Tuesday, January 06, 2015
Notable discussions of children as mass incarceration’s "collateral damage"
The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces." Here is an excerpt:
A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....
A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.
Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.
Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....
Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....
John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”
I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders. And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:
Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”
Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.
Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.
Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.
In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.
January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack
Sunday, January 04, 2015
Despite recent reforms, Indiana and Ohio still struggling greatly with prison crowding and costs
This weekend brought two similar stories from two heartland states struggling with similar persistent prison problems. Here are links to the stories with their headlines and highlights:
From Indiana here, "Despite code changes, state's prisons will grow":
Amid other demands the Legislature will be juggling starting this month is a request from the Indiana Department of Correction for money to build and operate new prison cells. Without those cell units, department officials told legislators recently, the state will run out of beds for male inmates in about two years....
One reason is that the criminal code revisions, in addition to sending more prisoners back to the county, tightened the credit-for-time-served formula for other types of prisoners, keeping them in state prisons longer. It's not yet clear exactly how much more pressure that will put on the prison system, but DOC officials believe they would have had to increase capacity soon anyway. Indiana's prison population numbered 6,281 in 1980. At the end of 2013, it was 29,377. That's more than 4½ times as many prisoners.
From Ohio here, "Emergency early release of prisoners is considered":
As Ohio’s inmate population once again approaches record levels, with no money available for bricks and mortar, prisons chief Gary Mohr is looking at something never used here before — emergency early release of prisoners.
In his budget overview for 2015-16, Mohr said, the department will “request strengthened language on emergency release of inmates contained in Ohio Revised Code 2967.18.” The changes Mohr will ask the General Assembly to make weren’t specified. JoEllen Smith, spokeswoman for the Department of Rehabilitation and Correction, emphasized that emergency release will be an option only if overcrowding persists and money is unavailable for additional prison beds....
As of Dec. 29, Ohio prisons held 50,641 inmates, 31 percent above design capacity and about 1,000 more than two years ago at this time.
The section of state law Mohr referenced, ORC 2967.18, specifies the chain of events for declaring an “overcrowding emergency,” resulting in the release of some nonviolent prisoners 30, 60 or 90 days early. Enacted in 1997, the early-release provision has never been used.
Mohr’s budget letter said the state is at a “significant decision point for criminal justice policy. Do we invest in people or in bricks and mortar? To build and operate one prison for two decades would cost Ohioans one billion dollars.”
New projections have the population hitting 50,794 by July 1, and rising to 52,844 by 2023. Ohio’s all-time high was 51,273 on Nov. 10, 2008. The prison population is increasing despite an overall drop in the crime rate and the fact that Franklin and the other five largest counties are sending fewer people to state prisons. The other 82 counties are making up for it....
State lawmakers have in recent years passed a host of laws adding offenses or increasing prison time for existing ones. Reform efforts to rein in the growth have helped, but the slow creep in prison population continues.
As outlined in law, Mohr would submit a declaration of an overcrowding emergency to the Ohio Correctional Institution Inspection Committee, a legislative watchdog agency, which would forward a recommendation to Gov. John Kasich. The governor could then declare an official emergency, clearing the way for early release of qualifying nonviolent offenders. That would exclude inmates serving sentences for murder, voluntary manslaughter, felonious assault, kidnapping, rape, aggravated arson and aggravated robbery.
"Switzerland has too many criminals and too few prisons"
The title of this post is from the first sentence of this recent AP article headlined "Switzerland mulls plan to export prisoners." Here is more about a notable European nation having a problem all to common in the US:
Now the Justice Ministry is reportedly considering a proposal to export convicts to neighboring France and Germany. Swiss prisons chief Thomas Freytag told public broadcaster SRF in a program aired late Friday that the country's correctional facilities are at more than 100 percent capacity.
Prisons in the French-speaking cantons (states) of western Switzerland are said to be particularly overcrowded. It's unclear when the Justice Ministry would decide on the plan, and whether France or Germany would be prepared to let Swiss inmates do their time there.
Left out of this brief story is the basic fact that Switzerland, at recent count, has less than 7,000 prisoners in the whole country and an incarceration rate that is only about 1/8th of the incarceration rate in the United States. For comparison, consider that the US state of Virginia has a state-wide population that is a little lower than Switzerland's, but it has more than 30,000 prisoners (and that count excludes a few thousand federal prisoners coming from Virginia).
Sunday, December 21, 2014
"U.S. Incarceration: Still Mass; The shrink-the-prisons movement hasn’t moved the numbers."
New Bureau of Justice Statistics figures out this morning measured a slight decrease — about half of a percent — in the number of adults incarcerated in the United States last year. The decline comes from a drop in inmates of local jails. The number of people in local jails last year fell by almost 2 percent — to 731,200. At the same time, despite a growing national concern with the costs and consequences of mass incarceration, the number in prisons grew a tiny bit, one-third of a percent from the previous year, to 1,574,700.
The increase in the prison population comes entirely from state facilities — reversing a three-year downward trend. The number of inmates in federal prisons actually declined for the first time since 1980.
There are real lives behind these numbers: every percentage point accounts for approximately 22,200 people. But the rate of change is almost negligible. If the nation’s incarcerated adult population continued to decrease at this pace, it would take 215 years — until 2228 — to drop below the number of adults incarcerated in 1985.
Looking at changes over the long term, the number of inmates in jails and prisons is down from 2010, but remains up more than 14 percent from what it was at the turn of the century.
Recent related post:
Friday, December 19, 2014
New BJS data show continued (very) slow decline in correctional populations in US
This official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Correctional Population Declined By Less Than 1 Percent For The Second Consecutive Year," provides highlights from the latest official accounting of who is subject to criminal justice control in the United States. Here are some of the details:
The number of persons under adult correctional supervision fell by 41,500 persons during 2013, dropping to 6.89 million by yearend, the Bureau of Justice Statistics (BJS) announced today. The decline in the correctional population (down 0.6 percent) was less than 1 percent for the second consecutive year.
By yearend 2013, the number of persons under adult correctional supervision was the smallest number observed since 2003. About 7 in 10 offenders under adult correctional supervision were supervised in the community on probation (3.91 million) or parole (853,200) at yearend 2013, compared to about 3 in 10 incarcerated in state and federal prisons (1.57 million) or local jails (731,200).
The entire drop in the correctional population during 2013 was due to a decline in the number of probationers (down 32,100) and persons held in local jails (down 13,300). The parole population (up 2,100) and prison population (up 4,300) increased, partially offsetting the overall decline in the total correctional population.
While the U.S prison population increased during 2013, the number of inmates under the jurisdiction of the Federal Bureau of Prisons decreased (down 0.9 percent or 1,900) for the first time since 1980. The growth in the U.S. prison population was attributed to the increase in the number of inmates under the jurisdiction of state prisons (up 0.5 percent or 6,300).
About 1 in 35 adults in the United States (or 2.8 percent of the adult resident population) was under some form of correctional supervision at yearend 2013. This rate was unchanged from 2012, when it dropped to the lowest rate observed since 1997. About 1 in 51 adults was on probation or parole at yearend 2013, compared to 1 in 110 incarcerated in prisons or local jails....
In 2013, females accounted for almost 25 percent of the probation population, up from about 22 percent in 2000. They made up 14 percent of the jail population in 2013, up from about 11 percent in 2000. The percentage of females on parole or incarcerated in state or federal prisons remained unchanged between 2000 and 2013. Since 2010, the female jail population has been the fastest growing correctional population, increasing by an average annual rate of 3.4 percent.
The full report with all these data and a whole lot more it titled simply "Correctional Populations in the United States, 2013," is available at this link.
Thursday, December 18, 2014
"End Solitary Confinement for Teenagers"
The title of this post is the headline of this New York Times op-ed authored by Ian Kysel. Here are excerpts:
Solitary confinement can be psychologically damaging for any inmate, but it is especially perverse when it is used to discipline children and teenagers. At juvenile detention centers and adult prisons and jails across the country, minors are locked in isolated cells for 22 hours or more a day. Solitary confinement is used to punish misbehavior, to protect vulnerable detainees or to isolate someone who may be violent or suicidal. But this practice does more harm than good. It should end.
A major study by the Department of Justice in 2003 showed that more than 15 percent of young people in juvenile facilities, some as young as 10, had been held in solitary. My own research, for Human Rights Watch and the American Civil Liberties Union, suggested that the practice of putting teenagers in solitary was more widespread in adult jails and prisons. A recent Justice Department investigation found that at any given time in 2013 as many as a quarter of adolescents held at New York City’s Rikers Island were in solitary confinement. Dozens had been sentenced to more than three months in solitary. Still others were held longer, for more than six months.
Only six states have laws on the books that prohibit certain forms of isolation in juvenile facilities. No state — nor the federal government — has banned the solitary confinement of teens in adult jails and prisons....
A recent Justice Department review of suicides in juvenile facilities found that more than half of the minors who had killed themselves had done so in isolation. And in adult jails, department data released this fall identified more than 40 teenagers who had committed suicide since 2000; the suicide rate for minors in adult prisons was twice as high as that for older inmates. A recent study at Rikers Island found that adolescents there were significantly more likely to harm themselves....
Attorney General Eric H. Holder Jr. should immediately direct the Bureau of Prisons to outlaw the solitary confinement of juveniles. The federal government already prohibits the detention of juveniles with adults in federal prisons (a rule that states should emulate). Mr. Holder could also direct the bureau to develop new policies to strictly regulate any use of even short periods of isolation.
Mr. Holder could then direct the Justice Department’s Office of Juvenile Justice and Delinquency Prevention to promote these policies as model practices, much like the national guidelines on education in juvenile facilities that Mr. Holder and Secretary of Education Arne Duncan announced last week....
That the practice [of solitary confinement] is widespread remains a disturbing indicator of how poorly we treat the hundreds of thousands of minors arrested each year in the United States. They are still maturing into adulthood. Solitary confinement can sabotage both their rehabilitation and their growth. It should be banned.
Tuesday, December 16, 2014
Split en banc First Circuit reverses judgment that sex-change operation was medically necessary for imprisoned murderer
As reported in this AP article, a "divided federal appeals court on Tuesday overturned a ruling ordering Massachusetts prison officials to provide taxpayer-funded sex-reassignment surgery for an inmate convicted of murder." Here are the basics:
Michelle Kosilek, born Robert Kosilek, is serving a life sentence for killing spouse Cheryl Kosilek in 1990. Kosilek has waged a protracted legal battle for the surgery she says is necessary to relieve the mental anguish caused by gender-identity disorder.
In 2012, U.S. District Judge Mark Wolf became the first judge in the country to order sex-reassignment surgery as a remedy for an inmate's gender-identity disorder. Courts around the country have found that prisons must evaluate transgender inmates to determine their health care needs, but most have ordered hormone treatments and psychotherapy, not surgery.
Wolf's decision was upheld by a three-judge panel of the 1st U.S. Circuit Court of Appeals, but prison officials appealed and won a rehearing before the full appeals court.
In a 3-2 ruling Tuesday, the full 1st Circuit found that Kosilek failed to demonstrate that prison officials violated the Eight Amendment prohibition against cruel and unusual punishment by not providing the surgery.
The court noted that the state Department of Correction has provided treatment for Kosilek's gender-identity disorder, including female hormones, laser hair removal and psychotherapy. The court also noted the department's concerns about protecting Kosilek from sexual assaults if she completes her gender transition. She is currently housed in a male prison but hoped to be transferred to a female prison after the surgery.
"After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment," Judge Juan Torruella wrote for the majority.
Two judges disagreed with the majority. In a sharply worded dissenting opinion, Judge Ojetta Rogeriee Thompson suggested that Kosilek would not have had to fight a long battle for constitutionally adequate medical care if she was not seeking "a treatment that many see as strange or immoral."
"Prejudice and fear of the unfamiliar have undoubtedly played a role in this matter's protraction," Thompson wrote.
The full 100+ page ruling is available at this link, and the majority opinion gets started this way:
This case involves important issues that arise under the Eighth Amendment to the U.S. Constitution. We are asked to determine whether the district court erred in concluding that the Massachusetts Department of Correction ("DOC") has violated the Cruel and Unusual Punishment Clause of the Eighth Amendment by providing allegedly inadequate medical care to prisoner Michelle Kosilek ("Kosilek"). More precisely, we are faced with the question whether the DOC's choice of a particular medical treatment is constitutionally inadequate, such that the district court acts within its power to issue an injunction requiring provision of an alternative treatment -- a treatment which would give rise to new concerns related to safety and prison security.
After carefully considering the community standard of medical care, the adequacy of the provided treatment, and the valid security concerns articulated by the DOC, we conclude that the district court erred and that the care provided to Kosilek by the DOC does not violate the Eighth Amendment. We therefore reverse the district court's grant of injunctive relief, and we remand with instructions to dismiss the case.
Prior related post:
Friday, December 12, 2014
Federal task force on corrections getting geared up for (big?) work in 2015
As effectively reported in this Crime Report piece, earlier this week the members of a "congressionally mandated task force on the federal prison system" were announced. Here is the context for this notable development:
[The task force is now] headed by a bipartisan duo of former House members, Republican J. C. Watts of Oklahoma and Democrat Alan Mollohan of West Virginia. They are being be joined by seven other experts in a yearlong study that many analysts hope will result in agreement on ways to cut the prison population.
There were 212,438 federal inmates last week, a total that has jumped from about 136,000 since the turn of the century -- even though crime rates have steadily fallen. (The federal inmate total exceeded 218,000 two years ago; it has shrunk as the Obama administration has reduced the terms of some prisoners serving time for low-level drug offenses.)...
Last month, Justice's Inspector General, Michael Horowitz, said that the Bureau of Prisons budget totals $6.9 billion and accounts for about 25 percent of the department’s "discretionary" budget, which means that prison spending hampers the DOJ's "ability to make other public safety investments."
The new task force is named for the late Chuck Colson, the former aide to President Richard Nixon who served a 7-month prison term in 1974 for obstruction of justice in the Watergate scandal and then became a corrections reformer, founding the Prison Fellowship. Colson died in 2012. Retiring Rep. Frank Wolf (R-Va.), chairman of the committee that reviews Justice Department appropriations, successfully pushed for the task force in recent years while Congress was unable to agree on any major legal changes that would affect the federal inmate total.
Watts, who will chair the panel, served in the House from 1995 to 2003. When he was elected, he was one of only two African-American Republicans in the House. He is a member of the conservative justice-reform group Right on Crime. Last summer, in an article in the Tulsa World on prison reform in Oklahoma, Watts wrote that, "for nonviolent offenders, watching television and receiving 'three hots and a cot' in prison does far less to advance personal responsibility than paying restitution to the victim, performing community service, holding a job and paying child support."
Mollohan, who serve as vice chair, was Wolf's predecessor as the House's chief Justice Department appropriator when the Democrats controlled the House. Mollohan has presided over many hearings on corrections issues. In 2012, he co-authored an op-ed article with David Keene, former chairman of the American Conservative Union, declaring that, "Instead of throwing good money after bad, Congress should follow the example of ... states and take steps to curb federal prison population growth."...
The task force will hold the first of five meetings on January 27 in Washington, D.C. Its official mandate is to "identify the drivers of federal prison population growth and increasing corrections costs; evaluate policy options to address the drivers and identify recommendations; and prepare and submit a final report in December 2015 with findings, conclusions, policy recommendations, and legislative changes for consideration by Congress, the Attorney General, and the President."
The Urban Institute and the Center for Effective Public Policy will provide "research, analysis, strategic guidance and logistical support" for the task force under an agreement with the Justice Department's Bureau of Justice Assistance. A year ago, the Urban Institute published a study titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System," that might be something of a blueprint for the Colson group....
Several members of Congress, notably Senators Rand Paul (R-KY) and Cory Booker (D-NJ), have introduced proposals that could lead to reductions in the federal prison population, but it is not clear that any will be enacted while the Colson task force is conducting its study.
In any case, the task force's final report is likely to include recommendations that will go beyond any bills that might be approved in the next year. The group's eventual proposals may include some that require Congressional approval and others that the Obama administration could put into effect by executive order.
This new Charles Colson Task Force on Federal Corrections rolled out this website, which I am hopeful over time might become a source of new research and data about the federal criminal justice system. And though I tend to be somewhat cynical and pessimistic about what task forces can really achieve, I am hopeful and optimistic that this group will be an effective and important contributor to on-going federal sentencing reform efforts.
Monday, December 08, 2014
Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?". The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.
I cannot do the Bill's full post justice in a brief excerpt, but here is a taste of what one can find by clicking through here:
Not to worry -- this post is not psychobabble about my feelings. It's about a question I was asked by two journalists with whom I spoke recently.
The two were Ms. Carrie Johnson of NPR and Mr. Mark Obbie, a writer for Slate. The subject of their interviews was sentencing reform. Both Ms. Johnson and Mr. Obbie were cordial, well-informed, thoroughly pleasant, and -- most important for journalists -- curious.
Each asked me the same question: Whether, as an opponent of sentencing reform, I feel lonely? I told them I don't.
Their question was perfectly natural. Almost everything one sees nowadays about the subject of sentencing sings the same tune -- tough sentencing might have been needed at one point, but we've gone too far; momentum has swung toward "smart sentencing;" reducing the prison population (to cut back on costs if for no other reason) is the wave of both the present and the future; and that the newly-ascendant Republican Party will lead the way through such figures as Sens. Mike Lee and Rand Paul.
But the mantra leaves something out. That would be the part of the country outside the Beltway (and outside Boston, Berkeley, New York, Seattle and a few other cities). In other words, what it leaves out is the United States.
The omission of Main Street America from the assessment about where the country is going would seem odd to most people, but for those of us, like me, who live inside the Beltway and work in academia, it's no surprise. The liberal bubble is big. It's also, for the most part, impenetrable.
And it's one more thing -- wrong.
If one wants to know the state of play with "smart sentencing," and the Smarter Sentencing Act in particular, there might be a couple of places to look outside the editorial pages of the Washington Post and Mother Jones. One might look, for example, to what actually happened in the last Congress, what's likely to happen in the next one, and what imprisonment trends have been over the last several years....
[T]there are some prominent people in the Republican Party on board with "sentencing reform." But the great majority of Republicans, and the center of the Party, are not being fooled. The much lower crime that increased incarceration helped produce are both wise policy for the country and good politics for Republicans....
So to return to my first question: Although I am decidedly out-of-step with my learned colleagues inside the Beltway, and despite all the puff pieces in the press running in the other direction, I don't feel lonely in opposing the more-crime-faster proposals marketing themselves as "sentencing reform." Both the most recent statistics, and the most recent election, show that the American people know better than to cash in a system we know works for one we know fails.
There is much to discuss in Bill's important assessment of the current state of sentencing reform. But I have emphasized the very last phrase because I think it lacks demographic nuance based on the mostly older (and not-too-diverse) "bubble" that I suspect Bill mostly travels in.
Bill surely seems correct that an older (and mostly white) population of voters and political leaders are reasonably content with the sentencing/incarceration status quo, and that these voters and leaders still have considerable control over the policies and practices of the Republican party (as well as, for that matter, the Democratic party). Bill stresses in his post, for example, that we do not hear much talk of sentencing reform coming from "Mitch McConnell, John Boehner, Chuck Grassley (the incoming Chairman of SJC), or Bob Goodlatte (the once-and-future Chairman of HJC) [or] Michael Mukasey." Notably, everyone on that list is well over 60 years old, and they have all succeeded politically with "tough on crime" rhetoric and policies.
But as a new generation of GOP leaders emerge who are much younger (even though they are still mostly white), we are seeing growing concern for and focus on sentencing reform. Leading GOP Governors from Chris Christie to Rick Perry, and leading GOP Senators from Rand Paul to Mike Lee, and leading GOP Reps from Paul Ryan to Jason Chaffetz, all have talked up sentencing reform in recent years. And while Bill's list of older GOP leaders will control GOP policies and politics for the next few years, the younger leaders already on record supporting sentencing reform are likely to control GOP policies and politics for the subsequent few decades.
Turning from political leaders to voters, we see the same basic dynamics in play in recent election seasons. According to polls and other sources, older and whiter voters seem much more wary about any significant changes to sentencing laws or drug laws. But younger voters and people of color are much more open and eager to support significant sentencing and drug law reform as represented by the passage of Prop 47 and prior three-strikes reform in California and by initiatives for marijuana legalization in an array of states.
(Notably, these generational and demographic realities concerning sentencing reform are not only a GOP story. Older and whiter Democrats — from the Clintons to Joe Biden to Harry Reid to Nancy Pelosi to even Jerry Brown — have largely been stuck in political thinking of the 1990s and slow to warm to advocating for significant sentencing reform. But if and when younger and more diverse voices continue to emerge on the Democratic side of the aisle, we should expect even more liberal advocacy for the kinds of criminal justice reforms championed by the Obama Administration rather than a return to the toughness championed throughout the Clinton Administration.)
Finally, and to give Bill still more credit for his analysis, despite generational and demographic shifts and divides on these matters, I agree that the future of significant sentencing reform is quite uncertain and will turn greatly on short-term and long-term assessments of "what really works." Americans are a pragmatic people who will always move away from criminial justice policies shown or felt not to be really working. That is why, I believe, alcohol Prohibition failed even though it had constitutional gravitas and also why we moved away from a purely rehabilitation model of sentencing and corrections through the 1970s and 1980s.
Now we are seeing a push back on the modern drug war and mass incarceration mostly from younger folks and people of color have come to conclude that these policies are not working for their interests abd communties. But there are still a whole lot of folks in power (particularly those who are older and whiter like Bill) who still see more a lot more good than bad from the sentencing and mass incarceration status quo. Whether and how these competing groups views as to "what really works" unfold and compete in the coming years will determine whether sentencing and incarceration policies in the US circa 2050 look more like they did in 2000 or in 1950.
Notable new resources from DOJ and DOE to improve education in juve justice systems
I am pleased and intrigued to see this new DOJ press release titled "Attorney General Holder, Secretary Duncan, Announce Guidance Package on Providing Quality Education Services to America's Confined Youth." Here are notable excerpts from the press release which, inter alia, links to a whole array of additional related resources:
Attorney General Eric Holder and Secretary of Education Arne Duncan today announced a Correctional Education Guidance Package aimed at helping states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day....
“In this great country, all children deserve equal access to a high-quality public education — and this is no less true for children in the juvenile justice system,” said Attorney General Holder. “At the Department of Justice, we are working tirelessly to ensure that every young person who's involved in the system retains access to the quality education they need to rebuild their lives and reclaim their futures. We hope and expect this guidance will offer a roadmap for enhancing these young people's academic and social skills, and reducing the likelihood of recidivism.”
“Students in juvenile justice facilities need a world-class education and rigorous coursework to help them successfully transition out of facilities and back into the classroom or the workforce becoming productive members of society,” said Secretary Duncan. “Young people should not fall off track for life just because they come into contact with the justice system.”...
“High-quality correctional education is thus one of the most effective crime-prevention tools we have,” Attorney General Holder and Secretary Duncan wrote in a dear colleague letter to chief state school officers and state attorneys general. “High-quality Correctional education – including postsecondary correctional education, which can be supported by Federal Pell Grants — has been shown to measurably reduce re-incarceration rates. Less crime means not only lower prison costs — it also means safer communities.”...
Providing young people in confinement with access to the education they need is one of the most powerful and cost-effectives strategies for ensuring they become productive members of their communities. The average cost to confine a juvenile is $88,000 per year — and a recent study showed that about 55 percent of youth were rearrested within 12 months of release. Inmates of all ages are half as likely to go back to jail if they participate in higher education — even compared to inmates with similar histories.
Sunday, December 07, 2014
Blanket prohibition of tobacco now officially the law of the federal prisons land
As reported in this US News article, the "Federal Bureau of Prisons is officially banning smoking and possession of tobacco in any form by prison inmates." Here is more:
The prohibition takes effect 30 days after publication of a final regulatory rule Monday in the Federal Register. Prison guards still will be allowed to possess tobacco, but inmates will be permitted to smoke only for religious purposes.
“I’m a little surprised to be getting calls about this,” says Bureau of Prisons spokesman Ed Ross. Tobacco use by inmates, he says, is already banned in practice due to a 2006 policy taking tobacco products off the shelves of prison commissaries. Cigarettes became contraband when commissaries stopped selling them, despite regulations technically allowing for outdoor smoking.
“If an inmate is found to be in possession of tobacco they are subject to discipline,” possibly including loss of phone or visitation privileges, Ross says. “I think it’s just formalizing the policy that’s in place.”...
Prisoners are historically more likely to smoke than the general public. Before the 2006 policy change, an estimated 60 to 80 percent of prison and jail inmates were smokers — far higher than the national average — alarming public health advocates who noted poor ventilation at facilities exposed nonsmokers to significant amounts of secondhand smoke.
But there's a flip side to banning tobacco. The New York Daily News reported in 2013 tobacco prohibitions led to a surge in black market prices, with individual cigarettes selling for an average of $30 on New York City’s Rikers Island. The Daily Beast reported the restrictions created a “cash cow” for prison gangs like the Aryan Brotherhood.
The new rule applies only to the 212,438 inmates housed in federal facilities. Many state and local jails, however, have independently banned tobacco use.
Monday, December 01, 2014
"What Death Penalty Opponents Don’t Get"
Opponents of the death penalty have had many occasions to celebrate in the new millennium. Four states have abolished the practice in the past five years, while others have legally or effectively set moratoriums on executions. Support for capital punishment in the United States is at its lowest point in four decades, and seems likely to fall further as the number of exonerations and gruesomely botched executions continues to grow.
But at what cost have these concessions been won? The NAACP Legal Defense and Educational Fund's latest “Death Row U.S.A.” report found 3,049 individuals awaiting execution in the United States. According to the Sentencing Project, at last count nearly 50,000 people were serving sentences of life without the possibility of parole — a number that has more than tripled since the early 1990s. Over 159,000 were serving life sentences — many of them ... with minimums so long that they might as well be doing life without parole, too.
In many states, the expansion — and the very existence — of life without parole sentences can be directly linked to the struggle to end capital punishment. Death penalty opponents often accept — and even zealously promote — life without parole as a preferable option, in the process becoming champions of a punishment that is nearly unknown in the rest of the developing world...
Complicating matters is the fact that life without parole rarely takes its place as simply a one-for-one alternative to the death penalty. In New York State, for example, life without parole did not exist before the state’s brief reinstitution of capital punishment from 1995 to 2004. During this period, there were never more than half a dozen men on New York’s death row, and no executions took place. Yet today, nearly 250 people are doing life without parole in New York, and more than 1 in 6 of the state’s prisoners is serving a life sentence.
Connecticut, in abolishing its death penalty in 2012, legislated a punishment even more harsh than simple life without parole. Thereafter, a new law decreed, those convicted of “murder with special circumstances” would be condemned to live out their life without parole sentences in solitary confinement. The measure was reportedly backed as a way to win enough support for the repeal bill.
Though the requirement that life/LWOP sentences be served in solitary confinement is codified into law only in Connecticut, it exists in practice throughout the nation. An unknown number of lifers have, like [New York lifer] William Blake, been placed in permanent or indefinite solitary confinement by prison officials, without benefit of any kind of due process. So have most of the individuals on the nation’s death rows, including the supposedly fortunate ones who live in states that have instituted moratoriums, and are therefore unlikely to ever face execution.
Research has confirmed that even brief periods in solitary alter brain chemistry and produce psychiatric symptoms ranging from extreme depression to active psychosis. Some prisoners who have spent longer amounts of time in isolation describe it as a condition that slowly degrades both their humanity and sanity, turning them into blind animals given to interminable pacing, smearing their cells with feces, or engaging in self-mutilation....
William Blake has said that while he cannot bring himself to take his own life, he would have welcomed the death penalty 27 years ago had he known what a lifetime in solitary confinement would be like. Perhaps the time will come when people like Blake — and the American public — are not forced to choose among such monstrous alternatives. In the meantime, it will be a shame if people who oppose state-sponsored death continue to advocate for state-sanctioned torture.
Long-time readers know that I largely share the perspective of these commentators. I find compelling the assertion that some (many?) LWOP sentences can often involve a fate worse than death, and I find moving the concern that too much of modern opposition to "state-sponsored death" in the United States tends to advocate, both formally and functionally, for a kind of "state-sanctioned torture."
Sunday, November 23, 2014
"On Life Support: Public Health in the Age of Mass Incarceration"
The title of this post is the title of this notable new report from the Vera Institute of Justice as part of a new initiative called Justice Reform for Healthy Communities. A helpful report overview starts this way:
Each year, millions of incarcerated people — who experience chronic health conditions, infectious diseases, substance use, and mental illness at much higher rates than the general population — return home from correctional institutions to communities that are already rife with health disparities, violence, and poverty, among other structural inequities.
For several generations, high rates of incarceration among residents in these communities has further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.
Several factors in today’s policy climate indicate that the political discourse on crime and punishment is swinging away from the punitive, tough-on-crime values that dominated for decades, and that the time is ripe to fundamentally rethink the function of the criminal justice system in ways that can start to address the human toll that mass incarceration has had on communities.
At the same time, the nation’s healthcare system is undergoing a historic overhaul due to the passage of the Affordable Care Act (ACA). Many provisions of the ACA provide tools needed to address long-standing health disparities. Among these are:
> Bolstering community capacity by expanding Medicaid eligiblity, expanding coverage and parity for behavioral health treatment, and reducing health disparities.
> Strengthening front-end alternatives to arrest, prosecution, and incarceration.
> Bridging health and justice systems by coordinating outreach and care, enrolling people in Medicaid and subsidized health plans across the criminal justice continuum, using Medicaid waivers and innovation funding to extend coverage to new groups, and advancing health information technology.
Friday, November 21, 2014
Unpacking why DOJ is so concerned about federal prison populations and its costs
As highlighted in this effective piece by Andrew Cohen published by The Marshall Project, earlier this month Michael Horowitz, the Justice Department’s Inspector General (and a former member of the US Sentencing Commission), authored this memorandum describing DOJ's concerns with federal prison overcrowding and costs. These excerpts from Cohen's piece highlight some of the Horowitz memo's most notable messages:
The Bureau of Prison’s budget now ($6.9 billion) is nearly twice what it was ($3.8 billion) in 2000, Horowitz tells us, an increase at “almost twice the rate of growth of the rest of the Department.” Worse, he writes, even though federal prison officials have been warned that their part of the budget is draining funding away from other Justice Department programs (like those that support victims groups) they asked for more money this past budget cycle....
Horowitz didn’t mince words, either, about what is costing so much. The federal prison population is aging at a fast pace. “From FY 2009 to FY 2013, the population of sentenced inmates age 50 and over in BOP-managed facilities increased 25 percent, while the population of sentenced inmates under the age of 30 decreased by 16 percent,” he notes. As a result, “the cost for providing healthcare services to inmates increased 55 percent from FY 2006 to FY 2013.”...
If you think the facts and figures above are disconcerting, the numbers Horowitz offers about conditions within our federal prisons are even more dire. Prison overcrowding, he asserts, is “the most significant threat to the safety and security of Bureau of Prisons staff and inmates”.... When it comes to easing overcrowding it’s clear that Horowitz believes we are headed in the wrong direction, which is another reason why he keeps calling current conditions at the Bureau of Prisons “a crisis.”
To bring the ratio of inmate to space available to appropriate levels, to eliminate the overcrowding “without expending additional funds to build more federal prison space or to contract for additional non-federal bed space,” Horowitz says that the Justice Department “would have to achieve a net reduction of about 23,400 federal prisoners from the June 2014 prison population...” That’s more than ten percent of the current population. Can you imagine? I can’t.
Thursday, November 20, 2014
Significant sentencing reform afoot in Michigan
As reported in this Detroit News article, headlined "Michigan prison sentence reforms gain momentum," the Great Lakes state is moving toward some significant sentencing changes. Here is how the article starts:
State lawmakers are poised to act on a legislative package that would reduce some prison sentences, making it potentially the biggest issue — besides a road tax increase — they may consider when they return from a two-week recess.
The package of bills calls for a state commission to adjust tough sentencing policies adopted in 1998 that crowded prisons and sharply increased corrections spending. The legislation is aimed at reducing crime while reining in the state's $2 billion prison budget through sentencing, parole and probation reforms. It has moved quickly toward a House vote in the lame-duck session.
The vision is for the number of prisoners to decline over time, and for all released prisoners to receive supervision. The number of inmates incarcerated by the state has dropped below 44,000 from a high of 51,554 in March 2007, and cost increases have moderated because of policy changes and the contracting out of some prison services to private companies.
But Republican Rep. Joe Haveman of Holland, point man for the proposed reforms, said he sees potential for even more downsizing of the sprawling prison system. Corrections Department Director Dan Heyns "has done a fantastic job of getting at the low-hanging fruit through policies and cost savings ... but you can't save your way to a low-cost prison system," Haveman. "The only way you can get more long-term savings is to close a prison."
Attorney General Bill Schuette said he has "grave concerns" with some key proposals in the bills that he feels could "open the door to parole for some violent offenders at the earliest possible date."
The legislation is getting a boost from House Speaker Jase Bolger, a Marshall Republican who over the weekend shared on his Facebook page a column by GOP former U.S. House Speaker Newt Gingrich that lauded Michigan's sentencing reform package and suggested it was "getting it right on crime."
Tuesday, November 18, 2014
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
The title of this post is the title of this very interesting article with empirical research on private prisons and time served. The piece, authored by Anita Mukherjee and now available via SSRN, has this abstract:
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many. My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk.
These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Saturday, November 15, 2014
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
The title of this post is the title of this notable paper by Anita Mukherjee now available via SSRN. Here is the abstract:
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many.
My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk. These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Sunday, November 09, 2014
"Aging Prisoners Shackle State Budgets"
The title of this post is the headline of this article from the November 2014 issue of Governing magazine. Here are excerpts:
Nearly 10 percent of inmates housed in California state prisons were age 50 or older in 2003. About a decade later, that percentage has doubled. Thanks to an aging prison population and a 2011 prison realignment bill that sent lower-level and typically younger offenders to county jails, about 21 percent of the total state prison population today is over age 50.
While the circumstances in California are unique, the predicament is not. As baby boomers age nationally, America’s prison population is graying. What’s less understood, though, is the full extent of the demands an older prison population will place on corrections systems and just how much it will end up costing.
A recent Urban Institute analysis suggests that it could carry significant fiscal consequences for states in the years to come. Compared to the general population, older prisoners experience accelerated aging due to substance abuse or other unhealthy lifestyle choices. Older prisoners also require, according to the report, more time from guards for their daily routines and chores. “Despite being a small percentage of the total inmate population, the implications are quite large,” says Bryce Peterson, an Urban Institute research associate. He adds that “policies and different intervention strategies should focus on a larger group of older inmates and not just those close to death or severely ill.”...
Efforts specifically aimed at reducing aging prison populations remain fairly limited. One common approach they've taken, Peterson says, is to study compassionate release programs. In 2011, California implemented a parole program for individuals permanently medically incapacitated to the point where they required 24-hour care. Until that program, there had been a few extreme cases of aging California prisoners in comas being guarded and kept alive through breathing and feeding tubes at acute care facilities at a cost of nearly $1 million a year.
At least 15 states provide some form of early release for geriatric inmates. But a Vera Institute of Justice report found those provisions were rarely used, in part attributable to restrictive eligibility criteria, political considerations, and long referral and review processes.
It’s hard to say just how much older prisoners will end up costing states. At least 16 states mandate the use of specialized corrections impact statements to help lawmakers understand how various criminal justice proposals affect prison populations and associated costs, according to the National Conference of State Legislatures.
Saturday, November 08, 2014
"We should stop putting women in jail. For anything."
The title of this post is the headline of this provocative commentary by Patricia O'Brien available via the Washington Post. Here are excerpts:
It sounds like a radical idea: Stop incarcerating women, and close down women’s prisons. But in Britain, there is a growing movement, sponsored by a peer in the House of Lords, to do just that.
The argument is actually quite straightforward: There are far fewer women in prison than men to start with — women make up just 7 percent of the prison population. This means that these women are disproportionately affected by a system designed for men.
But could women’s prisons actually be eliminated in the United States, where the rate of women’s incarceration has risen by 646 percent in the past 30 years? ... Essentially, the case for closing women’s prisons is the same as the case for imprisoning fewer men. It is the case against the prison industrial complex and for community-based treatment where it works better than incarceration. But there is evidence that prison harms women more than men, so why not start there?
Any examination of the women who are in U.S. prisons reveals that the majority are nonviolent offenders with poor education, little employment experience and multiple histories of abuse from childhood through adulthood. Women are also more likely than men to have children who rely on them for support — 147,000 American children have mothers in prison....
What purpose is served by subjecting the most disempowered, abused and nonviolent women to the perpetually negative environment of prisons? Efforts to make prison “work” for women have only perpetuated the growth of the prison industrial complex. These putative reforms have helped some individuals, and possibly brought the nature of mass warehousing of poor, black and brown bodies more into focus, but the number of incarcerated people still continues to rise.
So what is the alternative to jailing women at the rate we do? In Britain, advocates propose community sentences for nonviolent offenders and housing violent offenders in small custodial centers near their families. There is evidence that these approaches can work in the United States. Opportunities to test alternatives to prison are increasing across the states, and some have demonstrated beneficial results for the women who participated....
Oklahoma is currently ranked No. 1 for female incarceration per capita in the country. Nearly 80 percent of Oklahoma’s incarcerated women are nonviolent offenders, their presence in prison largely attributed to drug abuse, distribution of controlled substances, prostitution and property crimes.
A program that began five years ago, Women in Recovery, provides an alternative to prison for women who are sentenced for felony crimes linked to alcohol or drug addiction. The program includes comprehensive treatment and services such as employment services, housing assistance and family reunification. Women with small children are given the highest priority for admission to the program. Women who complete the program, averaging about 18 months, have a high degree of success after release. The program coordinator has told me that 68 percent of the women who completed the program had no further involvement with the criminal justice system....
The systemic production of mass incarceration cannot be solved simply by assisting troubled and troubling individual women. Another step to abolition requires taking the discussion beyond the individuals and communities most directly harmed, controlled and erased by the prison industrial complex to the public sphere that has passively accepted it. Put simply, we need to stop seeing prisons as an inevitable part of life....
The case for closing women’s prisons is built on the experiences of formerly incarcerated women and activists who recognize that women who are mothers and community builders can find their way forward when they respected and supported. It is possible to imagine a future without women’s prisons; whether it’s achievable will require a bigger shift in thinking.
Friday, November 07, 2014
ACLU to devote $50 million to political efforts to attack mass incerceration
As reported in this New York Times article, headlined "A.C.L.U. in $50 Million Push to Reduce Jail Sentences," a leading advocacy group big new pot of money to be spent on attacking the problem of mass incarceration. Here are the details:
With a $50 million foundation grant, the largest in its history, the American Civil Liberties Union plans to mount an eight-year political campaign across the country to make a change of criminal justice policies a key issue in local, state and national elections. The goal of the campaign, financed by George Soros’s Open Society Foundations, is to slash an incarceration rate that has tripled since 1980. There are currently some 2.2 million prisoners in the United States.
The campaign aims to translate into state and federal policy a growing belief among many scholars, as well as of a coalition of liberal, conservative and libertarian political leaders, that the tough-on-crime policies of recent decades have become costly and counterproductive. In that view, widespread drug arrests and severe mandatory sentences are doing more to damage poor communities, especially African-American ones, than to prevent crime, and building ever more prisons that mostly turn out repeat offenders is a bad investment.
The campaign is likely to face strong opposition from some law enforcement officials, prosecutor groups and conservative experts who argue that tough sentencing policies have played an important role in driving down crime rates. The Republican electoral victories this week could also stiffen resistance to sweeping change.
The grant is going to the political arm of the A.C.L.U., which has far more leeway to lobby for laws, run ads on television and finance political action committees to promote candidates than the group’s larger, traditional branch, which relies more on litigation. As a result, the money is not tax-deductible.
While the A.C.L.U. has often been associated with liberal causes like ending the death penalty and promoting same-sex marriage, Anthony D. Romero, the group’s executive director, said the organization was building ties with conservative leaders promoting alternatives to incarceration and would not hesitate to aid Republican candidates who support needed steps. “I think criminal justice reform is one of the few issues where you can break through the partisan gridlock,” Mr. Romero said, adding that the group would seek out Republican lobbying firms to help reach legislators.
In the latest example of converging views, conservatives including Newt Gingrich and B. Wayne Hughes Jr., a Christian philanthropist, joined the Soros-led foundation and the A.C.L.U. in support of Proposition 47, a California ballot measure to redefine many lower-level felonies, including possession for personal use of hard drugs, as misdemeanors. The change, which passed by a wide margin on Tuesday, is expected to keep tens of thousands of offenders out of prison and save the state hundreds of millions of dollars each year.
The Koch brothers, major funders of conservative causes and candidates, have joined in. Koch Industries recently gave a grant “of significant six figures” to the National Association of Criminal Defense Lawyers to support the defense of indigents, said Mark Holden, senior vice president and general counsel at Koch Industries. “Whether the human cost or the societal cost, what we’re doing in the criminal justice system isn’t working,” Mr. Holden said. “We’re finding common ground with people with different political affiliations,” he said, praising the advocacy work of the A.C.L.U. in this field.
The A.C.L.U. campaign will be directed by Alison Holcomb, who led the effort in Washington State to legalize marijuana. The group plans to use ads to insert issues like drug policy, mandatory sentences and prison re-entry into early primary states in the presidential elections, such as Iowa and New Hampshire, and then in key battlegrounds like Pennsylvania and Florida, Mr. Romero said.
It will also develop a state-by-state database describing who is in prison for what crimes and then target local politicians and prosecutors who promote what Mr. Romero called “overincarceration.” Mr. Romero said the goal of the campaign was to reduce incarceration by 50 percent in eight years.... Todd R. Clear, a criminologist and the provost of Rutgers University-Newark, said he agreed that the time was right for a major shift in justice policies.... But he cautioned that to achieve a decline anywhere near as steep as that proposed by the A.C.L.U., far more politically contentious changes would be necessary. “We’ll have to make sentencing reforms for violent crime, too,” he said, including major changes in drug laws and the multidecade sentences often imposed on violent or repeat offenders.