Wednesday, September 03, 2014
"Life sentence for buying marijuana?"
The question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU. An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront." And this companion piece, headlined "The price of pot," provides this additional preview:
Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.
This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime? Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.
And now here are now excerpts from the commentary by Vanita Gupta:
Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.
The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....
While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.
We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.
Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.
The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.
But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.
According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.
The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.
As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.
September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Tuesday, September 02, 2014
"Rethink sentencing and parole to solve aging, costly prison population"
The title of this post is the headline of this new editorial from a local South Carolina paper. Yet, even though focused on some Palmetto State particulars, many of the points and themes in the editorial have broad applicability in many US jurisdictions. Here are excerpts:
The term "life in prison" is easy enough to understand when it is handed down as a sentence in a courtroom. But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.
For many, the sentences are a just and fair punishment. Often, they are also necessary to keep the public safe. But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws.
Regardless, any prisoner costs the state and its taxpayers a lot of money. Prisons should serve to deter would-be criminals and separate society from its most dangerous members. Problems — and extra costs — arise when they must also serve as mental health facilities and nursing homes.
According to a recent report by The State newspaper, the number of South Carolina inmates over the age of 55 has more than doubled over the last 10 years. And that number is expected to increase without reforms to the way the state handles its sentencing and parole laws.
Many aging prisoners were sentenced long before a 2010 legislative reform reduced sentences for some non-violent crimes while strengthening punishments for violent offenders. That bill was so effective that it has reduced the prison population in the state by more than 10 percent overall and slashed the number of incarcerated non-violent offenders in the years since its passage.
South Carolina has also implemented programs, including a "smart probation" system, that have helped cut the rate of recidivism dramatically, as The Post and Courier reported on Sunday. Even so, the state's cost per inmate continues to rise, and part of that increase is due to the expense of caring for aging prisoners with additional medical needs and accompanying logistical concerns....
The South Carolina Sentencing Reform Commission prepares an annual review of the state corrections system with a particular focus on the impact of the 2010 legislation. That data show that sentencing reform has, by and large, been a success story. But more work remains. South Carolina should continue its reform of sentencing laws while focusing on rehabilitation for offenders who pose a minimal threat if given probation rather than prison.
The Legislature should also consider expanding parole options for aging inmates who have served substantial portions of their sentences, have serious chronic medical conditions or are unlikely to pose a threat should they be released under supervision. Every prisoner who can safely be released on parole represents thousands of dollars of savings for taxpayers....
Any decision must consider both what is cost effective and acceptable for public safety. If some older prisoners who have effectively paid their debt to society can be allowed to re-enter society safely and at a savings to taxpayers, then there is little reason to keep them locked away.
September 2, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack
Sunday, August 31, 2014
Shareholders of private prison corporations already profiting from border problems
As this CNN Money article highlights, because of the "crisis on the U.S.-Mexico border, ... Wall Street is betting that it will result in a boom for private prisons." Here is more about who can profit from a need for prison beds:
Geo Group (GEO)and Corrections Corporation of America (CXW) are two of America's largest for-profit prison operators. They have thousands of open beds, and they have deep relationships with the federal agencies charged with doling out contracts to house undocumented immigrants, including children.
"It's highly likely that the federal government will have to turn to the private sector for help with this crisis. Both companies are extremely well positioned," said Brian Ruttenbur, an analyst at CRT Capital Group who covers the stocks of Geo Group and Corrections Corporation of America (CCA).
Investors are clearly seeing dollar signs. Shares of both CCA and Geo Group have spiked since the border crisis landed on front pages this summer. CCA has climbed 8.5% since July 30, and Geo Group is up over 7%. That's a lot better than the S&P 500's 1.5% advance over that time span.
The Obama administration has already shifted over $405 million in funds to address the crisis and is urging Congress to pass a $3.7 billion emergency supplemental bill. "Investors see this as an opportunity. This is a potentially untapped market that will have very strong demand," said Alex Friedmann, an activist investor who owns shares of both CCA and Geo Group....
Ruttenbur said CCA and Geo Group have both been talking to the federal government about how they can help. "We are always in conversations with our government partners including ICE, but we don't have anything new to report," a CCA spokesman told CNNMoney. Geo Group did not respond to a request for comment.
The best outcome for these companies would be landing a contract with the government to help house some of the undocumented immigrants at existing facilities that are currently idle. That's exactly what happened last month when the U.S. border control inked a contract with Geo Group to give its adult detention center in Karnes County, Texas a makeover. Now the facility is able to house hundreds of immigrant women and children....
Wall Street also applauded when CCA and Geo Group, which went public during the 1980s and 1990s, recently converted to real estate investment trusts, or REITs. That status, which is also used by hospitals and office building operators, gives them enormous tax advantages....
[I]nvestors are attracted to prison stocks because they give generate lots of cash flow, have strong dividend yields and high occupancy rates compared to other real estate options. "The long-term trends are very much in place right now because the federal, state and local governments aren't willing to put up the capital to build new facilities. The only group building new facilities is the private sector," said Ruttenbur.
Wednesday, August 27, 2014
Drug addiction specialist laments that "our prison system does little more than teach addicts how to be better addicts"
I just saw this notable recent Washington Post commentary by David Sack, a psychiatrist and addiction specialist, headlined "We can’t afford to ignore drug addiction in prison." The piece merits a full read and here are excerpts:
As the addiction epidemic rages and prisons overflow, our nation seems to be backing away at last from the “lock ’em up and throw away the key” mindset that has characterized the failed war on drugs.... Sure, this is inspired largely by the need to relieve the pressure on our prison system, which is straining to cope with a population that has more than quadrupled since 1980. But it’s also recognition that we can't incarcerate ourselves out of our drug problems.
As someone who helps people with addictions, I consider this good news. But I'd be more encouraged if we also focused on improving conditions in prison. In the long run, this will have more power to reduce our inmate population. As it is, our prison system does little more than teach addicts how to be better addicts.
Inmates are likely to find a drug trade as active as the one outside prison walls.... Of the more than 2.3 million people in American prisons and jails, more than 65 percent meet medical criteria for substance abuse addiction. When you combine this with those who have histories of substance abuse, were under the influence when they committed a crime, committed it to get drug money, or were incarcerated for a drug or alcohol violation, the percentage rises to 85 percent. In other words, if an inmate is looking for encouragement to “Just say no,” odds are he won't find it from his bunkmates.
But most disturbing is the fact that inmates who do hope to kick an addiction can’t count on getting the help they need. The National Center on Addiction and Substance Abuse (CASA) at Columbia University found that only 11 percent of inmates with substance use disorders received treatment at federal and state prisons or local jails. The best that most can hope for is occasional mutual support or peer counseling meetings. No wonder that more than half of inmates with addiction histories relapse within a month of release.
So what is needed? Inmate evaluations to spot addictions and underlying issues that may be fueling them.... Consistent treatment by a trained staff that includes addiction medicine specialists who understand how to use evidence-based treatments, including medication-assisted therapy. Long-term treatment programs that follow the inmate into his community and continue to support him after his release.
It’s a substantial investment, and your first thought may be, “We can't afford to do that.” But the reality is we can’t afford not to do it. As it stands now, only 1.9 cents of every dollar our federal and state governments spend on substance use and addiction go to pay for prevention and treatment; 95.6 percent pay for the consequences. That means we are shelling out billions of dollars to clean up the mess of addiction rather than doing what we know pays off -- helping people overcome it.
A 2010 CASA study, for example, determined that if we gave quality addiction treatment and aftercare to every inmate who needed it, we'd break even on the investment in only a year if just more than 10 percent were successful in staying employed, out of trouble and drug free. In dollar terms, that translates to an economic benefit for the nation of more than $90,000 annually per former inmate. Studies confirm that addicts pressured to undergo treatment by the legal system fare as well or better than those who seek treatment voluntarily....
While it’s tempting to think punishment is the answer [to drug crimes and addiction], prison alone doesn’t teach addicts how to change their thinking and behavior, doesn’t help repair damaged neural pathways and doesn't take away drug cravings or offer strategies to prevent relapse. In most cases, prison just buys a little time before the addict relapses and re-offends, perpetuating the cycle and hurting himself along with the rest of us.
Monday, August 25, 2014
"Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America"
Thanks to this new posting at The Crime Report, I see the exciting news that Jonathan Simon's new book about mass incarceration and California's dysfunctional role therein has been released by The New Press. The book's title makes up the title of this post, and here is how the publisher describes the book on its website:
For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading — relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order. In short, mass incarceration has proven to be a fiscal and penological disaster.
A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.” Berkeley law professor Jonathan Simon — an internationally renowned critic of mass incarceration and the war on crime — argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence. Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.
Exposing the priority of politics over rational penal policy — and debunking the premise that these policies are necessary for public safety — this perceptive and groundbreaking book urges us to seize the opportunity to replace mass incarceration with a system anchored in the preservation of human dignity.
Sunday, August 24, 2014
Detailing the high cost of an aging prison population in the Palmetto State
This lengthy local article, headlined "Graying of SC prisons will cost state’s taxpayers," reports in a South Carolina context an issue facing nearly every American jurisdiction as the costs of past tough-on-crime policies come due. Here are excerpts:
An inmate at Camille Griffin Graham Correctional Institution for women keeps a wheelchair tucked away in the corner of her small, cinder-block cell. She has a walker, too. The wheelchair and walker are just two of the signs of the exploding population of aging inmates in South Carolina’s prisons.
Another sign? The dollar sign, as in the increasing cost that S.C. taxpayers will have to pay to care for those aging inmates. In the past decade, the number of S.C. inmates age 55 and older has more than doubled, according to the S.C. Corrections Department. At the end of June, one in every 11 inmates was 55 or older. The graying of the state’s prison system will continue, experts warn. Barring changes in the state’s parole system, they add that the aging prison population stands to become even more expensive for taxpayers to support....
“We’ve passed policies and laws that have dictated we want our prisons to become nursing homes,” said Jon Ozmint, the Columbia lawyer who was head of the state’s prison system under former Gov. Mark Sanford. Those policies and laws come with a cost to taxpayers. It costs about twice as much nationally to house a prisoner over 50 as it does the average prisoner, according to a 2012 study by the American Civil Liberties Union. “Do we really want to keep them (inmates) in prison until they die?” Ozmint asked rhetorically. “It feels good. It makes a certain segment of society feel good. But it’s a costly proposition.”...
Today, the oldest inmate at Camille Graham Correctional Institution is 70 years old. A few of the women at the prison, located off Broad River Road, have been locked up for more than 25 years. One inmate has been incarcerated for almost 37 years. But, in one key way, Graham Correctional is not representative of the state’s prison population: Its inmates are women. And as the state’s prison system grays, its senior-citizen inmates overwhelmingly stand to be men.
In 2013, 10 percent of the state’s prisoners — or 2,263 inmates — were serving sentences that called on them to live out their lives in prison or be executed. Almost all of those 2,263 inmates were men. Less than 90 were women....
The aging prison population has been driven by the war on drugs and tough-on-crime sentences, said Ozmint, who led S.C. prisons for eight years. “Feel-good legislation” — including truth-in-sentencing — essentially did away with parole, keeping inmates in prison until they are old, he said. As a result, many elderly and infirm inmates are not eligible for parole.
Medical parole is an option for elderly prisoners who were convicted of a parole-eligible offense, said Pete O’Boyle, spokesman for the state Department of Probation, Parole and Pardon Services. Since 2010, however, no requests for medical parole have been granted in South Carolina. Of 13 requests, 10 were deemed eligible for a hearing, O’Boyle said. Of those 10, seven inmates were turned down by the parole board. Three inmates were granted conditional parole, but two completed their sentences before they were paroled. The third was sent back to prison for another offense.
Historically, winning parole has been difficult in South Carolina in any event, says Ozmint. That is because the state’s parole board has given great weight to the understandable anger of crime victims in deciding whether to grant parole, the former prisons chief says. However, the current parole board has come a long way toward making less emotional decisions, based on objective risk factors and public safety, he added....
Ozmint expects the prison system’s elderly population will continue to grow, creating the need for more geriatric facilities, which are more expensive to operate than regular prisons. Those rising health-care costs directly will impact taxpayers, he adds. A solution could be found in turning to the private sector to handle elderly prisoners, Ozmint said. But that assumes for-profit prisons can operate more cheaply the state’s notoriously skinflint prisons.
Corrections Department director Bryan Stirling, who took the post heading S.C. prisons in October, says telemedicine is a more cost-effective option to provide medical services. Now, inmates sometimes are taken off-site for doctor’s visits or other health-care needs. Multiple correctional officers must travel with them, which is expensive, Stirling said. If telemedicine is used, an off-site doctor could care for an inmate via a video conference. But, problematically, that would require transferring inmates’ medical records electronically, Stirling said....
For the moment, at least, a drop in the number of state prisoners has freed up resources that could be used to offset to increased health-care costs. The number of inmates in S.C. prisons has been decreasing steadily since sentencing reform ... was passed in 2010. As of June 30, the state had 21,904 prisoners, down from 24,883 five years earlier, according to the Corrections Department.
That reform increased sentences for violent criminals but allowed some nonviolent offenders to avoid prison. “Any time someone is not incarcerated, it’s a savings for the state,” Stirling said. “It’s a tremendous savings for the state.”
Thursday, August 21, 2014
"Let's reserve costly prison beds for dangerous offenders"
The title of this post is the headline of this new commentary appearing in Utah's Deseret News and authored by Grover Norquist and Derek Monson. Here are excerpts:
As the economy continues to sputter, Utah should continue to heed the practical wisdom of the frugal family and tighten its belt. There can be no sacred cows in the budget.
One area of spending that has traditionally been “off limits” for cuts — the prison system — can no longer escape examination. Utah’s growing prison population, which currently costs state taxpayers more than $250 million annually, is projected to add an additional 2,700 prison beds in the next two decades. If that increase would make us safer, it would be worth it.
But many of these additional beds are not for dangerous and serious offenders. In fact, Utah is sending more nonviolent offenders to prison than it did a decade ago and keeping them behind bars for longer periods of time. This includes a steep increase in female offenders as well as probationers sent to prison for “technical violations” of the terms of their supervision rather than for committing a new crime. In other words, many of those we choose to send to prison (or back to prison) are low-risk, nonviolent offenders.
This is costly and counterproductive. Research shows that low-level offenders often leave prison more dangerous than when they entered. As conservatives, we pride ourselves on being tough on crime, but we also must be tough on criminal justice spending. The question underlying every tax dollar spent on corrections should be: Is this making the public safer?...
Across the nation, other states have faced the same dramatic increases in prison costs, which are now the second-fastest-growing item in state budgets behind only Medicaid. Several of these states have found innovative ways to cut corrections spending while maintaining public safety. Texas, for instance, scrapped plans to build more prisons and put much of the savings into drug courts and treatment, with impressive results: Crime rates are at their lowest since 1968, and the falling inmate population enabled Texas to close three prisons, avoiding $3 billion in prison costs.
States like Georgia, Pennsylvania, South Carolina, Mississippi and South Dakota have adopted similar reforms that reduce prison populations and corrections costs while improving public safety, allowing them to reinvest some of the savings into programs proven to cut crime and reduce recidivism....
As signatories to the national Right on Crime movement, we are conservative leaders working to apply our conservative principles to the criminal justice system. As such, we are pleased that Utah is joining other states in demanding more cost-effective approaches to public safety, and we wholeheartedly support the efforts of Utah’s leadership to create a more effective criminal justice system.
Wednesday, August 20, 2014
Detailing the significant increase in California lifers getting parole
This local article, headlined "Life with parole no longer means life term: Legal ruling causes steady rise in parole for California's lifers," highlights that parole has recently become a realistic possibility again for lifers in California. Here are the details:
Not so long ago, the conventional wisdom in legal circles was that any violent criminal sentenced to life with the possibility of parole in California wasn’t likely to ever walk out of prison. Whether that inmate had served the minimum on a term of 15 years to life or 25 years to life seemed inconsequential for many prisoners in the 1990s and early 2000s. In California, life meant life.
But that’s not the case anymore. In 2009, 221 lifer inmates were released from prison on parole, more than twice the number from the year before, according to the Governor’s Office. The numbers have steadily increased since then, reaching a high of 596 lifer inmates released on parole last year.
More than 2,200 inmates who had been serving life sentences in California have been paroled over the past five years, which is more than three times the number of lifers paroled in each of the previous 19 years combined.
Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.
Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown....
The spike in paroles came during Arnold Schwarzenegger’s term as governor, when the state’s high court established the standard by which a prisoner could be determined suitable for parole. Schwarzenegger, who was governor from 2003 to 2011, reversed more than 1,100 lifer parole grants during his time in office. One of them involved Sandra Davis Lawrence, who killed her lover’s wife in 1971. Her case went to trial in 1983. She was convicted of first-degree murder and sentenced to life in prison.
The Board of Parole Hearings determined in 2005 that Lawrence was suitable for parole based on several factors, including her efforts to rehabilitate herself in prison, her acceptance of responsibility for her crime and her close ties to her family. But Schwarzenegger found that Lawrence was not a good candidate for release based on “the gravity of the commitment offense,” according to court documents.
A three-judge panel of the state Supreme Court said that’s not good enough, explaining that parole could not be denied simply because the inmate’s offense was “heinous” or “cruel.” The key factor is whether that person remains a danger at the time parole is considered. “There has to be something more than just your crime was particularly atrocious,” said Jennifer Shaffer, executive officer of the Board of Parole Hearings. Denial can’t be based on “something you can’t change,” she said.
When the board denies parole for an inmate, that decision can be appealed, which results in a court-ordered hearing. In 2009, the first full year after the ruling, there were 263 court-ordered hearings spurred by appeals. “That is basically the court saying, ‘You got it wrong,’” she said. Last year, there were only 13 court-ordered hearings, which Shaffer said indicated the board had learned over time how to do a better job of applying the new standard. “The board, as a whole, learned with a lot of guidance from the court,” she said.
The Board of Parole Hearings issued 670 parole grants in 2012, and 590 in 2013, but some of those offenders may still be behind bars. Depending on factors specific to each case, it could take five months to several years for each prisoner to actually be released. State law bars the board from taking prison overcrowding into account when making its decisions. However, Shaffer said, there may be a perception that the issues are related because of the state’s efforts to comply with the federal court order.
Tuesday, August 19, 2014
Senator Whitehouse defends risk-assessment tools for some sentencing determinations
The New York Times today published this letter-response by Senator Sheldon Whitehouse to this recent NYT commentary expressing concern about the use of risj-assessment tools in sentencing decision making. Here is the full text of the published letter:
In “Sentencing, by the Numbers” (Op-Ed, Aug. 11), Sonja B. Starr highlights concern over judges’ use in sentencing of predictive tools to gauge an offender’s risk of recidivism. But let’s not overlook the important role that risk-assessment tools can play in helping identify the factors that make sentenced inmates more likely to commit crimes after they are released.
The most useful tools emphasize dynamic factors — those the inmate has the ability to change — including things like substance abuse, lack of education or antisocial attitudes.
States as different as Rhode Island and Kentucky have found that risk-assessment tools, when coupled with appropriate in-prison programs, can help inmates prepare to re-enter society with less likelihood that they’ll reoffend. That reduces spending on prisons, keeps us safer and also benefits the prisoners themselves.
Recent related posts:
- "Attorney General Eric Holder to Oppose Data-Driven Sentencing"
- Three distinct takes on AG Eric Holder's recent reservations about risk-based sentencing
Monday, August 18, 2014
More evidence of the poor funtioning of California's crime-and-punishment policies and practices
Over the weekend, the Los Angeles Times published this lengthy and disconcerting article spotlighting yet another aspect of the mess that is California's current sentencing and corrections system. The piece is headlined "Early jail releases have surged since California's prison realignment," and here are some extended excerpts:
Jesus Ysasaga had been arrested multiple times and ordered by the court to keep away from his ex-girlfriend. Two parole boards sentenced him to nearly a year in jail for stalking, drunkenness and battery.
But the Fresno County jail would not keep him. Four times in the summer of 2012, authorities let Ysasaga go, refusing two times to even book him. The jail had no room. Ysasaga's attorney, Jerry Lowe, said the parade of convicted offenders being turned away from the jail was common. "It became quite a joke," he said.
Across California, more than 13,500 inmates are being released early each month to relieve crowding in local jails — a 34% increase over the last three years. A Times investigation shows a significant shift in who is being let out of jail, how early and where.
The releases spring from an effort begun in 2011 to divert low-level offenders from crowded state prisons to local jails. The move had a cascade effect, forcing local authorities to release their least dangerous inmates to make room for more serious offenders. "It changes criminal justice in California," said Monterey County Chief Deputy Edward Laverone, who oversees the jail. "The 'lock them up and throw away the key' is gone."
State and local officials say that they are making every effort to ensure the releases pose little danger to the public, freeing those believed to be the least risky convicts, usually parole violators and those convicted of misdemeanors. But an analysis of jail data has found that incarceration in some counties has been curtailed or virtually eliminated for a variety of misdemeanors, including parole violations, domestic violence, child abuse, drug use and driving under the influence.
In Los Angeles County, with a quarter of California's jail population, male inmates often are released after serving as little as 10% of their sentences and female prisoners after 5%. Fresno County logs show the jail is releasing criminals convicted of crimes that used to rate prison time: fraud, forgery and trafficking in stolen goods.
Law enforcement officials say that criminals have been emboldened by the erratic punishment. "Every day we get guys who show up in the lobby, stoned out of their minds," said one parole agent who did not want to be identified because he was not authorized to speak about the issue. "I'll have 15 arrested, and 12 to 14 will be released immediately."...
For law enforcement agents, the jailhouse revolving door is frustrating.
Leopoldo Arellano, 39, was in and out of custody at least 18 times from 2012 to 2014 for violating parole, criminal threats and at least four incidents of domestic battery, according to Los Angeles County jail logs. San Diego County let parolee Demetrius Roberts go early 12 times; mostly for removing or tampering with his GPS tracker, which he was required to wear as a convicted sex offender.
In Stockton last year, a furor erupted over the repeated releases of Sidney DeAvila, another convicted sex offender. He had been brought to the San Joaquin County jail 11 times in 2012 and 2013 for disarming his GPS tracker, drug use and other parole violations.
He was freed nearly every time within 24 hours, even when he was brought to the jail by the state's Fugitive Apprehension Team. Days after being let out early in February 2013, DeAvila went to his grandmother's house, raped and killed the 76-year-old woman, then chopped her body into pieces. He was found later that day with the woman's jewelry around his neck....
The problem stems from the huge increase in the number of state prisoners over the last four decades, spurred by increasingly harsh sentencing laws passed during the war on drugs. Felons could serve decades behind bars for repeat convictions of drug use and other nonviolent crimes. From a relatively stable population of less than 25,000 in the 1970s, the number of state prisoners rose to a high of 174,000 in 2007.
Crowding reached dangerous levels, leading federal judges to rule in 2009 that the conditions were unconstitutional. When Gov. Jerry Brown took office in 2011, the state was under orders to cap prison counts at 110,000.
Brown's solution, called "realignment," shifted the responsibility for parole violators and lower-level felons to the counties, putting inmates closer to home and potentially improving their prospects for rehabilitation. Lawmakers tried to ease the load on counties by expanding credits for good behavior and jailhouse work, cutting most sentences in half. Even with that, state officials concede, they knew jails did not have enough room.
The shift flooded county jails, many of which already were freeing convicted offenders under a melange of local court rulings, federal orders and self-imposed caps. "If you've got a prison population and a jail population, if you're going to release anywhere, you might better release at the lower level," said Diane Cummins, Brown's special advisor on realignment and criminal justice policy.
The number of prisoners released from county jail because of crowding has grown from an average of 9,700 a month in 2011 to over 13,500 a month today, according to state jail commission figures. In October, those records show releases surged to over 17,400.
Jailers are struggling to decide whom to let go.... Kern County Sheriff's Lt. Greg Gonzales said the jail he manages hits its maximum capacity two or three times a week. When that happens, inmates must go, 20 to 30 at a time. Parolees and those who have served the most time on their sentences leave first. Those who have committed violent crimes or molested a child stay the full term. The county is experimenting with a risk-assessment system that tries to gauge the likelihood an offender will commit future crimes. Gonzales does not pretend the decisions are foolproof. "Every release is a bad release," he said. What happens after "is a crap shoot."...
Law enforcement authorities and other officials say that releasing prisoners has raised safety issues, although there have been no studies on the effect. At a shelter for battered women in Stanislaus County, where the jail releases more than 500 inmates early each month, caseworkers are convinced that decreasing sentences has emboldened abusers....
Time served varies considerably around the state — a situation that UC Berkeley law professor Barry Krisberg called "justice by geography." That is especially true for parole violators, who used to serve their time in state prison. Now they are locked up in jails and are frequently the first to be released, or not booked at all....
Krisberg said stopping the early releases would require a fundamental change in California's criminal justice system. Just "shifting the location of incarceration" from prisons to jails doesn't change much, he said.
The Little Hoover Commission, an independent state policy agency that released a report last year that was critical of early releases, has recommended that California reform its complex sentencing laws, which have overwhelmed prisons with long-term inmates.
The commission has also recommended reducing bail so more inmates can afford to leave. State records show nearly two-thirds of the space in county jails is occupied by suspects awaiting trial. But even political supporters of such reforms say the issue is an electoral land mine likely to stir campaign accusations of being soft on crime.
Sheriffs have launched their own silent reform by letting out prisoners when there is no room. "We actually have a de facto sentencing commission in our sheriffs," said Carole D'Elia, acting executive director of the Little Hoover Commission. "You have a crazy system of 'Is the jail full today?' "
San Joaquin County Superior Court Judge Richard A. Vlavianos said that allowing jailers to override judges "does nothing but undercut integrity.… It loses public confidence. You lose integrity with the defendants. All the way around, it is a bad thing," he said.
As I have commented before and will say here again, this mess is the obvious by-product of California policy-makers failing to deal proactive with sentencing and corrections problems for decades. Nearly a decade ago, as noted in this long-ago post, Governor Arnold Schwarzenegger proclaimed a state of emergency because extreme prison overcrowding "created a health risk and 'extreme peril' for officers and inmates." He also called the the California legislature into special session in Summer 2006 to address critical prison crowding and recidivism issues. But, thanks to California's dysfunctional politics, nothing much got done. Similarly, smart folks have been urging California to create a sentencing commission to help deal with these issues, but California's dysfunctional politics again brought down a number of potentially sensible proactive reforms.
Now the price of all the avoidance is finally coming due, and the result seems pretty ugly on all fronts. But, sadly, I fear that precious few of the folks who should pay a political price for all this political dysfunction will in the end pay any real political price. Sigh.
Sunday, August 17, 2014
"Adverse childhood events: Incarceration of household members and health-related quality of life in adulthood"
Via The Crime Report, I came across this new report in the August 2014 issue of the Journal of Health Care for the Poor and Underserved. The piece has the title that is the title of this post, and here is the abstract:
Background. Incarceration of a household member has been associated with adverse outcomes for child well-being.
Methods. We assessed the association between childhood exposure to the incarceration of a household member and adult health-related quality of life (HRQOL) in the 2009/2010 Behavioral Risk Factor Surveillance System controlling for age, race/ethnicity, education, and additional adverse childhood experiences.
Results. Adults who lived in childhood with an incarcerated household member had higher risk of poor HRQOL compared with adults who had not (adjusted relative risk [ARR] 1.18; 95% CI 1.07, 1.31). Among Black adults the association was strongest with the physical health component of HRQOL (ARR 1.58 [95% CI 1.18, 2.12]); among White adults, the association was strongest with the mental health component of HRQOL (ARR 1.29, [95% CI 1.07–1.54]).
Conclusions. Living with an incarcerated household member during childhood is associated with higher risk of poor HRQOL during adulthood, suggesting that the collateral damages of incarceration for children are long-term.
Also appearing in the same journal issue are these two additional studies exploring the impact of prisoner release and health-care:
Wednesday, August 13, 2014
"How Prisoners’ Rights Lawyers are Preserving the Role of the Courts"
The title of this post is the title of this notable new article on SSRN authored by Margo Schlanger. Here is the abstract:
This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners.
Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents
Tuesday, August 12, 2014
Is preventing ex-prisoners from being homeless the key to preventing recidivism?
The question in the title of this post comes from my take-away from this notable article discussing a recent reentry initiative in Washington state. The article is headlined "Housing First” Helps Keep Ex-Inmates Off the Streets (and Out of Prison)," and here are excerpts:
Many of the roughly 10,000 inmates who exit U.S. prisons each week following incarceration face an immediate critical question: Where will I live? While precise numbers are hard to come by, research suggests that, on average, about 10 percent of parolees are homeless immediately following their release. In large urban areas, and among those addicted to drugs, the number is even higher — exceeding 30 percent.
“Without a safe and stable place to live where they can focus on improving themselves and securing their future, all of their energy is focused on the immediate need to survive the streets,” says Faith Lutze, criminal justice professor at Washington State University. “Being homeless makes it hard to move forward or to find the social support from others necessary to be successful.”
Although education, employment, and treatment for drug and mental health issues all play a role in successful reintegration, these factors have little hope in the absence of stable housing. Yet, few leaving prison have the three months’ rent typically required to get an apartment. Even if they did, landlords are given wide latitude in denying leases to people with a criminal record in many states. Further, policies enacted under the Clinton administration continue to deny public housing benefits to thousands of convicted felons — the majority of whom were rounded up for non-violent offenses during the decades-long War on Drugs. Some are barred for life from ever receiving federal housing support.
As a result, tens of thousands of inmates a year trade life in a cell for life on the street. According to Lutze, with each passing day, the likelihood that these people will reoffend or abscond on their parole increases considerably.
Lutze and a team of researchers recently completed a comprehensive assessment of a Washington State program that aims to reduce recidivism by providing high-risk offenders with 12 months of housing support when they are released from prison. The study tracked 208 participants in three counties and found statistically significant reductions in new offenses and readmission to prison. It also found lower levels of parole revocations among participants....
Lutze says stable housing not only reduces violations of public order laws related to living and working on the street, but it increases exposure to pro-social networks and provides a sense of safety and well-being conducive to participating in treatment and other services.
That not only improves community safety, she says, but it “reduces the economic and human costs of ex-offenders cycling through our jails and prisons just because they do not have a safe place to live.”
While this seems like a common sense strategy, programs that place housing at the forefront of prisoner reentry are actually relatively scarce in the U.S., and have historically been driven by a handful of pioneering non-profits.
Monday, August 11, 2014
Ninth Circuit panel splits over prisoner Sixth Amendment suit about officials reading legal mail
A Ninth Circuit panel handed down a notable new split opinion concerning an Arizona prisoner's lawsuit challenging the constitutionality of how prison officials were treating his legal mail. Here is how the majority opinion in Nordstron v. Ryan, No. 12-15738 (9th Cir. Aug. 11, 2014) (available here) gets started:
Plaintiff-Appellant Scott Nordstrom is on death row in the Arizona State Prison. He alleges that when he sought to send a confidential letter — “legal mail” — to his lawyer, a prison guard actually read the letter, instead of merely scanning and inspecting the letter for contraband. He claims that when he protested to the guard that the letter was a confidential attorney-client communication and should not be read, the guard told him to go pound sand. Nordstrom’s formal grievances were denied on the stated ground that Department of Corrections staff “is not prohibited from reading the [legal] mail to establish the absence of contraband and ensure the content of the mail is of legal subject matter.”
Nordstrom then brought a 42 U.S.C. § 1983 lawsuit against Department of Corrections officials, as well as the officer who allegedly read his legal mail, seeking to enjoin them from reading his letters to his lawyer. He alleges that the defendants’ conduct violates various constitutional rights, including his Sixth Amendment right to counsel. The district court dismissed the complaint at the pre-answer screening stage for failure to state a claim under any constitutional theory. See 28 U.S.C. § 1915A.
A prison is no ordinary gated community. It’s a tough place. Corrections officials obviously have good reason to be on the lookout for contraband, escape plans, and other mischief that could jeopardize institutional security. Officials likewise have every right to inspect an inmate’s outgoing legal mail for such suspicious features as maps of the prison yard, the times of guards’ shift changes, and the like. Prison officials know what to look for. But inspecting letters and reading them are two different things, as the Supreme Court recognized in Wolff v. McDonnell, 418 U.S. 539, 576–77 (1974). What prison officials don’t have the right to do is read a confidential letter from an inmate to his lawyer. This is because it is highly likely that a prisoner would not feel free to confide in his lawyer such things as incriminating or intimate personal information — as is his Sixth Amendment right to do — if he knows that the guards are reading his mail.
Reading legal mail — not merely inspecting or scanning it — is what Nordstrom alleges the Department of Corrections is doing, and it is what he seeks to enjoin. We hold today that his allegations, if true, state a Sixth Amendment violation. We reverse the dismissal of his complaint.
Here is how the dissent by Judge Bybee in Nordstrom gets started:
Scott D. Nordstrom alleges that, on one occasion during his seventeen-year incarceration, an Arizona Department of Corrections (ADC) officer read a single letter he had written to his attorney. Nordstrom claims that this one event prejudiced his direct appeal, although he cannot explain how.
Based on these allegations, the majority concludes that Nordstrom has adequately pleaded a violation of his Sixth Amendment right to counsel. I believe the majority is twice wrong. First, the majority has misread Wolff v. McDonnell, 418 U.S. 539 (1974), to hold that prison officials may not read legal letters, even to the limited extent necessary to detect illegal conduct. See Maj. Op. at 14. Second, the majority disregards Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), by holding that an inmate need not show substantial prejudice to state a right-to-counsel claim, as long as this court thinks that such prejudice is likely. See Maj. Op. at 14.
In my view, the Sixth Amendment does not prevent prison officials from reading legal letters with an eye toward discovering illegal conduct. Furthermore, claims under the Sixth Amendment require proof of actual injury, and Nordstrom does not allege any. I respectfully dissent.
Friday, August 08, 2014
"The High Costs of Low Risk: The Crisis of America’s Aging Prison Population"
For the past four decades, we have witnessed the most sustained and widespread imprisonment binge known throughout recorded human history. The facts are all too familiar: the United States has roughly 5 percent of the world’s population, yet is responsible for 25 percent of the world’s incarcerated population. With an estimated 2.3 million adults in jail or prison and 1 out of every 32 adults under correctional or community supervision, the U.S. surpasses all other countries in sheer numbers and per capita incarceration rates.
The immense costs of incarceration have increasingly framed the conversation around reducing the prison population as a matter of fiscal responsibility and budgetary necessity. This discussion is often centered around reducing the arrest and prosecution of so-called “non-violent drug offenders.” But these issues belie a much more pressing human and economic concern: the aging prison population, whose costs for incarceration and care will soon prove unsustainable if meaningful action is not taken. And though prison is expensive, cost is far from the only justification to move away from our reliance on incarceration, as the continued long-term incarceration of aging citizens has serious moral, ethical, public health, and public safety implications.
This paper aims to provide a brief contextual framework of the issues affecting elders in prison; to illuminate the ongoing efforts being undertaken to improve conditions within correctional facilities, increase mechanisms for release, and develop robust post-release services specifically targeting the unique needs of the aging population in reentry; and to sketch out preliminary recommendations to serve as a basis for further work to be done throughout several key sectors.
Despite their apparent interrelated interests in the aging prison population, the fields of gerontology, medical and mental health, philanthropy, and corrections have only sporadically interacted around this issue, and never as a unified voice. Thus, a primary objective of this work is to encourage multi-sector dialogue, cross-pollination of ideas, and a shared foundational knowledge that will strengthen the connections among these fields and form a basis for unifying action.
We believe such a partnership will be well equipped to identify and engage in appropriate measures that will immediately impact the aging prison population, while also developing and implementing the necessary socio-structural architecture to effectively address long-term mechanisms of diversion, release, and reentry.
Austerity-driven approaches to shrinking budgets and increasing public discomfort with mass incarceration create an opportunity to seriously address the epidemic of America’s graying prison population and to imbue our criminal justice system with values and policies that are humane, cost-effective, and socially responsible.
Thursday, August 07, 2014
Greek priest helps poor inmates buy their way out of Greek prisons
This new AP article, headlined "In Greek crisis, priest roams prisons to buy inmates their freedom," reports on what might be viewed as a remarkable "alternative sentencing" program in Greece and the noble role played by a clergy to make the system a bit less economically unfair. Here are the details:
In Greek justice, money talks ...: Some inmates jailed for minor offences are allowed to buy their freedom — at an average rate of five euros per day.
With the rich at a clear advantage, Greek Orthodox priest Gervasios Raptopoulos has devoted his life to paying off the prison terms of penniless inmates.
The soft-spoken 83-year-old with a long white beard and black robes has helped more than 15,000 convicts secure their freedom over nearly four decades, according to records kept by his charity. The Greek rules apply only to people convicted of offences that carry a maximum five-year sentence, such as petty fraud, bodily harm, weapons possession, illegal logging, resisting arrest and minor drugs offences.
His work, however, is getting harder. Gervasios, 83, has seen his charity's funds, which all come from private donations, plummet in Greece's financial crisis. And there has been a sharp rise in inmates who can't afford to pay their way out of prison. "Where people would offer 100 euros ($135), they now give 50 ($67). But that doesn't stop us," he told The Associated Press in an interview.
The crisis, which has worsened already hellish prison conditions, makes his efforts even more pressing. "Our society rejects inmates and pushes them into the margins," he said. "People often say: 'It serves them right.'"
While behind bars, inmates also need money to buy necessities such as toilet paper and soap when the often meagre supplies provided by prison run out. Gervasios helps them, too, either with cash or handouts.
Greece has a prison population of about 13,000 — far above capacity — forcing authorities to cram inmates into police holding cells as they wait for a place in jail. Gervasios' charity allocates up to 500 euros ($675) for each prisoner they help, but the amount needed varies. Sometimes a small sum goes a long way. "Once, we gave a man 8.5 euros, which was what he lacked to gain his freedom," he said....
Many prisoners released by his efforts in Greece are foreigners. If they die in prison, the charity pays for their bodies to be taken home. Since launching the charity in 1978, Father Gervasios has received several state awards, including one of the highest civilian honors granted by the government. The Justice Ministry, responsible for Greece's prisons, is unstinting in its praise.
"For decades now, Father Gervasios Raptopoulos has carried out exceptional work, offering human warmth and solidarity to prisoners," said Marinos Skandamis, the ministry's secretary-general. It is inmates and prison staff who are the most grateful. "We would send him papers concerning prisoners who could be freed with a cash payment, and details on what they were in prison for," said Costas Kapandais, a former governor at Greece's Komotini and Diavata prisons. "He didn't turn down a single request."
"Sociology of Prison Life"
The title of this post is the title of this intriguing new little paper from across the pond authored by Deborah Drake, Sacha Darke and Rod Earle available via SSRN. Here is the abstract:
Prison life both fascinates and repels. As with many aspects of punishment it attracts the interest of both academics and the general public. In this short and accessible account the principal issues of prison life are presented in a historical context that traces the emergence of focussed academic study of the way people live, and die, in prison.
The most influential theoretical perspectives are clearly set out alongside a discussion of their influence on research and analysis in the UK and beyond. Questions of women’s experience and that of black and minority ethnic prisoners are explored before a consideration of post-colonial prison studies is introduced. These studies of prison life beyond the axis of Europe and north America challenge some of the accumulated academic wisdom of Anglo-phone and European studies of prison life, indicating the potential of novel developments to come in an era which, unfortunately, shows no signs of declining to produce more and more prisons.
Monday, August 04, 2014
"Women in the Federal Offender Population"
The title of this post is the title of this intriguing new document from the US Sentencing Commission as part of its documents as part of its terrific series of reader-friendly "Quick Facts" publications. (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.") Here are some of the data highlights from this new publication that I found especially interesting:
While women continue to make up a small percentage of federal offenders, the proportion of federal offenders who were women rose slightly from 12.1% in fiscal year 2009 to 13.3% in fiscal year 2013....
In fiscal year 2013, more than two-thirds of female offenders were sentenced for drug trafficking (33.7%), fraud (23.9%), or immigration (14.3%) offenses....
The largest racial group of female drug trafficking offenders was Hispanic (43.6%) followed by White (35.6%), Black (16.3%), and Other Races (4.5%).
The largest racial group of female fraud offenders was White (42.5%) followed by Black (35.8%), Hispanic (15.5%), and Other Races (6.2%).
Most female immigration offenders were Hispanic (86.4%), followed by White (5.4%), Other Races (4.9%), and Black (3.3%).
The average age of these offenders at sentencing was 38 years.
Most female offenders (70.8%) had little or no prior criminal history (i.e., assigned to Criminal History Category I).
Weapons were involved less frequently (4.1%) in cases involving females than in cases involving males (8.6%).
Three-quarters (75.6%) of female offenders were sentenced to imprisonment, which is less than the rate for male offenders in fiscal year 2013 (93.5%).
Female drug trafficking offenders were often sentenced to imprisonment (90.3%), although at a lower rate than male drug trafficking offenders in fiscal year 2013 (97.3%).
Female fraud offenders were sentenced to imprisonment at a lower rate (61.1%) than were male fraud offenders (74.1%).
Female offenders were convicted of a statute carrying a mandatory minimum penalty at a lower rate (24.0%) than were male offenders (26.9%).
The average sentence length for females convicted of a statute carrying a mandatory minimum penalty was 60 months.
The average sentence length for females not convicted of a statute carrying a mandatory minimum penalty was 17 months.
For each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (49.7% in fiscal year 2009 and 40.2% in fiscal year 2013), compared to 55.3% and 49.8% for male offenders.
The rate of government sponsored below range sentences increased from 28.0% in fiscal year 2009 to 32.9% in fiscal year 2013, compared to 26.3% and 28.7% for male offenders.
The percentage of female offenders that received a non-government sponsored below range sentence increased over the last five years (from 21.1% of cases in fiscal year 2009 to 25.8% in fiscal year 2013), compared to 16.3% and 19.2% for male offender
The average guideline minimum for female offenders has increased over the last five years from 36 months in fiscal year 2009 to 41 months in fiscal year 2013.
The average sentence imposed slightly increased over the last five years, from 25 months in fiscal year 2009 to 27 months in fiscal year 2013.
Like all good and detailed and sophisticated sentencing data, there are many ways to "spin" all these numbers. But midst all the numbers, the most glaring of the data points seem to be a not-insignificant increase over the last five year of the average guideline minimum and the average imposed sentence for female offenders in the federal system even despite a significant reduction in crack sentences during that period.
Saturday, August 02, 2014
Documenting the high health-care costs of an aging prison population in Oklahoma
This notable article from Oklahoma, headlined "Inmate health costs rise, prisons scramble for solutions," highlights a modern corrections reality facing more and more jurisdictions as the economic costs of tough-on-crime policies come into focus. Here are excerpts:
Taxpayers forked over nearly $1 million last year to buy inhalers to treat asthma and emphysema among inmates in state prisons. The state also paid for 530,647 inmate prescriptions.
Those represent just a fraction of the health expenses for the state’s approximately 25,000 inmates, which cost $36.6 million last year, according to a review by the State Auditor and Inspector’s office.
That total amounts to an 11 percent increase from 2010 to 2013, and experts say the number likely is to keep swelling, especially as the inmate population ages. “That is something Oklahoma has in its future, and it’s definitely something to keep an eye on,” said Maria Schiff, director of Pew Charitable Trust’s State Healthcare Project, which recently researched prison health care costs.
According to the Pew report, Oklahomans paid the least in the nation in prisoner medical expenses, at $2,558 per inmate, while Californians spend the most at $14,495. That was based on expenses in fiscal year 2011. But that number is growing. By fiscal 2013 — the most recent year for which data is available — Oklahomans spent an average of $7.58 per inmate per day in medical expenses, said Department of Corrections spokesman Jerry Massie.
A prison’s health care spending usually depends on the size of its prisoner population and its age, Schiff said. Oklahoma’s percentage of inmates 55 and older was near the top in the nation, the Pew researchers found. That trend also was detected by the state’s audit, which found that nearly 43 percent of the state’s inmates are older than 40. That percentage has been steadily growing.
That’s a key finding, the audit noted, because older inmates typically have more illnesses and infirmities, and they cost taxpayers at least double what’s spent on their younger counterparts. The number of older inmates sentenced for the first time has grown nationally, Schiff said. They join inmates sentenced in the 1980s who simply are aging in prison....
Finding a balance in funding can be complex, Gary Jones, state auditor and inspector, noted in the report. That’s because the Corrections Department has no control over criminal laws, who gets prosecuted, the length of sentences imposed or the number of people entering its system. “Proponents of ‘tough-on-crime’ and policymakers advocating rigorous sentencing laws must act responsibly and commit sufficient financial resources to fund the infrastructure, operations and specialized programs needed to accommodate the resultant expansion of a demographically demanding inmate population, or find ways in which to be smart on crime, keeping in mind the ever-increasing cost to Oklahoma taxpayers,” Jones wrote in his report.
There may be no easy solution, but Jones’ staff proposed one alternative in the audit — releasing older and terminally ill inmates. That’s not a popular choice, as legislator Jeannie McDaniel, D-Tulsa, discovered. She proposed a bill that could have led to the release about 600 or 700 inmates age 65 or older if they met certain conditions, including conviction for a non-violent crime. The Parole Board ultimately would have made the decision, she said.
McDaniel said she got the idea from Louisiana’s early release for an aging population at its Angola prison. “Their success was great, and they saved the money,” she said. “These were people that were not threats to society. Their costs were eating up the prison budget.”
But McDaniel said she met resistance from prosecutors who felt the Parole Board shouldn’t be able to overturn sentences handed down by a judge or jury. She hopes to introduce a similar bill during this coming session, she said.
Schiff said a number of states have passed guidelines for geriatric release. Among the advantages of those programs is expense: While freed inmates likely end up on Medicaid, the state shares those costs with the federal government. Also, the state doesn’t need to pay to drive freed inmates to appointments. But early release is controversial in many places where lawmakers struggle to decide which prisoners should qualify and under what circumstances, Schiff said.
Tuesday, July 29, 2014
Alabama struggling (and facing lawsuits) as sentencing toughness produces overcrowded prisons
As reported in this new local article, headlined "Governor Bentley to feds, prison reform advocates: 'You all are crazy to sue us'," elected officials in Alabama are struggling to figure out how best to deal with too many prisoners and prison problems. Here are the details:
Gov. Robert Bentley acknowledged the immense problems facing the state's prison system but said Monday that his administration needs time to address them, not lawsuits. Speaking at the annual convention at the Alabama Sheriffs' Association, Bentley said his message is the same whether his audience is the U.S. Justice Department or advocacy groups like the Southern Poverty Law Center.
"You all are crazy to sue us," he said. "What good does it do to sue us?"
Bentley said he is as interested as anyone in solving problems that include overcrowding and allegations of mistreatment of inmates. He said he wants to work with anyone who has ideas about how to improve the system but added that lawsuits only divert time and money away from those solutions.
The Montgomery-based Southern Poverty Law Center has, in fact, sued the state over its prisons. The organization alleged last month that the state has failed to meet its constitutional responsibilities to provide adequate health care to prisoners. Maria Morris, an attorney for the Southern Poverty Law Center, said her organization had no choice but to sue to force improvement to years-old problems.
The Justice Department so far has not sued. But a scathing report in January detailing alleged abuses at the Tutwiler Prison for Women in Wetumpka has raised fears among the state's elected leaders that federal authorities are preparing to do so.
Bentley said the state cannot solve its prison problem without taking further steps to reduce long sentences, although he offered no specific proposals. "It is a real problem in this state. Not only is it a problem, but our sentencing of our prisoners is a real problem," he said.
The Legislature already has taken action in recent years on that front. Sentencing guidelines designed to reduce penalties for certain nonviolent and drug crimes have been "presumptive" since October, meaning that judges must cite specific reasons if they depart from the recommendations.
As far as addition action, Bentley said the state is waiting recommendations from the Justice Reinvestment Initiative, a program coordinated by the National Council of State Governments Justice Center. He acknowledged the political difficulty of taking on the prison issue.
"I can't run for governor talking about prison reform. People say, 'I don't care about that,'" he said. "But they do care if you have to raise taxes to build more prisons. They do care if you let violent prisoners out."
Bentley suggested changes in the state's Habitual Felony Offender Act, which was designed to crack down on repeat criminals but has helped spark a massive increase in the state's prison population since its passage in 1977. "The habitual offender act probably has increased our prison population more than anything else," he said.
Bentley said he opposes leniency for violent criminals and sex offenders – "I don't think we ought to let them out" – but said some nonviolent offenders serving longer prison terms because of the law probably can be rehabilitated faster. "If we don't do that, we're going to have to find money to build more prisons," he said.
Sunday, July 27, 2014
Another effective review of how Obamacare could be "an antidote to crime"
Regular readers likely recall a number of posts in which I highlighted ways in which the Affordable Care Act (aka Obamacare) could have a significant impact on a number of criminal justice realities in the years to come. A helpful readers alerted me to this notable new Christian Science Monitor article on this topic headlined "Obamacare for ex-inmates: Is health insurance an antidote to crime?". Here are excerpts:
In the enduring quest to discover what can prevent criminals from reoffending, a new holy grail is emerging: health-care services.
Excitement is stirring inside the justice system, as corrections officials work to link inmates who are leaving custody with health services in their communities, courtesy of President Obama’s Affordable Care Act (ACA). The idea is to enroll thousands of ex-offenders in Medicaid, the federal-state health insurance program for the poor, thus making them eligible for treatment for mental health issues, substance abuse, and chronic medical problems that most have never before consistently received on the outside.
The hoped-for result: a reduction in the share of those who reoffend, and a drop in incarceration costs related to securing public safety. “This is a huge opportunity,” says Kamala Mallik-Kane, who studies correctional systems, inmates, and health policy at the nonprofit Urban Institute. “The unprecedented step of connecting these newly eligible people to health insurance has incredible potential to change the trajectory of inmates to reintegrate back into society and not back into the justice system.”...
[But] it is much too soon to know if the excitement among justice experts is justified. No state or county expects to see, this early, a sea change in its correctional systems, recidivism rates, or health-care costs. And it’s not known, for instance, at what rate ex-offenders who enroll in Medicaid actually use health services in their communities.
Many experts, moreover, are wary of the notion that health reform and access to Medicaid for formerly imprisoned men can truly transform America’s criminal-justice system. “Medicaid enrollment for inmates is not the silver bullet,” says Paul Howard, a senior fellow at the Manhattan Institute, a conservative think tank and director of its Center for Medical Progress.
He suggests that Medicaid, a $265 billion federal expenditure in 2013, is not yielding adequate results for the cost – and that it’s time to take “a long and hard look” before expanding it to serve even more people. “Extending those benefits to a historically transient and difficult population with a whole host of social-issues challenges will not change their approach to health care or [their] behaviors,” warns Mr. Howard.
Enthusiasts for Medicaid sign-ups for ex-inmates build their hopes on research indicating that recidivism rates fall when prisoners and ex-prisoners receive mental health treatment. A 2010 study by David Mancuso of the Washington State Institute of Public Policy, a state-based policy think tank, found that for state residents enrolled in Medicaid and receiving substance abuse treatment, arrest rates dropped by as much as 33 percent compared with rates for those who didn’t receive treatment, leading to lower correctional costs and better public safety.
In any case, about 8 million prisoners leave America’s prisons and jails every year. Since the rollout of Obamacare last October, ex-offenders account for about 1 million of the 6 million new Medicaid beneficiaries enrolled in expansion states.
While incarcerated, prisoners have a constitutionally protected right to health care, with costs usually covered by the state (even if they have their own health insurance). Typically, privately contracted health companies or public hospital systems provide such care. Most jails and prisons have on-site clinics – in some cases, even full-service hospitals.
While some say the quality of prisoner care could be better, it’s more robust than what usually greets indigent ex-inmates on the outside. In many states, inmates who’ve been diagnosed with chronic conditions receive a small supply of medication upon release, but often no medical provider or insurance for refills – creating a gap in their health care. Correctional health professionals across the United States share stories of inmates who get rearrested so they can get medication....
Substance abuse or mental health issues afflict the vast majority of prison inmates in the US. More than 1 million incarcerated people suffer from mental illness, the Department of Justice estimated in 2006 – almost half the total in custody. As for substance abuse, the picture is even bleaker, affecting between 60 and 80 percent of all inmates, found a 2013 report of the US Office of National Drug Control Policy.
The strongest case study might be Connecticut, which has one of the most comprehensive approaches to Medicaid enrollment in the nation. The state runs all its jails and prisons, making change easier to administer uniformly. It has four jails and 11 prisons, holding almost 17,000 inmates. Here, a person making less than about $15,800 a year qualifies for Medicaid.
The link is obvious between greater access to health care and lower recidivism rates, say state officials. “If you don’t feel well, you don’t act well,” says James Dzurenda, state correction commissioner. “The Affordable Care Act gives our released offenders access to health care, which is critical to release offenders back into the community safely, increase public safety, and ultimately reduce victimization.”...
Last year, Connecticut processed 7,794 Medicaid applications from state criminal-justice agencies. In the same period, state prison population and arrest rates dropped by about 3.4 percent, according to reports from the state Office of Policy and Management....
Enrolling in Medicaid does not guarantee an ex-inmate will instantly turn over a new leaf, of course. Moreover, the cumulative effect promises to be difficult to tease out: None of the programs now in place track inmates after they reenter the community, so there is no way to tell if ex-offenders are actually using the health insurance. Often, ex-inmates stick with their former habits of heading directly to emergency rooms for care, driving up public health costs, according to a recent study of former prisoners in Rhode Island.
Some related prior posts:
- "Can Obamacare Reduce the Cost of Corrections?"
- "Obamacare Is a Powerful New Crime-Fighting Tool"
- Might Obamacare end up reducing prison populations "more than any reform in a generation"?
Wednesday, July 23, 2014
"Fewer Prisoners, Less Crime: A Tale of Three States"
Although the pace of criminal justice reform has accelerated at both the federal and state levels in the past decade, current initiatives have had only a modest effect on the size of the prison population. But over this period, three states — New York, New Jersey, and California — have achieved prison population reductions in the range of 25%. They have also seen their crime rates generally decline at a faster pace than the national average.
• New York and New Jersey led the nation by reducing their prison populations by 26% between 1999 and 2012, while the nationwide state prison population increased by 10%.
• California downsized its prison population by 23% between 2006 and 2012. During this period, the nationwide state prison population decreased by just 1%.
• During their periods of decarceration, violent crime rates fell at a greater rate in these three states than they did nationwide. Between 1999-2012, New York and New Jersey’s violent crime rate fell by 31% and 30%, respectively, while the national rate decreased by 26%. Between 2006-2012, California’s violent crime rate drop of 21% exceeded the national decline of 19%.
• Property crime rates also decreased in New York and New Jersey more than they did nationwide, while California’s reduction was slightly lower than the national average. Between 1999-2012, New York’s property crime rate fell by 29% and New Jersey’s by 31%, compared to the national decline of 24%. Between 2006-2012, California’s property crime drop of 13% was slightly lower than the national reduction of 15%.
These prison population reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. The experiences of these states reinforce that criminal justice policies, and not crime rates, are the prime drivers of changes in prison populations. They also demonstrate that it is possible to substantially reduce prison populations without harming public safety....
At least in three states we now know that the prison population can be reduced by about 25% with little or no adverse effect on public safety. Individual circumstances vary by state, but policymakers should explore the reforms in New York, New Jersey, and California as a guide for other states.
There is also no reason why a reduction of 25% should be considered the maximum that might be achieved. Even if every state and the federal government were able to produce such reductions, that would still leave the United States with an incarceration rate of more than 500 per 100,000 population — a level 3-6 times that of most industrialized nations.
In recent years a broader range of proposals has emerged for how to reduce the prison population and by various scales of decarceration. In a recent right/ left commentary Newt Gingrich and Van Jones describe how they will “be working together to explore ways to reduce the prison population substantially in the next decade.” The experiences of New York, New Jersey, and California demonstrate that it is possible to achieve substantial reductions in mass incarceration without compromising public safety.
Monday, July 21, 2014
John Oliver covers the realities of incarceration nation
A whole lots of folks have sent me notes to make sure I saw the remarkable 15+ minute piece on John Oliver's HBO show about modern prison realities in the United States. To make sure everyone gets to see this effective (and humorous) piece of journalism, here is the video:
"Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons"
The title of this post is the title of this important and timely new paper authored by two terrific criminologists, Professors Joan Petersilia and Francis T. Cullen, and now available via SSRN. Here is the abstract:
A confluence of factors — a perfect storm — interfered with the intractable rise of imprisonment and contributed to the emergence of a new sensibility defining continued mass imprisonment as non-sustainable. In this context, reducing America’s prisons has materialized as a viable possibility. For progressives who have long called for restraint in the use of incarceration, the challenge is whether the promise of downsizing can be met.
The failure of past reforms aimed at decarceration stand as a sobering reminder that good intentions do not easily translate into good results. Further, a number of other reasons exist for why meaningful downsizing might well fail (e.g., the enormous scale of imprisonment that must be confronted, limited mechanisms available to release inmates, lack of quality alternative programs). Still, reasons also exist for optimism, the most important of which is the waning legitimacy of the paradigm of mass incarceration, which has produced efforts to lower inmate populations and close institutions in various states.
The issue of downsizing will also remain at the forefront of correctional discourse because of the court-ordered reduction in imprisonment in California. This experiment is ongoing, but is revealing the difficulty of downsizing; the initiative appears to be producing mixed results (e.g., reductions in the state’s prison population but increased in local jail populations). In the end, successful downsizing must be “liberal but not stupid.” Thus, reform efforts must be guided not only by progressive values but also by a clear reliance on scientific knowledge about corrections and on a willingness to address the pragmatic issues that can thwart good intentions. Ultimately, a “criminology of downsizing” must be developed to foster effective policy interventions.
Saturday, July 19, 2014
US Attorney for NJ: "Ex-offenders get time, now they need opportunity"
Especially in the wake of this US Sentencing Commission's big decision yesterday to vote for retroactive application of its new reduced drug guidelines (basics here and here), a recent opinion piece by the U.S. Attorney for the District of New Jersey, Paul Fishman, struck me as especially timely. This piece is headlined "Ex-offenders get time, now they need opportunity," and here are excerpts:
Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.
But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.
Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.
A staggering number don't succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.
This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.
Prison alone isn't enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney's Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the "ReNew" program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.
They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program's efficacy.
This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity....
Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.
But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you....
One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.
Thursday, July 17, 2014
Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18
As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:
It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system). Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote. The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."
Some recent related posts on reduced drug guideline retroactivity:
- Big US Sentencing Commission hearing on reduced drug guideline retroactivity
- DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
- Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines
July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
I have long stressed my belief that many federal sentencing reform efforts can and should be viewed as a cause that ought to attract politicians and people with true conservative principles. This recent Wall Street Journal opinion piece, headlined "An Opening for Bipartisanship on Prison Reform," authored by Newt Gingrich and Pat Nolan echoes this point. Here are excerpts:
Several states have passed meaningful reforms, including expanding drug courts to order mandatory drug treatment programs, increasing funding for drug and mental-health treatment, and limiting costly prison beds to violent and serious repeat offenders. These state reforms passed in part thanks to conservative support.
Right on Crime, a national organization founded in 2010 that we both belong to, is helping spread the word that backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause.
On a panel at the annual Conservative Political Action Conference in March in National Harbor, Md., Texas Gov. Rick Perry explained how reform worked in his state. In 2007, Texas scrapped plans to build more prisons, putting much of the savings into drug courts and treatment. The results have been impressive: Crime in Texas is at the lowest rate since 1968. The number of inmates has fallen by 3%, enabling the state to close three prisons, saving $3 billion so far. What inspired the reform, Gov. Perry said, was this: "Being able to give people a second chance is really important. That should be our goal. The idea that we lock people up, throw them away, never give them a chance at redemption is not what America is about."
In 2010, South Carolina followed Texas' example, toughening penalties for violent criminals while creating alternatives to incarceration for nonviolent offenders. These included providing community drug treatment and mental health services for lower-level lawbreakers—mostly drug and property offenders—who made up half of the state's prison population. South Carolina also increased funding for more agents to supervise offenders in the community. Three years later, the prison population has decreased by 8%, and violent offenders now account for 63% of the inmate population. South Carolina's recidivism rates also are much improved and the state has closed one prison.
Other states—Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi—have adopted similar reforms. As is so often the case, the states are showing the way. Congress should apply these common-sense reforms to the federal prison system.
The reforms have developed in the states, as conservatives tend to prefer. But now that there is proof that prison reform can work, the debate has gone from an ideological discussion to evidence-based changes that can be applied to the federal system.
Republican Sens. John Cornyn and Ted Cruz, who have seen the benefits firsthand in Texas, have been joined by Republican Senate colleagues such as Rob Portman, Marco Rubio, Mike Lee, Jeff Flake and Ron Johnson in backing one or more prison-reform bills. Two bills, the Recidivism Reduction and Public Safety Act (S. 1675) and the Smarter Sentencing Act (S. 1410) have already passed the Senate Judiciary Committee and await action by the full Senate.
In the House, Republican Reps. Jason Chaffetz, Raúl Labrador, Trey Gowdy and others are backing similar legislation. This push for reforming the federal prison system has support on the other side of the aisle as well. Such liberal stalwarts as Sens. Dick Durbin, Patrick Leahy and Sheldon Whitehouse, and Reps. John Conyers, Bobby Scott and Jerrold Nadler have signaled their backing.
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.
Friday, May 23, 2014
"Treating Prisoners With Dignity Can Reduce Crime"
The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:
It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."
But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....
For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us. Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.
In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.
Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education. Inmates are required to save money to ensure that they are not penniless upon release. There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements. And their maximum time in any kind of punitive solitary is eight hours.
Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home. The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily. With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....
Are there challenges to wholesale reform? Of course. Money. Infrastructure. Strains of racial division borne of our history and heterogeneity. And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S. Yet we are at a moment of potential for significant shifts. It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison. But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.
Thursday, May 22, 2014
Newt Gingrich and Van Jones say "Prison system is failing America"
Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America." Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:
Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.
Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.
It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.
Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.
When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.
The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.
At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?
We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.
Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....
Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.
Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....
Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.
Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.
Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...
We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.
May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
"Remodeling American Sentencing: A Blueprint for Moving Past Mass Incarceration"
The title of this post is the title of this notable new piece by Michael Tonry now available via SSRN. Here is the abstract:
When and if the will to roll back mass incarceration and create just, fair, and effective sentencing systems becomes manifest, the way forward is clear:
-First, three-strikes, mandatory minimum sentence, and comparable laws should be repealed.
-Second, any three-strikes, mandatory minimum sentence, or similar laws that are not repealed should be radically narrowed in scope and severity.
-Third, any three-strikes, mandatory minimum sentence, and similar laws that are not repealed should be changed to include provisions authorizing judges to impose some other sentence “in the interest of justice.”
-Fourth, LWOP laws should be repealed, or radically narrowed.
-Fifth, truth-in-sentencing laws should be repealed.
-Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.
-Seventh, every state should establish a sentencing commission and promulgate a presumptive sentencing guidelines system.
-Eighth, any state that does not establish an effective set of presumptive sentencing guidelines should establish a system of parole guidelines.
-Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.
-Tenth, every state should enact legislation making all prisoners serving fixed terms longer than five years, or indeterminate terms, eligible for consideration for release at the expiration of five years, and all prisoners aged 35 or over eligible for consideration for release after serving three years.
These proposals are evidence-based, and mostly technocratic. Those calling for prison population targets and reducing the lengths of sentences being served may appear bold to some. Relative to the problems they address they are modest and partial. Reducing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be seen as overly ambitious.