Thursday, May 15, 2014
AG Holder assails solitary for juves with mental illness
As highlighted by this DOJ press release, "Attorney General Eric Holder on Wednesday called for an end to the excessive use of solitary confinement for youth that suffer from mental illness." Here is more about AG Holder's latest use of his criminal justice bully pulpit:
“Across the country, far too many juvenile detention centers see isolation and solitary confinement as an appropriate way to handle challenging youth, in particular youth with disabilities. But solitary confinement can be dangerous, and a serious impediment to the ability of juveniles to succeed once released.
“In a study released last year by the Office of Juvenile Justice and Delinquency Prevention, 47 percent of juvenile detention centers reported locking youth in some type of isolation for more than four hours at a time. We have received reports of young people who have been held in solitary confinement for up to 23 hours a day, often with no human interaction at all. In some cases, children were held in small rooms with windows that were barely the width of their own hands.
“This is, to say the least, excessive. And these episodes are all too common.
“This practice is particularly detrimental to young people with disabilities – who are at increased risk under these circumstances of negative effects including self-harm and even suicide. In fact, one national study found that half of the victims of suicides in juvenile facilities were in isolation at the time they took their own lives, and 62 percent of victims had a history of solitary confinement....
“We must ensure in all circumstances – and particularly when it comes to our young people – that incarceration is used to rehabilitate, and not merely to warehouse and forget. Our nationwide effort to end the unnecessary or excessive seclusion of youth with disabilities will not be completed solely with one settlement or court filing. But as a department, we are dedicated – and as Attorney General, I am committed – to doing everything possible to ensure the effectiveness and integrity of our criminal and juvenile justice system. In the days ahead, we will continue to make good on our commitment to the best practices of law enforcement and the highest ideals of our nation.”
Tuesday, May 13, 2014
"Modifying Unjust Sentences"
The title of this post is the title of this notable new paper by E. Lea Johnston now available via SSRN. Here is the abstract:
The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.
This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment.
To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.
Monday, May 12, 2014
Documenting the enduring challenge of reducing prison populations in Ohio
One of many challenges facing this nation as it works toward trying to ameliorate the worst excesses of mass incarceration is the modern and now-all-too-common social and cultural instinct that significant prison terms must be the "right" way to respond to any and all crimes of concern. One expression and example of this perspective concerns this recent story of the feds appealing, and calling "substantively unreasonable," a probation sentence for a high-profile tax evader who has already paid in penalties more than 10 times the amount of taxes he tried to evade.
Another expression of this reality is in this lengthy story from my own Columbus Dispatch headlined "Ohio struggles with rising prison population: One in 175 adults in the state is incarcerated, at taxpayer cost of $22,836 each annually." Here are excerpts:
When Gary Mohr began his career at the Marion Correctional Institution in 1974, there were 8,516 inmates in state prisons. Forty years later, he manages a system nearly six times as large, packed with 50,639 offenders. One of every 175 adult Ohioans is housed, fed and receives medical care at taxpayer expense in a state prison. The latest two-year budget allocated $3.14 billion for the prison system.
Ohio officials have been unable to consistently tamp down the prison population despite attempts to do so. Major sentencing reforms were enacted, “good time” was reintroduced, community programs were enhanced, and early-release provisions were added.
And still the numbers go up. The latest projections suggest the inmate population in 27 prisons (including two private facilities) will hit 52,000 in two years, and 53,484 in five. Prisons already are bulging with 30 percent more prisoners than they were designed to hold.
“I’m getting a lot of people saying, ‘When are you going to build another prison?’ ” Mohr said in an interview. “I’m a believer in people instead of bricks and mortar. I’m not going to build another prison.” The major reason is the enormous cost, Mohr said. “That’s a commitment of $1 billion for two decades. It would cost $120 million to $150 million to build and $40 million annually to operate.”...
The series of reforms that began with House Bill 86 in 2011 got traction in Ohio’s six largest counties, including Franklin, which reduced the number of offenders being sent to state prisons in the past year. That helped reduce the prison population by about 675. However, the number of inmates being sent to prison from the remaining 82 counties increased, helping push up the population by 11.1 percent from 2003 to 2013. Here’s the math behind the numbers: Each prisoner costs Ohio taxpayers $22,836 per year, so adding 100 prisoners, for example, costs nearly $2.3 million.
A report by the Correctional Institution Inspection Committee, a legislative corrections watchdog, last August listed five contributing reasons why the prison population has gone up: a very small increase in violent crime, longer sentences for higher-level felonies, dramatically fewer prison releases (a 24.3 percent drop in five years), legislation increasing penalties for specific crimes, and adverse court decisions. Another factor may trump all the others: a flood of heroin cases. Men coming into prison still outnumber women more than 4 to 1, but that gap is shrinking as more women are incarcerated for nonviolent drug crimes.
State Sen. Bill Seitz, R-Cincinnati, who has been instrumental in recent prison-reform legislation, says the changes included in House Bill 86 are indeed working, “just not as fast as we had hoped. They’ve certainly ameliorated the situation as opposed to doing nothing. “We didn’t expect a dramatic overnight reduction,” Seitz said. “It takes awhile for the full import of these comprehensive reforms to float down the system.”
Seitz said many judges opposed the reforms because they limited judicial discretion in sentencing. As a result, “some judges are finding creative ways of sidestepping the provision that requires them not to send to prison first-time Felony 4 and Felony 5 non-violent drug and property offenders.”...
The prison-crowding issue is an everyday dilemma for corrections officers represented by the Ohio Civil Service Employees Association. “We were told sentencing reform would flatten out staffing levels, but we keep keeping more people (hired) on the administrative staff and those who work 9 to 5,” said the union’s president, Christopher Mabe. “We know there’s going to be more inmates coming into the system, and that means we need more staff.”
Thursday, May 08, 2014
Intriguing new BJS data about national jail populations
I just received notice of a new Bureau of Justice Statistics publication, excitingly titled "Jail Inmates at Midyear 2013 -- Statistical Tables" and available at this link. Though lacking a thrilling title, the data discussed in this publication are actually pretty interesting This official BJS press release, excerpted below, provides some highlights:
After a peak in the number of inmates confined in county and city jails at midyear 2008 (785,533), the jail population was significantly lower by midyear 2013 (731,208). However, the estimated decline between midyear 2012 and 2013 was not statistically significant. California’s jails experienced an increase of about 12,000 inmates since midyear 2011....
Local jails admitted an estimated 11.7 million persons during the 12-month period ending June 30, 2013, remaining stable since 2011 (11.8 million) and down from a peak of 13.6 million admissions in 2008. The number of persons admitted to local jails in 2013 was 16 times the estimated 731,352 average daily number of jail inmates or average daily population during the 12-month period ending June 30, 2013....
Males represented at least 86 percent of the jail population since 2000. The female inmate population increased 10.9 percent (up 10,000 inmates) between midyear 2010 and 2013, while the male population declined 4.2 percent (down 27,500 inmates). The female jail population grew by an average of about 1 percent each year between 2005 and 2013. In comparison, the male jail population declined an annual average of less than 1 percent every year since 2005.
White inmates accounted for 47 percent of the total jail population, blacks represented 36 percent and Hispanics represented 15 percent at midyear 2013. An estimated 4,600 juveniles were held in local jails (less than 1 percent of the confined population), down from 5,400 during the same period in 2012.
At midyear 2013, about 6 in 10 inmates were not convicted, but were in jail awaiting court action on a current charge—a rate unchanged since 2005. About 4 in 10 inmates were sentenced offenders or convicted offenders awaiting sentencing. From the first significant decline in the overall jail population since midyear 2009, the unconvicted population (down 24,000 inmates) outpaced the decline in the convicted inmate population (down 12,000 inmates).
Wednesday, May 07, 2014
New Human Rights Watch report bemoans "Nation Behind Bars"
As reported in this press release, Human Rights Watch has issued a new report highlighting the problems of mass incarceration in the united States. Here are the details (and a link) via the the start of the press release:
The 36-page report, “Nation Behind Bars: A Human Rights Solution,” notes that laws requiring penalties that are far longer than necessary to meet the purposes of punishment have given the United States the world’s highest reported rate of incarceration. These laws have spawned widespread and well-founded public doubts about the fairness of the US criminal justice system.
“The ‘land of the free’ has become a country of prisons,” said Jamie Fellner, co-author of the report and senior advisor to the US Program at Human Rights Watch. “Too many men and women are serving harsh prison sentences for nonviolent and often minor crimes. How can a country committed to liberty send minor dealers to die in prison for selling small amounts of illegal drugs to adults?”....
Momentum to reduce mass incarceration is growing. Human Rights Watch is seeking to build on this momentum and offer a way forward. Federal and state legislators should ground their moves for reform in core principles of human rights, including prudent use of criminal sanctions, fair punishment, and equal protection of the laws.
To put those principles into practice, Human Rights Watch urges legislators at the very least to:
Ensure that the severity of the punishment does not exceed the gravity of the crime;
Reform or eliminate mandatory minimum sentencing laws that prevent judges from being able to tailor sentences to the individual crime and the particular defendant;
Ensure that adolescents and children are treated in a manner appropriate to their age and capacity for change, and that they are not subjected to all the same criminal procedures and sanctions as adults;
Reduce or eliminate criminal sanctions for immigration offenders, especially those who have done nothing more than enter the country illegally; End criminal sanctions for possession of illegal drugs for personal use; and
Ensure that criminal law is not by its terms or enforcement biased against any racial, ethnic, or religious group, as for example, in the disproportionate enforcement of drug laws against black people in the US.
Tuesday, May 06, 2014
"The Growth of Incarceration in the United States: Exploring Causes and Consequences"
The title of this post is the title of the massive report released last week by the National Research Council (which is the operating arm of the National Academy of Sciences and the National Academy of Engineering). The report runs more than 450 pages and can be accessed at this link.
I was hoping to get a chance to review much of the report before posting about it, but the crush of other activities has gotten in the way. Fortunately, the always help folks at The Crime Report have these two great postings about the report:
I hope to be able to provide more detailed coverage of this important report in the weeks to come.
California Supreme Court decides Miller demands altering presumption for juve LWOP
As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state. Here are the basics:
In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.
Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances. The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.
The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.
In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.
"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."
Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.
But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.
Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.
Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.
The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.
May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Saturday, April 26, 2014
Interesting articles about history and modern prison realities in United States
I just came across a set of interesting papers just made available on SSRN authored by criminologist Jeffrey Ian Ross examining the history and some modern realities about prisons in the United States. Here are links to these pieces via their titles:
Friday, April 18, 2014
Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
The questions in the title of this post are prompted by one of the executive actions suggested earlier this week the Brennan Center for Justice in this new report titled "15 Executive Actions to Overcome Government Dysfunction." Notably, as listed here, at least three of the suggested actions are focused on criminal justice matters that should be of special interest to sentencing fans:
9. Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”
10. Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.
11. Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.
The first proposal of these three struck me as especially novel and interesting, and here is part of the full report's discussion of the proposal:
With only 5 percent of the world’s population, the United States has 25 percent of its prisoners. More than 2 million Americans are behind bars. A quarter of the nation’s adult population has a criminal record. The prison population has increased sevenfold since 1970. The country spends a quarter of a trillion dollars a year on criminal justice, but true costs are wider: Economic and social impacts on families and children can continue for generations. The explosion in our correctional population extends far beyond prison: pre-trial detention, parole and probation supervision, and those with arrest records.
Public safety does not compel incarceration of this scope. More than half of prisoners are serving time for drug or nonviolent crimes. One in four new prison admissions are for violations of parole. 106 One in five people behind bars are simply awaiting trial.
Yet, the epidemic of mass incarceration hides in plain sight. Most Americans are unaware of it. Those who are aware are not mobilized to act.
Progressives and conservatives have begun to seek action. Several states have taken up reforms in recent years. Momentum is increasing in Washington. Last year, Attorney General Eric Holder announced the “Smart on Crime” initiative, calling for federal prosecutors to seek harsh sentences only for the most serious drug traffickers and other reforms.
These federal and states fixes, however, have been piecemeal rather than systemic. Full change is not possible without wide public support. Mass incarceration must be identified as a national problem requiring national attention. Though jurisdictions vary in the minutia of their justice systems, the overall drivers of the incarceration explosion are similar across the country.
Federal legislation to create a national commission on criminal justice has failed to pass repeatedly. This year, Congress created the Chuck Colson Task Force, named after the founder of Prison Fellowship. It will aim to study the federal prison system to alleviate overcrowding. A similar assessment should be made of the far broader problem.
The president can help make mass incarceration visible by creating a National Commission on Mass Incarceration of leading bipartisan policymakers and civic leaders. He can do so through an executive order or a presidential memorandum. And he can avail himself of a high profile venue, such as a commencement address, to announce the commission.
Such a panel could be modeled after the National Advisory Commission on Civil Disorders (chaired by Illinois Governor Otto Kerner, Jr.). President Lyndon B. Johnson created the “Kerner Commission” to study the causes of urban riots. The National Commission on Mass Incarceration should similarly study the current drivers of the growth in federal and state prison and jail populations. It should examine the accompanying economic and societal toll. And, it should issue concrete policy recommendations to achieve a measureable goal — for example, cutting the nationwide incarcerated population by 25 percent by 2025.
Proposals should focus on “front-end” changes that help stem the influx of people into the pipeline to prison.
The Kerner Commission’s members included New York City Mayor John Lindsay, Sen. Edward Brooke of Massachusetts, Litton Industry founder Charles Thornton, NAACP head Roy Wilkins, and Atlanta police chief Herbert Turner Jenkins. These prominent public figures helped bring national attention to the issue of race. The National Commission on Mass Incarceration should include similar public and civic leaders. Such a commission would draw the nation’s attention to this overlooked issue and, most importantly, catalyze action.
Regular readers will not be surprised to hear I like both the style and substance of this proposal. Thus, to answer my own post-title question, I do think Prez Obama should create a Presidential Commission on Mass Incarceration. (And, of course, I think I should be on this Commission along with Bill Otis and perhaps many other (but not all other) frequent commenters on this blog.)
Wednesday, April 16, 2014
Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized
The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system. In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:
1. Cantu's original federal sentencing as guidelines numerology: My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison. I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.
2. Cantu's original federal sentencing as federal actors gone numb: Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers. One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right. But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.
3. Cantu's dismissed 2255 motion as federal prosecutors possessed: Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic. In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants. But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.
Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error. Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late. I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.
I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison. But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse." In addition, according to the Times reporting, Cantu is married and has 8-year old daughter. Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?
I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation. Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system. But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common.
April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25) | TrackBack
Monday, April 14, 2014
Would embrace of "judicial corporal punishment" help remedy mass incarceration?
The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?". Here are excerpts:
Private prison companies and the guards’ labor unions are biased, of course. Politicians do not wish to appear soft on crime. Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining. Many want prison to be horrible. Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners. Businesses don’t sell much to prisoners. Prison industries lose money and cannot succeed with government control.
The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.
Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive. Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....
Attacking the supply of illegal drugs did not work. The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention. The Constitution is the standard in conditions of confinement litigation. But when the Constitution was adopted, massive incarceration as we now know it did not exist. Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.
Incarceration is all Western civilization has known for several generations. As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method. Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time. Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.
Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration. But some violent offenders deserve their long prison sentences. Prisons will not be abolished. Real bad folks need to stay behind bars.
We think society moves forward. Reformers are supposed to be “forward-looking.” Belief in continual social progress ignores history. Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution. Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.
We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.
Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”
Friday, April 11, 2014
"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"
The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.
Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
Thursday, April 10, 2014
Notable NY Times op-ed asks "What is prison for?"
The new Marshall Project's editor in chief, Bill Keller, has this lengthy op-ed in this morning's New York Times under the headline "College for Criminals." There is much of note in the op-ed, and I found these closing paragraphs especially intriguing:
Considering that the United States is the world’s leading warden, we should be able to answer with some conviction this question: What is prison for?
First, punishment, although it is often demeaning, brutal, psychologically debilitating and wildly disproportionate to the offense. Second, public safety. Social scientists argue about how much of our recent decline in crime is attributable to a surge in incarceration (I’ve heard estimates from 3 percent to 30 percent). But common sense says at least some of it is.
Third, rehabilitation. The bureaucracies that run prisons are called departments of “corrections” for a reason. This is at least as important as the first two purposes, because nearly 95 percent of the incarcerated are eventually released back into society.
Alas, nearly half of those released are returned to prison within three years for committing new crimes. Clearly we are not doing a good job of “correcting.”
This is not a bleedingheart cause. Leading conservatives and red state politicians have supported prison college programs as a matter of public safety and fiscal prudence. A RAND metaanalysis of 58 studies concluded that inmates who participated in these programs were 43 percent less likely to return to a life of crime; even assuming that the most redeemable inmates are the likeliest to sign up, this is an incredible return on a modest investment. Moreover, wardens and prison guards believe such programs lower the explosive tensions in prison.
Yet while 76 percent of prisons in the country offer high school diploma programs, only a third offer college degrees, which are, more than ever, a prerequisite for decent jobs. Education programs are among the first things to go in a recession. Now — when the economy is in slow recovery, the crime rate is relatively low, and there is an emerging national awareness that our way of punishment wastes money and lives — should be an opportune time to expand inmate education. But it has to be sold, not sprung without groundwork.
Experts who have studied the American way of crime and punishment far longer than I have tell me, to quote Michael P. Jacobson, a veteran corrections official who heads a public policy institute for the City University of New York, that they see “almost a complete disconnect between what we know and what we do.”
“The influence of highprofile crimes, fear of crime, issues of race, the acquisition of cheap political capital — all have had far more influence on criminal justice policy than what we know works, or what is fair or just,” Mr. Jacobson told me.
Governor Cuomo is now trying to rally private donors to underwrite his college program for a year, with an understanding that he will get the state to take over in Year 2. Let’s hope. But apparently the inmates of Sing Sing and Attica are not the only ones in need of correction.
"Death Delayed Is Retribution Denied"
The title of this post is the title of this notable new article by Russell Christopher now available via SSRN. Here is the abstract:
Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive. Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from. Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment. Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional.
Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism. Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.
Wednesday, April 09, 2014
Reviewing how US prisons now serve as huge warehouses for the mentally ill
This MSNBC article, headlined "Prisons are the ‘new asylums’ of the US: Report," effectively summarizes a new study documenting that that US prisons now "house ten times more people with mental illnesses than its hospitals." Here is more:
The report, released Tuesday by the Treatment Advocacy Center, found that state prisons and county jails house approximately 356,268 people with mental illnesses, while state mental hospitals hold only 35,000. The disparity is also a nationwide problem – only six states have psychiatric hospitals with more people in them than a prisons or jail.
Prisons, according to the report, have become the nation’s “new asylums.” The number of beds available at hospitals for mental health patients has been dropping for decades. And as the population of incarcerated people has exploded, so has the number of people with serious problems....
The report provided a breakdown of the number of mentally ill prisoners in each state’s correctional facilities, the laws governing treatment, and examples of how inmates are treated. Among others, they include a Mississippi prison designed for mentally ill inmates, overrun by rats, where some prisoners capture the rats, put them on makeshift leashes, and sell them as pets to other inmates. There was also a case in which a schizophrenic man spent 13 of 15 of his years in prison in solitary confinement....
“Inmates who linger untreated in jails and prisons become increasingly more vulnerable to their symptoms and the resulting victimization or violence,” the report read. Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center and lead author of the study, said in a statement, “The lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.”...
The report’s authors admit that reducing the number of mentally ill inmates in jails would have to come along with a massive recommitment to high-quality mental health care in hospitals – a tall order in this age of austerity. In the interim, they advocate for more outpatient treatment and jail diversion programs, as well as more planning, both when inmates enter the system and leave it.
The full report released by the Treatment Advocacy Center is titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey," and it can be accessed in full at this link.
Monday, April 07, 2014
"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"
The title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release. Here are excerpts from the press release:
As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.
According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....
According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.
"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...
The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:
- Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest. JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
- More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits. The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses. Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses. There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....
Does an imprisoned white supremacist have a right to an anti-Kosher diet?
The question in the title of this post is prompted by this local article from Illinois headlined "White Supremacist Hale Sues Bureau Of Prisons For Violating His Rights." Here are the basics:
It was nine years ago today that Matt Hale of East Peoria was sentenced to 40 years in prison – convicted of soliciting the murder of a federal judge. Now, without a lawyer, Hale is suing the federal Bureau of Prisons because he says his rights are being denied.
Matt Hale, a minister in the religion of Creativity, is suing because he says the federal prison system has been taking away his mail privileges.
“They just come in and announce to him that his mail is being taken away from him,” said Evelyn Hutcheson, Hale’s 75-year-old mother. Hutcheson is his staunchest defenders. She says her son is moral, never plotted against a judge – and she says his trial was dirty and tainted. “I would like to see him freed before I die. I really would. But I just know how dirty it is. I’m sorry. I know how dirty it actually is. And who am I? I’m just a little peon. I’m nothing.”
Besides wanting to get his mail regularly, Hale is suing the prison system to be served the diet he says his anti-Jewish religion requires: uncooked food like raw fruits, vegetables and nuts.
Wednesday, April 02, 2014
Terrific upcoming NYU Law conference on "Mercy in the Criminal Justice System"
I am very pleased and very excited that on April 15 this year I will be spending all day thinking and talking about something other than my income tax forms. That is because, as detailed in the program linked at the bottom of this post, I will be spending that day attending and speaking at the Sixth Annual Conference of the NYU Law School's Center on the Administration of Criminal Law. This year's NYU Center conference is focused on clemency and related topics.
The full official title for the event, which runs from 10am to 4pm at NYU Law is "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies," and the keynote speaker is White House Counsel Kathryn Ruemmler. Here is a brief account of the panels and participants scheduled to surround the keynote:
Panel 1: The Role of Law Schools in Delivering Clemency and Post-Conviction Assistance.
This panel will discuss how law schools are providing critical services to prisoners through clemency clinics and other mechanisms, and will also provide practical training on how to effectively prepare clemency petitions, post-conviction motions and provide other reentry support to prisoners.
Moderator: Prof. Mark Osler, University of St. Thomas Law School. Panelists: Prof. Anthony Thompson, NYU Law; Prof. J.P. “Sandy” Ogilvy, Columbus School of Law, Catholic University; Harlan Protass, Esq., Clayman & Rosenberg; Prof. Joann M. Sahl, University of Akron Law School.
Panel 2: What We Can Learn About Clemency From the States.
This panel will examine the different ways clemency and pardon petitions are administered in selected states with effective systems.
Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Lt. Governor Matthew Denn, State of Delaware; Hon. Robert L. Ehrlich, Jr., King & Spalding and former Governor of Maryland; Margaret Love, Esq., former U.S. Pardon Attorney; Jorge Montes, Esq., former Chairman of the Illinois Prisoner Review Board.
Panel 3: The Future of Clemency.
This panel will discuss recent developments in federal clemency and where clemency could and should be headed in the future.
Moderator: Prof. Rachel E. Barkow, NYU Law. Panelists: Amy Baron-Evans, National Federal Defender Sentencing Resource Counsel; Prof. Paul G. Cassell, University of Utah Law School; Prof. Douglas A. Berman, The Ohio State University Moritz College of Law; Sam Morison, Esq.; Dafna Linzer, Managing Editor of MSNBC.com.
Persons can register for this great and timely conference at this link.
April 2, 2014 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack
Is there any likely sentencing or (private) prison reform aspect to big SCOTUS political speech ruling?
The question in the title of this post highlights that I am always a blogging criminal justice hammer seeing every important SCOTUS ruling as a possible sentencing nail. Without even reading the full opinion, I wonder if this ruling might end up helping (1) some white-collar defendants and their wealthy friends better support federal legislators and candidates who advocate sentencing reform in arenas that impact these kinds of defendants, and/or (2) private prison companies and their executives support federal legislators and candidates who advocate for continued or expanded reliance on private prisons.
The Supreme Court on Wednesday freed wealthy donors to give more money directly to congressional candidates, extending its controversial 2010 Citizens United decision that opened the door for unlimited independent spending on political issues.
In a 5-4 decision, the court’s conservative majority struck down Watergate-era aggregate limits that barred political donors from giving more than $123,000 a year in total to candidates running for seats in the House of Representatives or Senate. The court said this limit violated the free-speech rights of the donors, and it was not needed to prevent “corruption” of the political process. The justices noted that donors mush still abide by rules that prevent them from giving more than $2,600 per election per candidate.
Chief Justice John G. Roberts Jr., speaking for the court, said the 1st Amendment protects a citizen’s free-speech right to give to candidates. “Money in politics may at times seem repugnant to some, but so too does much of what the 1st Amendment protects,” he said. If it protects “flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”
Justice Stephen G. Breyer, speaking for the four dissenters, said the court had opened a huge legal loophole that threatens the integrity of elections. “Taken together with Citizens United, today’s decision eviscerates our nation’s campaign finance laws,” he said.
As usual, I am sure I am stretching a bit to view a non-sentencing story as having significant potential sentencing echoes. But maybe readers agree that there could be something to these early post-McCutcheon speculations.
Tuesday, April 01, 2014
Forecasting the uncertain present and future of federal legislative sentencing reform
Writing for CQ Weekly (which calls itself the "definitive source for news about Congress") John Gramlich has this fascinating and lengthy new article about the state of federal sentencing reform efforts. The piece is headlined "The Prison Debate, Freshly Unlocked," and here are excerpts from a piece that merits a full read:
A bipartisan Senate coalition intent on shrinking the swollen federal prison population will see its toughest test yet in the weeks ahead. Party leaders face the delicate task of shepherding legislation through a politically charged chamber that could ease punishment for tens of thousands of felons — in an election year, no less.
The political stakes, particularly for Democrats, are substantial. Control of the Senate is up for grabs in November and if Majority Leader Harry Reid of Nevada presses forward with a debate over crime and punishment, he could force members of his own caucus to cast difficult votes on a subject that has haunted the party in the past. Many vulnerable Democrats want to focus on jobs rather than softening criminal penalties.
Despite the risks, it’s clear that Congress is closer than it has been in decades to slowing the growth of the federal prison population, which has ballooned to about 216,000 today from 25,000 in 1980. Overhaul supporters have covered their bases, building consensus and deliberately pushing legislation through the committee process. But floor consideration will pressure any cracks in the coalition, given lingering reservations from influential lawmakers in both parties and opposition from prosecutors, which could stoke public fears about crime.
Reid has two bills on his slate, both of which would cut criminal penalties for a broad cross-section of federal offenses. One would slash mandatory minimum sentences for some drug offenders by as much as 60 percent and give judges more leeway to impose lighter penalties than those set out in statute. It also would allow crack cocaine users and dealers who were sentenced under a system that Congress abolished in 2010 to seek shorter sentences retroactively.
The other measure would allow as many as 34,000 currently incarcerated inmates — more than 15 percent of the federal correctional population — to leave prison early, provided they successfully complete rehabilitation programs first.
Both bills have support from opposite ends of the ideological spectrum, further undermining the decades-old caricature of party orthodoxy on criminal justice: that Republicans are “tough on crime” while Democrats are “soft.”...
Predicting the outcome of an election year Senate debate about criminal justice is not easy. Reid is still weighing whether to bring the legislation up in a year in which his party is at risk of losing control of the Senate for the first time since 2007.
And even if legislation passes the Senate, finding a path through the House is more difficult. The House Judiciary Committee has set up a task force to examine sentencing and prison population issues. But House leadership has, so far, shown no interest in taking up companion bills to the Senate measures. House Judiciary Chairman Robert W. Goodlatte, a Virginia Republican, said his panel “is taking a comprehensive look at the prison reform issue, and plans to continue its review over the next several months.”...
Lobbying from law enforcement organizations could still prove pivotal in this debate, particularly if it focuses on the specter of increased crime. The sentencing bill sponsored by Durbin and Lee has sparked notable opposition from the National Association of Assistant U.S. Attorneys, a prosecutors’ group that took the rare step of publicly breaking with Attorney General Eric H. Holder Jr. — their boss — to denounce the legislation and warn that it could endanger public safety....
Meanwhile, the Fraternal Order of Police ... has its own concerns about any proposals that might reduce time behind bars. The group is still evaluating both bills. “The argument that we hear most often for reducing the prison population is cost,” James Pasco, the executive director of the group’s legislative advocacy center, says. “Well, you know, the fact of the matter is if somebody commits a crime serious enough for lengthy incarceration, it’s at variance with common sense to suggest that’s not a good penalty just because it costs too much.”
“We have had conversations with the administration and we’ve had conversations with both sides in Judiciary, and they are aware of our apprehensions [about the bills],” Pasco added. “But the game really begins now.”
Bipartisan opposition from a handful of holdouts could make for speed bumps on the floor, if not outright problems. California Democrat Dianne Feinstein, a senior member of the Judiciary panel, warned that the early-release bill could endanger public safety because “we do not know the facts of any of the 34,000 inmates estimated to be affected by this bill.”
Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, also withheld his support for the early-release bill by voting “present” in committee. Leahy expressed concerns that the measure, which would let lower-risk inmates earn credits allowing them to transfer from prison to halfway houses and other forms of supervision, could worsen “racial and socioeconomic disparities in our prison system” and place an unfunded mandate on the Bureau of Prisons by requiring the agency to do widespread risk assessments on the inmates it incarcerates.
Holder has endorsed the sentencing measure, but stopped short of endorsing the early-release proposal, telling the U.S. Sentencing Commission in March that it needs changes to make it “as good as it might be.”
The sentencing bill also faces likely amendments. In an interview with CQ Roll Call, South Carolina Republican Lindsey Graham said he and fellow Judiciary member Charles E. Schumer, a New York Democrat, are working on an amendment that would scale back some of the bill’s sentencing reductions.
Republicans, for their part, are divided about whether they want both measures to reach the floor at all. Tea-party-backed members such as Lee and Paul support both bills, but Cornyn and the ranking Republican on the Judiciary Committee, Charles E. Grassley of Iowa, represent the party’s establishment wing and support only the early-release measure. “If Sen. Reid would take up the prison reform legislation, I think then it has a good chance of passing. It’s got good, strong bipartisan support,” Cornyn, the Senate minority whip, says. “If they’re going to try to pair it with the sentencing reform, I think that’s a problem.”
In the Senate, where opposition from even a single member can stop legislation dead, Alabama Republican Jeff Sessions is still evaluating his options to oppose both bills. Sessions, another member of the Judiciary Committee and a former federal prosecutor who helped broker a new law in 2010 to reduce sentencing disparities between crack and powder cocaine offenses, voted against both of the new proposals in committee.
“One of the reasons people want to reduce sentences is because the crime rate is down,” Sessions said. “They think that just happened. But a fundamental reason is we enhanced enforcement, we enhanced the likelihood that you’d be apprehended and actually convicted, and we enhanced the penalties. I believe the changes in the law that they have proposed are larger and more impactful than the sponsors fully realize.”
Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.