Sunday, August 16, 2015
"Sex Offenders Locked Up on a Hunch"
The title of this post is the headline of this lengthy New York Times editorial. Here are excerpts:
The essence of the American criminal justice system is reactive, not predictive: You are punished for the crime you committed. You can’t be punished simply because you might commit one someday. You certainly can’t be held indefinitely to prevent that possibility.
And yet that is exactly what is happening to about 5,000 people convicted of sex crimes around the country. This population, which nearly doubled in the last decade, has completed prison sentences but remains held in what is deceptively called civil commitment — the practice of keeping someone locked up in an institution for months, years or even decades for the purpose of preventing possible future offenses.
The authorities have the power to detain people with mental illnesses or disorders who cannot function independently, or who pose a danger to themselves or others. But since the early 1990s, this power has been used increasingly to imprison one distinct group: sex offenders....
In a decision in June, a federal judge ruled that Minnesota’s civil-commitment law for sex offenders violates the Constitution. Federal District Judge Donovan Frank said the law imposes “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” For example, local prosecutors — not clinicians or mental health professionals — choose whether to seek continued detention based on a screening test that claims to predict a person’s likelihood of committing another sex offense, though there is no clear evidence such tests are accurate.
Yet based largely on those screening tests, more than 700 Minnesotans who have completed their prison sentences are locked up, at an annual cost of more than $120,000 per person — triple the cost of prison. This civil commitment rate is by far the highest in the country. Some people have been held for more than 20 years. During that time, not one person has been released from the program unconditionally.
A central flaw, Judge Frank said, is that Minnesota does not perform reassessments of risk, so the burden lies with the detainees to prove they no longer pose a danger. On Aug. 12, Judge Frank ordered the state to come up with constitutionally valid reforms by the end of September, or he “may demand a more forceful solution.”
Despite the public perception that all sex offenders are recidivists — a belief that drove these laws in the first place — sexual reoffense rates are in fact lower than those for other crimes (though an unknown number of sex crimes go unreported). In addition, while some states’ laws make it easier for detainees to earn their way out, 30 states have no civil-commitment laws at all, and there is no evidence that a state’s sexual-violence rate is affected by whether it has such a law....
Public safety would be better served if resources were directed toward community supervision and other services for those leaving prison, rather than toward skirting the edges of the Constitution to keep them locked away.
August 16, 2015 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12)
Friday, August 14, 2015
In Ohio, "State prisons chief calls for softened hearts"
The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:
Ohio’s prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population. Too often an “us vs. them” mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.
“Our hearts need to be softened to some degree,” said Mohr, director of the Department of Rehabilitation and Correction. “We have to think about the sense of forgiveness.” When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates. The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.
The state’s incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee. Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.
Society’s tough-on-crime attitude doesn’t match statistics showing violent crime at historic lows, he added. But Mohr also sees signs of optimism as commitments from the state’s biggest counties drop thanks to the growth of community alternatives in urban areas. The next challenge is extending such programs to the 82 counties where commitments have increased. The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.
Among other issues Mohr said:
• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.
• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.
• The high population of some Ohio prisons raises security concerns.
Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options. At the same time, the state’s painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.
Tuesday, August 11, 2015
"Buying Access: How Corporations Influence Decision Makers at Corrections Conferences, Trainings, and Meetings"
The title of this post is the title of this new report issued by In the Public Interest. Here is the report's executive summary:
Private corrections companies, which contract with corrections departments and facilities to oversee and provide services to incarcerated people, make up a multibillion-dollar industry. Every year, they devote resources to building influence with decision makers in order to find and capitalize on new business opportunities. One key avenue of influence is through professional corrections associations, which are non-profit organizations that support corrections officials, including wardens, administrators, state Department of Corrections staff, sheriffs, and others through events, trainings, and public policy advocacy.
This report first details how companies spend millions of dollars sponsoring conferences, paying vendor fees, and providing other funding to gain access to the professional corrections associations. This report then shows how corrections companies leverage this access in ways that can influence decision makers and benefit the companies’ bottom lines.
Considering corrections companies’ track records of providing low-quality services that harm prisoners, communities, and taxpayers, the influence they exert through professional corrections associations is cause for concern.
The research in this report is based on limited information that professional corrections associations make publicly available. Consequently, the report’s findings constitute only a portion of the total contributions made by companies and the subsequent opportunities they receive to influence decision makers.
Private companies make contributions to professional corrections associations. In 2014, sponsors, vendors, corporate partners, and other non-individual entities contributed at least $3 million to five of the largest professional corrections associations, including the American Correctional Association, the American Jail Association, the Association of State Correctional Administrators, the Corrections Technology Association, and the National Sheriffs’ Association.
In return, corrections contractors are able to build relationships with and influence decision makers in key ways:
Corrections companies send executives and staff to professional corrections association conferences to meet decision makers. Many companies receive lists of attendees, allowing the corporate staff to target certain corrections officials.
Corrections companies lead trainings and workshops at conferences. Often times, companies will directly market goods and services.
Corrections companies host conference events where their executives and marketing staff meet with and give speeches to corrections officials.
Corrections companies market their products and services at conference vendor booths to identify potential government customers and generate leads.
Corrections companies advertise on conference materials, such as the program books, hotel room key cards, tote bags, and take-home mugs. This marketing encourages officials to consider the companies’ products and services when making purchasing and outsourcing decisions.
Urban Institute creates intriguing on-line "Prison Population Forecaster"
I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:
Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.
Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.
But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?
To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.
The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.
Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.
This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.
Friday, August 07, 2015
"What We Learned From German Prisons"
The title of this post is the headline of this notable New York Times op-ed authored by Nicholas Turner, president of the Vera Institute of Justice. and Jeremy Travis, president of John Jay College of Criminal Justice. Here are excerpts:
Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.
The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs...
This is an encouraging moment for American advocates of criminal justice reform. After decades of callousness and complacency, the United States has finally started to take significant steps to reverse what a recent report by the National Research Council called a “historically unprecedented and internationally unique” experiment in mass incarceration. Congress, in a bipartisan effort, seems prepared to scale back draconian federal sentencing laws. Many states are making progress in reducing their prison populations. And President Obama, in a gesture of his commitment to this issue, last month became the first American president to visit a federal correctional facility.
The delegation that we took to Germany represented the emerging national consensus on this issue. It included a Democratic governor; corrections officials from across the political spectrum; chief prosecutors; formerly incarcerated individuals; a liberal scholar of race and criminal justice; and representatives from Right on Crime and the Charles Koch Institute, conservative groups that advocate reform, as well as the evangelical Christian group Prison Fellowship.
But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.
While the United States currently incarcerates 2.2 million people, Germany — whose population is one-fourth the size of ours — locks up only about 63,500, which translates to an incarceration rate that is one-tenth of ours. More than 80 percent of those convicted of crimes in Germany receive sentences of “day fines” (based on the offense and the offender’s ability to pay). Only 5 percent end up in prison. Of those who do, about 70 percent have sentences of less than two years, with few serving more than 15 years.
The incarcerated people that we saw had considerable freedom of movement around their facilities and were expected to exercise judgment about how they used their time. Many are allowed, a few times a year, to leave the prison for a few hours or overnight to visit friends and family. Others resided in “open” facilities in which they slept at night but left for work during the day. Solitary confinement is rare in Germany, and generally limited to no more than a few days, with four weeks being the outer extreme (as opposed to months or years in the United States).
The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.
Germans, like Americans, are greatly concerned with public safety. But they think about recidivism differently. During our visit, we heard prison professionals discussing failure in refreshingly unfamiliar terms: If, after release, an individual were to end up back in prison, that would be seen as a reason for the prison staff members to ask what they should have done better. When we told them stories of American politicians who closed a work-release or parole program after a single high-profile crime by a released inmate, they shook their heads in disbelief: Why would you close an otherwise effective program just because one client failed?...
The first article of the German Constitution reads, “Human dignity shall be inviolable.” Granted, our own Constitution bans cruel and unusual punishment and protects individuals against excessive government intrusions. As was noted by the Supreme Court justice Anthony M. Kennedy in a landmark 2011 opinion ordering California to reduce its prison population: “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment.”
These words hold much promise, but currently they have far too little impact on actual conditions in American prisons. In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.
The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.
Thursday, August 06, 2015
Is it now ungodly to oppose significant sentencing and prison reform?
The question in the title of this post is prompted by this notable recent Crux commentary authored by Jacob Lupfer headlined "There’s a truly religious consensus on prison reform." Here are excerpts:
In an era when most faith groups’ political priorities align predictably with the two major parties, it is refreshing to behold a truly diverse religious consensus on an issue....
The budget-busting prison-industrial complex was politically popular for a time, but in the past decade the pendulum has begun swinging the other way. Harsh sentences, particularly for nonviolent drug offenders, created unsustainable fiscal pressures. States simply cannot afford to house more prisoners and pay the salaries and benefits of employees to supervise and care for them.
Already, states are taking steps to spend less on “corrections.” Fiscal conservatives now view prisons as overly expensive, hugely inefficient, bloated bureaucracies. Yet Christians and other people of faith see problems, too.
America’s denominations and faith organizations are calling for reform. Our vast criminal justice system emphasizes punishment over rehabilitation, while our faith traditions preach redemption. Citing Isaiah 61, Jesus announced that his gospel would include “release for the captives” (Luke 4:18). It seems wrong for a Christian conscience to support needless incarceration.
Catholics were early leaders in promoting restorative justice, the idea that communities must help ex-offenders re-enter society in healthy and productive ways. The US Conference of Catholic Bishops issued a major pastoral statement in 2000 that placed criminal justice issues in the context of social ills, including family breakdown, violence, racial disparities and the perverse incentives of for-profit prisons.
Once a powerhouse in ecumenical Christian political influence, the National Council of Churches has reinvented itself as a smaller, more focused agency. Yet it has made mass incarceration its top advocacy priority. NCC President Jim Winkler has a provocative idea. “If churches want to see revival,” he told me last year, “they should pick up released prisoners and help reintegrate them into their communities.” Criminal justice reform is not just an issue. It is essential to the gospel: Redeemed sinners proclaiming mercy in the name of Jesus Christ....
Leaders from Catholic, mainline, and black Protestant traditions have been sounding this refrain for years. But the growing consensus among white evangelicals and Republican officeholders may finally make sentencing reform an urgent and truly bipartisan imperative. The National Association of Evangelicals, known to be more active on non-sex-related issues than other religious conservatives, has spoken strongly of the need for criminal justice reform....
Until recently, disparate groups have worked on the issue largely independently. That is changing. In 2014, Congress appointed a committee to study the feasibility of reform among federal prison populations, whose growth threatens other federal law enforcement and funding priorities. The committee is called the Charles Colson Task Force on Federal Corrections. Earlier this year, the task force sought input from faith leaders and saw unprecedented agreement across traditions and enthusiastic support for reform....
Sentencing and prison policy is more easily seen as a boring bureaucratic issue. Even though millions are incarcerated, most Americans know zero or one person in prison. Yet faith communities are adding urgency to the imperative for prison and sentencing reform, even as they remain divided on the death penalty (for now).
In the end, fiscal constraints will force changes in prisons and sentencing if moral concerns do not. It seems better to make these changes out of a warm-hearted, merciful impulse than through cold fiscal realities. The faith community can credibly speak with one voice on criminal justice reform, and that voice must be heard.
"Toe Tag Parole: To Live and Die on Yard A"
The title of this post is the title of this new documentary that premired on HBO this week. Based on the few clips I have so far had a chance to watch, it looks like a valuable contribution to the broad on-going policy and constitutional debate over LWOP. Here is the film's synopsis via its HBO website:
America is the most punitive nation in the world, handing out historically harsh sentences that largely dispense with the concept of rehabilitation. Alan and Susan Raymond (Oscar® and Emmy® winners for HBO’s “I Am a Promise: The Children of Stanton Elementary School”) explore the reality of “the other death penalty” in TOE TAG PAROLE: TO LIVE AND DIE ON YARD A.
Featuring exclusive, unprecedented access, TOE TAG PAROLE: TO LIVE AND DIE ON YARD A was shot entirely at California State Prison, Los Angeles County, a maximum-security facility in the Mojave Desert.
In 2000, a California State Prison inmate serving Life Without Parole (LWOP) approached the warden to request a dedicated yard for men serving life sentences that would break the code of violence dominating prison life. The California Department of Corrections and Rehabilitation (CDCR) subsequently transformed Yard A at California State Prison into The Progressive Programming Facility, which inmates call The Honor Yard. The only one of its kind in the United States, this experimental prison yard is free of violence, racial tensions, gang activity and illegal drug and alcohol use.
TOE TAG PAROLE: TO LIVE AND DIE ON YARD A focuses on the 600 men living at The Progressive Programming Facility, who seek self-improvement and spiritual growth through education, art and music therapy, religious services and participation in peer-group sessions.
Although a 2012 U.S. Supreme Court ruling found mandatory sentencing of juveniles to Life Without the Possibility of Parole unconstitutional, those previously convicted still have to serve their sentences in some states. The film features interviews with three of the inmates – sentenced to life at ages 14, 16 and 17 – who describe growing up within the prison walls.
Ken Hartman, who beat a man to death at age 19 while drunk, and has been in prison for 36 years, says, “There’s a progression that these things go through. People used to be stoned to death and then they were shot and then they were hung, they were electrocuted. Each step along the way always the argument is made that this is a better kind of death penalty. I’m sentenced to Life Without the Possibility of Parole. It’s not better than the death sentence, because it is the death sentence.” As the men of The Honor Yard say, “They will get out when they get their Toe Tag Parole,” meaning death by incarceration.
Tuesday, August 04, 2015
Urging Prez Obama to appoint a "new, visionary Bureau of Prisons head"
Three notable law professors, Robert Ferguson, Judith Resnik and Margo Schlanger, have come together to make this effective pitch in the Washington Post for Prez Obama to make one key appointment in his effort to reform the federal criminal justice system. The piece is headlined "With one decision, Obama and Lynch could reshape the criminal justice system: The President needs to appoint a new, visionary Bureau of Prisons head," and here are excerpts:
The current director of the Federal Bureau of Prisons recently announced his retirement. The job is not Senate-confirmed (though Congress can play a role; on Tuesday, the Senate Committee on Homeland Security and Governmental Affairs will be holding a hearing on the issue). Instead, Obama’s Attorney General Loretta Lynch will choose the BOP’s ninth head since its founding in 1930.
The decision matters a lot. The BOP’s director runs one of the critical bureaucracies of the federal government. It houses more than 200,000 prisoners in more than 120 facilities across the United States. Under the leadership of some of its directors — such as James Bennett, who served from the late 1930s to the 1960s — the BOP set the nation’s benchmark for smart criminal justice administration. Bennett promoted the Youth Corrections Act and vocational and education training, he became president of the American Correctional Association and he led the U.S. delegation to the UN Crime Commission. Bennett led the BOP to the forefront of efforts to help prisoners gain skills to return to their communities and to treat juveniles differently than adults.
Since Bennett’s era, the BOP’s leadership role has eroded. The BOP has imposed unduly harsh conditions on prisoners, failed to prevent sexual abuse, and refused to exercise discretion to house prisoners in community facilities close to their homes. The largest prison system in America needs to do better....
The BOP also has many available tools and a good deal of discretion to lower its prison population, but it has used those opportunities far too sparingly. The BOP does not place all eligible prisoners in residential treatment centers (halfway houses) at the earliest available dates, nor does the BOP use compassionate release — when the prisoner or a member of his or her family is dying — and other aspects of the 2007 Second Chance Act as much as it could. Using halfway houses more would put prisoners closer to home, where they can maintain ties to their families and communities and can gain avenues to employment. Given endemic racial and other disparities in our criminal justice system, these lost opportunities have a particularly harmful impact on poor minority urban communities.
The result of these many decisions, along with unduly harsh federal sentences which Congress is currently considering fixing, has been severe overcrowding. The BOP is 30 percent over capacity, which makes keeping staff and prisoners safe significantly more difficult. With congestion comes risks of violence, and less access to services such as jobs and programs. And as prison populations age, the costs of medical care go up.
We know the BOP can do better, because many state correctional systems are making a variety of improvements in their approaches. State prison systems have reduced the population of those in isolation, created “gender-responsive” programming to suit the histories and challenges of women and men in prison, offered new work programs and improved mental health services. For example, Colorado, Maine and Washington have used careful analyses to substantially reduce the number of prisoners in solitary and shifted the treatment of those who remain, putting them back into structured and regular contact with other people.
When searching for the BOP’s ninth director, the president and attorney general can look to a field of experienced innovators with demonstrated commitments to reform — decarceration, improved conditions of confinement, racial justice and gender equity. The president holds the prison door keys for federal prisoners whose sentences he commutes. His administration’s choice for the new head of the BOP is critical to reform for those remaining inside.
"Drone drops drugs, tobacco in Mansfield prison yard, spurs fight"
The title of this post is the headline of this new article from my own Columbus Dispatch. Here are the (serious and amusing) details:
A drone deposited a package containing drugs and tobacco at the Mansfield Correctional Institution last week, sparking a fight among inmates in recreation yards. The State Highway Patrol is investigating the incident in a bid to determine who flew the drone over the prison and for whom the package was intended.
The drone came buzzing over the prison about 2:30 p.m. on Wednesday, although prison officials were unaware of its presence until video from surveillance cameras was reviewed after the brawl among inmates. Prison workers recovered the drone’s deposit, which contained 5 ounces of tobacco, 2.3 ounces of marijuana and 0.2 of an ounce of heroin, according to a report. If half pure, the heroin amounted to about 140 individual doses.
State prisons have encountered drones previously, said Department of Rehabilitation and Correction spokeswoman JoEllen Smith. She could not immediately provide details on the prior flyovers. "Our agency’s top security administrators are taking a broad approach to increase awareness and detection of unmanned aerial systems," Smith said....
During the scuffle, the package was thrown over a fence from the north recreation yard to the south yard, the report said. A sweep of the area found the package hidden in the equipment room of the south recreation yard. Officers also searched roofs and other areas for any other packages, but found nothing.
Corrections officers used pepper spray to douse the fighting and about 200 prisoners from both the north and south recreation yards were carefully searched before being returned to their cells. Nine inmates involved in the scramble for the package were placed in solitary confinement. There were no injuries to prisoners or prison employees. The close-security prison contains about 2,700 inmates.
Prior related post:
AG Lynch and Secretary Duncan make pitch for Pell Grant pilot program for federal prisoners
Attorney General Loretta Lynch and Secretary of Education Arne Duncan have this notable new USA Today op-ed under the full headline "To cut crime, turn jailbirds into bookworms: We need a prison to productivity pipeline." Here are excerpts:
Few interventions have been shown to reduce recidivism and prepare people in prison to lead law-abiding, productive lives like access to quality postsecondary education and training. The benefits of investing in these opportunities, which also include improved employment outcomes, extend to the individual and to society. In a study funded by the Justice Department’s Bureau of Justice Assistance, RAND Corporation estimated that incarcerated individuals who participate in correctional education are 43% less likely to return to prison within three years. And for every dollar invested in correctional education programs, five dollars are saved on re-incarceration costs. A recent report from the President’s Council on Economic Advisors notes the annual cost of incarceration for a single juvenile is over $100,000 — almost twice as high as tuition, room and board and fees at the most expensive college in the country and nearly 100 times as expensive as a year of intensive mentoring.
Nearly every person behind bars will one day leave prison — approximately 700,000 annually. Setting these Americans up for success is smart economics and a critically important investment in our future.
Unfortunately, for many incarcerated individuals, this type of life-changing opportunity is unavailable. In 1994, Congress amended the Higher Education Act to ban incarcerated individuals in federal and state penal institutions from accessing Pell Grants, which could be used to help qualified inmates pay for college classes or training. This ban was passed despite the fact that higher education has been shown to reduce recidivism and despite the fact that incarcerated students made up less than 1% of all Pell Grant recipients.
The Obama administration has taken an important step toward helping people in prison contribute to the economy, transition back into their communities and stay out of the justice system after they reenter society. The Department of Education announced a new Pell Grant Experimental Site program that will allow a limited number of incarcerated individuals to be eligible to receive Pell Grants to pay for education and training programs from colleges and universities. The Department of Justice is providing technical assistance to the correctional facilities under the pilot program. We will test how restoring Pell Grant eligibility could affect educational and other outcomes. This pilot will not prevent any eligible Pell recipient from receiving a grant. What we learn will inform our efforts — and the efforts of states and localities — moving forward in this area....
By preparing these learners to achieve their academic and career goals, we strengthen the families and communities that depend on their success. And that is fundamentally good for America.
Monday, August 03, 2015
Two distinct notable tales of crimes and punishment via the Grey Lady
The New York Times starts the work week off with these two intriguing lengthy pieces about two different stories of crimes and punishment:
Sunday, August 02, 2015
Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
The Washington Examiner has published this notable new commatary authored by US Rep. Jim Sensenbrenner under the headline "Now is the time for criminal justice reform." Here are excerpts:
Over the past three decades, America's federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today. Prison spending has increased alongside it, placing a heavy burden on American taxpayers. According to the Pew Charitable Trusts, between 1980-2013, prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable. Currently, the federal prison system consumes more than 25 percent of the entire Department of Justice budget.
This redirects funding from enforcement and other criminal justice programs and reduces our system's efficiency and effectiveness. The growth in prison population and spending, plus the massive human and social costs of mass incarceration, creates an urgent need for federal criminal justice reform.
The current high incarceration rates are a result of sweeping tough-on-crime initiatives, specifically the introduction of drug mandatory minimums in the 1980s. While minimums have proved successful in some circumstances, too often low-level, non-violent individuals have been caught up in the system. Instead of considering the unique circumstances of each case, taking into account the personal and criminal history of the offender, judges are forced to comply with federally mandated minimums that lock up millions of people without discretionary judgment.
Further, the current system lacks the ability to effectively rehabilitate nonviolent offenders, leaving them without the skills, education and training to successfully reintegrate into society. A shocking 50 percent of the federal prison population has substance abuse issues, mental health issues or both. An estimated 53 percent of offenders entering prison are at or below the poverty line, and our current prison population houses a disproportionate number of African-Americans, who account for nearly 40 percent of inmates.
Our prisons have become warehouses that simply lock away offenders, rather than treating the underlying issues that brought them there. This neglect contributes to high recidivism rates and puts a revolving door on the gates of America's federal prisons.
While Congress has remained largely silent on the issue, states have embraced reform — enacting wide-ranging, evidence-based changes that both improve public safety and rein in prison costs. These state programs have succeeded by prioritizing incarceration for violent and career criminals, strengthening community supervision and adopting alternative sanctions for lower-level offenders....
Last year, Congressman Bobby Scott and I led a congressional task force to investigate over-criminalization, which examined the scope of mass incarceration, as well as evidence-based programs for reform. In June, we introduced the Safe, Accountable, Fair, and Effective (SAFE) Justice Act, a comprehensive bill that addresses the major drivers of the federal prison population at the front and back ends of the system.
SAFE Justice promotes targeted sentencing over a one-size-fits-all approach, curtails the ballooning number of regulatory crimes, and includes policies that more effectively change the criminal behavior of the nearly 132,000 people on federal probation and post-prison supervision. The bill, which has been endorsed by House Speaker John Boehner and boasts 36 bipartisan cosponsors, advances research-based sentencing, release and supervision policies, and will enact meaningful reforms that shadow the success seen on the state level.
Our system cannot continue on its current trajectory. It's not only fiscally unsustainable, but morally irresponsible. Now is the time for criminal justice reform, and the SAFE Justice Act delivers the change necessary to enact fairness in sentencing, reduce the taxpayer burden and ensure the increased safety and prosperity of communities across the country.
Prior related posts:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
Saturday, August 01, 2015
Symposium Introduction: "Vulnerable Defendants and the Criminal Justice System"
The title of this post is drawn from the title of this introductory essay authored by Tamar Birckhead and Katie Rose Guest Pryal now available via SSRN. Here is the abstract:
The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system.
Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.
Another vulnerable group is juveniles — those who are under the age of eighteen and charged with criminal offenses. According to recent data, 1.5 million cases are prosecuted in juvenile court annually. Large numbers of these child defendants have suffered abuse, neglect, or other maltreatment; are from impoverished families; or suffer mental or emotional disabilities. Tens of thousands of these young offenders are ultimately prosecuted in criminal court, with sentences to adult prisons where they are at risk of physical, sexual, and psychological victimization by adult inmates and guards. Adolescents transferred to the adult system can also experience harmful disruptions in their social, emotional, and identity development.
"Vulnerable Defendants and the Criminal Justice System," the symposium that gave rise to this issue of the North Carolina Law Review, explored these and related issues, including the following: How does the criminal justice system handle vulnerable offenders from the moment they are initially processed through to the conclusion of their sentences? Why are these groups overrepresented within our courtrooms and prisons? Can we identify and propose strategies for reform?
Thursday, July 30, 2015
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Tuesday, July 28, 2015
Obama Administration talking up restoring Pell grants for incarcerated
As reported in this Wall Street Journal article, the "Obama administration plans to restore federal funding for prison inmates to take college courses, a potentially controversial move that comes amid a broader push to overhaul the criminal justice system." This strikes me as big (and potentially controversial) news, and here are more of the details:
The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.
Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens....
A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t. Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.
Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.
An Education Department spokeswoman declined to comment. Asked Monday whether the agency would restore Pell grants for prisoners, Mr. Duncan told reporters, “Stay tuned.”
Stephen Steurer, head of the Correctional Education Association, an advocacy group, said two Education Department officials told him at a conference early this month the agency was moving to restore Pell grants for prisoners and allow many colleges and universities to participate. Money from the grants would directly reimburse institutions for the cost of delivering courses in prisons rather than go to prisoners, Mr. Steurer said.
“It will be substantial enough to create some data and to create enough information for some evaluation,” said Rep. Danny Davis (D., Ill.), who is co-sponsoring a bill with Rep. Donna Edwards (D., Md.) to permanently restore Pell grants for prisoners. “I think the political landscape has actually changed since the 1990s,” said Ms. Edwards. “We haven’t really been able to get a handle on recidivism. We have to present some training and opportunities. These are programs that work.”
She said her bill would cost relatively little up front—in the tens of millions of dollars—while having the potential to cut societal costs over the long term by reducing recidivism rates. Maryland spends nearly $40,000 a year per prisoner, she said.
But spending tax dollars on college for prisoners strikes many as an affront to families that have borrowed heavily in recent years to cope with skyrocketing college costs, causing student debt to soar to $1.3 trillion. “If we really want to keep people out of prison, we need to promote education at younger ages,” said Rep. Chris Collins (R., N.Y.).
Last year, New York Gov. Andrew Cuomo tabled a plan to use state dollars on in-prison college courses because of opposition from lawmakers. But in California, Gov. Jerry Brown signed legislation in June that includes $12 million to promote statewide priorities, including college classes in state prison, said state Sen. Loni Hancock, whose 2014 bill paved the way for an agreement between California corrections officials and the chancellor of the state’s community colleges. Ms. Hancock said classes could begin as soon as this fall.
Monday, July 27, 2015
Making the case that sentencing reform should (and must) include "violent" offenders
Two different law professors have recently published, in two different major papers, two important new commentaries calling for the modern sentencing reform movement to look beyond just so-called non-violent offenders. Here I will provide links to and snippets from these pieces while suggesting both should be read in full:
In the Los Angeles Times, Andrea Roth's op-ed is headlined "Let's consider leniency for many 'violent' offenders too":
The White House's push for meaningful criminal justice reform is laudable and arguably unprecedented. But if the president and reformers hope to radically reduce the number of people in American prisons and address glaring disparities in criminal justice, focusing narrowly on nonviolent drug offenses won't get them very far.
The truth is that prosecution for violent crimes, and not prosecution for drug possession and sales, is the primary engine of mass incarceration in this country....
Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.
Painting nonviolent drug offenders as a special group that deserves leniency obscures the fact that even those guilty of indisputably violent acts should not be overcharged or sentenced to disproportionately long prison terms. Piling on charges and strong-arming guilty pleas under the threat of mandatory-minimum sentences are fixtures not merely of drug prosecutions, but of all prosecutions in the modern tough-on-crime era.
In the Washington Post, John Pfaff's opinion piece is headlined "For true penal reform, focus on the violent offenders":
It’s true that nearly half of all federal inmates have been sentenced for drug offenses, but the federal system holds only about 14 percent of all inmates. In the state prisons, which hold the remaining 86 percent, over half of prisoners are serving time for violent crimes, and since 1990, 60 percent of the growth in state prison populations has come from locking up violent offenders. Less than a fifth of state prisoners — 17 percent — are serving time for nonviolent drug offenses. And contrary to Obama’s claim, drug inmates tend to serve relatively short sentences. It is the inmates who are convicted of violent crimes who serve the longer terms.
Now, to be clear, not all violent offenses are especially harmful. But a significant fraction of those in prison for violent crimes are there for serious violence: murder, aggravated assault, armed robbery. Moreover, many officially nonviolent inmates have histories of violence.
In other words, for all the talk about nonviolent offenders, a majority of our prisoners have been convicted of a violent act, and even more have some history of violence. And because no one thinks we should set every drug or other nonviolent offender free, at some point we are going to have to reduce the punishments that violent offenders face if we really want to cut our breath-taking prison population down to size.
But this idea is a political third rail, and no leading politician has been willing to risk touching it. Almost all the reform proposals we have seen focus exclusively on scaling back punishments for drug and other nonviolent crimes.
That’s what made Obama’s commutations and policy speeches so disappointing. Incarceration is driven by so many local factors that neither federal sentencing reform nor presidential commutations can have much of an impact. What the president may be able to do, however, is use his national pulpit to shape the debate. Obama missed a major opportunity to influence the current conversation on how to reduce incarceration.
Sunday, July 26, 2015
Could brain implants "make the death penalty obsolete"?
The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete." For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way). Here are excerpts:
The death penalty is one of America’s most contentious issues. Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them). Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....
Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.
For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors. Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts. This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?
Recently, the commercially available Thync device made headlines for being able to alter our moods. Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy. So the technology to change behavior and alter the brain isn’t science fiction. The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.
Some people may complain that implants are too invasive and extreme. But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs. In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them. After all, some people — including myself — believe much violent crime is a version of mental disease.
With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy. Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society....
Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment. We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.
Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably. In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time. Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.
Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught. Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything. Simply put, physical crimes will be much harder to commit. And if people knew they were going to be caught, crime would drop noticeably. In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).
Inevitably, the future of crime will change because of technology. Therefore, we should also consider changing our views on the death penalty. The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.
Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail. The US prison system costs four times the entire public education system in America. To me, this financial fact is one of the greatest ongoing tragedies of American economics and society. We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.
Friday, July 24, 2015
"Convicted Republicans Plead for Mandatory Minimums Changes"
The title of this post is the hedline of this notable new Roll Call piece. Here are excerpts:
Kevin Ring, the lobbyist who was sentenced in 2011 to 20 months in federal prison for his role in a corruption scheme, was pitching to GOP aides gathered in the Rayburn House Office Building on an effort to overhaul mandatory minimum requirements. Ring, who has been working in downtown Washington, D.C., since his April prison release, wanted the staffers to understand that current guidelines more often send low-level dealers and addicts to prison, not drug kingpins....
Two other convicted Republicans who served time in federal custody joined Ring for the lunchtime forum aimed at building support for a proposal sponsored by Republican Jim Sensenbrenner of Wisconsin and Democrat Robert C. Scott of Virginia. Red states are leading the way, and now it is “time that the federal government catches up,” Sensenbrenner, a former House Judiciary Committee chairman, said during his brief talk to staffers as they munched on Chick-fil-A lunches.
Despite positive feedback from Speaker John A. Boehner, Sensenbrenner acknowledged it would be tough to prod his bill forward. House Judiciary Chairman Robert W. Goodlatte, R-Va., is not on board. Sensenbrenner also suggested he may have “worn out my welcome” in the Senate, during the recent debacle over reauthorizing the Patriot Act, though a separate effort is gaining momentum in that chamber on a bipartisan basis.
Some federal prosecutors have expressed opposition to executive branch efforts to eliminate mandatory minimum sentences for nonviolent drug offenders, arguing they are an essential tool to dismantling drug rings.
Former New York City Police Commissioner Bernard Kerik, disgraced in 2004 when he was forced to withdraw from his nomination to head the Department of Homeland Security under President George W. Bush, said it was “incumbent” that the next White House administration tackle mandatory minimums. Kerik pulled out of consideration after admitting he had not paid taxes for a domestic worker who may have been an illegal immigrant, and later pleaded guilty to eight felony charges, including tax fraud and lying under oath. He was sentenced to 48 months in federal prison.
Knitting, chess and checkers were offered as adult continuing education classes to inmates at the federal prison camp in Cumberland, Md., where Ring and Kerik served their sentences. “You can teach an inmate real estate or accounting, but that federal conviction will keep them from getting a license,” Kerik said.
“Idle hands are the devil’s playground,” echoed Pat Nolan, who served 15 years in the California State Assembly before he was nabbed accepting an illicit campaign contribution as part of an FBI sting. He pleaded guilty to one count of racketeering and served 29 months in federal custody.
Twenty-four hours earlier, in the same room, House Judiciary Democrats unveiled legislation that would end mandatory life imprisonment for incarcerated youth, as part of a package of bills focused on sentencing and incarceration. Ranking member John Conyers Jr., D-Mich., and Rep. Sheila Jackson Lee, D-Texas, also introduced a measure aimed at increasing police accountability in the wake of high-profile deadly encounters between officers and black citizens.
“It is clear that improved national standards are necessary to address the ever-growing catalogue of incidents such as the case of Sandra Bland in Waller County, Texas, where a routine traffic stop led to an arrest and a death in custody 72 hours later,” Conyers stated Wednesday. “It is critical that we adopt smarter approaches to dealing with those involved with the criminal justice system.”
Among Republicans, the blame was on the Justice Department. Nolan fired off at U.S. attorneys, saying their jobs are “entirely political” and driven by numbers. They have the tools to protect the public and keep the streets clean, he said, “but there’s no restraint.”
Thursday, July 23, 2015
Is it a big concern when a Prez candidate gets "big money" from private prison companies?
The question in the title of this post is prompted by this local story from Florida headlined, "Marco Rubio is Getting Big Money from For-profit Prison Companies." Here are excerpts:
According to Open Secrets, the second-largest for-profit prison operator in the country, GEO Group, is one of the top contributors to Marco Rubio's presidential campaign. Between 2013 and 2014, GEO Group gave Rubio $41,500, more than any other presidential candidate. The group is the ninth highest contributor to Rubio's campaign.
Is that a problem? Prison reform advocates think so, pointing to Rubio's actions as an elected official that have helped for-profit prisons — including a $110 million state contract that went to GEO back when he was Speaker of the Florida House.
"On a system that makes them wealthier the more people there are in jail, the only reason they would lobby these sort of things is because they expect their money to have a financial return," says Paul Kruger, executive director of Florida's chapter of Citizens United for Rehabilitation of Errants, a prison reform advocacy group....
The presidential contender's ties to the for-profit industry are not new. And prison reform activists have always been wary of the lucrative connection between for-profit prisons and politics. But Rubio's ties are gaining steam online thanks to a petition demanding that Rubio cut ties with GEO Group for good now that he's running for president.
"Your ties to the prison industry go back to your years in the Florida state legislature and they’re disturbingly close," the petition states. "A presidential candidate should not be associated with imprisoning people for profit. You must break ties with the for-profit prison industry."
The for-profit prison industry is big business, raking in almost $3 billion a year nationally. Boca Raton-based GEO Group operates prisons throughout the southeast and since 2009 have added 7,600 new prison beds and grown by 10 percent.
Advocates point out that that Rubio's ties go beyond just taking donations. Back in 2006, Rubio hired Donna Arduin as an economic consultant. She's a former trustee for GEO Group. In 2011, after being elected a Florida state senator, Rubio hired Cesar Conda as his chief of staff. Conda is the co-founder of Geo Group's main lobbying firm, Navigators Global. While working under Rubio, Conda was still earning $150,000 from Navigators Global from a stock buyout agreement. In 2014, Conda went to lead Rubio's PAC, Reclaim America. It was during Conda's management that GEO Group became one of Rubio's top-10 contributors. Now, Conda is working back at Navigators Global....
Kruger contends that the companies are fueling a prison-industrial complex as they funnel big bucks into politics. He believes that Rubio — or any elected official in politics — shouldn't accept money from for-profit prison groups. "They don't do it because the guy is handsome," Kruger says. "They want to decide who goes to jail and for how long."
"Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment"
The title of this post is the title of this notable new paper by John Pfaff now available via SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
My final conclusion, while quite tentative, is also somewhat surprising. Contrary to my expectations I held when I started work on this paper, it does not seem as if federal spending is bolstering state spending on incarceration to a significant degree. So cutting back on federal funding for criminal justice activities may not have much impact on state decisions about incarceration. Which, perhaps somewhat ironically, may suggest we want the federal government to spend more, not less, but to allocate the money in ways that encourage states to adopt reforms that push back against excessive incarceration.
Wednesday, July 22, 2015
Intriguing comments on prisons from GOP candidate Ben Carson
Because I cannot quite figure out which of the current 16 GOP Presidential candidates to take seriously, I am inclined to spotlight in this space any interesting comment made by any of the candidates concerning sentencing law or policy. Today, in this lengthy Washington Post article, I see Dr, Ben Carson recently had some interesting comments about modern prison practicalities and policies:
In addressing the young Republicans, Carson also said that he, like President Obama, had visited federal prisons. "I was flabbergasted by the accommodations -- the exercise equipment, the libraries and the computers," he said. He said he was told that "a lot of times when it's about time for one of the guys to be discharged, especially when its winter, they’ll do something so they can stay in there."
At the same time, Carson said that too many Americans are going to prison. "We're not doing things the right way," he said. "A lot of people that we incarcerate don’t need to be incarcerated."
After the event, he elaborated. "I think that we need to sometimes ask ourselves, 'Are we creating an environment that is conducive to comfort where a person would want to stay, versus an environment where we maybe provide them an opportunity for rehabilitation but is not a place that they would find particularly comfortable?'" he told reporters.
Tough-on-crime crowd making the case for modern mass incarceration
The folks who blog at Crime & Consequences are among the most effective and eloquent advocates for the modern size, scope and operation of the American criminal justice system, and they have been especially active of late lamenting the ever-growing number of politicians calling the current system broken and urging reduced reliance on incarceration. Here are links to just some of the major posts in this vein from C&C in the last few weeks (some of which link to others criticizing sentencing reform efforts):
Tuesday, July 21, 2015
"Why all Americans should support Obama on prison reform"
The title of this post is the headline of this notable opinion piece by Michael Brendan Dougherty at The Week. Here are excerpts:
Obama's first words on prison reform last week were absolutely right: "We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison — and we shouldn't be making jokes about it in our popular culture. That's no joke. These things are unacceptable."
Much of the commentariat blames our prison system's woes on the politics of "law and order" from the 1970s through the early part of the new millennium. But what Obama is asking for is "law and order" for our prisoners and prisons. He deserves bipartisan support in this.
On a philosophical level, people who think about prison conditions and sentencing issues tend to divide themselves between retributivists and rehabilitators. Backers of retributive justice believe sentences should be punishing. Rehabilitators believe the criminal justice system should aim to restore criminals to society. I agree with both of them, and think they should agree with each other. I doubt that a convict can be properly rehabilitated unless he is also punished. To punish someone for a crime is to take his moral agency seriously. Taking that agency seriously is a sign of respect not just for the victims of crime, but the perpetrators.
America's prisons cannot possibly qualify as either punitive or rehabilitative. Instead, they are vindictive, chaotic, and degrading. A prison sentence should be the punishment in and of itself. But today, prisoners are expected to cope with unimagined and uncountable horrors. They are incentivized to join gangs. They are encouraged to commit more violence in order to avoid violence. Rape is pervasive and the threat of rape encourages prisoners to submit themselves to other violent men. There is no instance in which being plunged into barely controlled danger, or being raped, can be a just punishment....
[O]ur prison system makes a mockery of the justice system. It says that our laws are a joke since we certainly don't intend to prevent them from being broken even in institutions so closely monitored by the state itself. It tells prisoners that they are human garbage, unworthy of even the most basic respect or safety. The pervasiveness of our jokes about prison rape suggest that we believe that there are some deserving victims of violent sexual assault. There are none....
President Obama has done well to help humanize prisoners. He has emphasized that some receive unduly long or harsh punishments just for being "teenagers doing stupid things" in the absence of real help from functioning families and social institutions. His statement of empathy, that he could have ended up in prison himself, will be used cynically by his haters. It may well reek of sentimentalism even to some of his supporters. But it is a more vivid way of repeating John Bradford's statement upon seeing a group of men led to execution: "There but for the grace of God, go I."
There are all sorts of social, scientific, and even fiscal reasons to justify prison reform and sentencing reform. But the key to gaining momentum in this effort is to remind the public that America's imprisoned are human beings. They may deserve punishment for their crimes, but they do not deserve to become victims of yet more crime.
Saturday, July 18, 2015
"Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
The title of this post is the headline of this notable new piece in U.S. News & World Report. Here are excerpts:
Nervous federal prosecutors attempted to rally opposition Friday to criminal sentencing reform in response to President Barack Obama’s week of issuing commutations and making pro-reform speeches....
“The federal criminal justice system is not broken,” Steve Cook, the association's president, said at a lightly attended event in the nation's capital. “What a huge mistake it would be,” he said, to change sentencing laws.
Cook predicted the crime rate would rise and prosecutors would lose a tool to extract information if laws were made more lenient. He also denounced reform proponents for saying nonviolent offenders are being ensnared by tough Clinton-era drug laws. “They have misled the public every time they say, 'We’re talking about nonviolent drug offenders,'” he said. “Drug trafficking is inherently violent. … If you’re not willing to engage in violence [then] you will be out of the business quickly, or worse.”
Cook said the small number of inmates whose sentences have been shortened by Obama – the president has issued 76 drug crime commutations total, 46 of them this week – shows there’s not much of a problem with people serving unreasonably long sentences.
Rather than focus on reducing sentences, he said, the government should consider building more prison facilities. “Do I think it would be a good investment to build more [prisons]? Yeah, no question about it!” he said....
Molly Gill, government affairs counsel at the advocacy group Families Against Mandatory Minimums, says Cook’s assertion the crime rate would rise after sentencing reform is a “demonstrably false claim and a shameful scare tactic.” In Michigan, New York and other states, she says, crime rates did not spike after mandatory minimums were repealed....
Cook, who was joined by two other federal prosecutors, made much of his speech Friday about societal ills associated with drug addiction, from babies going through withdrawal to people stealing from their families and dying from overdoses and car accidents. “There’s a pyramid of individuals who are affected by [drug dealers],” he said. “Many view [drug trafficking] as more serious than murder.”
He declined to say if state-legal recreational marijuana businesses and regulators in Colorado and Washington state should face marijuana-related mandatory minimums for breaking federal law.
Cook’s colleagues did not speak at the news conference. He described the event as the first of its kind by the group, which claims to represent 1,500 assistant U.S. attorneys, about 30 percent of the total.
Former President Bill Clinton, one of the leaders responsible for establishing inflexible penalties, this week said doing so led to the imprisonment of a lot of "minor actors for way too long." The association views his reversal as “misinformed,” Cook said: “We think he was right before.”
Thursday, July 16, 2015
Prez Obama makes history, and reflects, as he visits federal prison in Oklahoma
This New York Times article, headlined "Obama, in Oklahoma, Takes Reform Message to the Prison Cell Block," provides a report on the President's historic visit to a federal corrections institute, FCI Reno:
They opened the door to Cell 123 and President Obama stared inside. In the space of 9 feet by 10, he saw three bunks, a toilet with no seat, a small sink, metal cabinets, a little wooden night table with a dictionary and other books, and the life he might have had.
As it turns out, there is a fine line between president and prisoner. As Mr. Obama became the first occupant of his high office to visit a federal correctional facility, he said he could not help reflecting on what might have been. After all, as a young man, he had smoked marijuana and tried cocaine. But he did not end up with a prison term, let alone one lasting decades. “There but for the grace of God,” Mr. Obama said after his tour. “And that is something we all have to think about.” ...
Mr. Obama came here to showcase a bid to overhaul America’s criminal justice system in a way none of his predecessors have tried to do, at least not in modern times. Where other presidents worked to make life harder for criminals, Mr. Obama wants to make their conditions better.
With 18 months left in office, he has embarked on a new effort to reduce sentences for nonviolent offenders; to make it easier for former convicts to re-enter society; and to revamp prison life by easing overcrowding, cracking down on inmate rape and limiting solitary confinement.
What was once politically unthinkable has become a bipartisan venture. Mr. Obama is making common cause with Republicans and Democrats who have come to the conclusion that the United States has given excessive sentences to too many nonviolent offenders, at an enormous moral and financial cost to the country. This week, Mr. Obama commuted the sentences of 46 such prisoners and gave a speech calling for legislation to overhaul the criminal justice system by the end of the year.
He came to the El Reno Federal Correctional Institution on Thursday to get a firsthand look at what he is focused on. Accompanied by aides, correctional officials and a phalanx of Secret Service agents, he crossed through multiple layers of metal gates and fences topped by concertina wire to tour the prison and talk with some of the nonviolent drug offenders he says should not be serving such long sentences.
The prison was locked down for his visit. He was brought to Cell Block B, which had been emptied for the occasion. Only security personnel were outside on the carefully trimmed grass yards. The only inmates Mr. Obama saw were six nonviolent drug offenders who were selected to have a conversation with him recorded by the news organization Vice for a documentary on the criminal justice system that will air on HBO in the fall.
But those six made an impression. “When they describe their youth and their childhood, these are young people who made mistakes that aren’t that different from the mistakes I made and the mistakes that a lot of you guys made,” Mr. Obama told reporters afterward. “The difference is, they did not have the kind of support structures, the second chances, the resources that would allow them to survive those mistakes.”
He added that “we have a tendency sometimes to take for granted or think it’s normal” that so many young people have been locked up for drug crimes. “It’s not normal,” he said. “It’s not what happens in other countries. What is normal is teenagers doing stupid things. What is normal is young people who make mistakes.” If they had the same advantages he and others have had, Mr. Obama added, they “could be thriving in the way we are.”
Still, he made a distinction between nonviolent drug offenders like those he was introduced to here and other criminals guilty of crimes like murder, rape and assault. “There are people who need to be in prison,” Mr. Obama said. “I don’t have tolerance for violent criminals; many of them may have made mistakes, but we need to keep our communities safe.”
More than 2.2 million Americans are behind bars, and one study found that the size of the state and federal prison population is seven times what it was 40 years ago. Although the United States makes up less than 5 percent of the world’s population, it has more than 20 percent of its prison population. This has disproportionately affected young Hispanic and African-American men. And many more have been released but have convictions on their records that make it hard to find jobs or to vote.
In visiting El Reno, Mr. Obama got a look at a medium-security prison with a minimum-security satellite camp, housing a total of 1,300 inmates. He said the facility was an “outstanding institution” with job training, drug counseling and other programs, but had suffered from overcrowding. As many as three inmates have been kept in each of the tiny cells he saw.
“Three full-grown men in a 9-by-10 cell,” Mr. Obama said with a tone of astonishment. Lately, the situation has improved enough to get it down to two per cell. But, he said, “overcrowding like that is something that has to be addressed.”
Advocates said no president had ever highlighted the conditions of prisoners in such a fulsome way. “They’re out of sight and out of mind,” Cornell William Brooks, the president of the N.A.A.C.P., said in an interview. “To have a president say by his actions, by his speech, by his example, ‘You’re in sight and in mind of the American public and of this democracy,’ it’s critically important.”
But the president is not the only one these days. Republicans like Senators John Cornyn of Texas, Rand Paul of Kentucky, Charles E. Grassley of Iowa and Mike Lee of Utah have been working with their Democratic counterparts to develop legislation addressing such concerns.
Though I am not really expecting it, I would love for this kind of presidential visit to a prison to become a regular habit and something of a tradition. As President Obama stressed in his recent speech to the NAACP, most of the persons behind bars "are also Americans" and all presidents should be committed to serving all Americans, even those who are incarcerated.
"From a First Arrest to a Life Sentence"
The title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:
Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense. She was a first-time, nonviolent offender.
“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby. I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....
Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.
Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer. Jones was hit with a barrage of “enhancements.”
Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.” Enhancement.
When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.” Enhancement.
Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring. Enhancement.
By the end, Jones’s sentencing had so many that the federal judge had only one punishment option. With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.
Jones almost certainly would not receive such a sentence today. Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine. And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment. In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.
But a lingering legacy of the crack epidemic are inmates such as Jones. About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union. Most are poor, and four in five are African American or Hispanic.
In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison. They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime. They must have demonstrated good conduct in prison. And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.
Jones applied. It has been a halting process, however. Only 89 prisoners of the more than 35,000 who have filed applications have been freed. They include 46 inmates who were granted clemency on Monday by Obama. Jones wasn’t among them....
On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting. But they found her guilty of one count of conspiracy to distribute crack cocaine.
Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine. He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years. All have since been released.
The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack. Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine. He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother. (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)
The judge’s calculation made Jones accountable for 23.92 kilograms of crack. That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements. The final number — 46 — dictated the sentence, leaving the judge no discretion.
“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999. “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”
The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties. And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.
One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.
The jurors who found Jones guilty were never told about the life sentence, which came months after the trial. Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company. “That is too severe. There’s people killing people and getting less time than that. She wasn’t an angel. But enough is enough already.”
Wednesday, July 15, 2015
"Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"
The title of this post is the title of this notable new article by multiple authored recently posted on SSRN. Here is the abstract:
The United States is in the midst of a public health crisis: Every year, well over 24,000 Americans die from opioid overdose. This staggering death toll is equivalent to a weekly jumbo jet crash. After a decade of rapid growth, overdose caused by prescription opioids and heroin now tops the accidental death rankings, beating out automobile accidents, AIDS, and other high-profile killers. Overdose does not discriminate, cutting across all geographic, economic, and racial divides. But some groups are especially vulnerable. This article is dedicated to one such group: individuals re-entering the community from correctional settings. In the immediate two weeks after release, people in this group are almost 130 times more likely to die of an overdose than the general population.
It is easy to cast post-incarceration substance use — and consequent overdose — as the re-entering individual’s character weakness or a propensity towards reckless behavior. Nevertheless, modern addiction science reframes such relapse as a foreseeable consequence of the chronic nature of substance use disorders. This scientific evidence also provides clear guidance on how most of the resulting fatalities can be prevented. This article considers the creation of fatal overdose risk among formerly incarcerated individuals as an unacceptable collateral harm emanating from criminal justice involvement.
In order to address this largely overlooked public health problem, we explore a range of legal channels that can help persuade the state (broadly construed) to address a risk to which it substantially contributes. We consider a number of doctrinal approaches, guided by the belief that spending time behind bars must not translate to a death sentence for so many Americans. Whether as a part of possible legal actions or an action agenda on its own right, we present a number of programmatic interventions and policy reforms that may alleviate this crisis. Our analysis also highlights the potential role of the Affordable Care Act (ACA) in facilitating overdose prevention before, during and post-incarceration. This agenda is especially timely given the current move by federal and state governments towards releasing large numbers of individuals incarcerated on drug-related charges to ease prison over-crowding or as a result of legal reforms, pardons, or exonerations.
In Section I, we provide an overview of the opioid overdose epidemic and the special vulnerability among criminal justice-involved individuals. In Section II, we examine the scientific evidence on prevention measures that should be, but are currently rarely deployed to address this vulnerability. In Section III, we explore various legal theories that could be invoked in efforts to motivate government actors to take a greater responsibility for preventing post-incarceration overdose deaths. In Section IV, we cover additional mechanisms to motivate institutional change. We conclude by outlining a policy and programmatic agenda for reducing the vulnerability of criminal justice-involved individuals to opioid overdose.
Tuesday, July 14, 2015
Start of big two-day House hearings on criminal justice reform
Though President Obama will capture most of the headlines with his emphasis on criminal justice reform in speeches and activities this week, Congress is where the reform action need to take place for there to be real, long-term hope and change. Consequently, I will be keeping an eye on the the two days of hearings on criminal justice reform taking place before the House Committee on Oversight and Government Reform. This morning's Part I of the hearings can be followed via this webpage, and here is how the hearings are set up there:
- To share lessons on criminal justice reform from states that have successfully implemented new policies.
- To hear from a diverse panel of experts regarding emerging areas of reform at both the state and federal levels, including existing and forthcoming bills before the House and Senate.
- To broaden the conversation on criminal justice reform.
- Prison populations have grown precipitously over the past thirty years:
- From 1940 to 1980: the population remained stable at about 24,000 federal prisoners.
- 1980-1989: it more than doubled to about 58,000 prisoners.
- 1990-1999: it more than doubled again to about 134,000 prisoners.
- 2000-2010: it increased by another 45 percent to about 210,000 prisoners.
- 2013: we now have more than 219,000 federal prisoners (nearly 40 percent above rated capacity).
Spending on federal prisons has skyrocketed:
- From 1998 to 2012, the Federal Bureau of Prisons (BOP) budget increased from $3.1 to $6.6 billion–from 15 to 24 percent of the Department of Justice (DOJ) budget.
- The 2013 budget request for the BOP totaled $6.9 billion, an increase of $278 million over the FY 2012 budget.
- The BOP is now consuming 25 percent of the DOJ budget.
Criminal justice reform efforts typically fall into one of three categories, each of which will be discussed in the hearings:
- “Front end” measures address how people end up in prison in the first place and the length of sentences they will receive. Reform of mandatory minimums, for example, attempts to reduce prison populations and recidivism by allowing judges to impose shorter sentences on nonviolent offenders.
- “Behind the wall” reforms attempt to change the operations of the prisons themselves.
- “Back end” changes focus on the circumstances of release from prison, including serving portions of sentences in an alternative custody arrangement and rehabilitation programs.
Sunday, July 12, 2015
The Marshall Project covers parole realities (and life without it)
The Marshall Project has a series of notable new piece about modern parole realities, and this lead one carries the headline "Life Without Parole: Inside the secretive world of parole boards, where your freedom may depend on politics and whim." Here is an excerpt:
America's prisons hold tens of thousands of people ... primarily confined not by the verdicts of a judge or a jury but by the inaction of a parole board. Michigan is one of 26 states where parole boards are vested with almost unlimited power to decide who gets out of prison when, and why.
With more than 1.5 million people behind bars, the United States has the highest incarceration rate in the world, and the financial costs are staggering. As politicians from both parties seek alternatives to mass imprisonment, the parole process has emerged as a major obstacle.
A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.
A recent revision of the Model Penal Code, an influential document written by legal scholars, declared parole boards "failed institutions."
"No one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals," a draft of the document says....
Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game. In New Mexico, the law directs the board to take into account "the inmate's culture, language, values, mores, judgments, communicative ability and other unique qualities."
The boards' sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members. At least 18 states have one or more former elected officials on the board. In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.
While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all. And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else.
"Not only are they closed, they're paranoid closed," said Janet Barton, the former operations manager of Missouri's parole board. "Closed to the extreme." Few others in the criminal justice system wield so much power with so few professional requirements and so little accountability.
Here are the other pieces in the series so far:
Saturday, July 11, 2015
"Can capitalism keep people out of prisons?"
The title of this post is the headline of this intriguing Quartz piece discussing social impact bonds which caught my eye. Here are excerpts:
The tendency for former criminals to end up back in prison generates over $50 billion every year in corrections costs nationally. After Medicaid, it is the second fastest growing budget item in the US. Three years ago, Goldman Sachs, New York City, and then-mayor Michael Bloomberg’s foundation aimed to do something about this, and inked a $9.6 million deal to reduce the recidivism rate of youth offenders at Rikers Island Prison using cognitive behavioral therapy.
The transaction, known as a Social Impact Bond (SIB), was structured with no upfront cost to the city and let investors (Goldman) and philanthropists (Bloomberg) assume the upfront risk for the social programs provided to current and former inmates, while the government only had to pay back the investors for the programs that actually worked.
The Rikers Island Prison SIB is one example of fast-emerging interest and activity around these kinds of strategies, which are also known as pay-for-success financings. SIBs create packages for achieving social progress where government only pays when it saves money; the investor can receive higher returns for higher impact, and the provider of the service can grow.
Given the ability for SIBs to save money and deliver better social outcomes, they appeal to both fiscal conservatives and social progressives, and over $40 million has been mobilized to date in the US. In the three years since the Rikers Island SIB was initiated, four other SIBs addressing early childhood education, homelessness, and prison recidivism in the US have been implemented.
But on July 2, the independent evaluator of the Rikers Island SIB announced that the program had failed to reduce recidivism among the participants by more than the 10% minimum that would have required the city to make payment to the investors. Put another way, any change in the recidivism rate of the program participants compared to a control group was determined to be statistically insignificant.
Although the approach had been used with success on older youths, the specific program at Rikers had not been tested and was being implemented in the challenging setting of a prison. New York City will terminate the program at the end of August, and Goldman will receive $6 million of the $7.2 million it had so far lent to fund the program, due to a $6 million loan guarantee by Bloomberg.
The results of the Rikers Island SIB and the launch of the other transactions raise a host of questions about whether or not these structures can actually transform public finance and bring more capital to social services....
The case for SIBs is strong. For one thing, prevention is harder to fund than downstream problems. Government is great at running an ambulance service at the bottom of a cliff for those who fall, but it does not often take the steps needed to prevent people from falling in the first place. One reason is that prevention has no clear constituency to lobby for budget — consider the prospect of prison operators and unions lobbying legislators versus organizing people who have not been victims of crime advocating for more effective prison release programs.
What’s more, our current system for funding social programs is not tied to outcomes. Because legislators fund (or cut) social programs based on legal mandates, pressure from taxpayers, or simple political expedience, activities are funded — not outcomes. Service providers are paid for inputs rather than for producing meaningful outcomes — e.g. turning around the lives of juveniles, or preparing children for success in school. It is easier to monitor how many juveniles are institutionalized and pay a per diem than to consider what is needed to keep a troubled youth with his family and community — even though institutionalization is a bad outcome for the youth and taxpayers....
The bulk of SIBs have been in criminal justice, juvenile detention, or sheltering the homeless. These sectors use high cost strategies of institutionalizing people who would be more effectively served in de-institutionalized settings. Most people (and even elected officials) can see the benefit of spending less on prisons, shelters, and dysfunctional juvenile detention centers. But what about areas where more spending is needed, such as early childhood education or job training or mental health?
In most cases, government entities are responsible for paying if the desired outcomes are generated. Even if investors accept the counter-party risk of the government, the ability of governments to make these commitments is subject to budget constraints and requires a complete re-engineering of procurement processes.
However, there are promising SIB opportunities that do not rely on public payors, such as workforce development and job readiness programs in which private sector employers agree to pay for the program if it delivers qualified employees. In the health sector, hospital systems and insurance companies that are now responsible for managing the overall health outcomes of communities can also structure innovative contingent payment transactions....
With enabling legislation being passed around the country, and federal grants arriving to cover development costs, more and more SIBs are coming down the pike despite the Rikers Island results. SIBs have created great value simply by bringing together many unlikely parties to tackle some thorny social issues, but the jury is still out on their long-term growth and impact.
Friday, July 10, 2015
“The Sexual Abuse to Prison Pipeline: The Girls’ Story”
The title of this post is the title of this notable new report coming from a collaboration by the Human Rights Project for Girls, the Georgetown Law Center on Poverty and Inequality, and the Ms. Foundation for Women. Here is the report's introduction:
Violence against girls is a painfully American tale. It is a crisis of national proportions that cuts across every divide of race, class, and ethnicity. The facts are staggering: one in four American girls will experience some form of sexual violence by the age of 18. Fifteen percent of sexual assault and rape victims are under the age of 12; nearly half of all female rape survivors were victimized before the age of 18. And girls between the ages of 16 and 19 are four times more likely than the general population to be victims of rape, attempted rape, or sexual assault.
And in a perverse twist of justice, many girls who experience sexual abuse are routed into the juvenile justice system because of their victimization. Indeed, sexual abuse is one of the primary predictors of girls’ entry into the juvenile justice system.4 A particularly glaring example is when girls who are victims of sex trafficking are arrested on prostitution charges — punished as perpetrators rather than served and supported as victims and survivors.
Once inside, girls encounter a system that is often ill-equipped to identify and treat the violence and trauma that lie at the root of victimized girls’ arrests. More harmful still is the significant risk that the punitive environment will re-trigger girls’ trauma and even subject them to new incidents of sexual victimization, which can exponentially compound the profound harms inflicted by the original abuse.
This is the girls’ sexual abuse to prison pipeline.
This report exposes the ways in which we criminalize girls — especially girls of color — who have been sexually and physically abused, and it offers policy recommendations to dismantle the abuse to prison pipeline. It illustrates the pipeline with examples, including the detention of girls who are victims of sex trafficking, girls who run away or become truant because of abuse they experience, and girls who cross into juvenile justice from the child welfare system. By illuminating both the problem and potential solutions, we hope to make the first step toward ending the cycle of victimization-to-imprisonment for marginalized girls.
Monday, July 06, 2015
Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?
The question in the title of this post is my post-holiday follow-up thought in light of my prior posts here and here and here concerning the uncertain (but surely significant) fall-out from the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Summarizing prior postings, I feel confident that, thanks to Johnson, there are now (1) many hundreds — perhaps many thousands — of current federal prisoners serving lengthy ACCA statutorily-mandated prison terms that are constitutionally suspect, and (2) many thousands — perhaps many tens of thousands — of current federal prisoners serving lengthy career-offender guideline-recommended prison terms that are now subject to a new kind of legal challenge. This post seeks to know if any of these hundreds or thousands of federal prisoners have filed new Johnson-based challenges to their sentences yet.
Among the many reasons I am eager to follow this litigation closely and ASAP is because I see so much doctrinal and practical uncertainty, both substantively and procedurally, as to how this litigation may and should play out. Indeed, uncertainty about the impact of Johnson is the only thing I am certain about, especially in light of some recent (conflicting?) analysis of post-Johnson litigation issues I have seen. Consider, for example, the divergent analysis of post-Johsnon issues in this piece by Gray Proctor titled "Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?" and in this blog post by Steven Sady titled simply "Johnson: Remembrance Of Illegal Sentences Past."
Long story short, there is sure to be a long litigation story behind every prisoner's effort to use Johsnon to shorten his lengthy prison term. Especially for the sake of those prisoners whose current sentences are now the hardest to justify, both legally and practically, I hope these long litigation stories are getting started ASAP.
Some prior posts on Johnson and its possible impact:
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA
- Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
Saturday, July 04, 2015
Celebrating "the blessing of liberty" as the big winner in the SCOTUS Term just completed
Lots of folks are already spending lots of time seeking to summarize the Supreme Court Term just ended. This Washington Post review, headlined "The court’s liberals prevailed in most important cases, but it may not last," provides one example of the left-right SCOTUS political accounting that is common around this time of year. Meanwhile, this NPR segment, headlined "'Fractures' In The Supreme Court Revealed In This Year's Decisions," discusses different divides among the Justices and gives extra attention to the Chief Justice as he wraps up a decade as our nation's top jurist.
For an especially dynamic take on the Term that was, I recommend this Slate SCOTUS Breakfast Table entry by Marty Lederman. The piece explores the "biggest surprises" of the Term and begins with the observation that the "vast majority of the outcomes were predictable in light of the questions presented [as] at least 95 percent of the justices’ votes conformed to expectations." The piece goes on to explore the ocassional unexpected SCOTUS development and ends with a great account of "the single most surprising and heartening development of the term":
[I]n Davis v. Ayala (a case involving whether it was a harmless error for a trial judge to convene an ex parte “Batson” hearing to assess whether the prosecution’s peremptory challenges to a jury pool were race-based), Kennedy wrote separately to raise an issue that had nothing to do with the question before the court....
This [concurrence] is Kennedy’s pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement — after many decades during which the court showed little or no inclination to do anything of the sort. (Way back in 1890, the court took note of the fact that under the experience of solitary confinement in the 18th century, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” Yet here we are in 2015, and not much has changed — in large measure because the court has been reluctant to second-guess prison administrators with respect to the practice.)
Kennedy’s Davis concurrence (as well as congressional testimony to similar effect that he gave three months earlier) is an invitation to defense lawyers to bring such constitutional challenges to the court, where they are likely to receive a much more receptive audience than they have in the past. There are several such cases currently being litigated in the lower courts, including in California and in Arizona. Perhaps one of them will turn out to be as important, as momentous, next term as King and Obergefell were this term....
This is, I think, by far the most encouraging surprise of the term — the prospect that we might finally bring to an end, or at least materially limit, this barbaric and shameful practice, and thereby come just a bit closer — as the court did this term — to securing the blessings of liberty to ourselves and our posterity.
I share Marty Lederman's perspective that Justice Kennedy's opinion in Davis could and should be the start of something big for further constitutional protection for those subject to the most extreme deprivations of liberty. More broadly, as I reflect on those cases I am most likely to remember from the Term just concluded — from Obergefell to Johnson to Elonis to Yates (and perhaps even to Glossip) — I cannot help but see liberty as the biggest and most consistent winner. So, as I finish up this post on the morning of the Fourth of July, I suggest that all devotees of our "nation conceived in liberty" (including Lady Liberty herself) should have an extra wide smile as we watch the rockets red glare tonight.
Tuesday, June 30, 2015
Might Pope Francis shame Prez Obama into doing more about mass incarceration?
The question in the title of this post is a bit of a riff off of this notable new commentary from Philadelphia magazine, headlined "Will the Pope Shame City Hall Into Fixing Its Atrocious Prison Problem?". Here are excerpts:
The Cool Pope is visiting Philadelphia’s Curran-Fromhold Correctional Facility during his trip to the city this fall, the Vatican announced Tuesday.
When Pope Francis tours the jail, he’ll find a prison system that has been sued over its crammed conditions almost non-stop for the past 45 years. In fact, a judge ordered the city to build CFCF in the nineties in order to alleviate overcrowding. Today, the city's prison system houses nearly 8,200 inmates — about 1,700 more than it was built to hold. At CFCF, 400 to 500 prisoners live in "triple cells," which are jam-packed, three-man cells that are intended to hold only one or two people.
Will city officials allow the Pope to see the prison's lackluster conditions? Will he pop into a triple cell? Or will his impending visit pressure the city to finally get its stuffed jails under control?
We asked Mark McDonald, a spokesman for Mayor Michael Nutter, if there are plans to change the setup of CFCF or move inmates to other jails in the city's system during the Pope's visit. "There are no plans to change the 'setup' at the prison. The Pope will see the facility as it is. He will visit with a group of inmates and also speak to a group of staffers," he said, adding, "No, inmates will not be moved from CFCF."
There's a good chance that this might light a fire under the city to cut down on the prison population, though. Throughout Nutter's tenure, the city has taken several steps to reduce the number of inmates in the city's jails — and, at times, has been very successful. In early 2011, the prison system's population fell to 7,700, a recent low. Still, it has never reached that magic number — 6,500, which is the maximum number of inmates that the system was constructed to hold — under Nutter.
The prison population has often fallen under Nutter shortly after the city has been sued due to overcrowding. Likewise, it has risen after such lawsuits were put on hold.... Won't the upcoming visit by Pope Francis — and all of the international media attention that will come with it — give the city an even bigger incentive to cut down on overcrowding?...
It's also noteworthy that Pope Francis is touring CFCF, which opened in 1995 and is one of the city's newest prison facilities, as opposed to, say, the House of Correction, which is nearly 150 years old and lacks air conditioning.
My post title and question is actually prompted by the fact that I could not remember the last time Prez Obama (or, for that matter, any sitting or former Prez) ever visited a US prison. Notably, as this article reports, Prez Obama did visit in 2013 the South African prison cell which long housed Nelson Mandela.
As a general matter, I wonder if any Presidential historians can help me figure out if or how many sitting or former Presidents have ever made an official visit to a US prison or jail facility. In the meantime, I will here call it notable and telling, and ultimately shameful, that modern mass incarceration in the United States apparently is more of a Papal than a Presidential concern.
Virginia Gov creates commission to study bringing back parole in state sentencing scheme
I have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems. Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:
Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.
“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”
The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....
Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.
But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”
C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”
In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.
Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.
The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”
But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.
Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.
But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.
House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.
Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”
As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.
Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.
Saturday, June 27, 2015
Might prisons struggle with new SCOTUS jurisprudence on fundamental right to marry?
Lots of folks a lot more invested in gay rights and broad constitutional jurisprudence likely have a lot more important things to say than I do about the Supreme Court's landmark marriage ruling in Obergefell v. Hodges. But given that, as noted in this prior post, the Oklahoma Corrections Department halted all prison weddings while awating the Obergefell ruling, I could not resist here wondering aloud about whether prison officials will be long struggling with the reach of the ruling as the intersection of prisoner rights and the fundamental right to marry creates new and complicated administrative concerns.
As the opinion for the Court in Obergefell mentioned, decades ago in Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court "held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry." The Obergefell ruling further mentions Turner in a notable passage that perhaps takes on extra meaning when one considers the loneliness and fear that surely accompany long-term incarceration for many prisoners:
And in Turner, the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U.S., at 95–96. The right to marry thus dignifies couples who “wish to define themselves by their commitment to each other.” Windsor, supra, at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.
Of course, Supreme Court jurisprudence has long explained that prisoners have greatly diminished rights (e.g., they have no reasonable expectation of privacy and thus few if any traditional Fourth Amendment rights), and that the rights they retain behind prison walls must give way to reasonable prison regulations. More specifically, in Turner, the Court expressly stated that "legitimate security concerns may require placing reasonable restrictions upon an inmate's right to marry."
Nevertheless, in Turner the Court rigorously questioned claims by Missouri officials rationales for strict limits on prisoner marriages and concluded that an "almost complete ban on the decision to marry is not reasonably related to legitimate penological objectives." Consequently, in the wake of the the Obergefell ruling, I read Turner to preclude prison officials from simply asserting, without substantial evidence, that it will never allow prisoners to have a same-sex marriage. (Notably, only one current Justice was on the Court when Turner was decided, and Justice Scalia joined the opinion for the Court authored by Justice O'Connor striking down the Missouri prison's "almost complete ban on the decision to marry.")
Friday, June 26, 2015
How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US. (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.
But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences. I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims. But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim. In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.
That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.
I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners. In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid.
Some prior posts on Johnson and its possible impact (last two from before the opinion)
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
June 26, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (19)
Thursday, June 25, 2015
Highlighting the need for much better modern prison metrics
Adam Gelb and Craig Prins, who are directors of the Pew Charitable Trusts' public safety performance project, have this notable new Washington Times commentary about prisons and prison reform. The piece, headlined "Who’s behind bars?: A better prison composition index could gauge whether reforms are succeeding," effectively highlights that for more effective prison reform (and more effective assessment of these reforms) could benefit greatly from more effective prison metrics. Here are excerpts:
The verdict is in, and it’s close to unanimous: The United States has built too many prisons. After nearly 40 years of uninterrupted prison growth that put one in 100 adults behind bars, a wave of state reforms over the past several years has reduced the incarceration rate while the crime rate has continued to fall. These tandem trends have convinced many Americans that locking more and more people up for longer and longer periods of time is neither the best nor only way to protect public safety.
Governors and legislatures in red and blue states alike have enacted substantial policy shifts, often by wide bipartisan majorities. Voters, in opinion surveys and at the ballot box, appear to be solidly behind putting the brakes on prison construction and steering lower-level offenders to alternatives.
Shifting national attitudes about crime and punishment have led to calls for even more aggressive reforms to criminal penalties and deep reductions in the inmate population. Elected officials and opinion leaders from opposite ends of the political spectrum have begun a dialogue about what it would mean — and take — to cut the current prison population in half, a once far-fetched fantasy that several new advocacy groups have adopted as their outright objective.
Tracking the number of inmates is essential but not enough to know whether we are making progress toward a more effective criminal justice system. A fuller picture requires a new and more nuanced measure — one that goes beyond the tally and captures the type of inmates behind bars. Recent state reforms have sought to protect public safety, hold offenders accountable and control corrections costs. To achieve these goals, many states are focusing their expensive prison beds on violent and career criminals with new policies that divert lower-level offenders into non-prison sanctions or reduce the time they spend locked up, restrict revocations of parole and probation for minor rules violations, and expand eligibility and funding for drug courts and other alternatives.
Yet most states cannot readily determine whether the new policies are working any better than those they replace. Beyond a simple count of prisoners, the typical state data report offers basic demographic information and breaks down how many inmates are serving time for violent, property, drug and other crimes. These numbers are helpful, but by themselves they reveal only fragments of the information necessary to paint a meaningful portrait of inmate populations. For instance, an offender currently serving time for a relatively minor crime may have a string of prior violent convictions that make him a higher risk to society than someone in prison for a more serious offense not likely to be repeated.
A more holistic look at prison use would blend current offense, prior record and risk of recidivism. By joining some combination of these elements into a single measure — a prison composition index — policymakers and the public could develop a better understanding of how their prison beds are being used and whether their reforms are succeeding....
The end goal is to come up with a single measure tracked over time that answers the question: What percentage of the prison population consists of violent and chronic offenders who pose a threat to public safety, and how many are offenders who could safely pay their debt to society in less expensive and more effective ways?
Pennsylvania is probably the first state to attempt to use a sophisticated prison composition index. Under the direction of Secretary John Wetzel, the Pennsylvania Department of Corrections uses an “Offender Violence Risk Typology” tool, which merges information about current offense, prior record and risk level to create three categories of inmates. According to the index, 69 percent of Pennsylvania’s prison admissions and 59 percent of the standing population in 2013 fell into the least serious of the three categories, figures that have changed little since 2010.
The raw number of prisoners is an important barometer of our criminal justice system. But we also need to know who the inmates are, why they’re there, and whether society will be better off if they are incarcerated or sentenced in other ways.
Examining federal death row as Dzhokhar Tsarnaev becomes its newest (and youngest) member
The new NBC News piece, headlined "Tsarnaev Joins A Death Row With Many Members, And Few Executions," reviews some realities of federal death row in the wake of yesterday's formal capital sentencing of the Boston Marathon bomber. Here are excerpts:
Now that he's been formally sentenced to death, Boston Marathon bomber Dzhokhar Tsarnaev will soon become a resident of federal death row, joining 61 other killers who've been condemned to die by lethal injection at the U.S. Penitentiary in Terra Haute, Indiana.
There he will wait — likely for a very long time. Just how long depends on a range of factors, mainly the strength of his legal appeals. But it's safe to assume that, provided the appeals fail, it will be several years before he is put to death.
Despite the name, there isn't much death on death row. Since the federal government reinstated the death penalty in 1988, 75 inmates have ended up on death row, according to the Death Penalty Information Center. Ten have been removed, and only three have been executed.
The last man to die there was Louis Jones Jr., in 2003, eight years after he was sentenced for murdering a U.S. soldier. The other two, marijuana kingpin Juan Raul Garza and Oklahoma City bomber Timothy McVeigh, waited eight years and four years, respectively, for their executions.
That leaves 61 men and 1 woman still on federal death row, including two people whose original conviction or sentence has been reversed but their legal fate has not yet been finalized. Tsarnaev, 21, is the youngest.
He'll join a cast of violent men at Terra Haute — the one woman on death row, Lisa Montgomery, who killed a pregnant woman and cut her unborn baby out of her womb, is serving her remaining days in the Federal Medical Center Carswell in Fort Worth, Texas....
The longest current residents of death row are Corey Johnson, James Roane Jr. and Richard Tipton, fellow gang members who were sentenced to execution in 1993 for nine murders committed to protect their crack dealing operation. The newest — before Tsarnaev — is Thomas Sanders, who was sentenced to death in September for kidnapping and killing a 12-year-old girl.
It is often said that justice delayed is justice denied. As this article highlights, if you embrace that aphorism, federal death row is locale which has been experiencing a whole lot of justice denied in recent times.
Wednesday, June 24, 2015
"A Shrinking Texas Death Row"
The title of this post is the headline of this intriguing new item from the Texas Tribune. The piece has a series of great interactive charts providing the details on this basic death-penalty data story:
The number of inmates on Texas’ death row is falling. At its peak in 1999, 460 men and women were living with a death sentence in Texas, according to the federal Bureau of Justice Statistics (BJS). Today, there are 260.
The reason for the decline isn't a rise in executions. In 2000, an all-time high of 40 inmates were executed in Texas, compared with 10 last year. So far this year, nine inmates have been executed.
The main reason is a drop in new death sentences. In 1999, 48 people were sentenced to Texas death row, according to BJS data. In 2008, that number was nine — and has stayed in that range ever since. This year, there have been no new death sentences so far, according to the Texas Department of Criminal Justice (TDCJ).
Kathryn Kase, executive director of the Texas Defender Service, a nonprofit organization of death penalty attorneys, said that zero is significant. “This is the longest we’ve gone in a calendar year in Texas without a new death sentence,” Kase said. “Before this year, the longest that we’ve gone is through the first quarter."
Experts suggest several factors could be contributing to the falling number of death sentences, from a national decline in support for the death penalty to shortages of the lethal drugs used in executions. In 2005, the U.S. Supreme Court ruled that juvenile offenders could not face execution, lessening future sentences as well as sparing 29 offenders who were already sitting on death row.
But consistently, they point to a 2005 law that offered Texas prosecutors the option to pursue life-without-parole sentences against capital murder defendants. Previously, capital murder offenders who did not receive the death penalty were eligible for parole after 40 years....
Since that law was enacted, the number of life-without-parole sentences has increased nearly every year, according to TDCJ. Between 2007 and 2014, the number of life-without-parole sentences jumped from 37 to 96.
Currently, 745 people are serving a life-without-parole sentence in Texas, nearly three times the number of death row inmates. So far this year, Kase said three death penalty cases have gone to trial. All have ended with life-without-parole sentences.
Monday, June 22, 2015
Interesting statement from Justice Sotomayor on Fifth Circuit approach to plain-error sentencing review
As noted in this post today (and this prior post from last week) about recent SCOTUS activity, sentencing fans like me eagerly awaiting big Supreme Court rulings in the Johnson Armed Career Criminal Act case and the Glossip lethal execution drug case have to keep waiting at least a few more days for a decision. But, truly hard-core sentencing fans got a smidgen of unexpected love from Justice Sonia Sotomayor through this brief statement in Carlton v. US concerning how the Fifth Circuit applies plain-error review. Here are excerpts which provide the context:
The District Court enhanced petitioner Roy Carlton’s sentence based on a factual inaccuracy introduced into the sentencing record by the Government. The United States Court of Appeals for the Fifth Circuit refused to review Carlton’s appellate challenge to the enhancement, relying on Circuit precedent holding that factual errors are never cognizable on plain-error review. For the reasons that follow, I believe the Fifth Circuit’s precedent is misguided....
The doctrine of plain error follows from the recognition that a “rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with . . . the rules of fundamental justice.” United States v. Olano, 507 U.S. 725, 732 (1993) (internal quotation marks omitted). And in all the years since the doctrine arose, we have never suggested that plain-error review should apply differently depending on whether a mistake is characterized as one of fact or one of law. To the contrary, “[w]e have emphasized that a per se approach to plain-error review is flawed.” Puckett v. United States, 556 U.S. 129, 142 (2009) (internal quotation marks omitted). The Fifth Circuit’s wooden rule that factual mistakes cannot constitute plain error runs counter to these teachings....
Given its inconsistency with the governing text and longstanding precedent, it is little wonder that no other court of appeals has adopted the per se rule outlined by the Fifth Circuit in Lopez.... All agree the District Court improperly relied on testimony Anderson never gave. But in the Fifth Circuit — and only the Fifth Circuit — that mistake cannot be reviewed and possibly corrected. As a result, Carlton may spend several additional months in jail simply because he was sentenced in Alexandria, Louisiana, instead of Alexandria, Virginia.
For all these reasons, I conclude that Lopez’s categorical rule is unjustified. Nevertheless, I reluctantly agree with the Court’s decision to deny certiorari in this case. The Solicitor General informs us that the Fifth Circuit is at times inconsistent in its adherence to Lopez. When that sort of internal division exists, the ordinary course of action is to allow the court of appeals the first opportunity to resolve the disagreement. I hope the Fifth Circuit will use that opportunity to rethink its approach to plain-error review.
"Justice Kennedy practically invites a challenge to solitary confinement"
The title of this post is the headline of this Los Angeles Times article which effectively reviews the remarkable (off-point) concurrence penned by Justice Kennedy in last week's SCOTUS ruling in a Davis v. Ayala. Here are excerpts:
Supreme Court Justice Anthony M. Kennedy, in an unusual separate opinion in a case, wrote that it may be time for judges to limit the use of long-term solitary confinement in prisons. His comments accompanying a decision issued Thursday marked a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy.
“Years on end of near-total isolation exacts a terrible price,” he wrote. He cited the writings of Charles Dickens and 19th century Supreme Court opinions that recognized “even for prisoners sentenced to death, solitary confinement bears ‘a further terror and a peculiar mark of infamy.’”
Sentencing judges and the high court have largely ignored the issue, Kennedy said, focusing their attention on questions of guilt or innocence or on the constitutionality of the death penalty. “In a case that presented the issue, the judiciary may be required,” he wrote, “to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.”
Amy Fettig, an attorney for the ACLU’s National Prison Project, said Kennedy's comments came as a welcome surprise. “It’s a remarkable statement. The justice is sending a strong signal he is deeply concerned about the overuse and abuse of solitary confinement,” she said.
States such as Virginia and Texas routinely put death-row inmates in solitary confinement, she said. “They are automatically placed there. It has nothing to do with their being violent or their level of dangerousness,” she said. This month, a federal judge in Virginia is weighing a “cruel and unusual punishment” claim brought by inmates on death row there, she noted.
Kennedy usually joins with the court’s conservatives in cases involving crime and punishment, but he has also voiced concern over prison policies that he deems unduly harsh. These include life terms for juveniles and long mandatory prison terms for nonviolent drug crimes. Four years ago, he spoke for a 5-4 majority that condemned overcrowding in California’s prisons and said it resulted in unconstitutionally cruel conditions....
Kennedy's comments drew a short, but sharp retort from Justice Clarence Thomas. “The accommodations in which Ayala is housed are a far sight more spacious than those in which his victims … now rest. And, given that his victims were all 31 years or age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth,” Thomas wrote.
Friday, June 19, 2015
"Vermont's Prison Chief Says It's Time to Decriminalize Drug Possession"
The title of this post is the headline of this intriguing new article from an independent paper in Vermont. Here is how the lengthy article gets started:
Vermont Department of Corrections Commissioner Andy Pallito recalled spotting a young woman on a prison tour; he knew she was addicted to heroin, but she wasn't getting treated for it. On another occasion, a former inmate who served five years on a marijuana conviction described his crime to Pallito as "possession of a vegetable."
Pallito has struggled over the years to rein in a DOC budget that has exploded along with the inmate population. All of that has led him to a conclusion shared by few in his field: Pallito believes that possession of all drugs should be decriminalized and that the War on Drugs should be declared a failure, he told Seven Days. The man who supervises Vermont's 1,900 prison inmates believes that many of them shouldn't be behind bars, and that incarceration sets them up for failure.
"Possession of drugs for personal utilization — if somebody is not hurting anyone [else], that should not be a criminal justice matter," Pallito, 49, said in an interview at his Williston office. "I don't think anybody can say that putting somebody with an addiction problem through the corrections system is a good idea."
The DOC commissioner has been following news reports from Portugal, which in 2000 decriminalized all drugs and has since recorded declines in drug abuse and overdose deaths. He's decided it's a brave example that Vermont should emulate. "We should go to the Portugal model, which is to deal with the addiction and not spend the money on the criminal justice system," Pallito said. "We spend so much money on corrections that could be done differently. The only way to do it is spend less on corrections and more on treatment."
Pallito may be the first head of a state prison system to publicly advocate against the prosecution of users of heroin, cocaine and other street drugs. He knows of no one among his peers who has stepped forward. Organizations that question the War on Drugs, such as Law Enforcement Against Prohibition — a group of former and current police officers — have not claimed any state corrections administrators as supporters. "When you're a corrections commissioner, most people think you're tough on crime, law and order, and I am — for certain crimes," Pallito said. He believes that possession of marijuana should be legal, in any quantity. Possession of all other drugs, provided they are in small quantities for personal use, should not result in a criminal charge but rather a small civil fine, along with a mandate to undergo treatment. In essence, he'd treat all drugs in a way that is consistent with Vermont's 2013 marijuana decriminalization law, which stipulates that people found with one ounce or less face a $200 fine but no criminal charge.
Pallito stressed two points: Drug dealers should still face criminal charges. And decriminalization should not happen overnight — there aren't enough drug-treatment providers to handle the effects of such a switch. He would go even further in decriminalizing drug-related activity. The many people who are charged with drug-addiction-related property crimes, such as theft, would not face prison time.
Currently, more than 500 of Vermont's 1,900 inmates are in custody for either property crimes or drug possession. Two of those are being incarcerated for marijuana possession. Freeing such inmates would dramatically reduce the prison population, saving the state several million dollars annually and enabling it to end the controversial program that ships 300 overflow inmates to privately run out-of-state prisons.
Further, Pallito said, decriminalization would allow people to take advantage of effective treatment programs and to avoid criminal convictions that prevent them from rebuilding their lives. "I think you will find a lot of people in the criminal justice system who have been there for a number of years understand its faults most acutely," said Chittenden County State's Attorney T.J. Donovan, who seemed a little taken aback by news of Pallito's stand. "The best policy is front-end work, and Andy sees that, and it's consistent with his progressive ideology."
Thursday, June 18, 2015
In aftermath of prison escape, NY legislator suggests microchip tracking implants for violent offenders
As reported in this local piece, headlined "N.Y. State Senator Proposes Using GPS Implants To Track Violent Convicts," a high-profile prison escape has now prompted a high-tech proposed solution to prison escapes. Here are the details:
Bloodhounds and expensive manhunts are so yesterday when it comes to hunting escaped prisoners. That’s the opinion of one lawmaker, who says the state should explore implanting tiny GPS devices under convicts’ skin. Others say microchipping criminals could have multiple uses, CBS2’s Marcia Kramer reported Tuesday.
“If you’ve got convicted murderers, the type of people these two men are, that it would make some good sense at that level that we should have something that we could track them,” said State Sen. Kathy Marchione, R-Saratoga. With 800 law enforcement officials still unable to pick up the trail of escaped murderers Richard Matt and David Sweat, the suggestion from Marchione to implant microchips in people convicted of serious crimes is picking up steam.
“I’m in favor of it, but I do think there have to parameters with respect to the crime itself. I wouldn’t do it for arson, which falls under the violent, but I would do it for aggravated rape and murder,” said Paul Viollis, a security expert and former investigator in the Manhattan District Attorney’s Office. “I see the public safety value in it, not just from an escape standpoint but also from an inmate-control perspective within the institution,” said Jon Shane, a professor at John Jay College.
The New York Civil Liberties Union said microchipping inmates is unconstitutional. “It sounds like a knee-jerk reaction. They should plug the security inside prisons,” said NYCLU Executive Director Donna Lieberman. “As a constitutional matter, it won’t survive a challenge because it’s an invasion of body autonomy.”
Shane, a former cop, said it might pass constitutional muster if the chip was removed if and when a prisoner is released. “Removing it when they are paroled, those sorts of things, transitioning from a microchip to an ankle monitor, are all going to have to be explored,” Shane said.
There’s also the question of whether the microchip could be cut out the minute the inmate escaped. Experts say the chips would be embedded in the neck, underneath six or seven layers of skin. So simply cutting it out without medical assistance would pose a significant health risk, Kramer reported.
I tend to favor at least the considerationof new technologies and technocorrections, so I personally would endorse this kind of innovation. I would especially endorse this kind of technocorrections if it might provide a ready means to give better-behaving prisoners more freedom and liberty while they are imprisoned without crating any risks to general public safety.
Terrific Marshall Project coverage of "How Germany Does Prison"
Among the great stuff at The Marshall Project these days is a series of original pieces authored by Maurice Chammah as he and a delegation of American officials tour the German prison system. So far there have been three daily reports, and here are the full headlines and links:
Here is an excerpt from the second of these pieces, which highlights themes of the series:
[I]t was clear that this trip would be as much about the United States as about Europe. Germany’s system of sentencing (15 years is the longest most people go to prison here unless they are demonstrably dangerous) and incarceration (open, sunny prisons, full of fresh air, where prisoners wear their own clothes) serves as a reference point for reflecting on the punitive mentality that has come to define the U.S. justice system....
On Monday, as we visited Heidering Prison.... Bernie Warner, the corrections secretary of Washington, noticed the faint smell of smoke — all the prisoners can smoke here, unlike their counterparts in the U.S. Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. They have privacy—correctional officers knock before entering. Prisoners wear their own clothes, and can decorate their space as they wish. They cook their own meals, are paid more for their work, 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 they consequently receive more training and higher pay. There is little to no violence — including in communal kitchens where there are knives and other potentially dangerous implements. And the maximum time inmates spend in any kind of punitive solitary is eight hours.
"Find a [security] camera,” Gregg Marcantel, the corrections secretary of New Mexico, said as he walked through the prison’s main corridor. “There aren’t any!” When he heard that prisons in Berlin have 33 physicians to care for 4,200 inmates, Marcantel’s response was a hearty, “Good God!” That’s a ratio of about 1 doctor for 127 prisoners. In Virginia's state system, according to a recent count, there was one doctor for every 750 inmates. We walked through pristine white cells that looked more like dorm rooms at a liberal arts college than the steel and concrete boxes most U.S. prisoners call home. The toilets and sinks were white and ceramic, nothing like the stainless steel bowls bolted to the wall in many U.S. prisons (Heidering Prison opened in 2013, but such toilets have been installed in older prisons as well). Most prisoners have knives and forks in their cells. Though the prisoners cannot access the Internet, they have telephones in their rooms, and they can call anyone — even the media. “We have nothing to hide,” Detlef Wolf, vice governor for Heidering Prison, said with evident pride....
Administrators here freely work terms like “human rights” and “dignity” into speeches about their prison system, and Germans appear to view people who commit crimes as medical patients (the word “prognosis” came up a lot to describe the status of an inmate). There is little stigma after prisoners finish their sentences — employers in Germany generally do not ask job applicants if they have a criminal record, according to Michael Tonry, a University of Minnesota professor on the trip who’s studied corrections systems in the U.S. and Europe. In some cases, the cultural norms were so foreign that it was pretty much impossible to imagine them taking root in the U.S.
Once the shock wore off, the questions came, and they reflected the political and professional concerns of those doing the asking. Many of the leaders here who have been elected or appointed — including Marcantel of New Mexico and Jeff Rosen, the elected district attorney in Santa Clara, California — wanted to know about victims. Do their desires for retribution play any role in sentencing here? (In the U.S., they are often allowed to read “victim impact statements” before juries assess punishment, and prosecutors often consult with them). Do sensational murders lead to the passage of more punitive laws?
The Germans had trouble making sense of these questions. There were a lot of blank stares. In Germany, prosecutors and judges are not elected. As career civil servants, they are insulated from public opinion. Their work is more “technical,” said Gero Meinen, who directs the prison system in Berlin. The role is to protect the rational system of correction — which aims to restrict freedom the least amount necessary — from the retributive impulses that individual victims and society in general might feel. Now it was the Americans’ turn for blank stares.
Besides the surprise, other emotions lingered just below the surface. A few travelers were skeptical, and will be looking for ways in which things might be worse than they appear throughout the rest of the week.
Tuesday, June 16, 2015
"The Death Penalty Is Cruel. But So Is Life Without Parole."
The title of this post is the headline of this notable new New Republic commentary by Stephen Lurie. Here are excerpts of a piece that echoes my oft-stated and enduring concern that LWOP punishments should garner a lot more attention from the anti-death penalty crowd:
Prison cells don’t attract many spectators, but executions have always drawn crowds. Paradoxically, the names and identities of death row inmates only come to matter when their execution had been scheduled: from impending death we take a sudden interest in life.
Despite the incongruity, this isn’t all that surprising. Twenty-first century America is still susceptible to the time-honored spectacle of state-sanctioned death, even if much of the attention now scrutinizes, rather than cheers, the practice. Recently, there have been many stories typical of the current fascination with American capital punishment, most notably Ben Crair’s piece in this magazine and Jeffrey Stern’s in The Atlantic. Like other recent examinations of the death penalty, both accounts focus specifically on the act of execution by lethal injection; each covers botched executions and the question of cruel and unusual punishment in the death chamber itself....
For Stern and Crair, as well as many human rights-minded activists and advocates, the death chamber is a potent and useful example of inhumanity. Other, newer abolitionists—like the legislators in Nebraska that voted to abolish the death penalty there last month—focus on the act of execution as well. While the death chamber is itself horrific, abolitionists would be remiss to ignore the more common punishment: the immense cruelty of a prisoner’s long wait for execution. The “death row phenomenon” and associated prison conditions cause significant psychological and physical harm; a so-called “death before dying” is both internationally condemned and domestically pervasive. If the end to capital punishment in the U.S. is based on concern for human beings — whether in a religious or moral sense — the reform movement must be concerned with the prison conditions left when death is not on the table.
Executions of any kind are exceedingly rare, so much so that death row itself appears to be the real punishment for the vast majority of inmates. There are just over 3,000 people awaiting execution in United States prisons. In 2013, the latest year for which the Bureau of Justice Statistics has data, there were 39 executions. That is just more than the 31 inmates who died before their scheduled executions; it is just less than the 44 death row convictions or sentences overturned that year....
Because solitary confinement is the de facto housing for American death row convicts, and because excruciating delays are par for the course, international observers have considered U.S. capital punishment inhumane enough to delegitimize its practice entirely. In his report to the UN General Assembly in 2012, Juan Méndez (the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or Punishment) suggested that the realities of imperfect executions and death row conditions almost unavoidably run afoul of the international prohibition against human mistreatment. “Solitary confinement, in combination with the foreknowledge of death and the uncertainty of whether or when an execution is to take place, contributes to the risk of serious and irreparable mental and physical harm and suffering to the inmate,” Méndez writes. “Solitary confinement used on death row is by definition prolonged and indefinite and thus constitutes cruel, inhuman or degrading treatment or punishment or even torture.”...
Nearly every prisoner faces an abrogation of his or her 8th Amendment protections against cruel and unusual punishment; only a small few face the added cruelty and indignity of a botched execution. What about the pain of a cramped concrete cell, of shackling and restraints, attempts at self-harm, inedible food, existential fear, depression, and deprivation of any human contact? If there is concern is over fair treatment of human beings sentenced to death, it’s unwise, from a strategic standpoint, to continue ignoring the majority of their lives. Campaigns based on claims of cruel and unusual treatment would not rely on staying the execution of a single individual, but rest on the indefinite torture of thousands. That would be powerful.
Moreover, the instances of death penalty abolition that do not consider the background conditions for capital punishment invariably leave immense cruelty in its place. Nebraska’s legislation is typical in this regard: All death sentences become sentences of life imprisonment without the possibility of parole (LWOP). The de facto alternative for states that abolish the death penalty, LWOP actually retains many of the worst conditions of confinement described above, as well as still effectively sentencing the prisoner to death. It is in almost every way a death row, and as such is also an internationally condemned practice.
It’s for this reason that some, like Andrew Dilts, an assistant professor of political theory at Loyola Marymount University, refer to current forms of death penalty abolition as “death penalty replacement,” the same result but with the added effect that prisoners lose even more legal protections. As Dilts writes in the new volume Death and Other Penalties: Philosophy in a Time of Mass Incarceration, these alternative sentences appease the “almost fetishistic levels” of concern over execution while it “effectively deflects attention away from the moment of death, even though death is necessarily a part of the sentence.” In addition, whereas “the Court requires strict review of offender qualifications, strict procedural guidelines, extended appeals processes, and additional standards of heightened scrutiny…the same procedural and substantive protections are simply not applied” to life sentences. The result, ultimately, is simply a “dramatic reduction of appellate rights” for inmates that are still condemned to die; it’s a slower death with even less of a chance for redemption. While the conversion of these sentences might lessen some of the specific psychological traumas related to the death row phenomenon, it does not address the expected use of solitary confinement or other inhumane treatment. There is nothing in an execution-focused narrative that would lead to the transformation of these conditions: It might, rather, cement them as appropriate penal policy.
Monday, June 15, 2015
Perspectives on Clemency Project 2014 from federal prisoners and an advocate for them
Regular readers know I have given lots of space recently to coverage and criticism of federal clemency efforts. I am pleased to continue now with a guest post via Beth Curtis, a prisoner advocate who runs the website Life for Pot. Beth sent this extended commentary my way under the heading "Inspired by the Dialogue between Margaret Colgate Love here and Mark Osler here on Douglas Berman’s Blog Sentencing Law and Policy":
At the launch of Clemency Project 2014 [CP-14], Craig Cesal, a non-violent marijuana offender on the Life for Pot site and his cell mate Samuel Edmonson a non-violent cocaine offender were both talking about and working on petitions for commutation. Both Craig and Samuel had sentences of life without parole and had nothing to lose.
The two cell mates had a discussion about whether or not they should file their own petitions just in case there were going to be commutations before attorneys from The Clemency Project 2014 could prepare one for them. Craig argued that the project had said there was no reason for filing on your own, as the criteria was different and it would probably have to be done again. Samuel on the other hand decided that he should be sure he had a petition in the Pardon Attorney’s office and in February of 2014, he filed a brief petition for commutation that he did himself.
Very early in the process both of these offenders were assigned pro bono attorneys from the same law firm. Samuel and Craig had initial contacts with their pro bono attorneys, but after that contact they were not contacted again and did not know if any work was being done.
In March of 2015 Samuel received a commutation for his life sentence from President Barack Obama based on the petition he filed himself.
We were interested in this because there were only three life for pot inmates that we knew of who had been assigned pro bono attorneys and they only had initial contacts. We contacted inmates and suggested that they begin preparing their own Clemency Petitions and file them, we don’t know if CP-14 will be able to overcome the cumbersome procedure.
In March of 2015 Larry Duke, a 68 year old non-violent marijuana offender with a sentence of life without parole was released. Larry’s immediate release was pursuant to 18 USC 3582(c)(1)(A)(i). The “extraordinary and compelling reasons” for the release was Larry’s status as an elderly inmate. Although Larry is over 65 he is also the healthiest of those on the Life for Pot site. Larry had a contact from a pro bono attorney through Clemency Project 2014. We called his attorney who did not know he had been released.
We started getting questions about the process for Reduction in Sentence [RIS] from non-violent marijuana offenders. They wanted to know if they should file for sentencing relief even though they had filled out a survey to request an attorney through Clemency Project 2014.
These are not legal questions, but questions about procedure and we sought answers from an attorney with CP–14. It was their considered opinion that the elder inmates should not file for RIS until CP–14 had completed the process as clemency might be held up until the (CR/RIS) was resolved.
Inmates found that BOP facilities were not aware of the elderly, over the age of 65, criteria for applying for RIS. This remedy has seldom been used and “extraordinary and compelling reasons” were interpreted by the BOP as being almost lifeless chained to a hospital bed.
How much hope should we have for this process? Was Larry Duke’s release singular, or will this be the beginning of an accelerated process? We would like to know.
The hope and promise of Clemency Project 2014 is like a breath of air for these nonviolent inmates who will be behind bars till they die if no one exercises compassion, mercy and justice. We’re listening carefully to the dialogue between Mark Osler and Margaret Love about the hope and promise for relief.
We are in the 18th month since the launch of the project and yet only two inmates have been released through this apparently clogged tunnel to freedom. Much has been written in support of clemency and its use to address serious facility overcrowding and sentencing disparity. Information about progress is scant and prisoners, their families and advocates worry about the progress and the will of the Administration.
Lately these public discussions by well-known clemency advocates pondering the most effective way to deal with the over incarceration gives us hope. Margaret Colgate Love and Mark Osler’s point counter point about it on the blog Sentencing Law and Policy by Douglas Berman gave us insight. I believe these discussions are helpful but not a substitute for more transparency and concrete information given to the inmates, their families and advocates about procedure and progress. We need to respect these vulnerable non-violent citizens.
It would be an insensitive travesty if this program that was announced with such fanfare and gave such hope to thousands of inmates, their family and friends and advocacy groups did not fulfill the promise of compassion and mercy. These non-violent incarcerated people are accustomed to broken promises, but this one can be easily fulfilled by a bold administration with the courage of their stated convictions. For years, nonviolent inmate advocates have felt that bi-partisan support would be the key to this realignment of positions and lead to fiscal responsibility and compassion. Bipartisan support has arrived and we have the promise, it just needs to be fulfilled.
Some prior related posts:
- Extraordinary review of messiness of Prez Obama's clemency push
- Senator Grassley queries DOJ concerning its work with Clemency Project 2014
- NACDL explains the massive work behind Clemency Project 2014
- Defender hiccup or major headache for Clemency Project 2014?
- Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people
- ProPublica urges next AG to "Fix Presidential Pardons"
- Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?
- Might Charles Koch put big money behind big reform of federal clemency process?
- Professor Mark Osler's informed perspective on recent federal clemency developments
- Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"
SCOTUS grants cert on a federal prisoner (re)litigation case
The Supreme Court started the week by granting review in two cases, one of which concerns prisoner rights and restrictions. The case is Bruce v. Samuels, and this SCOTUSblog page provides this account of the question presented:
Whether, when a prisoner files more than one case or appeal in the federal courts in forma pauperis, the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(2), caps the monthly exaction of filing fees at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which he owes filing fees.
Saturday, June 13, 2015
Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"
The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create. I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):
The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69. And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....
The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations. What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released. Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....
The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age. Sentencing judges need to consider the phenomenon of aging out of risky occupations. Violent crime, which can include trafficking in heroin, is generally a young man’s game. Elderly people tend to be cautious, often indeed timid, and averse to physical danger. Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....
There needs finally to be considered the cost of imprisonment to the government, which is not trivial. The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs. If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....
We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose. There is no indication that these considerations received any attention in this case. We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers. Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....
There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings. But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released). A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.
June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)
Thursday, June 11, 2015
Charles Samuels, head of Federal Bureau of Prisons, announces plans to retire
As reported on this webpage for the Federal Bureau of Prisons, late last week "Director Charles E. Samuels, Jr. announced his plans to retire before the end of the year." Here is an excerpts from the letter he sent to communicate his plans to staff:
I am incredibly proud of the things we have accomplished working together during my tenure to continue the tradition of meeting our mission and maintaining correctional excellence to protect the American public. I offer many thanks and appreciation to all staff.
During the past 3-1/2 years we emphasized and enhanced staff safety, promoted partnership between labor and management throughout the entire agency, signed a Collective Bargaining Agreement, established an annual Diversity and Inclusion day to recognize the importance of all staff, established the Inmate Model Programs Catalog and increased evidenced-based reentry programs, including specialized programs for female offenders. We also modified the Residential Release Center Statement of Work to ensure the delivery of Bureau approved evidenced-based cognitive behavioral therapy programs, successfully implemented Prison Rape Elimination Act standards, expanded the Reduction in Sentence (compassionate release) criteria, requested an independent assessment and review of the Bureau's restrictive housing policies and procedures, established reintegration and mental health units, increased our repatriation efforts to support Federal Prison Industries, and ensured transparency with our stakeholders and the media, managed our institutions at near record levels of crowding and contributed to record declines in our population for the first time in 34 years. As a result of our combined efforts, rates of assaults dropped as low as they have been in decades. In addition, we extended our work beyond the prison walls to collaborate with representatives in the communities to which inmates are returning and to strengthen families through meaningful inmate visitation with children.
I joined this agency as a correctional officer, determined to make a positive difference; I leave knowing that there are thousands of dedicated and hardworking staff who are equally committed to the same goal. As I have repeated time and again, staff are the Bureau of Prisons, and there are no better staff, anywhere. I cannot adequately express my thanks to all of you for the incredible work you do every second, minute, and hour each and every day to protect and support one another, the inmates in our custody, and the American people. Your jobs are not easy, and you rarely get the recognition you greatly deserve. You carry out our mission with integrity and professionalism, while risking your lives every time you walk through the Sallyports of our 121 prisons around the country.