Tuesday, July 08, 2014
Senators Paul and Booker introducing another important bipartisan CJ reform bill
As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:
The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.
Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.
Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.
The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.
Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.
Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."
Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...
The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.
But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, July 06, 2014
Highlighting a notable lacuna in crime statistics
This notable recent Slate commentary by Josh Voorhees spotlights a notable dark spot in the accounting of crime in the United States. The piece is headlined "A City of Convicts: The statistical sleight of hand that makes the U.S. crime rate seem lower than it really is," and here are excerpts:
Imagine an American city with 2.2 million people, making it the fourth largest in the nation behind New York, Los Angeles, and Chicago. Now imagine that city is a place where residents suffer routine violence and cruelty at rates unlike anywhere else in the country, where they are raped and beaten with alarming frequency by their neighbors and even the city officials who are paid to keep them safe. Now imagine that we, as a nation, didn’t consider the vast majority of that violence to be criminal or even worth recording. That is, in effect, the state of the U.S. correctional system today.
Each year, the federal government releases two major snapshots of crime in America: The Uniform Crime Reports, written by the FBI, and the National Crime Victimization Survey, compiled by the Bureau of Justice Statistics.... According to both, America has become significantly safer over the past two decades, with today’s violent crime rate nearly half of what it was at the start of the 1990s. Neither report, however, takes into account what happens inside U.S. prisons, where countless crimes go unreported and the relatively few that are recorded end up largely ignored.
If we had a clearer sense of what happens behind bars, we’d likely see that we are reducing our violent crime rate, at least in part, with a statistical sleight of hand — by redefining what crime is and shifting where it happens....
The number of people incarcerated in the United States quadrupled during the past four decades before plateauing (and then slightly receding) in the past five years. The inmate population grew so fast during the boom that states were unable to build prisons fast enough to keep up: At last count, more than half of the state prison systems, as well as the federal one, were operating at or above 100-percent capacity. If we choose to continue to lock people up at a rate unparalleled in the world, we should at least be honest and acknowledge that doing so is aimed at eliminating violence from our streets, not necessarily our country.
Saturday, July 05, 2014
"The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"
The title of this post is the title of this notable article by Patrice A. Fulcher now available via SSRN. Here is the abstract:
Each year, the United States (“U.S.”) spends billions to house the country’s massive prison population. The need to board over 2.3 million incarcerated human beings has U.S. correctional departments looking for ways to increase revenues and offset costs. According to these correctional agencies, one major expense is prison visitation. In order to reduce spending and alleviate safety concerns, U.S. federal, state, and private correctional facilities have turned to video visitation as an alternative to in-person visits.
The use of prison video visitation systems started in 1995. Since then, many private telecommunications companies have professed to have the solution to correctional visitation problems. These companies promote video visitation as a cheap, safe, and easy alternative to in-person visits, as well as a profitable means of generating revenues. Government and private correctional institutions, buying into these endorsements, have reduced or completely eliminated face-to-face visits and installed video visitation systems within their walls. Under this structure, inmates use video stations in their cellblock to visit family and friends at corresponding video kiosks within the institution; or inmates visit loved-ones who are at home or elsewhere outside prison walls via computer Internet video visitation.
In order to sell this method of visitation to the public, U.S. correctional agencies contend that video visitation helps to keep families together by allowing inmates greater contact opportunities with loved ones. In some regards, it may be argued that video visitation does assist in the preservation of family units. Inmates are often forced to serve time in prisons miles away from their homes, so outside visits are far and few between. Yet, through the use of in-home video visitation configurations, inmates are able to connect with relatives who reside hours away.
At first glance, this visitation scheme may seem beneficial, but this Article argues that prison video visitation is a double edge sword. First, prison video visitation may help preserve family units while people are incarcerated, but the elimination of face-to-face visits robs inmates of much needed human contact with their children, spouses, and other family members. Second, almost all in-home prison video visitation systems exploit the relatives and friends of inmates because they charge excessive fees to visit. Third, the economic success of prison video visitation systems is contingent on the number of incarcerated humans. So, like other profiteering schemes of the Prison Industrial Complex (“PIC”), prison video visitation incentivizes incarceration: A decrease in the prison population has a corollary effect on million dollar revenues and corporate profits, hence compelling the need to detain more U.S. inhabitants.
Consequently, this Article argues that face-to-face visitation should be the primary means of contact for families that visit at prison facilities. In order to accomplish this goal, inmates must be assigned to correctional facilities close to their homes if space is available and there is no proven risk to security. Additionally, if prison video visitation is utilized, any fees associated with its use must be regulated to insure that the financial expense is not exorbitant.
Thursday, July 03, 2014
Hawaii legislatively eliminates all juve LWOP sentences for all crimes
As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:
Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.
Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.
July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, June 29, 2014
Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?
The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences. The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped. Here is an extended passage from the LA Times article:
Nearly 15 months after launching what he called the "boldest move in criminal justice in decades," Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades. Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation....
The numbers tell a different story. Today, California is spending nearly $2 billion a year more on incarceration than when Brown introduced his strategy in 2011. The prisons are still overcrowded, and the state has been forced to release inmates early to satisfy federal judges overseeing the system....
Counties, given custody of more than 142,000 felons so far, complain that the state isn't paying full freight for their supervision. Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more. "The charts are sobering," Senate Public Safety Committee Chairwoman Loni Hancock (D-Berkeley) said at a hearing this year on crime, prison costs and inmate numbers....
In theory, the state would reduce its prison population and save money [through realignment]. Local authorities would take a more active role in rehabilitation and parole — an approach Brown saw as more efficient and effective. "You have to take care of your own," said Diane Cummins, Brown's special advisor on realignment.
The reality, however, is that realignment fell short of Brown's promised achievements. The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.
The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges. Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.
Without stemming the flow of prisoners into the system, the problems created by crowding continue. The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."
One of the biggest effects of realignment is that state and local authorities are releasing inmates early. From October 2011 to June 2013, California jail releases increased by 45,000, according to state data. The biggest rise has been a doubling in the number of inmates freed before doing half their time.... Although there is no hard proof, politicians, researchers and law enforcement officials are debating whether realignment is behind a recent 8% rise in property crime, reversing years of decline.
Brown's advisors counter that freeing jail inmates is safer than releasing state prisoners. But that too is happening. Under federal orders, the state in April and May freed a total of more than 800 prisoners.
Not surprisingly, the tough-on-crime crowd over at C&C is eager to blame these less-than-positive developments on Gov. Brown and/or the democrats in the California legislature and/or the judges and Justices who declared California's overstuffed prisons to be unconstitutional. But, notably, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and smartly with these enduring problems before they became so acute that federal court intervention was required. Here is a listing from this blog of some posts noting the debate over creating a sentencing commission in California stretching back to 2006:
- Might California finally create a sentencing commission? (Nov 2006)
- A push for a sentencing commission in California (Jan 2007)
- Advocating a sentencing commission for California (June 2007)
- California sentencing commission complications (Sept 2007)
- Possibility of California sentencing commission continues to generate controversy (Aug 2009)
- Latest legislative twist suggests California won't have a sentencing commission anytime soon (Aug 2009)
Among other realities, a review of this history shows former California Gov. Arnold Schwarzenegger, pushed by police chiefs and district attorneys, initially opposed the creation of a sentencing commission in 2007. But, by 2009, as the state's ensuring prison problems became even more acute and as consequential federal court orders became even more likely, Gov. Schwarzenegger came to recognize the desparate need for California to have an institution that could bring a data-driven "smart" approach to CJ reform in the state. Nevertheless, continued advocacy against any commission by the tough-and-tougher crowd in California ultimately precluded (and seemingly still precludes) the creation of such an entity in California.
I do not mean to assert that all would be sunshine and roses in the challenging regulatory state of California if a sentencing commission had been created in 2007 or 2009. But I do mean to assert that those eager to attack Gov. Brown and/or legislators who have struggled to deal with post-Plata reforms should, at the very least, acknowledge that proponents of a California sentencing commission asserted that the such a commission would have dealt better with prison challenges (and maybe even would have prevented Plata from happening). In other words, those assailing current developments should at least explain why those who advocated commission-driving smarter policy rather than tougher politics back in 2007 or 2009 would be misguided to assert that the tough-and-tougher crowd in California is arguably most responsible for the current California mess.
Friday, June 27, 2014
"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"
The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:
The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.
Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.
The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.
I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.
June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, June 25, 2014
New Sentencing Project analysis details states' sluggish response to Miller
The Sentencing Project has released this notable new briefing paper reviewing state responses to the Supreme Court's Miller ruling that the Eighth Amendment prohibits mandatory juve LWOP sentencing schemes. The title and introduction to the paper highlights its themes:
Slow to Act: State Responses to 2012 Supreme court mandate on life without parole
Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states. A majority of the states have not yet passed any statutory reform. Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.
Here are a few data snippets from the body of the paper:
Thirteen of the 28 states that previously required LWOP for juveniles convicted of homicide offenses have since passed laws to address their sentencing structures, while 15 have not....
Statutes passed since Miller set the minimum sentence for juveniles convicted of homicide offenses between 25 and 40 years.... In Nebraska and Texas, the minimum sentence for juveniles convicted of homicide is 40 years. Pennsylvania, Louisiana and Florida have set the minimum sentence at 35 years. Arkansas, Delaware, Michigan, North Carolina, Washington, and Wyoming will sentence juveniles to minimum terms ranging from 25 of 30 years....
Miller left unstated whether the estimated 2,000 people already mandatorily sentenced to life without parole for crimes committed as juveniles could be resentenced. Most of these juveniles are denied the opportunity to apply for a new sentence. Of the 13 states that have passed legislation, only four -- Delaware, North Carolina, Washington, and Wyoming – allow for resentencing among the current JLWOP population....
State Supreme Courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska, and Texas have ruled that Miller applies retroactively; some people will attain a new sentencing hearing. Supreme Courts in Louisiana, Minnesota, and Pennsylvania have ruled that Miller does not apply retroactively. Cases pushing the question of retroactivity remain before Supreme Courts in Alabama, Colorado, Florida, and North Carolina; these and other states have not yet issued rulings.
Saturday, June 21, 2014
"Tales of a Jailhouse Gourmet: How I learned to Cook in Prison"
The title of this post is the headline of this new intriguing and entertaining new Daily Beast piece authored by Daniel Genis. Here are excerpts:
In prison, food takes on a significance that’s nearly unimaginable in the outside world. Sometimes it’s a scarce resource that confers power; everywhere it’s a status symbol and a form of currency. Cooking behind bars, was one of the few kinds of freedom us convicts could enjoy. On the flip side, food symbolizes a rigid social order. It doesn’t matter what kinds of friends you had on the outside, in lockup you don’t eat with other races. Period. So, food is a powerful thing for convicts, both a daily reminder of your awful situation, and one of the only outlets for creativity and sources of pleasure.
Me, I was a jailhouse gourmet.
In some countries getting arrested means starving half to death, or making it the whole way there. But my own expertise is in American prisons, where obesity is actually a problem. We channeled all our criminal smarts into finding ways to con the food system. We got so good we actually managed to prepare dumplings, pupusas, and handmade pork rinds.
The implements used to cook in the New York state prisons where I spent a decade are a testimony to human ingenuity, and the desire to eat something special is yet another way that men preserve their individuality and humanity. Most everyone in prison cooks, and some convicts reach an incredible level of craft, considering that they are using nail clippers hooked to a power outlet.
The food that is served by the state is uniformly vile; it is an expression of hatred in soy-protein. I always felt especially despised during holiday meals; Thanksgiving was three slices of processed turkey, and I always seemed to get a beak in mine. After all, I did consume eleven of these meals, one on every holiday I spent inside.
Convicts do have favored items. Where I served people looked forward to the Jamaican beef patties, fried chicken legs and hamburgers. However, apart from the poultry, which is of the lowest FDA grade, soy protein plays a role in everything served. That is not the tofu you see in groceries or even the meat substitute sold in vegetarian places. It is the ‘whey’ left over from making such things — essentially a waste product — dried out into sheets that are folded and refolded until chunks are created. Brazil makes this stuff out of their enormous soy bean plantations and sells it to places that provide food for refugee camps and prisons. It has an enormous dose of estrogen in it, leading to many voluptuous prisoners in New York state prisons.
Given that the food they are served uses soy waste as a staple and is almost universally disgusting, convicts turn into cooks. At the commissary there was always raw spaghetti and rice for sale along with summer sausage (which strangely does not need to be refrigerated), chicken hotdogs, cans of mackerel, onions and garlic....
Heat is required for most forms of cooking. Not all; you can ferment, you can make ceviche, you can dry and salt… but for the limited array of foodstuffs we had access to, heat was required. In ‘non-cooking’ prisons they still sold raw macaroni but if you boiled water to cook it you were breaking the law. To cook the macaroni the commissary sold hotpots, which you needed a permit to possess and could only buy one a time. And for all that trouble, the hotpots were specially designed so they wouldn‘t actually boil water. You could tinker with them so they would boil but then the cops could take it away for being an ‘altered item’. In Mediums they had communal microwaves.
With time I learned to disassemble the entire hotpot and mount the heating coil on a roast beef can with a whole punched in it. My own personal prison grill. We called this rigged device an ‘eye’, and since the cops know that it is just for cooking, they mostly left them alone. The next step was to steal one of the six pound tuna cans from the warehouse. I had to retrieve the tin from a special compacter before it was crushed, an exercise in timing. Once the can was smuggled back to my cell, it became my wok and the stir fry was on.
But not every prison even sold hotpots. What then? Jailhouse ingenuity conquers all. It turns out that a nail clipper, divided into two halves and hooked up directly into a power socket will boil water. Dropping live wires into a plastic bag of water is terrifying, and you can’t forget to add a pinch of salt in order for the current to flow faster. Of course, this causes the nail clippers to oxidize and the water turns rusty, but it boils. The ochre spaghetti you get looks steampunk, but tastes just fine. And no worries about your iron content.
Two more prominent conservative prosecutors call for less incarceration
Ken Cuccinelli, a former Virginia AG, and Deborah Daniels, a former DOJ official in the Bush Administration, have this notable new opinion piece in the Washington Post headlined "Less incarceration could lead to less crime." In part because this piece reflects a lot of my own views on the modern need for modern reforms, I will quote it at length:
When crime rates began rising in the 1960s and too many Americans felt unsafe walking in their neighborhoods, the idea of putting more people in prison — and keeping them there longer — made sense.
For the next three decades, our nation did just that, as public unease propelled lawmakers to promote longer sentences, curbs on parole and other measures making our correctional system ever tougher.
Now more than 2 million American adults are behind bars and nearly one of every 33 is under some form of correctional control — either incarcerated or supervised in the community. During Ronald Reagan’s presidency, the rate was one in 77.
As conservatives with backgrounds in law enforcement, we embraced the orthodoxy that more incarceration invariably meant less crime, no matter the offense or the danger posed by its perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research combined with the compelling results of reforms in many states prove it is time to adjust our approach.
In short, we must reserve our harshest and most expensive sanction — prison — for violent and career criminals while strengthening cost-effective alternatives for lower-level, nonviolent offenders. The latter lawbreakers must be held accountable for their crimes, but they pose less risk and hold greater potential for redemption.
With today’s sophisticated assessment tools, we can better sort offenders and match them with the levels of treatment and community supervision that offer the best chance for them to stay crime free. Specialty courts that use swift and certain sanctions to promote compliance with drug tests and other conditions of probation are another key plank in this approach.
Let us be clear: Society’s treatment of dangerous, violent felons should remain as punitive as ever. Communities need protection from such predatory criminals, and incapacitation — for a long time, no matter the cost — remains the proper response. Widespread incarceration has played a role in making our streets safer. Estimates vary, but many social scientists believe that expanding imprisonment can be credited for up to a third of the crime reduction of recent years, with demographics, advances in policing and a hotly debated mix of other dynamics accounting for the rest.
However, when it comes to the public safety benefits of incarceration, at least for some offenders, it is clear that we are well past the point of diminishing returns. And given that recidivism levels remained disappointingly high as incarceration rates rose, we would be foolish to ignore the need for a course correction.
The Pew Charitable Trusts recently reported that states that have cut their imprisonment rates (coupled with other reforms) have experienced a greater crime drop than those that increased incarceration. Between 2007 and 2012, the 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in crime, while the 10 states with the largest imprisonment rate increases saw crime fall 10 percent....
When you see, as we have, what reduces criminal behavior, it’s easier to accept the notion that for many offenders, prison is not the best answer. That conclusion is part of what led us to join Right on Crime, a national movement of conservatives who support a criminal justice system reflecting fiscal discipline, a belief in redemption, the empowerment of victims and reliance on solid evidence to determine the most cost-effective use of taxpayer funds to reduce recidivism and improve public safety.
Much of the talk about such reforms highlights their fiscal payoff, and we’re all for saving taxpayer dollars. But as conservatives, we also applaud such efforts because they reflect an evidence-driven approach that values results, not imprisonment for imprisonment’s sake.
Let’s resist our old incarceration reflex and support a rational system anchored in the knowledge, experience and values of today. Let’s preserve families, restore victims, help willing offenders turn their lives around and keep the public safe.
Some older and recent posts on the "new politics" of sentencing reform:
- Could the Tea Party take down of Eric Cantor increase the chances of more federal sentencing reform?
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
- Notable talk of sentencing reform at CPAC conference
- "G.O.P. Moving to Ease Its Stance on Sentencing"
- Notable inside-the-Beltway discussion of modern sentencing politics
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Effective Heritage analysis of federal MMs and statutory reform proposals
- "Holder and Republicans Unite to Soften Sentencing Laws"
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- "Sentencing Debate Reveals Divide Among Republicans"
Wednesday, June 18, 2014
Fascinating accounting of state incarceration rates in a global perspective
I just came across this interesting chart and discussion headlined "States of Incarceration: The Global Context," which reviews world incarceration rates if every U.S. state were a country. The chart and related discussion is both enlightening and depressing, and here is an excerpt:
Around the globe, governments respond to illegal activity and social unrest in many ways. Here in the United States, policymakers in the 1970s made the decision to start incarcerating Americans at globally unprecedented rates.... While there are certainly important differences between how U.S. states handle incarceration, placing each state in a global context reveals that incarceration policy in every region of this country is out of step with the rest of the world....
If we compare the incarceration rates of individual U.S. states and territories with that of other nations, for example, we see that 36 states and the District of Columbia have incarceration rates higher than that of Cuba, which is the nation with the second highest incarceration rate in the world. New Jersey and New York follow just after Cuba. Although New York has been actively working on reducing its prison population, it’s still tied with Rwanda, which has the third highest national incarceration rate. Rwanda incarcerates so many people (492 per 100,000) because thousands are sentenced or awaiting trial in connection with the 1994 genocide that killed an estimated 800,000 people.
Next comes the state of Washington, which claims the same incarceration rate as the Russian Federation. (In the wake of collapse of the Soviet Union, Russia used to rival the United States for the highest incarceration rate in the world. An epidemic of tuberculosis in the overcrowded prisons, however, encouraged the Russian government to launch a major amnesty in 1999 that significantly lowered that country’s incarceration rate.)
Utah, Nebraska and Iowa all lock up a greater portion of their populations than El Salvador, a country with a recent civil war and one of the highest homicide rates in the world.8 Five of the U.S. states with the lowest incarceration rates — Minnesota, Massachusetts, North Dakota, New Hampshire, and Rhode Island — have higher incarceration rates than countries that have experienced major 20th century social traumas, including several former Soviet republics and South Africa.
The two U.S. states that incarcerate the least are Maine and Vermont, but even those two states incarcerate far more than the United State’s closest allies. The other NATO nations, for example, are concentrated in the lower half of this list. These nations incarcerate their own citizens at a rate five to ten times lower than the United States does.
Saturday, June 14, 2014
Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends
As highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:
Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.
“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”
The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.
Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”
Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....
The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.
Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.
June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, June 10, 2014
DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board. And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.
As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines. Here are the basics of the compromise advocated by DOJ via its submitted testimony:
After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....
Assessing whether the amendment should be applied retroactively requires balancing several factors. The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders. While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....
Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....
Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.
With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.
Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.
Some recent related posts:
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
New ACLU report assails private prison industry involved in federal immigration detention
As detailed in this press release, this week "the American Civil Liberties Union and the ACLU of Texas released the report Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, [which examines] the secretive 'Criminal Alien Requirement' or 'CAR' prisons for immigrants." Here is more about the report from the ACLU press release:
In a four-year investigation of five CAR prisons in Texas, our researchers found pervasive and disturbing patterns of neglect and abuse of the prisoners–all non-citizens, most of whom have been convicted only of immigration offenses (such as unlawfully reentering the country).
"At the CAR prisons we investigated, the prisoners lived day to day not knowing if their basic human needs would be met, whether they would get medical attention if they were hurt or ill," said Carl Takei, Staff Attorney at the ACLU’s National Prison Project. "The Bureau of Prisons creates perverse incentives for the for-profit prison companies to endanger human health and lives."
In total, the 13 CAR prisons across the country hold more than 25,000 immigrants.... The report details the relationship between each of the three companies that run them–CCA, GEO Group, and MTC–and the federal Bureau of Prisons, including the ways that the Bureau and the companies work together to cover up the prisons’ conditions....
In Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, the ACLU and the ACLU of Texas tell the stories of prisoners who have been torn from their families by the extreme distances (often 1,000 miles or more) between a CAR prison and a prisoner’s hometown and by the high phone rates the private prison companies charge for phone calls.
Among its recommendations to the federal government, the report calls on the Bureau of Prisons to strengthen oversight of CAR prisons, end the use of contractually binding occupancy quotas for CAR prisons, and stop spending taxpayer money to shield basic information about private prisons from public disclosure. It also urges the Departments of Homeland Security and Justice to return immigration enforcement to civil immigration authorities.
The full report is available at this link.
Saturday, June 07, 2014
Detailing how many more women have come to discover "Orange is the New Black"
To really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):
The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations. So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.
The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)
Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)
Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)
1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)
Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)
Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.
Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)
Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)
Friday, June 06, 2014
Why those who follow sentencing and corrections reform should be following drones
Regular readers and all my students know that I generally believe any and every important public policy issues is related in some significant way to sentencing and/or corrections issues. More support for this view comes from this local article highlighting why and how drone law and policy could have am impact on sentencing law and policy. The article is headlined "Drones over Ohio prisons? Officials mull the idea," and here are excerpts:
The Ohio Department of Rehabilitation and Correction has expressed interest in using drones to monitor the grounds around prisons, said Andrew Parker, director of WSRI. Drones would be able to not only sense if inmates were trying to escape, but also if people on the outside are trying to smuggle items into the prison.
“We’ve heard a lot of information about the precision agriculture uses of drones but this is another example of a use people might not have originally envisioned,” Parker said.
Drone sensor systems such as infrared sensors would be able to detect movement around the prisons in a less expensive way than setting up security sensors around the perimeter of the grounds. ODRC has considered using such drones as a service, Parker said, adding such a service could begin before the end of the year.
A spokesperson for the Ohio Department of Corrections confirmed officials were on site in Wilmington today for a demonstration, but said they would need to evaluate and discuss the demonstration before they could comment further on the idea.
I am not sure what civil liberties groups and Senator Rand Paul and others who've expressed concerns about drones might have to say about this use of the technology. But I suspect that prison guard unions are not likely to be too excited by the prospected of some other their jobs being replaced by the latest brave-new-world innovation.
Wednesday, June 04, 2014
Constitutional challenge to California's solitary confinement practices to proceed as class action
As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:
A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....
The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....
In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.
In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....
The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....
Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.
"Max Out: The Rise in Prison Inmates Released Without Supervision"
The title of this post is the title of a notable new report Public Safety Performance Project of The Pew Charitable Trusts. This press release about the report provides a helpful summary of its main findings, and here are excerpts from the release:
More than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety, according to a report released today by The Pew Charitable Trusts.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs....
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:
Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.
In the past few years, at least eight states—Kansas, Kentucky, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, and West Virginia—adopted reforms to ensure that authorities can supervise all or most offenders after release from prison. These policies, most of which are too new to evaluate, typically carve out the supervision period from the prison sentence rather than add time for it after release. This allows states to reduce prison spending and reinvest some of the savings in stronger recidivism-reduction programs....
These new policies are backed by data that indicate inmates released to supervision are less likely to commit new crimes than those who max out and return home without oversight....
The report outlines a policy framework to guide state leaders in reducing max-outs and recidivism. It recommends that policies require post-prison supervision, carve out the community supervision period from prison terms, strengthen parole decision-making, tailor conditions to offenders’ risks and needs, adopt evidence-based practices, and reinvest savings in community corrections.
Tuesday, June 03, 2014
Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:
In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent. As of now, the change will apply only to defendants who are sentenced after November 1, 2014. But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.
Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000. As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....
Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation. Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....
Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years. In the universe of criminal justice, 38 is old. Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..." These older offenders should have a low risk of recidivism generally. And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.
Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas. True, Texas is big and populous, but it's also punitive. The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent. Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.
The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction. But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.
I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.
That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.
My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors. Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined. These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war. Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.
Some various somewhat recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- New York Times op-ed spotlights enduring flaw with modern drug sentencing
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
Friday, May 30, 2014
The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report
Astute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences." To date, I only noted the report and some early reactions to it in this post.
One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it. But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report. I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates. Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom.
Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis. John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:
The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth. Sadly, it appears to be a deeply, profoundly flawed report. It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.
Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions. The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.
So in the posts ahead, I want to dig into the report more deeply. I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.
From the start, here are John's posts to date highlighting some of the NRC errors he sees:
- The Flawed NRC Report: No Mention of Realignment!
Sunday, May 25, 2014
Detailing the high costs of an aging prison population
This lengthy story in the Omaha World-Herald, headlined "Prisons: pricey nursing homes for Nebraska's aging inmates," highlights the expensive realities of an aging prison population. Here are excerpts:
At age 84, Larry Ortiz is like many senior citizens, dealing with the aches and pains of old age. He uses a cane to steady his slow, shuffling gait. He battles arthritis in his bony fingers, bronchitis and dry eyes. He takes four medications and has trouble remembering names. He has had prostate surgery, been fitted for dentures and had cataracts removed. He has two artificial knees.
But Ortiz is different. He’s spending his twilight years behind bars, serving a life sentence for beating a 29-year-old woman to death in 1970, then cutting off her hands to mask her identity before dumping her body. And the cost of his old-age maladies is being picked up by taxpayers.
Ortiz is part of an ever-rising number of aging inmates who occupy prison cells in Nebraska and other states — nationwide, they are the fastest-growing segment of the prison population. In Nebraska, the graying of prisons has contributed to chronic overcrowding and has been a major factor in rapidly rising health-care costs.
Dealing with older inmates is not cheap. Nationally, they are twice as expensive to house on average as younger prisoners because of their increased medical needs — such as Ortiz’s titanium knees, which together cost upward of $90,000.
Prisons have become de facto nursing homes for more and more inmates. Unit 1 at the Nebraska State Penitentiary in Lincoln, where Ortiz lives, houses many senior citizen inmates. It’s designed to accommodate wheelchairs and has wider doors and handrails. The state corrections system also has 31 skilled nursing beds, like those found in a nursing home. The state is looking at building a 240-bed prison to consolidate housing for inmates who are older, as well as those with mental illnesses.
Prison administrators say that by law they must provide the “community standard of medical care” or risk federal intervention. In California, for example, the U.S. Supreme Court cited substandard medical care and overcrowding in ordering the release of thousands of inmates. “It may frustrate taxpayers,” Nebraska prison Director Mike Kenney said of the medical care, “but constitutionally, ethically and morally, we cannot cut corners with inmates.”
The ACLU and other groups recommend increased use of “medical” or “geriatric” parole for medically incapacitated inmates and “conditional releases” for inmates over age 50, if they have served a certain number of years and no longer are threats to society. “Geriatric” or “medical” parole can save states money, said Marc Levin, a corrections authority with the Texas Public Policy Foundation, which has studied Nebraska’s prison system. At least 36 states, including South Dakota, have such laws, Levin said. California granted medical parole to 47 inmates from 2010 to October 2012 and reduced its health care expenses more than $20 million.....
The increase in older inmates was a key driver in a request to the Nebraska Legislature
last fall for $9 million to cover additional medical expenses this year and next....Generally, criminal offenders show signs of aging earlier than the typical person, in part because of their riskier lifestyles, which can lead to higher rates of hypertension, arthritis, sexually transmitted diseases, hepatitis and diabetes. About 1 in 3 inmates in Nebraska’s state prisons — about 1,600 — receives “chronic care,” which involves regular medication and follow-up checks for conditions such as hypertension and asthma.
A report by the ACLU projects that by 2030, 1 in 3 prisoners in the nation will be 55 or older. As of October of last year, nearly 18 percent of the inmates in Nebraska prisons were 50 or older. In Iowa, about 12 percent of the state’s 8,215 prison inmates are over 50. Nationally, get-tough-on-crime policies and the general aging of the U.S. population have been blamed for the explosion of silver hairs behind bars.
In Nebraska, there is an additional factor: Fewer inmates serving life sentences are being given a chance at release. Three decades ago the State Board of Pardons was more likely to commute a life sentence for murder to a specific number of years once an inmate had served 20 or 30 years. That provided a chance to gain a release on parole. But such commutations have occurred only four times in the past 23 years, so more lifers are spending the rest of their days in prison, racking up medical and prescription expenses.
The National Institute of Corrections estimates that it costs $60,000 to $70,000 a year to house an elderly inmate, compared with $27,000 to $34,000 for the average prisoner....
During the 2012-13 fiscal year, 16 inmates died in state prisons; 12 were over age 50. Releasing elderly, infirm inmates would present some problems. Win Barber, a penitentiary spokesman, said many would have to go to nursing homes — which may not want to house someone like a convicted murderer.
Gov. Dave Heineman, who sits on the State Pardons Board, said he would be cautious about releasing elderly inmates, though it’s probably something worth studying as part of the overall study of the state prison system’s spending and policies. “They’re in prison for a reason,” he said.