Sentencing Law and Policy

New York Times editorial urges "Shrinking Prisons, Saving Billions"

While on the road, I missed this notable New York Times editorial from this past weekend.  Here are excerpts:

The mandatory sentencing craze that gripped the country four decades ago drove up the state prison population sevenfold — from under 200,000 in the early 1970s to about 1.4 million today — and pushed costs beyond $50 billion a year.  Until recently, it seemed that the numbers would keep growing. But thanks to reforms in more than half the states, the prison census has edged down slightly — by just under 2 percent — since 2009.  A new analysis by the Pew Charitable Trusts shows that the decline would have been considerably larger had the other states not been pulling in the opposite direction.

Over the last five years, 29 states have managed to cut their imprisonment rates, 10 of them by double-digit percentages.  California, which has been ordered by the Supreme Court to ease extreme prison crowding, led the way with a 17 percent drop, mainly by reducing parole and probation revocations and shifting custody of low-level offenders to counties.  Other states reduced prison terms for low-level offenses; diverted some offenders to community supervision; and strengthened parole programs, so that fewer offenders landed back in jail for technical violations like missed appointments or failed drug tests.

Even law-and-order states like Texas, which cut its imprisonment rate by 7 percent, have discovered that they can shrink the prison population without threatening public safety. Investing heavily in drug treatment and community supervision, Texas has avoided nearly $2 billion in spending on new prisons, while the crime rate has dropped to levels unseen since the 1960s.  But even as the national prison population has declined, 20 other states — including Arizona, Arkansas, Pennsylvania and West Virginia — keep sending more people to prison than need to be there....

States that lag in reducing their prison populations should swiftly embrace these kinds of reforms.

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

A moving memorial to Colorado prison chief Tom Clements from the Vera Institute of Justice

As reported in this new article, headlined "Colorado Parolee Killed in Texas Chase Likely Guilty of Slaying Prisons Chief," it looks like the person responsible for the murder of head of the Colorado prison system earlier this week may have already faced the ultimate punishment for the crime. But that reality does little to make up for the senseless loss; this new item posted at the Vera Institute of Justice blog, headed "In Memoriam: Tom Clements, Vera partner and friend," provides a sense of how great a loss this is. Here are excerpts:

The Vera Institute of Justice mourns the loss of Tom Clements, Executive Director of the Colorado Department of Corrections, who was shot and killed at his home on March 19, 2013. The Vera family is shocked and saddened at this tragic news, and our hearts go out to Director Clements' family, friends, and colleagues. Many of us had the opportunity to work with Tom—some of us for many years. Most recently, he was a key leader and partner in Vera's European-American Prison Project, an initiative funded by the Prison Law Office which aims to advance an international dialogue around what works in corrections and stimulate reform efforts in the United States. Just last month, as part of this project, several Vera staff members had the privilege of spending a week travelling with Tom and the Colorado delegation, along with our other partners in the project, to tour prisons in Germany and the Netherlands.

"We are heartbroken by this news," said Michael Jacobson, president and director of Vera, who was on the European trip last month. "Tom was a thoughtful and dynamic leader, not only of his agency but as an important and influential national voice in the field of corrections. In addition, he was simply a lovely, warm, generous and thoughtful man."

Director Clements is deservedly recognized for his openness to smart and efficient corrections reform, which he brought to Colorado, where he came to help transform its system. Clearly, he was a great asset to the state. In just two years, he made significant progress in reducing the use of segregation, improving reentry, working with challenging populations such as gang members, and tackling the needs of the mentally ill and elderly incarcerated persons. After the trip to Europe, Tom and his team were eager to start planning and implementing ways to better prepare offenders to reenter the community, for instance with a mother-child unit and strategies to encourage inmate savings.

Most importantly, Tom was a deeply kind and thoughtful person whom we were fortunate to have had the opportunity to know. He will be deeply missed. According to Peggy McGarry, who directs Vera’s Center on Sentencing and Corrections, "Tom Clements was exactly the kind of gentle, kind, and good person who you want in charge of prisons. He only wanted what was best for those in his care—with no desire to control or hurt anyone. His smile was warm and reassuring, his intelligence quick and apparent. It is beyond comprehension that anyone would want to hurt this good man."

[In this post], we share some of the thoughts and remembrances of our colleagues who worked with Tom on the European-American Prison Project. We will add to this list as other colleagues contribute to it.

Talk of reforming prison realignment in California

As reported in this new AP piece, "Republican lawmakers proposed a package of bills on Tuesday intended to counter what they see as a growing threat to public safety from sending some inmates to county jails instead of state prisons."  Here is more:

The 13 bills seek to counter the effects of prison realignment in 2011 by improving supervision of parolees and increase penalties for sex offenders and those who illegally possess or sell firearms.  The measures also would send more convicts back to prison to ease the burden on local jails while protecting counties from lawsuits.

"Republicans recognize that we must close the worst realignment loopholes," said Assembly Minority Leader Connie Conway, R-Tulare.

The bills' chances are uncertain in a Legislature controlled by Democrats.  The measures were proposed nearly 18 months after Gov. Jerry Brown's prison realignment took effect, sending inmates convicted of lower-level crimes to county jails instead of state prisons....

A related bill was rejected last week on a party-line vote in the Assembly Public Safety Committee.  The bill, AB2 by Assemblyman Mike Morrell, R-Rancho Cucamonga, would have sent paroled sex offenders back to state prisons, instead of county jails, if they fail to register as sex offenders.

The proposals have the backing of Diana Munoz, mother of Brandy Arreola, 21, of Stockton, who was permanently injured last year by her boyfriend, Raoul Leyva, a parole violator who had been released early from jail because of overcrowding.  Leyva, 34, was convicted last month of attempted voluntary manslaughter and injuring a spouse, with enhancements for causing brain injury and paralysis.

"If realignment didn't exist ... my daughter would be living her life normally," Munoz said as her daughter sat in a wheelchair by her side. "The state is responsible for what's happened to her. They should never have let him out."

Other bills in the Republican package would impose prison instead of jail time for criminals who remove their GPS-linked tracking devices; send all sex offenders who violate their parole back to prison' and have state parole agents, rather than county probation agencies, supervise all released sex offenders.  The proposals come amid rising concerns over the consequences of Brown's realignment law that took effect in October 2011.

The number of paroled sex offenders who are fugitives in California is 15 percent higher today than before realignment; counties are housing more than 1,100 inmates serving sentences of five years or more in jails designed for stays of a year or less; and inmate advocacy groups are beginning to sue counties over the same type of poor housing and treatment conditions that led to years of litigation and billions in additional costs for the state.

"Manhunt after head of Colorado Department of Corrections killed answering doorbell"

The title of this post is the headline of this disturbing breaking news from Colorado.  Here are the basics:

The head of the Colorado Department of Corrections was fatally shot when he answered the doorbell at his home Tuesday night, authorities say.

Sheriff's Lt. Jeff Kramer says Tom Clements was shot to death around 8:30 p.m. in the town of Monument, which is north of Colorado Springs.  It is unclear if his wife and two daughters were home at the time of the shooting and police are searching for the gunman....

In a letter to DOC employees, Governor John Hickenlooper confirmed that the 58-year-old had been killed, KDVR.com reported.  "We have no more details than that," Hickenlooper wrote.  "I am so sad. I have never worked with a better person than Tom, and I can’t imagine our team without him. … As your Executive Director, he helped change and improve DOC in two years more than most people could do in eight years."

BOP director puts numbers of federal correction costs for FY2011

Via this new Federal Register entry, the Director of the Bureau of Prisons announced the latest annual determination of the average cost of incarceration.  Here is the heart of the announcement:

28 CFR part 505 allows for assessment and collection of a fee to cover the average cost of incarceration for Federal inmates.  We calculate this fee by dividing the number representing Bureau facilities’ monetary obligation (excluding activation costs) by the number of inmate-days incurred for the preceding fiscal year, and then by multiplying the quotient by 365.

Under § 505.2, the Director of the Bureau of Prisons determined that, based upon fiscal year 2011 data, the fee to cover the average cost of incarceration for Federal inmates in Fiscal Year 2011 was $28,893.40.  The average annual cost to confine an inmate in a Community Corrections Center for Fiscal Year 2011 was $26,163.

"Rethinking the Use of Community Supervision"

The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele.  As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to incarceration are critically important "real world" sentencing issues that only rarely get sustained attention from the legal academy.  I am so pleased that Cecelia Klingele is a leading voice help ensuring these important legal and policy issues get the scholarly attention they need and deserve.  Here is the abstract of her latest work in this regard:

Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration.  For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration.  Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole.  It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.

This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.  While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation.  To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense.  Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

"The Conservative Case Against More Prisons"

The title of this post is the headline of this lengthy new piece authored by Vikrant Reddy and Marc Levin, senior policy advisers to the Right on Crime campaign, and now appearing in The American Conservative. Here is how it starts:

Since the 1980s, the United States has built prisons at a furious pace, and America now has the highest incarceration rate in the developed world. 716 out of every 100,000 Americans are behind bars. By comparison, in England and Wales, only 149 out of every 100,000 people are incarcerated. In Australia — famously founded as a prison colony — the number is 130. In Canada, the number is 114.

Prisons, of course, are necessary.  In The Scarlet Letter, Nathaniel Hawthorne observed that “The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil… as the site of a prison.”  As long as there are people, there will be conflict and crime, and there will be prisons.  Prisons, however, are not a source of pride.  An unusually high number of prison cells signals a society with too much crime, too much punishment, or both.

There are other ways to hold offenders — particularly nonviolent ones — accountable. These alternatives when properly implemented can lead to greater public safety and increase the likelihood that victims of crime will receive restitution.  The alternatives are also less costly.  Prisons are expensive (in some states, the cost of incarcerating an inmate for one year approaches $60,000), and just as policymakers should scrutinize government expenditures on social programs and demand accountability, they should do the same when it comes to prison spending.  None of this means making excuses for criminal behavior; it simply means “thinking outside the cell” when it comes to punishment and accountability.

This argument is increasingly made by prominent conservatives.  Bill Bennett, Jeb Bush, Newt Gingrich, Ed Meese, and Grover Norquist have all signed the Statement of Principles of Right On Crime, a campaign that advocates a position on criminal justice that is more rooted in limited-government principles.  They are joined as signatories by the conservative criminologist John Dilulio and by George Kelling, who helped usher in New York City’s successful data-driven policing efforts under Mayor Rudolph Giuliani.  Some groups, like Prison Fellowship Ministries, approach the issue from a socially conservative perspective.  Others, like the American Legislative Exchange Council and the State Policy Network, have fiscal concerns top of mind.  Regardless, a sea change is underway in sentencing and corrections policy, and conservatives are leading it.

Smarter Sequestration: simple statutory ways to save prison monies (and avoid federal furloughs?)

I have been talking to a variety of federal criminal justice folks since sequestration became official on March 1, 2013, and there has been much buzz about possible furloughs.  And in his Senate testimony Wednesday, AG Eric Holder closed with this ominous comments about the impact of sequestration:

[C]uts are already having a significant negative impact not just on Department employees, but on programs that could directly impact the safety of Americans across the country. Important law enforcement and litigation programs are being disrupted.  Our capacity — to respond to crimes, investigate wrongdoing, and hold criminals accountable — has been reduced. And, despite our best efforts to limit the impact of sequestration, unless Congress quickly passes a balanced deficit reduction plan, the effects of these cuts — on our entire justice system, and on the American people — may be profound.

But, as my post title suggests, I think we could and should improve the administration of justice and save money if DOJ and BOP and others would use existing statutory mechanisms to reduce federal prison populations and costs.  FPD Steve Sady recently reminded me that, a year ago, the federal defenders, drawing from data gathered by the Government Accountability Office, provided a simple roadmap of action that could and should be taken now to reduce excessive sentencing practices which is could save hundreds of millions of dollars just by better implementing certain "smart sentencing" statutes.

The title of the federal defender report, which is available here, sets the tone: "GAO Report Reveals Multiple Ways To End The Waste Of Millions On Unnecessary Over-Incarceration." The full report is a dense account of BOP policies that lead to longer periods of incarceration than necessary to accomplish sentencing goals; the key recommendations suggest we could achieve large savings simply by providing some relief to the least dangerous and most deserving of federal prisoners. This executive summary from the report makes these essentials clear:

First, the GAO identified three statutory programs that, if fully implemented, would save taxpayer dollars that are now being wasted on unnecessary incarceration:

• The BOP underutilizes the residential drug abuse program (RDAP) incentive for nonviolent offenders. If inmates had received the full 12-month reduction from 2009 to 2011, the BOP would have saved up to $144 million. Much more would be saved if all statutorily eligible prisoners were allowed to participate.

• The BOP underutilizes available community corrections so that inmates serve an average of only 4 months of the available 12 months authorized by the Second Chance Act. Just by increasing home confinement by three months, the BOP could save up to $111.4 million each year.

• The BOP underutilizes available sentence modification authority for “extraordinary and compelling reasons,” depriving sentencing judges of the opportunity to reduce over-incarceration of deserving prisoners whose continued imprisonment involves some of the highest prison costs.

Second, the GAO confirmed that amending the good time credit statute to require that inmates serve no more than 85% of the sentence would better calibrate actual time served with the assumptions underlying the sentencing guidelines consulted at sentencing. Both the Department of Justice and the BOP favor the amendment. After the release of about 3,900 inmates in the first fiscal year, the BOP would continue to save about $40 million a year once the amendment was enacted.

Third, the GAO identifies cost savings that the BOP could realize simply by using available rules for executing and calculating sentences. For example, the BOP unilaterally abolished the shock incarceration program, spending unnecessary millions by replacing sentence reductions and increased home detention with prison time for nonviolent offenders with minimal criminal history. The BOP also fails to treat defendants’ time in immigration custody as “official detention,” an unnecessary policy that increases custody costs by creating dead time. The BOP should act immediately to end these and other unnecessary and wasteful policies.

Noting the intersection of mental illness and gender in incarceration nation

This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes.  Here is how the piece starts:

The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.

The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.

"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."

While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.

"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."

The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.

In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.

That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.

The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.

The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.

A notable first echo from Ohio's notable new early release law

This local AP article, headlined "Five should be freed, state prisons chief says," reaffirms my belief that Ohio is now a dynamic and important "state to watch" concerning modern sentencing law and practices. Here are the interesting details from this latest story in the important Buckeye chapter of modern sentencing reform:

Ohio’s prison chief has recommended the release of five inmates who have served 80 percent of their time. The recommendations, if approved, would mark the first use of a 2011 law meant to help reduce the state’s inmate population and save the state money.

Director Gary Mohr of the Department of Rehabilitation and Correction cited several reasons, including good behavior, for his recommendations in letters to judges, who have the final say. He also considered information from prison employees who are go-betweens with the prisons, the courts and the inmates.

The five inmates — two women and three men — are serving time mostly for low-level felonies, although one was convicted of aggravated vehicular homicide.

Prisons spokeswoman JoEllen Smith said the 80 percent release option encourages inmates to act responsibly in prison “and is significant in our effort to better communicate with courts and assist the eligible, suitable offenders in having a successful transition back into our communities.”

The 2011 law aims to save the state millions of dollars by shrinking the number of inmates and reducing the number of offenders who might return to prison as repeat offenders. By several measures, the law and other efforts are working.

Ohio’s prison population remains under 50,000 inmates, a level not seen since 2007. Also, the state reported on Feb. 22 that the number of inmates returning to Ohio prisons upon release has hit a new low, a trend officials attribute to a focus on keeping inmates in the community and the involvement of groups that work with inmates before their release.

Other factors Mohr considered in making his recommendations included little or no rule-breaking during incarceration; a history of participating in prison programs; and development of a plan for dealing with the release.

Inmate Mary Clinkscales of Summit County, sentenced to a seven-year prison term in 2007 for possession of drugs, is a prime candidate for release because of her activities in prison, according to a Feb. 15 letter from a go-between, called a justice reinvestment officer.

Clinkscales had just one rule infraction while imprisoned — wearing shorts that were not part of her state-issued clothing — said Suzanne Brooks, the agency’s Cleveland-area justice reinvestment officer.

Clinkscales has attended literacy, anger-management and family-values skills classes, worked on community service projects making hats and scarves and is not a gang member, Brooks said. All these factors, plus no previous prison sentence, make her a suitable candidate for release, Brooks said.

I am tempted at this point to jokingly suggest that it would make sense to expect that someone named "Clickscales" would at some point get sent to prison for a drug offense. But this new story about prison officials actually actively advocating for the early release of a few prisoners is too serious and important to make the basis of jokes about surnames. And speaking of serious and important, the five prisoners likely to get released first via this Ohio early release program ought to seriously understand how very important it will be for other prisoners and so many others throughout Ohio for them to fulfil the faith that Ohio's prison chief has in them.

There are lots of potential reactions and commentary justified by this story and the operationalization of the 2011 Ohio law meant to help reduce the state's inmate population and save the state money. For now, I want to focus on an important political reality in this Ohio "smart on crime" development: both houses of the Ohio General Assembly and the executive branch of Ohio were all in firm Republican control when Ohio enacted the broad-based sentencing reform that is now enabling at least five offenders to likely obtain early release from their prison sentences. For this reason (and others), I think prison reform is right now much better understood, at least at the state level, as a matter of avoiding the (budget) red rather than a matter of political debate among the blue and red sides of the aisle.

Proof of bad people or bad punishments or bad programming?

The quirky question in the title of this post is prompted by this notable local article from Pennsylvania, which is headlined "6 in 10 will re-offend: State prison study sets baseline for progress." Here are the details:

Secretary of Corrections John Wetzel on Thursday morning released what he's calling a "landmark study" into recidivism rates at Pennsylvania's state prisons, and the study is noted not for the progress shown, but rather for the lack of change demonstrated.

For more than a decade, a consistent six in ten people released from Pennsylvania state prisons were either re-arrested or put back in prison within three years. What's "landmark" about the study is in part its scope -- more than 12 years -- but largely the fact is sets a "baseline" for going forward.

Wetzel said it marks the first step toward measuring progress. "Citizens of the Commonwealth should have every expectation of a corrections system that actually helps people correct themselves; one that is based on research, not on anecdotal stories and innuendo," said Wetzel.

While population and cost "remain essential measurements" in Gov. Tom Corbett's Corrections Reform initiative, he said, "The 'new normal' is to expect and require quantifiable results."

The study, which Wetzel called "the keystone of the Corbett Corrections Reform initiative," also helps the Department of Corrections and the Board of Probation and Parole understand who is most likely to re-offend and how.  “To get a true picture of whether our state prison system is meeting its goal of reducing future crime, we need to look at more than just the reincarceration of an individual,” Wetzel said.  “We need to look at re-arrests as well to see the whole picture of how and when individuals come into contact again with the criminal justice system.”

For example, the study found that more than half of those who will return to prison within three years after release will do so within the first years, which is by far the most risky period for recidivism.  Younger offenders are more likely to recidivate than older offenders.  Individuals most likely to reoffend appear to be property offenders. Individuals least likely to reoffend are those incarcerated for driving under the influence of intoxicants, rape and arson.

The study looked prisoners' background as well and found a released inmate who has 10 or more prior arrests is greater than 6 times more likely to recidivate than a released inmate with no prior arrest history other than the arrest for the current stay in prison.

According to the study, nearly two-thirds of all reincarcerations within three years of release from prison are for technical parole violations.  Nearly three-fourths of rearrests within three years of release from prison are for less serious offenses.

The study also confirmed the damning portrait of Community Corrections Centers outlined in an earlier study performed by Dr. Edward Latessa of the University of Cincinnati.  From 2005 through 2011, inmates paroled to a Community Corrections Center were actually more likely to be back in prison within a year as inmates paroled directly home.

Wetzel said the Department of Corrections can save taxpayers $44.7 million annually by reducing the one-year reincarceration rate by 10 percentage points.

The full 45-page report referenced in this article is available at this link, and the cool infographic that explains the reports key findings comes from the PA Department of Corrections website.  One key finding reflected in the infographic is that less than one in five new arrests are for an act of violence.  The majority of rearrests are for drug or public order offenses or parole violations.

Obviously, lots of different conclusions and responses can be based in this new recidivism data.  But I think most important is to stay ever open-minded about what can be the most effective and efficient kinds of criminal justices responses.  This report apparently reveals that for some offenders in some cases recidivism may be lower in the absence of a certain kind of punishment or programming.  It is, of course, bad enough when the work of a department of corrections fails to actual help "correct" people.  But the ultimate form of government waste exists when there is evidence that the taxpayer funded work of the criminal justice system may be making people worse criminals.

New Sentencing Project report notes recent changing racial make-up of prison populations

As summarized in this New York Times article, "[i]ncarceration rates for black Americans dropped sharply from 2000 to 2009, especially for women, while the rate of imprisonment for whites and Hispanics rose over the same decade, according to a report released Wednesday" by The Sentencing Project. Here is more:

The declining rates for blacks represented a significant shift in the racial makeup of the United States’ prisons and suggested that the disparities that have long characterized the prison population may be starting to diminish.

“It certainly marks a shift from what we’ve seen for several decades now,” said Marc Mauer, the executive director of the Sentencing Project, whose report was based on data from the federal Bureau of Justice Statistics, part of the Justice Department. “Normally, these things don’t change very dramatically over a one-decade period.”

The decline in incarceration rates was most striking for black women, dropping 30.7 percent over the ten-year period. In 2000, black women were imprisoned at six times the rate of white women; by 2009, they were 2.8 times more likely to be in prison. For black men, the rate of imprisonment decreased by 9.8 percent; in 2000 they were incarcerated at 7.7 times the rate of white men, a rate that fell to 6.4 times that of white men by 2009.

For white men and women, however, incarceration rates increased over the same period, rising 47.1 percent for white women and 8.5 percent for white men. By the end of the decade, Hispanic men were slightly less likely to be in prison, a drop of 2.2 percent, but Hispanic women were imprisoned more frequently, an increase of 23.3 percent.

Over all, blacks currently make up about 38 percent of inmates in state and federal prisons; whites account for about 34 percent. More than 100,000 women are currently incarcerated in state or federal prisons. The overall rate of incarceration varies widely from state to state, as does the ratio of blacks to whites and Hispanics.

But the trend is clear, Mr. Mauer said, adding that no single factor could explain the shifting figures but that changes in drug laws and sentencing for drug offenses probably played a large role. Other possible contributors included decreasing arrest rates for blacks, the rising number of whites and Hispanics serving mandatory sentences for methamphetamine abuse, and socioeconomic shifts that have disproportionately affected white women.

Alfred Blumstein, an expert on the criminal justice system at Carnegie Mellon University, said his own findings from research he conducted with Allen J. Beck of the Bureau of Justice Statistics also indicated that the rate of incarceration for blacks was declining compared with that for whites. “A major contributor has been the intensity of incarceration for drug offending,” Dr. Blumstein said, “and that reached a peak with the very long sentences we gave out for crack offenders, stimulated in large part by the violence that was going on in the crack markets.”

But crack cocaine has become far less of an issue in recent years, he noted, a fact reflected in revisions of federal sentencing laws. And inmates serving time for crack offenses are now emerging from prison, “so there would be a disproportionate black exodus from prison that as a result would be reflected in a lowering of the incarceration-rate ratio,” he said.

Mr. Mauer said that especially for black women, the drop in incarceration compared with whites was “all about drug offenses.” In New York State, for example, where the overall prison population has dropped substantially, for women “virtually the entire decline was a decline in drug offenses,” he said. Increasingly severe drug laws and stiff sentences for drug offenses resulted in disproportionate numbers of black women going to prison, he said, “and now they are disproportionately benefiting from reductions in that area.”

The full 26-page report from The Sentencing Project is titled "The Changing Racial Dynamics of Women’s Incarceration," and it is available at this link.

"Sequestration Will Wreak Chaos On U.S. Federal Prisons"

The title of this post is the headline of this very interesting new piece from Business Insider.  Here are excerpts:

Sequestration will hit each and every aspect of the U.S. government, but for the Bureau of Prisons, the impact could be horrifying. According to the Attorney General's office, the federal Bureau of Prisons (BOP) will have to handle a rising number of inmates with a major budget reduction, a cut of $338 million.

And while other agencies can find ways to do more with less — for example, by reducing procurement, enacting hiring freezes or cutting services — BOP has to maintain constant security at federal prisons around the country with even less money. The solutions will not be pretty.

In an email to Business Insider, a spokesperson from the Department of Justice said that they are "acutely concerned about staff and inmate safety should sequestration occur." The Department indicated that it may at times maintain a minimum level of staff for security purposes, and that lock-downs may be required.

The Bureau oversees 188 facilities and contracts 16 facilities out to private prison companies.  Currently, there is a grand total of 217,249 inmates in the federal prison system, a number BOP expects to rise to 229,300 by the end of 2013. In 2012, the BOP had a budget of $6.6 billion, with 41,310 employees. Correctional officers make up around half of the staff, with 19,756 employees in 2012.

According to DOJ, the sequester budget cuts will result in 5 percent reduction in the Bureau's workforce, which will be achieved by freezing future hiring and furloughing 36,700 staff for an average of 12 days. This means that almost every employee will have to go home without pay for some time, leaving BOP to function at unnecessarily low security levels.

Attorney General Eric Holder indicated that this reduction in force would endanger the lives of staff and inmates. According to the Attorney General, the BOP will have to implement full or partial lock downs across the board. In a letter to Senate Appropriations Chair Barbara Mikulski (D-Md.), Holder said "This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates."

Complicating all of this is the fact that the federal prison system is already severely overcapacity. According to the 2012 Justice Department annual report, the system is 38 percent overcapacity, a problem that the Department has identified as a major weakness. But efforts to find a solution will be thwarted by the sequester.

In 2013, the BOP was slated to activate 5 new prisons throughout the system, alleviating the crunch with 8,100 new beds. In addition to cuts in guards, those projects will have to be delayed, exacerbating the overcrowding problem further. On top of these issues, Holder reported that the BOP will be forced to curtail or cancel some of the crucial rehabilitation programs that bring long term savings to the criminal justice system....

Jesselyn McCurdy, an attorney at the American Civil Liberties Union who specializes in civil liberties in the criminal justice system, is very concerned about the impact that the cuts will have on inmates. “"Sequestration could result in disaster for people in federal prisons who already live in dangerously overcrowded conditions,”" McCurdy said.

The private prison industry, which is largely dependent on federal contracts, is also worried about the cuts. Damon Hininger, CEO of Corrections Corporation of America, one of the largest private prison companies, voiced these concerns on a February 14 call to investors.

Through not mentioned in this article, it is interesting to consider that the passage of reduced crack guidelines which were made retroactive likely has help prevent this bad situation from being even worse.  Absent the sentencing reductions from reduced crack guidelines passed in 2007 and 2010, the current federal prison population would perhaps already be creeping up near 250,000.

Recent related post:

• Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?

"Mass Incarceration at Sentencing"

The title of this post is the title of this interesting looking new paper by Anne Traum now available via SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing.  Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform.  Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited.

This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing.  Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors.  In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts.

Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just.  Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community.  This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

Should anyone eager to see federal criminal justice reform be rooting FOR the sequester?

The question in the title of this post in prompted by these two recent commentaries by Walter Pavlo, who writes about white-collar crime over at Forbes' website:

• Sequester Impact on Federal Prisons

• Here's an Idea To Reduce The Deficit -- Release Some Federal Inmates

The first post above links to this intriguing letter from AG Eric Holder which details the significant "downsizing" that would be required within the Justice Department if the sequester's automating budget cuts kick in.  The second post concludes with these notable points about how we might sensibly cut some federal costs at limited risk to public saefty:

In a time when we want people off of government assistance, the federal justice system is feeding more people into prison …. and believe me, prison IS government assistance (food, shelter, healthcare, supervision and monthly stipend (yes, inmates are paid)). Are we less safe with guys like Raj Rajaratnam (insider trading) doing only 6 years in prison rather than the 11 years he received? Raj’s long sentence sure did not deter someone from trading on Heinz shares prior to the announcement it was going private at a stock premium. Would a Raj sentence of 6 years uphold respect for the law?  I think it would.  Do you think Raj, whether he spent 6 years in prison or 11 years, would be any more likely to commit a another crime?  I’m thinking Raj is done with trading and doubt he placed any of those suspicious trades on Heinz.  Look, the primary difference between an inmate doing 11 years and another one doing 2 has to do with the number of people he/she testified against and not their threat to society.

There is no doubt that long prison sentences make the general public feel good over the short term, but the costs of incarceration go on for the long term.  I realize that images of white-collar felons and low-level drug dealers working side by side breaking rocks conjures up feelings of justice.  However, we now live in a time when there are video cameras at stop-light intersections, drones that patrol war zones, my iPhone can even find itself, so there has to be a better way to monitor felons (inmates) without having them housed on sprawling government complexes and on the government payroll.  Ankle bracelet?  GPS? Community service projects?   Punishment/Sentences can still be vetted out in years but does an entire prison term need to be served on a government, tax payer subsidized, compound?

Sequester this!!!

UPDATE:  On this topic, I see Ted Gest at The Crime Report has this notable recent entry headlined "Justice Groups to White House: Cuts Could Have 'Enormous Impact.'"

Notable account of "old school" Japanese approach to prisons

This new article appearing in The Economist, headlined "Eastern porridge: Even Japanese criminals are orderly and well-behaved," provides an fascinating international perspective on prison practices.  Here are excerpts:

With its façade of red brick, Chiba prison, just outside Tokyo, looks like a Victorian-era British jail. That is where the similarity ends.  Prisons in Britain are often loud, dirty and violent, but Chiba resembles a somewhat Spartan retirement home for former soldiers. The corridors and the tiny cells are spotless.  Uniformed prisoners shuffle in lockstep behind guards and bow before entering rooms.

The deputy warden, Hiroyuki Shinkai, who once visited British prisons as a UN researcher, was shocked by what he found.  He can still recall his surprise at seeing inmates freely mingling and talking. “Japanese penal philosophy is different,” he explains.  In Japan, talking is banned, except during break-times.  Unpaid work is a duty, not a choice.

Japan incarcerates its citizens at a far lower rate than most developed countries: 55 per 100,000 people compared with 149 in Britain and 716 in America.  The country’s justice ministry can also point to low rates of recidivism.  Yet increasingly the nation’s 188 prisons and detention centres come in for harsh criticism, particularly over their obsession with draconian rules and secrecy (on February 21st the government unexpectedly announced it had hanged three men for murder), and their widespread use of solitary confinement....

Over two-thirds of the inmates of Chiba prison were convicted for crimes that caused death — mainly murder, arson or manslaughter.  Half are serving life sentences and, in Japan, life means life.  The average prisoner is 50.  Many of them have never used a mobile phone or a credit card.  Conjugal visits are banned, so marriages break down.

In the prison workshops, inmates silently make leather shoes and furniture, overseen by a single unarmed guard.  No riot has taken place in a Japanese prison since just after the second world war.  Escapes are rare, and drugs and contraband almost non-existent.  The prison notes that its ratio of one guard to four prisoners is roughly half that in Britain.  Yet no one can recall a violent attack on a staff member.

A landmark report in 1995 by Human Rights Watch, a lobby group, said this remarkable order “is achieved at a very high cost”, including the violation of fundamental human rights and falling far short of international standards.  Europeans and Americans inside Japan’s prison system have developed mental problems.  Yet for Mr Shinkai the differences with the West are a point of pride. “Of course we look too strict to outsiders,” he says. But his inmates, he goes on, all come from Japanese society. For them, it works beautifully.

Students of prison history will know that this account of modern Japanese prisons suggests that they are structured and run in a manner and with a philosophy remarkably similar to the first major American prisons such as Pennsylvania's Eastern State Penitentiary and New York's Auburn Correctional Facility. prison (some history here).

George Will makes strong (conservative?) case against solitary confinement

George Will has this notable new Washington Post op-ed headlined "When solitude is torture." Here are excerpts:

“Zero Dark Thirty,” a nominee for Sunday’s Oscar for Best Picture, reignited debate about whether the waterboarding of terrorism suspects was torture. This practice, which ended in 2003, was used on only three suspects. Meanwhile, tens of thousands of American prison inmates are kept in protracted solitary confinement that arguably constitutes torture and probably violates the Eighth Amendment prohibition of “cruel and unusual punishments.”

Noting that half of all prison suicides are committed by prisoners held in isolation, Sen. Richard Durbin (D-Ill.) has prompted an independent assessment of solitary confinement in federal prisons. State prisons are equally vulnerable to Eighth Amendment challenges concerning whether inmates are subjected to “substantial risk of serious harm.”

America, with 5 percent of the world’s population, has 25 percent of its prisoners. Mass incarceration, which means a perpetual crisis of prisoners re-entering society, has generated understanding of solitary confinement’s consequences when used as a long-term condition for an estimated 25,000 inmates in federal and state “supermax” prisons — and perhaps 80,000 others in isolation sections within regular prisons. Clearly, solitary confinement involves much more than the isolation of incorrigibly violent individuals for the protection of other inmates or prison personnel.

Federal law on torture prohibits conduct “specifically intended to inflict severe physical or mental pain or suffering.” And “severe” physical pain is not limited to “excruciating or agonizing” pain, or pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions, or even death.” The severe mental suffering from prolonged solitary confinement puts the confined at risk of brain impairment.

Supermax prisons isolate inmates from social contact. Often prisoners are in their cells, sometimes smaller than 8 by 12 feet, 23 hours a day, released only for a shower or exercise in a small fenced-in outdoor space. Isolation changes the way the brain works, often making individuals more impulsive, less able to control themselves. The mental pain of solitary confinement is crippling: Brain studies reveal durable impairments and abnormalities in individuals denied social interaction. Plainly put, prisoners often lose their minds....

Mass incarceration is expensive (California spends almost twice as much on prisons as on universities) and solitary confinement costs, on average, three times as much per inmate as in normal prisons. And remember: Most persons now in solitary confinement will someday be back on America’s streets, some of them rendered psychotic by what are called correctional institutions.

"Defunding State Prisons"

The title of this post is the title of this new article now on SSRN authored by W. David Ball. Here is the abstract:

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment.  This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there.  This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage.  This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

Amusingly, in this post at Prawfs, Giovanna Shay describes David's work in this piece as part of the "Best Trilogy Since Star Wars."  That post explains the positive description this way:

Okay, that might be over-selling it just a bit.   But David Ball of Santa Clara recently has posted to SSRN the third in his trilogy of articles inspired by the California prison "realignment."...  In his three articles, David demonstrates that counties rely on state corrections facilities (and funding) to varying degrees, and makes proposals that he hopes could require counties to internalize the costs of their reliance on incarceration.... Whatever your ultimate assessment of David's proposals, this is one trilogy definitely worth checking out.  (I will spare you further Star Wars references).

Some notable recent NPR coverage of modern incarceration realities

I was pleased to hear on my local NPR station this afternoon, while I was driving around in my Prius looking for a good place to get a latte, this lengthy feature story concerning US incarceration levels on the On Point program.  Here is how the program is described via its website:

The Cost Of Prison: States fed up with high prison costs and mandatory sentencing move to change. Must the U.S. be number one in prisoners?

The USA is number one in the world when it comes to the number of people in prison. Bigger than China. Bigger than Russia. America’s prison population is tops. 2.2 million. Bigger than fifteen American states.  And its incarceration rate is number one.....  All that American imprisonment is very expensive. And very debatable when it comes to effectiveness, fairness -- to justice itself.  Now states across the country are reconsidering the mandatory sentencing policies and more that filled those cells. This hour, On Point: slimming down American prisons.

In addition, last week NPR had two new pieces as part of this special series titled "The Legacy And Future Of Mass Incarceration." Here are links and brief descriptions:

Decades On, Stiff Drug Sentence Leaves A Life 'Dismantled':  George Prendes was 23 when he was sentenced under New York's Rockefeller drug laws — tough mandatory sentencing guidelines for nonviolent drug crimes. The 15 years Prendes served for a drug transaction still reverberate for him and his family.

The Drug Laws That Changed How We Punish:  Forty years ago, New York enacted tough laws in response to a wave of drug-related crime. They became known as the Rockefeller drug laws, and they set the standard for states looking to get tough on crime.  But a new debate is under way over the effectiveness of such strict sentencing laws.