 3,000 inmates held in such units are in solitary confinement.  Inmates have no physical contact with visitors and are allowed only limited reading materials and communications with the outside world.

The settlement will limit how long inmates can spend in isolation, while creating restrictive custody units for inmates who refuse to participate in rehabilitation programs or keep breaking prison rules....  Lobel said the new units, by giving high-security inmates more personal contact and privileges, should be an example to other states to move away from isolation policies that he said have proven counterproductive in California....

Nichol Gomez, a spokeswoman for the union representing most prison guards, said it was disappointing that "the people that actually have to do the work" weren't involved in the negotiations, so she couldn't immediately comment.

Beard said he will work to ease the unions' previously expressed concerns that guards could face additional danger. He said the settlement expands on recent changes that have reduced the number of segregated inmates statewide from 4,153 in January 2012 to 2,858 currently.

Until recently, gang members could serve unlimited time in isolation.  Under the settlement, they and other inmates can be segregated for up to five years for crimes committed in prison, though gang members can receive another two years in segregation.

September 1, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Monday, August 31, 2015

"The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem"

The title of this post is the title of this interesting new paper by Margo Schlanger now available via SSRN. Here is the abstract:

Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA).  Yet no such decline is evident in the nation’s most populous state, California, where prisoners’ rights litigation remains enormously influential and was the trigger to the criminal justice “Realignment” that is the subject of this symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement.

This article examines why California is different.  It argues California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers.  Working for both non-profits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit’s hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies.  In short, they learned how to — just barely — maintain a prisoners’ rights docket nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

August 31, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, August 30, 2015

Following the industries that follows incareration nation (with only limited concerns about sentencing reform)

Today's New York Times has this interesting article authored by David Segal about various corrections-oriented industries and their (limited) worries about the impact of sentencing reform on their bottom lines.  The article is headlined "Prison Vendors See Continued Signs of a Captive Market," and here are a couple excerpts:

[There were] 264 vendors in booths at the Indiana Convention Center for what is essentially a trade show for the prison industry.  It is the shiny, customer­-friendly face of a fairly grim business. The A.C.A. accredits jails and prisons and is also the country’s largest association for the corrections field, with a membership filled with wardens and state and county correctional administrators.

The convention is where those people window­shop.  The United States currently imprisons about 2.2 million people, making it the world’s largest jailer.  Those in charge of this immense population need stuff: food, gas masks, restraints, riot gear, handcuffs, clothing, suicide prevention vests, health care systems, pharmacy systems, commissary services — the list goes on.  These outlays are a small fraction of the roughly $80 billion spent annually on incarceration, though precise sales figures are hard to come by because most companies in this niche market are private.  Two publicly traded players, the private prison operators Corrections Corporation of America and the GEO Group, have a combined market capitalization of almost $5.8 billion. Both companies had booths in Indianapolis.

For prison vendors, this would appear to be a historically awful moment.  Sentencing reform has been gaining momentum as a growing number of diverse voices conclude that the tough­-on-­crime ethos that was born 40 years ago, and that led to a 700 percent increase in the prison population since 1970, went too far....

My goal ambling through the oddly colorful bazaar in Indianapolis for three days was to see what effect — if any — this much discussed change was having on the hard­nosed bottom line.  Was anyone here experiencing a slump, or even bracing for one?  Nobody wants businesses to suffer financially, but if you think the current incarceration system is a calamity, there is no way around it: Bad news for these companies is good news for the country.  And if change was coming, or had already arrived, these vendors would be among the first to know.

I had no idea what I would find.  But a few days before the exhibition doors opened, I spoke on the telephone to a skeptic, a guy who just didn’t believe that the country was really on the verge of a correctional system makeover. “It’s hard for me not to be cynical about it,” said Jack Cowley, a retired warden who lives in Oklahoma. “Think about the size of our system, all the judges and lawyers, putting their kids through college, people that make leg irons, Tasers. Crime is driving the train. It’s like a business that is too big to fail.”...

In Indianapolis this summer, there were the ingratiating smiles that are always part of sales, but nobody seemed giddy. Concern about sentencing reform was in the air, but more than a few vendors seemed to regard the trend as a business opportunity....

[M]any companies are trying to diversify. In 2013, Corrections Corporation of America, the country’s largest private prison company, purchased Correctional Alternatives, which specializes in re­entry programs, like work furloughs and home confinement. “We have continued to look for opportunities in this service area,” a spokesman for C.C.A. wrote in an email. “It aligns with the needs of our government partners, who are increasingly looking to this type of solution.”

August 30, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Saturday, August 29, 2015

"Federal Drug Sentencing Laws Bring High Cost, Low Return"

The title of this post is the title of this notable new Pew Public Safety Performance Project Issue Brief, which gets started this way:

More than 95,000 federal prisoners are serving time for drug-related offenses—up from fewer than 5,000 in 1980. Changes in drug crime patterns and law enforcement practices played a role in this growth, but federal sentencing laws enacted during the 1980s and 1990s also have required more drug offenders to go to prison— and stay there much longer—than three decades ago. These policies have contributed to ballooning costs: The federal prison system now consumes more than $6.7 billion a year, or roughly 1 in 4 dollars spent by the U.S. Justice Department.

Despite substantial expenditures on longer prison terms for drug offenders, taxpayers have not realized a strong public safety return. The self-reported use of illegal drugs has increased over the long term as drug prices have fallen and purity has risen. Federal sentencing laws that were designed with serious traffickers in mind have resulted in lengthy imprisonment of offenders who played relatively minor roles. These laws also have failed to reduce recidivism. Nearly a third of the drug offenders who leave federal prison and are placed on community supervision commit new crimes or violate the conditions of their release—a rate that has not changed substantially in decades.

August 29, 2015 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 27, 2015

"Criminal Justice Reform Begins With Fair Sentencing and Fair Chances"

American-spectator_20070710The title of this post is the headline of this new commentary which strikes me as especially notable because (1) it is authored by the Coaltion for Public Safety's senior policy advisor, Lance Lemmonds, who recently worked for the Association of Prosecuting Attorneys and on a number of Republican campaigns, and (2) it is published by The American Spectator.  Here are excerpts:

Political conservatives who, since at least the Nixon administration, have worn with pride the badge of “tough on crime” are beginning to realize that tough doesn’t necessarily mean the same as being “smart on crime.”

Just as the private sector has embraced the mantra of “working smarter, not harder,” it’s time for federal and state officials to acknowledge the need for a smarter and more cost-effective criminal justice system.

Reducing life-without-parole sentences is one of several planks in the Coalition for Public Safety’s nonpartisan campaign for fair sentencing and fair chances, the overall goal of which is aimed at reducing the nation’s burgeoning jail and prison populations and breaking down the barriers to successful re-entry into society.

The coalition supporting the fair sentencing and fair chances campaign believes that we can dramatically reduce the enormous amount of money — currently $80 billion — that American taxpayers spend annually on incarceration in the state and federal jail and prison systems — and do so without jeopardizing public safety.  That coalition includes the conservative groups Americans for Tax Reform, Faith & Freedom Coalition and FreedomWorks.

In addition to calling for a reduction in the number of life-without-parole sentences, CPS’ fair sentencing and fair chances campaign is also calling for reducing the length of federal mandatory-minimum sentences for nonviolent offenses, so that the punishment fits the crime.  That will help safely alleviate prison overcrowding while also curbing burgeoning costs....

At both the federal and state levels, we also advocate greater use of alternatives to incarceration, where appropriate.  These include restitution, community supervision and residential re-entry centers, both pre-trial and post-sentencing, as well as expanded access to mental health care, substance-abuse treatment, education and job training.

Programs that allow inmates to reduce their sentences through credit for good behavior and participation in recidivism-reduction training should be expanded. So should the sealing of criminal records, where appropriate, to encourage rehabilitation and to make it easier for ex-offenders to find gainful employment and reintegrate into society....

Clearly, something needs to be done when, since 1980, the federal prison population has increased nearly tenfold and the state prison population has quadrupled.  More than 1 percent of all U.S. adults are now behind bars, by far the highest rate of any nation in the world.

By addressing much-needed reforms to the current one-size-fits-all approach to prison sentencing, and by also reducing barriers to education, housing, and employment that so many ex-offenders face, we can protect our communities and increase public safety.  We must seize this unique opportunity for progress to make the justice system smarter, fairer, and more effective.

August 27, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

"When Prisons Need to Be More Like Nursing Homes"

The title of this post is the headline of this new lengthy Marshall Project piece about the challenges posed by an aging prison population.  Here is how it begins:

America’s prison population is rapidly graying, forcing corrections departments to confront the rising costs and challenges of health care in institutions that weren’t designed to serve as nursing homes.

Between 1995 and 2010 the number of inmates aged 55 and up almost quadrupled, owing in part to the tough-on-crime sentencing laws of the 1980s and 90s, according to a 2012 ACLU report. In 2013, about 10 percent of the nation’s prison inmates — or 145,000 people — were 55 or older. By 2030, the report said, one-third of all inmates will be over 55. At the same time, it is widely accepted that prisoners age faster than the general population because they tend to arrive at prison with more health problems or develop them during incarceration. Caring for elderly inmates can cost up to twice as much as caring for younger ones.

In North Carolina, for example, it costs an estimated four times as much. During the fiscal year 2006-2007 — its most recent figures — the state’s corrections department spent $33,824,060 on health care for inmates over 50, a 35% increase from just two years earlier.

Despite these runaway costs, there is no national oversight to determine how prisons handle the challenges of an aging population, says Marc Stern, a consultant in correctional health care.  “If a Medicaid or Medicare auditor walked into [a large urban hospital] to do an audit’’ Stern said, “they would say, ‘O.K., where's your geriatric unit? Where's your dementia unit?’ It's part of the audit process, it's part of the intelligence phase that is part of being part of a national organization.”

But some states are confronting the costs and the problems. Here is a look at some innovative programs in New York, California and Connecticut.

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

August 27, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, August 25, 2015

Might Pope Francis seek to (and succeed in getting) more federal sentencing reforms moving along?

The question in the title of this post is prompted by this notable new Yahoo Politics piece headlined "Criminal justice reformers await holy ally: Pope Francis." Here are excerpts: 

There’s a long history of religious leaders writing and teaching from inside prisons — from Martin Luther King to Paul the Apostle. But 78-year-old Pope Francis may be the most prominent religious leader to ever advocate for prison reform from the outside.

Last year, Francis called for an end to solitary confinement, the death penalty and life imprisonment. He has knelt down to wash and then kiss the feet of Roman inmates on two of the first Holy Thursdays of his papacy. Visiting a group of Bolivian prisoners recently, the pope told them he sees no difference between them and himself — they are all sinners.

Now Francis is coming to the United States, much to the delight of criminal justice reformers who have waged a growing bipartisan battle to scale back and remake the mammoth U.S. penal system. Reformers hope Francis’ visit to the Curran-Fromhold Correctional Facility in Philadelphia next month as part of his six-day U.S. tour will grab lawmakers’ attention.  A few days before visiting the inner-city prison, the pope will address Congress and could raise the issue of criminal justice reform there as well....

Francis is not the first pontiff to urge mercy and redemption for convicts. Pope Innocent X visited inmates in the late 1600s. Pope John Paul II famously forgave and asked for a pardon for the man who almost killed him in a 1981 assassination attempt, and Pope Benedict visited at least two prisons.  But Francis is unique in how much emphasis he’s put on the issue and how specific he’s been about how societies should treat their prisoners. He’s visited at least four prisons in his short tenure as pope, including one of the most dangerous in Latin America, and responded to hundreds of letters from U.S. prisoners serving life sentences for crimes they committed as juveniles.

In a speech to penal-law representatives from around the world in October 2014, the pope laid out his vision for criminal justice reform.  He called for an end to solitary confinement, which he compared to torture, and spoke out against pre-trial detention. (The U.S. sends thousands of people to prison each year because they cannot afford bail.) He spoke out against both the death penalty and life sentences.  (“A life sentence is just a death penalty in disguise,” said Francis.)  And he urged law enforcement to take pity on pregnant, old and young offenders.

The pope also urged countries to more broadly reflect upon the point of imprisonment.  Is it about bringing justice to victims and reforming the offenders?  Or is it simply revenge and a way to “scapegoat” stereotyped people for all social ills?  Addressing prisoners in Italy last year, Francis spoke passionately about how locking people up for years and years without giving them hope for reintegrating into society is wrong.

“Some consider taking a path of punishment, of misdeeds, of sins and just to suffer, suffer, suffer,” he said in a penitentiary in the Italian town of Isernia.  “To cage people … for the mere fact that if he is inside we are safe, this serves nothing. It does not help us.”

It’s unclear if Francis will use his visit with roughly 100 inmates in the Philadelphia prison’s gymnasium to advocate for specific reforms.  And his congressional speech could well focus instead on poverty, the need to care for the environment or welcoming immigrants — all major themes of his ministry.  “What we’re really hoping for are some specific United States statements,” said Karen Clifton, the executive director of the Catholic Mobilizing Network, an anti-death-penalty group. “We do incarcerate per capita more than anyone else in the world. He’s got to bring those facts to life.”

This could lead legislators to think twice about their priorities. “If this good and holy man says this is a concern, I think it affects the conscience of all legislators and especially Catholics,” said Pat Nolan of the American Conservative Union, a leader in the reform movement.

Some prior related posts on Pope Francis and criminal justice reform:

August 25, 2015 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (2)

"Federalism in Action: How Conservative States Got Smart on Crime"

Freedomworks-logo_0The title of this post is the title of this notable new paper authored by Jason Pye from the conservative group FreedomWorks.  Here is how the relatively short white-paper concludes:

Conservative states have led the way on justice reform over the last decade. By changing the culture of corrections through sentencing reforms that limit mandatory minimum prison terms to the most serious offenders and rely on treatment as an alternative to incarceration, rehabilitative programs for those who do serve time, and continued assistance when offenders reenter society, lawmakers have reduced recidivism, made communities safer, and saved taxpayers money.

The results from conservative states — these laboratories of democracy — are key as members of Congress look for ways to deal with the federal corrections system, which has seen explosive population and cost growth of its own since 1980. This is federalism in action. Through sentencing reforms and a focus on treatment as an alternative to incarceration, the federal government can lessen the cost-burden on taxpayers by using the lessons from the states to get smart on crime.

Conservatives have embraced the justice reform movement, and they should continue to do so. While passed with the best of intentions, the policies of the past have proven unsustainable, both in terms of the fiscal cost and the negative impact on poor and minority communities. The model that conservative states have provided fundamentally changes the nature of the approach. Punishments are, of course, still meted out by courts, but the sentences given offer a means for offenders to alter the direction of their lives.

One such example is a woman named Sarah Gilleland, whose story was told by Gov. Nathan Deal in a joint session of the Georgia General Assembly in January 2012. “Sarah was a drug addict. The drug use that began as recreation resulted in a destructive cocaine and methamphetamine addiction. It took control of her life. At one point, she had no means of transportation, she lost custody of her little girl, she wound up homeless,” Deal explained. “But I mention Sarah tonight because she exemplifies many of the goals we hold for our corrections system.”

“Under the supervision of a drug court, piece-by-piece, she began rebuilding her life. With help, she beat addiction, she won back her daughter, she is now a sponsor helping other women who face the same trials, and because she provides a powerful example of hope and redemption, I have asked her to join us in this chamber tonight,” he said, pointing to Sarah in the gallery of the chamber.

“Sarah was given a shot a better life and she took it. Her story is not the exception, it is playing out all across Georgia as people reclaim their lives through the work of accountability courts.”

“That is why we must focus on transforming our corrections system into a last resort of opportunity—a place where low-level offenders are reclaimed and restored to society as functioning members of the community—working to support their own families and paying taxes,” he added.

Compelling stories such as this are not just told in Georgia, they are also told in other states that have adopted conservative justice reforms that focus on rehabilitation, rather than incarceration. And as more states and the federal government adopt the effort, more prison space will be reserved for the worst offenders in society, while those who have demonstrated a willingness to change their lives become productive citizens.

August 25, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Monday, August 24, 2015

Spotlighting disparities in who gets drug treatment in prison

This notable new Pacific Standard article shines a spotlight on yet another arena in which race and other personal factors may impact the operation of our modern criminal justice system.  The piece is headlined "Who Does, and Who Doesn’t, Get Drug Treatment in Prison: New research finds a racial disparity," and here are excerpts (with a few key links preserved):

Research has consistently shown how important it is for inmates who come into prison with drug addictions to get treatment behind bars: Drug use in prison that involves needles can spread disease, and cold-turkey withdrawals can lead to overdoses when people get out. But new research also shows that, even when drug treatment is available to prison inmates, not everyone actually takes advantage of it.  In fact, the disparity between who does and does not seek treatment often falls among racial lines.

For her recent article in the journal Addictive Behaviors, University of Colorado–Boulder sociologist Kathryn Nowotny looked at survey information gathered in 2004 from state prisons across the country — over 5,000 inmates in 286 prisons.  She found that fewer than a half of the inmates who had drug dependency problems had received any kind of treatment at all in their time behind bars.  Of those who had, the most commonly referenced treatment was “self-help groups” (as opposed to, say, opioid replacement therapy).  And she also found that, when treatment was available, Hispanic inmates who had drug dependency were much less likely than either white or black inmates to utilize it. But why?

Nowotny wrote that she was motivated to examine the racial disparities in drug treatment program use in prisons because there was a dearth of research on this topic.  But many other researchers have previously found the same patterns in drug treatment programs out in the communities as well.  She notes that — in addition to the widely held consensus viewpoint that people of color have disproportionate contact with every stage of the criminal justice system in America — programs that divert first-time drug offenders out of prison and into alternative treatment have often been shown to favor those defendants “with economic and social resources.”  But the disparity she found in treatment during prison sentences was apparent, even when she accounted for all of the other possible factors, like age, gender, marital status, socioeconomic factors, mental health, and criminal history.

In looking for reasons for the disparity, she points to another finding — that white inmates with drug dependency issues are more likely than Hispanic ones to have in-prison drug treatment mandated as part of their sentences. There could also be a much simpler reason for the difference in drug treatment participation. “It is also possibly that language barriers and other indicators of acculturation account for this disparity especially considering that one in five Latinos in prison are foreign born,” she adds. “This hypothesis is bolstered by the fact that no black-white disparities were found.”

A similar study, published in 2013 in the International Journal of Offender Therapy and Comparative Criminology, looked not at state prison inmates but at people being held in county jails that offered drug treatment programs. But the researchers in that study did not find that the differences broke down on more personal lines. They did not find a disparity between jail inmates of different races or ethnicities; here, it was more an issue of age and individual outlook. Younger people were less likely to seek treatment. Men were less likely than women to accept this kind of help. So were people who said they doubted whether they had the discipline or the time to make it stick.

August 24, 2015 in Drug Offense Sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Thursday, August 20, 2015

"Bernie Sanders Announces Bill to Abolish Private Prisons, Hints at Marijuana Policy Platform"

The title of this post is the headline of this notableg piece via the Marijuana Politics website that reports on some recent statements by Senator Sanders on the campaign trail that should be of special interest to sentencing law and policy fans. Here are excerpts (with links from original):

Bernie Sanders isn’t done talking about criminal justice reform — in fact, he’s merely getting started.  The presidential contender continues to rise in the polls and sensible Drug War reforms will only increase his standing with the Democratic base.

Appearing at a campaign rally in Nevada on Tuesday, the Vermont Senator and Democratic presidential candidate talked at length about the unfairly punitive policies that plague the American justice system and disproportionately affect people of color in the United States. Speaking to the crowd of 4,500 supporters gathered outside the University of Nevada, Sen. Sanders went beyond his previous speeches on the issue, announcing that, come September, he will be introducing federal legislation which would abolish for-profit private prisons.

“When Congress reconvenes in September,” Sanders said, “I will be introducing legislation, which takes corporations out of profiteering from running jails.”

Tackling the problem of for-profit prisons is a bold move for a federal legislator, as the prison industry is a hugely profitable part of the U.S. economy.  The top two private prison companies in the country, Corrections Corporation of America and GEO Group, have a combined annual revenue of over $3 billion, much of which is spent lobbying elected officials to protect their bottom line.  While some states, such as New York and Illinois, have enacted laws to ban the privatization of prisons, for-profit prisons have tragically remained a staple of the American criminal justice system, in large part due to the country’s skyrocketing incarceration rates made possible by the War on Drugs.

Bernie Sanders also indicated that the War on Drugs will be a focus of his campaign. “We want to deal with minimum sentencing,” Sanders said Tuesday,  “Too many lives have been destroyed for non-violent issues.  People that are sent to jail have police records. We have got to change that.  Our job is to keep people out of jail, not in jail.”  According to audience members, Bernie Sanders also said that his campaign will be addressing marijuana legalization in the weeks to come.

August 20, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

Tuesday, August 18, 2015

Lots and lots of good summer reads about US criminal justice problems

Among the many benefits I see in lots more political and policy attention to mass incarceration and broader American criminal justice concerns is the presence of lots more thoughtful (old and new) media coverage of problems in current US policies and pactices.  Here are just a few examples of both news coverage and commentary catching my eye early in this mid-summer week:

August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Finally, a bit more (though inadequate and unfair) discussion of sentencing finality issues

I am intrigued to see this potent new New York Times op-ed by civil rights attorney Alec Karakatsanis headlined "President Obama’s Department of Injustice."  But, as explained below (and as hinted in the post title), though this piece does a useful job of highlighting concerns with doctrines and policies that give too much significance to the "finality" of problematic federal prison sentences, I fear this op-ed is itself a problematic version of "shooting the messenger."  Here are excerpts (with some key phrases emphasized for the comments to follow):

Last month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug­-related charges.  But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.

The case of Ezell Gilbert is emblematic of this injustice.  In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine.  Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release.  A court ruled against him. Nearly 10 years later, the Supreme Court issued a ruling in another prisoner’s case, confirming that Mr. Gilbert had been right.  A public defender helped him file a new petition for immediate release in light of this new decision.

Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.  The “finality” of criminal cases was too important, the department argued, to allow prisoners more than one petition, even if a previous one was wrongly denied.

A federal appellate court disagreed, and in June 2010, three judges set Mr. Gilbert free. The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal.  Mr. Gilbert returned home and stayed out of trouble.

Here’s where it gets interesting. There are many people like Mr. Gilbert in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences.  If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released.  The Obama administration’s fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called “a fear of too much justice,” is the real justification.

In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal.  A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

Judge James Hill, then an 87-­year­old senior judge on the appellate court in Atlanta, wrote a passionate dissent.  Judge Hill, a conservative who served in World War II and was appointed by Richard M. Nixon, called the decision “shocking” and declared that a “judicial system that values finality over justice is morally bankrupt.”  Judge Hill wrote that the result was “urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice.”  Judge Hill concluded: “The government hints that there are many others in Gilbert’s position — sitting in prison serving sentences that were illegally imposed. We used to call such systems ‘gulags.’ Now, apparently, we call them the United States.”

Two years later, the Justice Department used a similar tactic to overturn an entirely different federal appellate court decision that could have freed thousands of prisoners convicted of nonviolent crack cocaine offenses — again, mostly impoverished and mostly black — on the grounds that their sentences were discriminatory and unjustifiable.  The administration again did its work without fanfare in esoteric legal briefs, even as the president publicly called the crack­-cocaine sentencing system “unfair.”

In 2013, several years after sending him back to prison, Mr. Obama granted Mr. Gilbert clemency, and the president has recently won praise for doing the same for several dozen other prisoners of the war on drugs....  

But Mr. Obama must take steps to further undo the damage that he has done.  He should use his clemency power to release all those currently held in a federal prison on an illegal sentence.  And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful.  That the Department of Justice and Bureau of Prisons have never created such a position is an outrage.  If we fail to demand change now, this moment for justice may be lost.

I very much like this author's suggestion that DOJ and BOP have special counsel who would seek to identify and advocate for the release of those currently held in a federal prison on an illegal sentence. But, as a matter of substance, given that vast majority of federal prisoners sentenced before the 2005 Booker ruling were sentenced in violation of the Sixth Amendment, the author is arguably asserting that it is unjust that any federal prisoner is still serving any pre-Booker guideline sentence (let alone any other sentence impacted by any of the many pro-defendant Supreme Court sentencing rulings of the last decade).

Even more troublesome, as a matter of process, DOJ has not really been "working behind the scenes" or using any novel "tactic... in esoteric legal briefs" in order to keep prisoners behind bars based on illegal sentences.  Rather, DOJ has been just doing its job, namely seeking to faithfully execute the laws duly enacted by Congress and interpretted by the courts.  In the Gilbert case and in the other cases referenced in this op-ed, the real "villian" in these complicated legal stories is not really DOJ, but the text of the AEDPA and the Fair Sentencing Act which DOJ is duty-bound to seek to faithfully apply.  

This op-ed is not entirely off-base for suggesting that DOJ could be more inclined to read federal statutes and court rulings in a more defendant-friendly way.  But, especially in recent years, DOJ under the Obama Administration has actually been pretty willing to help prior-sentenced defendants get an extra day in court.  For example, after a few lower courts ruled that the FSA's lower crack mandatory minimums applied to "pipeline cases," DOJ changes its litigation arguments to a more defendant-friendly position.  In addition, Obama's DOJ has generally endorsed retroactive application of defendant-friendly guideline amendments.  And, most recently, DOJ appears to be taking a pro-defendant stance on the broad retroactivity of the Supeme Court's recent constitutional rulings in Miller concerning juve LWOP sentences and Johnson concerning ACCA sentences.

As regular readers know, I pull few punches when it comes to criticizing the Obama Administration and its Justice Department when making what I view as misguided discretionary decisions concerning the application and enforcement of federal sentencing laws and procedures.  But this op-ed, rather than highlight fundamental problems with laws like AEDPA and court jurisprudence that gives excessive weight to sentence finality, seems problematically eager to suggest a star-chamber deep inside Main Justice has Obama Administration officials twirling their mustashes while devising esoteric tactics for keeping innocent people in prison for as long as possible.  

I do not want to unduly criticize this op-ed because I have long been motivated by the same concerns as the author concerning courts having ample means to remedy problematic prior-imposed prison sentences. But the core problem is not really Obama's DOJ and its litigation positions, but the laws put in place by Congress and interpretted by the courts which largely demand that DOJ take many of its seemingly hard-hearted litigation positions.

Some (of many) prior posts on sentencing finality:

August 18, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"Can a Federal Prisoner Be Too Old to Jail?"

The title of this post is the headline of this notable new National Journal article.  Here are excerpts:

When you're locked in federal prison, how old do you have to be to count as "aging"?

That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons.  And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.

The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses.  In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older.  And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.

To meet those costs, the Bureau of Prisons is requesting a 6.1 percent increase in funding for fiscal 2016, an increase from the bureau's $6.9 billion budget in 2015.  But in a report released in May, the Justice Department Office of the Inspector General suggested the Bureau of Prisons consider an alternative solution: expand a "compassionate-release" program that reduces the term of imprisonment for elderly inmates.

To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons.  They must also have served more than half of their sentence.  For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."...

But for any of the above criteria to be considered, the inmate must be aged 65 or older. The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report.  Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.

The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said.  The report notes several ways in which prisoners 50 and over differ from the rest of the prison population.  Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release.  While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.

According to the Inspector General report, lowering the threshold age from 65 to 50 and instituting a 5 percent release rate for only those inmates in minimum or low-security institutions or medical centers could reduce incarceration costs by approximately $28 million per year.  Federal prisons with the most aging inmates spent "five times more per inmate on medical care" and "14 times more per inmate on medication" than institutions with the fewest aging inmates, the report said.

The 65-or-over bar for the program is relatively new, set in 2013 in an effort to clarify the release program's eligibility criteria following a separate Inspector General report released earlier that year....  For now, it's unclear whether the Bureau of Prisons will lower the minimum age for its compassionate-release program.  In its response to the May Inspector General report, the agency said it would "raise the issue with relevant stakeholders for further discussion."

August 18, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)