Tuesday, April 28, 2015
"Solutions: American Leaders Speak Out on Criminal Justice" (with some notable omissions)
The first part of the title of this post is the title of this fascinating new publication released today by the Brennan Center for Justice. Here is how the 164-page text is described in an e-mail I received this morning:
In a remarkable cross-ideological effort, this book includes essays by public figures and experts who will play a leading role in the nation’s debate over the coming year. The book contains original essays by Joseph R. Biden, Jr., Cory Booker, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley, Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, and Jim Webb, among others.
In his foreword, former President William J. Clinton writes, “There is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes. The drop in violence and crime in America has been an extraordinary national achievement. But plainly, our nation has too many people in prison and for too long — we have overshot the mark.”
This book offers a first-of-its-kind preview of the solutions likely to be debated in the lead up to 2016. There is striking consensus around one idea: the need to reduce mass incarceration. Solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices … from eliminating prison for low-level drug crimes to increasing mental health treatment.
This effort, spearheaded by our Justice Program director Inimai Chettiar, aims to elevate ending mass incarceration as a vital national issue in need of urgent attention. We look forward to your partnership in the months ahead — as these reforms are debated before the nation.
I am very interested in seeing what everyone in this new publication has to say, and I suspect the words of the presidential candidates in this collection will prove especially important in the months ahead. In short, this is must-read, perhaps especially as sad, harmful and disturbing events continue to unfold in Baltimore this week.
That all said, I must state that I am a bit put off by the fact that Bill Clinton authors the foreword without noting his own significant role in helping to encourage the adoption and preservation of, in his words, the "too many laws [that were] overly broad instead of appropriately tailored [which has resulted in] some [who] are in prison who shouldn’t be, others [who] are in for too long, and without a plan to educate, train, and reintegrate them into our communities." Relatedly, I am deeply disappointed that none of the other three living Presidents, all of whom have long and notable criminal justice track records (especially both President Bushes) are included in this important collection of "American Leaders" speaking out.
Particularly notable and disconcerting is the absence of anything in this collection by our most recent in former President, George W. Bush, especially in light of Bill Clinton's justifiable concerns about the importance of efforts to "educate, train, and reintegrate [former offenders] into our communities." As often highlighted on this blog (and in too few other places), President George W. called America "the land of second chance" in his 2004 State of the Union address while spotlighting prisoner re-entry issues and proposing "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."
In his important 2004 SotU speech, President Bush compelling advocated that "when the gates of the prison open, the path ahead should lead to a better life." But now, more than a decade later, and thanks largely to the failings of both Congress and President Bush's successor in the Oval Office, there is still far too little attention given to the needs and challenges of former offenders. President Bush highlighted 11 years ago that persons released from prison each year represented "another group of Americans in need of help," but it seems only now have a number of other "American Leaders" gotten the message.
April 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, April 22, 2015
New problems with drones smuggling contraband in to prisons
This New York Times article would perhaps be amusing if it were not so disconcerting. The headline is is "Illegal Air Mail for Prisoners, via Drones," and here are excerpts:
During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison.
It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grapeflavored Gatorade and drugs.
“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.”
It is the high-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.
Drones flying over prison walls may not be the chief concern of corrections officials. But they say that some wouldbe smugglers are experimenting with the technique as an alternative to established methods like paying off officers, hiding contraband in incoming laundry and throwing packages disguised as rocks over fences into recreational yards.
The authorities have detected at least three similar attempts at corrections facilities in the United States in the past two years. In the same period, there were also at least four reported attempts abroad, in Ireland, Britain, Australia and Canada.
Tuesday, April 21, 2015
"Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
The title of this post is the title of this notable new and timely paper concerning the potential impact of the Supreme Court case re-argued yesterday. The piece is authored by Leah Litman, and here is the abstract:
This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief. In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause. It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.
April 21, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
"What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It"
The title of this post is the title of this notable new paper concerning federal habeas review authored by Ryan Semerad now available via SSRN. (For the record, Ryan happens to be one of (many) wonderful students in my sentencing class this spring, but I am pretty sure he hd finished most of this article before I started polluting his mind.). Here is the abstract:
This Note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences.
Sunday, April 19, 2015
Highlighting the mental illness underbelly of modern incarceration
The front-page of my own Columbus Dispatch today has this effective article about my state's prison population headlined "Ohio’s prisons hold 10 times as many mentally ill as its psychiatric hospitals do." Here are excerpts:
The largest provider of mental-health services in Ohio is easy to find: Look no farther than the nearest state prison. More than 10,500 people in Ohio prisons, more than 1 in 5, have a diagnosed mental illness. And 1 in 12 has a serious and persistent condition such as schizophrenia or bipolar disorder. There are 10 times as many mentally ill inmates as there are patients in Ohio’s six psychiatric hospitals.
The numbers are higher for females: 41 percent of 2,510 inmates at the Ohio Reformatory for Women in Marysville are on the mental-health caseload.
Terry Russell, executive director of the National Alliance on Mental Illness Ohio, said these alarming figures are no accident. “These people are generally not in prison because they are criminals,” he said. “Most people that end up there are the most severely mentally disabled who get into trouble because they are untreated or resistant to treatment. Families many times desert them or don’t know how to help. They end up in the street, which puts them in harm’s way. In most cases, law enforcement gets involved.”...
Taxpayers pay the hefty tab for the 10,596 mentally ill inmates. The Ohio Department of Rehabilitation and Correction spent $41.7 million on mental-health care and medications in fiscal year 2014 and is projected to spend $49 million this year. That is on top of the $22,836 annual overall cost per inmate.
Gary Mohr signed up to run state prisons, not mental-health facilities, but he’s doing both. Cognizant of the issues, and the costs related to mentally ill inmates, Mohr opened residential treatment units at four prisons, including the Marysville facility. He is opening a fifth at the Grafton Correctional Institution. And he is hiring 27 more mental-health staffers and adding beds at the Allen Oakwood Correctional Facility in Lima, where seriously mentally inmates are housed.
Mohr said he is relaxing the long-standing policy of segregating mentally ill inmates with behavioral problems. “We are coming up with a policy where we do not keep inmates who are mentally ill in long-term isolation. Segregation is our default sanction, but our goal is to ensure that the behavior that got them there doesn’t happen again. This is going to be a major reform in Ohio and across the U.S."
Mohr also is pushing for greater support and more funding for mental-health courts, currently in just eight of 88 counties, to divert mentally ill people to less-costly, more-effective programs. “If these courts become familiar with the issues and can find suitable placements, particularly with Medicaid, we ought to be doing that instead of just launching them into prison.”
Dr. Kathryn Burns, chief psychiatrist in the prison system, said people with mental illnesses typically get arrested more often because their untreated behavior brings them into conflict with law enforcement. In the legal system, they have fewer chances of getting community treatment or probation because judges have limited options. The offenders have burned bridges with family members and in the community. Prison is often the last resort....
The expansion of the federal Medicaid program by Gov. John Kasich’s administration is making a big difference.... While Medicaid can’t be used to treat inmates in prison, it applies once they are discharged. The state has signed up all female prisoners for Medicaid and is working to enroll the men.
While there are encouraging developments, NAMI Director Russell remains troubled that prisons have become asylums for the mentally ill. The organization’s statewide conference on Friday and Saturday at the Hyatt Regency will focus on “criminalization” of the mentally ill. “We just have no place for those individuals who are ill enough to be in harm’s way but are not ill enough to end up in a hospital,” he said. “Criminalizing the mentally ill just makes no sense from a treatment and economic standpoint.”
Saturday, April 18, 2015
"Why We Let Prison Rape Go On"
The title of this post is the headline of this notable new commentary in today's New York Times authored by Chandra Bozelko. Here are excerpts:
It’s been called “America’s most ‘open’ secret”: According to the Bureau of Justice Statistics, around 80,000 women and men a year are sexually abused in American correctional facilities. That number is almost certainly subject to underreporting, through shame or a victim’s fear of retaliation. Overall, only 35 percent of rapes and sexual assaults were reported to the police in 2010, and the rate of reporting in prisons is undoubtedly lower still.
To tackle the problem, Congress passed the Prison Rape Elimination Act, signed into law by President George W. Bush in 2003. The way to eliminate sexual assault, lawmakers determined, was to make Department of Justice funding for correctional facilities conditional on states’ adoption of zero-tolerance policies toward sexual abuse of inmates....
But only two states — New Hampshire and New Jersey — have fully complied with the act. Forty-seven states and territories have promised that they will do so. Using Justice Department data, the American Civil Liberties Union estimated that from 2003 to 2012, when the law’s standards were finalized, nearly two million inmates were sexually assaulted.
Six Republican governors have neglected or refused to comply, complaining of cost and other factors. Rick Perry, then the governor of Texas, wrote to the Justice Department last year stating that 40 percent of the correctional officers in male facilities in Texas were women, so that “cross-gender viewing” (like witnessing inmates in the shower, which contravenes the legal guidelines) could not be avoided. The mandated measures, he said, would levy “an unacceptable cost” on Texas, which has one of the highest rates of prison sexual assault....
Ultimately, prisons protect rape culture to protect themselves. According to the Bureau of Justice Statistics, about half of prison sexual assault complaints in 2011 were filed against staff. (These reports weren’t all claims of forcible rape; it is considered statutory sexual assault for a guard to have sexual contact with an inmate.)
I was an inmate for six years in Connecticut after being convicted of identity fraud, among other charges. From what I saw, the same small group of guards preyed on inmates again and again, yet never faced discipline. They were protected by prison guard unions, one of the strongest forces in American labor....
The Justice Department estimates that the total bill to society for prison rape and sexual abuse is as high as $51.9 billion per year, including the costs of victims’ compensation and increased recidivism. If states refuse to implement the law when the fiscal benefit is so obvious, something larger is at stake.
According to Allen Beck, senior statistical adviser at the Bureau of Justice Statistics, “institutional culture and facility leadership may be key factors in determining the level of victimization.” Rape persists, in other words, because it’s the cultural wallpaper of American correctional facilities. We preserve the abuse because we’re down with perps getting punished in the worst ways.
Compliance does not even cost that much. The Justice Department estimates that full nationwide compliance would cost $468.5 million per year, through 2026. Even that much is less than 1 percent of states’ spending on corrections. Putting aside the cruelty and pain inflicted, prison rape costs far more than the implementation of the law designed to stop it.
Tuesday, April 14, 2015
'Cause all of me, loves all of you ... who are harmed by mass incarceration's imperfections
The title of this post is my weak effort to merge John Legend's most popular song lyrics with his notable new campaign. This AP story provides the details:
John Legend has launched a campaign to end mass incarceration. The Grammy-winning singer announced the multiyear initiative, FREE AMERICA, on Monday. He will visit and perform at a correctional facility on Thursday in Austin, Texas, where he also will be part of a press conference with state legislators to discuss Texas' criminal justice system.
"We have a serious problem with incarceration in this country," Legend said in an interview. "It's destroying families, it's destroying communities and we're the most incarcerated country in the world, and when you look deeper and look at the reasons we got to this place, we as a society made some choices politically and legislatively, culturally to deal with poverty, deal with mental illness in a certain way and that way usually involves using incarceration."
Legend, 36, will also visit a California state prison and co-host a criminal justice event with Politico in Washington, D.C., later this month. The campaign will include help from other artists — to be announced — and organizations committed to ending mass incarceration.
"I'm just trying to create some more awareness to this issue and trying to make some real change legislatively," he said. "And we're not the only ones. There are senators that are looking at this, like Rand Paul and Cory Booker, there are other nonprofits that are looking at this, and I just wanted to add my voice to that."
Legend's speech at the Academy Awards this year struck a chord when he spoke about mass incarceration. He won the Oscar for best original song with rapper Common for "Glory" from the film "Selma."
The singer said an early victory for his campaign was the approval of Proposition 47 in California in November, which calls for treating shoplifting, forgery, fraud, petty theft and possession of small amounts of drugs — including cocaine, heroin and methamphetamines — as misdemeanors instead of felonies. "Once you have that tag of a felony on your name, it's hard for you to do anything," Legend said. "Getting those reduced to misdemeanors really impacted a lot of lives and we hope to launch more initiatives like that around the country."
Perhaps "Weird Al" Yankovic or John Legend himself can pen a version of "All of Me" that could become the movement's theme song.
Tuesday, April 07, 2015
New Urban Institute report examines challenges posed by mentally ill offenders
The Urban Institute today released this significant new report titled "The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System: A Scan of Practice and Background Analysis." Here is an excerpt from the first few paragraphs of the report's executive summary (with few references omitted):
Mentally ill offenders possess a unique set of circumstances and needs. However, all too often, they cycle through the criminal justice system without appropriate care to address their mental health. According to the Bureau of Justice Statistics, individuals with mental health needs make up a large proportion of the US correctional population. An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem. These individuals often receive inadequate care, with only one in three state prisoners and one in six jail inmates having received mental health treatment since their admission. Offenders with severe mental illness place even more strain on the criminal justice system as a whole, in terms of their unique case-processing requirements and treatment needs and their increased risk of recidivism. Housing mentally ill offenders in the criminal justice system is costly. In addition to high health care costs, mentally ill inmates tend to have higher rates of prison misconduct and recidivism.
Despite the evidence that mental illness in the criminal justice system is a pressing concern, our comprehensive effort to identify cost-effective, evidence-based programs and policies for managing and treating mentally ill persons in the criminal justice system brought to light how limited current knowledge is on this topic. There have been only a few rigorous evaluations of criminal justice programs and policies targeted at mentally ill offenders. This limitation, in and of itself, is a notable finding, as it shows what more needs to be done to better understand how to effectively alleviate the costs and challenges of treating and processing offenders with mental illness in the criminal justice system. Given these challenges and their financial consequences for society and governments, it is important to understand how to identify and provide early intervention for those who suffer from mental illness in the criminal justice system.
This report focuses on the societal and economic costs of holding mentally ill offenders in jails and prisons. It also presents a detailed discussion of how mentally ill offenders are processed in the criminal justice system, highlighting the diversity of protocols and practices outlined in state statutes to address these challenges. Further, it discusses several promising criminal justice interventions and policies for mentally ill offenders....
"What’s the right way to compensate someone for decades of lost freedom?"
The question in the title of this post is the subheadline of this new lengthy New Yorker article about the aftermath of wrongful convictions. Here is an excerpt:
One of the earliest arguments for financial compensation for the wrongly incarcerated came in 1932, from the Yale law professor Edwin Borchard. In an influential book called “Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice,” Borchard wrote, “When it is discovered after conviction that the wrong man was condemned, the least the State can do to right this essentially irreparable injury is to reimburse the innocent victim, by an appropriate indemnity for the loss and damage suffered.” He noted, “European countries have long recognized that such indemnity is a public obligation.” But it would be many years before the United States began puzzling through what constituted an “appropriate indemnity.” It wasn’t until the first DNA exoneration, in 1989, that most states began to seriously consider compensation.
There is still no consensus about the value of lost time. Missouri gives exonerees fifty dollars a day for time served, California twice that much. Massachusetts caps total compensation at half a million dollars. In Maine, the limit is three hundred thousand; in Florida, it’s two million. The variation is largely arbitrary. “If there’s a logic to it, I haven’t seen it,” Robert J. Norris, a researcher at SUNY Albany who has studied compensation statutes, told me. In Wisconsin, no matter how long an exoneree has served, the state will pay no more than twenty-five thousand dollars — the same figure that its legislators established in 1979. “They just never changed it,” Norris said. “They even amended their statute in 1987, but they didn’t change the amount.” Most states levy taxes on payment. Twenty states have no compensation statutes at all.
Fifteen hundred and seventy-five people have been exonerated in the U.S. The best off are those whom Brandon Garrett, a professor at the University of Virginia School of Law who has written extensively on post-conviction litigation, describes as “the ones that win the tort lottery.” These are exonerees who seek compensation through the courts, arguing that their fundamental civil rights were violated by the police or by prosecutors. (The same legal principle is at issue in federal suits brought by people who have been shot by the police.) In such cases, the potential damages are unlimited. But the standard of proof is high. “Police officers have qualified immunity,” Garrett told me. “They can violate your constitutional rights — reasonably but not egregiously.”
Monday, April 06, 2015
"Does the Death Penalty Require Death Row? The Harm of Legislative Silence"
The title of this post is the title of this interesting new article by Marah Stith McLeod now available via SSRN. Here is the abstract:
This Article exposes two flawed assumptions about death row in leading scholarship and judicial opinions. The first flawed assumption is that death row is an inevitable consequence of a death sentence. The second flawed assumption is that prison administrators should be entrusted with the decision whether to retain death row.
The Article will show that death row cannot be justified on prison security grounds, but, contrary to the claims of some scholars, it may be justified for other punishment purposes. Using extensive state-by-state research, the Article shows that in most jurisdictions, harsh death row conditions result not from statutory commands, but from discretionary administrative policies. This Article argues that legislatures, not prison administrators, should decide whether death row is a necessary aspect of capital punishment, for two reasons. Prison administrators may not be able to assess objectively whether death row serves legitimate purposes, because of their roles in the execution process. More importantly, legislatures and not prison administrators have the duty to decide whether punishment is just.
If death row is to be tethered by law to a death sentence, then this legal tether should be drawn by statute, after public deliberation and debate, and not by administrative fiat. If legislatures conclude that the death penalty does not require death row, then they must forbid prison administrators from so augmenting the sentence for a capital crime.
Sunday, April 05, 2015
NY Times notes Justice Kennedy's criminal justice perspective
Today's New York Times has this extended editorial effectively contextualizing recent comments by SCOTUS Justice Anthony Kennedy headlined "Justice Kennedy’s Plea to Congress." Here are excerpts:
Members of the Supreme Court rarely speak publicly about their views on the sorts of issues that are likely to come before them. So it was notable when Justices Anthony Kennedy and Stephen Breyer sat before a House appropriations subcommittee recently and talked about the plight of the American criminal justice system.
Justice Kennedy did not mince his words. “In many respects, I think it’s broken,” he said. It was a good reminder of the urgency of the problem, and a stark challenge to a Congress that remains unable to pass any meaningful sentencing reform, despite the introduction of multiple bipartisan bills over the past two years....
“The corrections system is one of the most overlooked, misunderstood institutions we have in our entire government,” he said. He chastised the legal profession for being focused only on questions of guilt and innocence, and not what comes after. “We have no interest in corrections,” he said. “Nobody looks at it.”
That is not entirely fair; many lawyers and legal scholars have devoted their careers to studying the phenomenon of mass incarceration in America and to improving intolerable prison conditions. But Justice Kennedy was right that all too often decisions about sentencing and corrections are made without meaningful consideration of their long-term costs and benefits, or of their effect on the millions of people who spend decades behind bars. “This idea of total incarceration just isn’t working,” he said. “And it’s not humane.”...
Justice Kennedy — whose regular role as the swing vote on a closely divided court gives him tremendous power — has a mixed record on [the Eighth] amendment. Several times he has voted to uphold breathtakingly long sentences for nonviolent crimes. For example, in two 2003 cases, he joined the five-member majority that let stand sentences of 25 years to life and 50 years to life for men convicted in California of thefts totaling a few hundred dollars.
Justice Kennedy’s response to such manifestly unjust results is that fixing prison sentences is the job of lawmakers, not the courts. But that too easily absolves the justices of their constitutional responsibility. The four justices dissenting in the California cases argued that those grossly disproportionate sentences violated the Eighth Amendment.
In more recent years, Justice Kennedy has increasingly invoked the amendment in sentencing cases, as he did in writing the 2008 decision prohibiting the death penalty as a punishment for child rape, and in 2010 and 2012 when he voted to bar sentences of life without parole for juveniles in most circumstances. He also relied on it in a 2011 decision ordering California to reduce overcrowding in its prisons, a condition that threatened inmates’ physical and mental health.
Justice Breyer, who before joining the court helped design the modern federal sentencing guidelines in the 1980s, told the committee of his own concerns about the justice system, and in particular was sharply critical of mandatory minimum sentences. Such sentences, he told the representatives, are “a terrible idea.”
The justices were right to lay these issues directly at Congress’s door. They can accomplish only so much on their own. Meanwhile, states from Texas to California to New York to Mississippi have been reforming their prisons and their sentencing laws for several years now, with overwhelmingly positive results. Now it is Congress’s turn to reform the unjustly harsh and ineffective sentencing laws it passed in the first place.
Prior related post:
Friday, April 03, 2015
Notable nomenclature for naming the "liberty disabled"
This new piece from The Marshall Project reports on the results of an interesting inquiry about what to call those who are serving time. The piece is headlined "Inmate. Prisoner. Other. Discussed. What to call incarcerated people: Your feedback." Here is how it starts:
We received more than 200 responses to our callout asking the best way to refer to people behind bars. Of the options we offered, 38 percent preferred “incarcerated person,” 23 percent liked “prisoner” and nearly 10 percent supported use of the word inmate. Thirty percent selected “other” (“person in prison,” “man or woman,” “the person’s name.”)
Personally, I kind of like "liberty disabled" or "unwillingly caged" or "long-term guest at the graybar hotel." Well, actually, this is best I could come up with in an effort to add some levity at the end of a long week. I welcome and encourage readers to use the comments to have some (inappropriate?) fun with this name game.
Monday, March 30, 2015
California and Ohio facing capital congestion without a functioning execution chamber
Theses two local stories concerning death row realities in two states strike a similar note:
From California here, "California's death row, with no executions in sight, runs out of room." This story starts this way:
With no executions in nearly a decade and newly condemned men arriving each month, the nation's largest death row has run out of room. Warning that there is little time to lose, Gov. Jerry Brown is asking the California Legislature for $3.2 million to open nearly 100 more cells for condemned men at San Quentin State Prison. The proposed expansion would take advantage of cells made available as the state releases low-level drug offenders and thieves under a new law voters approved last year.
California's death penalty has been the subject of a decade of litigation. One case led to a halt to executions in 2006. Another resulted in a federal judge's ruling last July that the state's interminably slow capital appeals system is unconstitutionally cruel. Through it all, the death row population has grown from 646 in 2006 to 751 today.
From Ohio here, "Backup of killers awaiting execution is building." This story starts this way:
Midway through Ohio’s two-year death penalty moratorium, a backup of men awaiting execution is building. There are 20 inmates either scheduled for execution or for whom prosecutors are seeking execution dates from the Ohio Supreme Court, according to the Capital Crimes Annual Report released today by Attorney General Mike DeWine. [The report also indicates 145 murderers are on Ohio's death row now.]
Especially because no state other than Texas ever shown a consistent ability to conduct more than 10 executions in any given year, these data necessarily mean many years (and likely many decades) will be needed to actually carry out a significant number of imposed capital punishments in these states when (if?) these states get their death machineries operating again.
Saturday, March 28, 2015
"The activist nun reforming profit-prisons"
The title of this post is the headline of this intriguing new article via CNNMoney. Here are excerpts:
Some of America's most controversial companies -- for profit prisons -- have unlikely owners: nuns. Mercy Investment Services Inc. is the investment fund for the Institute of Sisters of Mercy of the Americas, an international religious order.
The fund is managed by Sister Valerie Heinonen, a soft-spoken nun who's been buying shares in for-profit prison companies since early 2000. She's not doing it in the hopes of making big bucks. Rather, she tries to use her leverage as an owner to reform the industry.
"What we want is the establishment of a human rights policy at these companies," Heinonen told CNNMoney. Even more importantly, she wants the policy to be thoughtfully implemented, monitored and transparently disclosed to shareholders....
For decades, investors have put billions of dollars into the two largest such companies, Geo Group (GEO) and Corrections Corporation of America (CXW). Many investors saw dollar signs as prison populations swelled. The stock of Geo Group has risen 130% in the past three years.
While profits have been huge, some money managers feel it is unfair for Wall Street to profit from what they see as the inhumane warehousing of human beings. This issue is back in the forefront given the surge of immigrant detainees following the mass deportation effort of the Obama administration....
GEO Group and CCA say they are committed to protecting the human rights of prisoners and detainees. "Our company adopted a Global Human Rights policy two years ago, which we believe was a first for any private correctional organization in the United States," Geo Group told CNNMoney in a statement.
CCA said its human rights policy is publicly available on its website and is incorporated into the ethics and professionalism course that every new employee receives. "It has been shared across our organization in communications from our CEO and others in leadership," a CCA spokesman said.
Mercy has raised questions about food, housing and education for the detained children and adults. "We've also been concerned about legal access for people," Heinonen said. Implementation and monitoring of human rights policies and transparency in communicating progress to investors is a work in progress.
"How often do the guards get a refresher course and what kind of oversight is there," Heinonen asked. Mercy and the prison companies say they continue to meet regularly in order to address these issues. Mercy's relationship with prisons started out pretty warm and fuzzy.
"A number of orders have members who are chaplains in prisons and perhaps this conversation came from what these people saw," she said. Mercy initially focused on executive compensation. It introduced an investor resolution onto the ballot of both Geo Group and CCA, tying compensation to social as well as financial criteria.
"By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives," Heinonen said. "For example, with the environmental initiative, everyone was recycling their waste."
Friday, March 27, 2015
NY Times Magazine covers modern prisons at home and abroad
I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:
The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.
Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.
Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.
Tuesday, March 24, 2015
Ohio prison officials decide security drones are not (yet) cost effective
As reported in this local piece, headlined "Prisons no longer testing security drones," Ohio's prison guards do not quite yet have worry excessively about being replaced by technology. Here is why:
The Ohio Department of Rehabilitation and Correction has put a stop to drone testing at the Lebanon and Warren prison sites. Late last year, officials announced they were testing drones, an unmanned aerial system equipped with cameras, on the grounds of the two prisons. The drones, state leaders hoped, would be a new security model for the state prisons system.
But that testing stopped in December, shortly after it started, this newspaper has learned. A $170,000 aerostat, a balloon-shaped drone equipped with both day and night cameras, was tested on prison grounds in October but officials quickly learned the cameras were not strong enough for the prisons’ security needs, said Ed Voorhies, the managing director of Ohio’s prisons.
Voorhies said state officials decided buying the aerostat wouldn’t be a good investment of taxpayer dollars. “They’re going to go back to the table and discuss some potential solutions,” he said....
Drones at Ohio’s prisons are still a possibility, Voorhies said, but other security measures will likely be considered, too. “We are looking at technological solutions to augment our existing security,” Voorhies said.
A spokesman for Wright Patterson Air Force Base confirmed researchers are working with state officials but said the work is in “the earliest conceptual stages” and declined to comment further. State prison officials want to step up security cameras placed outside of the prison walls so less contraband — drugs, cellphones and cigarettes, for example — is smuggled into the prison, to prevent inmates from escaping, and to better analyze how fights start between inmates on the grounds, Voorhies said. In 2013, for example, corrections officers caught nearly 500 cellphones smuggled into the prison.
Ohio became the first known prison system to begin testing drones in October. The testing began just a month after notorious Ohio school shooting killer T.J. Lane and two others escaped from the Allen Oakwood Correctional Institution in Lima.
Voorhies said the two prisons — which sit next to one another and are located in Warren County — will continue to be testing grounds for any new security models introduced. That’s because the state is able to test security for two prisons at once and because the prisons are so closely located to the Air Force Research Lab.
Prior related posts:
- Why those who follow sentencing and corrections reform should be following drones
- South Korea rolls out new robot prison guard
Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system
This new ThinkProgress piece, headlined "Supreme Court Justices Implore Congress To Reform The Criminal Justice System — ‘It’s Not Humane’," effectively reports on the notable comments made about criminal justice reform by two Justices who were testifying before Congress on budget issues yesterday. Here are some of the details:
The prisons are one of the most misunderstood institutions of government. Solitary confinement drives individuals insane. And mandatory minimum sentences are a bad idea. These were the assertions of U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer in testimony before a House Appropriations subcommittee Monday afternoon.
Asked by Rep. Steve Womack (R-AR) about United States “capacity to deal with people with our current prison and jail overcrowding,” each justice gave an impassioned response in turn, calling on Congress to make things better. “In many respects, I think it’s broken,” Kennedy said of the corrections system. He lamented lawyer ignorance on this phase of the justice system:
I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. doctors know more about the corrections system and psychiatrists than we do. Nobody looks at it. California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. compare the amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this is apples and oranges in a way. And this idea of total incarceration just isn’t working. and it’s not humane.
Kennedy, traditionally considered the swing vote among the current set of justices, recalled a recent case before the U.S. Supreme Court in which the defendant had been in solitary confinement for 25 years, and “lost his mind.”
“Solitary confinement literally drives men mad,” he said. He pointed out that European countries group difficult prisoners in cells of three or four where they have human contact, which “seems to work much better.” He added that “we haven’t given nearly the study, nearly enough thought, nearly enough investigative resources to looking at our correction system.”
Kennedy’s comments come just weeks after a federal review of U.S. solitary confinement policy also found that the United States holds more inmates in solitary confinement than any other developed nation. Confinement typically involves isolation in an often windowless cell with a steel door for 23 hours a day, with almost no human contact. The treatment has been found to have a psychological impact in as many as a few days, though, as Justice Kennedy pointed out, many are held for decades. In the wake of the new report, Sen. Dick Durbin (D-IL) called upon the Federal Bureau of Prisons to alter its practices.
In his response, Breyer honed in on Womack’s use of the word “priorities” to suggest that prioritizing long prison sentences was not the best use of resources. “Do you want to have mandatory minimums? I’ve said publicly many times that i think that’s a terrible idea,” Breyer said. “And I’ve given reasons, which I’ll spare you.”
“Is it worth your time on earth, or mine, to try to work out ways of prioritizing? I think it is,” Breyer said. “I think it is a big problem for the country. and so I can’t do anything more in the next minute or 30 seconds other than say I like the word prioritize. I hope you follow it up. And I hope do you examine the variety of ways that there of trying to prioritize and then work out one that’s pretty good.”
As far back as 1998, Breyer has called for the abolition of mandatory minimum sentences, which mandate minimum prison terms by law according to the crime, amount of drugs, or other factors, and give judges no discretion to lower those sentences. He has said they “set back the cause of justice” because they don’t allow for exceptions depending on the circumstances of a given case. Particularly for drug crimes, they have sent low-level drug offenders to prison for sentences that start at 5 or 10 years and quickly ratchet up from there.
This Wall Street Journal article, headlined "Two Supreme Court Justices Say Criminal-Justice System Isn’t Working: Justice Breyer says mandatory minimum sentences are 'a terrible idea'," provides some more notable quotes from the Justices.
Should prison terms end once criminals seem "too old" to recidivate?
The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?". Here are excerpts:
Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing. But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011. It was the harshest sentence available. That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of fiveyear extensions if he is still deemed a risk to the public in 2033, when he is 53.
The idea of a 21-year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty. Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach. He made the case for a 20-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public. Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”
This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....
Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-enter society.
This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one-size-fits-all leniency to even violent offenders.
Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”
March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Friday, March 20, 2015
Should SCOTUS Justices (and lots of other federal and state judges) regularly visit prisons?
The question of the title of this post is prompted by this interesting local article from Michigan, headlined "Justice goes to prison to weigh Mich. sentencing system." Here are excerpts from this lengthy story:
On an early March tour of Michigan's prison intake center, new Supreme Court Justice Richard Bernstein learned that corrections officials want more guidance from judges about their expectations for the lawbreakers sent here.
New prisoners and rearrested parole absconders are processed at the three-building complex before being assigned to correctional facilities around the state. Inmates arrive with sentencing orders and other paperwork but nothing to indicate why a judge prescribed a certain prison term or what the goal of it is, Michigan Corrections Director Dan Heyns said.
"It would be helpful for judges to tell us the intent of their sentences," Heyns told Bernstein, the nation's first blind state Supreme Court justice. "If it's strictly to provide public safety, we know how to do that. But if the intent is to get at the root cause of their criminality, tell us that."
Bernstein's unusual visit — prison officials couldn't recall a previous visit from a sitting Supreme Court justice — came as lawmakers attempt to revive failed 2014 legislation calling for reforms of 1998 sentencing guidelines and parole policies. The changes were recommended last May by the Council of State Governments Justice Center, which noted 1 in 5 state dollars is spent on corrections....
Bernstein's visit lasted four hours. He was keen to get a feel for what prison is like and learn how he and the state's highest court might improve coordination between judges who dispense justice and incarceration officials who administer it. Corrections chief Heyns provided examples of the way judges' decisions and state sentencing policies impact costs. For the crime of burglary, for example, the recidivism rate — chance of a repeat offense — is no lower after a five-year sentence than a three-year sentence, Heyns said. "There's no return on our investment for the other two years," he added.
The 41-year-old justice was elected last year to an eight-year term after working at his family's well-known Farmington Hills law firm, which specializes in personal injury litigation, not criminal law. He handled a number of disability rights cases the firm litigated. "They said I have no experience with the criminal justice system," he said referring to critics of his November campaign for the Supreme Court. "That's a legitimate criticism."
Bernstein said the legal briefs for criminal cases that come before the Supreme Court are "academic" in nature and don't convey the harsh realities of prison life and rehabilitation. At the Charles Egeler Reception and Guidance Center, Bernstein encountered stark facilities where 9,000 men are processed annually. They live for two weeks to a month in barred cells stacked in tiers with yellow-railed gangways....
"I wanted to know what it feels like to come here, I want to know the consequences of our decisions," Bernstein said in the midst of it. "You learn about how every facet of your life is controlled. A free person does not think about that."...
At the end, the justice pressed for feedback about how to make the system work better. Half of the job of Supreme Court justices, he said, is to administer Michigan's court system through rules governing their proceedings. Heyns suggested perhaps something as simple as a statement outlining the expectations in each judge's sentencing order would be a great help to prison officials. Bernstein said he wants to work at it but said any change "won't happen overnight."
Nearly two-thirds of the inmates now feeding into the system through Egeler are first-timers and half of them will be released within two years, according to Heyns. "We don't have a whole lot of time to do a lot of correction," Heyns told Bernstein. "It calls into question, what are we really accomplishing with these people? It's a huge cost."
I think it is fantastic that this new Michigan Supreme Court Justice took the time to check out one part of his state's prison system. I think all judges with a significant part of their dockets comprised of criminal justice cases ought to consider doing the same. (I would guess that only a very small percentage of federal or state appellate judges have spent any real time inside a prison facility.)
Thursday, March 19, 2015
Making the effective case for graduated reentry to reduce incarceration and recidivism
This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:
While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.
The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.
This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.
Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....
For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.
Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....
There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.
Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.
March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack
Thursday, March 12, 2015
"Prisons Are Making America's Drug Problem Worse"
The title of this post is the headline of this notable new Politico piece. Here are excerpts that reinforce my fear that one of the biggest problems with the modern drug war is that we are fighting it so very poorly:
After two decades of rapidly rising incarceration rates — rates that continued to rise even as crime sat at record historic lows — America today has nearly 2.2 million adult inmates in local, state and federal jails and prisons, including about 300,000 who have a history of heroin addiction. The BOP spends $110 million annually on drug treatment programs for approximately 80,000 inmates identified as dependent on narcotics. But for the 10,000 or so federal inmates dependent on heroin or other opioids, millions of those dollars are currently spent on outdated, ineffective approaches that wrongly prohibit medication-assisted therapies — approaches that, in other words, fail to help prisoners addicted to opioids during their sentence and ultimately return them afterwards to society as addicted as they were when they went into jail.
It doesn’t have to be that way. A recent study of opioid-dependent inmates leaving Rikers Island jail in New York City showed that nearly nine out of ten inmates who were not medicated relapsed within a month, as opposed to just 2 out of 5 inmates who were on medication-assisted treatment. The difference to society between those two numbers — in terms of health outcomes, reduced crime, and improved employment stability — is huge.
Science notwithstanding, the U.S. criminal justice system has resisted medication-assisted therapy, with only a few large urban jails (e.g. New York City, San Francisco, Albuquerque) and a handful of state prisons such as those in Rhode Island and Vermont opting to use it. Yet most major correctional experts, including the U.S. Bureau of Justice Assistance (BJA), the National Re-Entry Resource Center and the National Commission on Correctional Health Care, all recommend increasing the availability of medication-assisted therapy for opioid dependence in the country’s jails and prisons. The U.S. Bureau of Justice Assistance (BJA) recently concluded that the effects of MAT are “many times greater” than behavioral therapies without medications.
Beyond the correctional world, the World Health Organization, UNAIDS, the United Nations Office on Drug Policy, and the National Institute on Drug Abuse (NIDA) all agree that people dependent on heroin and other opioids should have access to medication-assisted therapy. In a recent publication, NIDA stated, “Taking these medications as prescribed allows patients to hold jobs, avoid street crime and violence, and reduce exposure to HIV.” The White House Office of Drug Control Policy calls MAT combined with behavioral therapy the “standard of care” for opioid dependence and recently announced that drug courts, which offer treatment as an alternative to prison for some criminal offenders, will be required to offer MAT in order to continue to receive federal dollars.
Nevertheless, despite the evidence to the contrary, the Federal Bureau of Prisons prohibits such treatments entirely for “routine” (non-detox) purposes. Corrections officials frequently cite security concerns to justify denying buprenorphine and methadone therapy to inmates, fearing the medicine will be diverted to other prisoners — despite the fact that these issues can be resolved with tighter security measures and closer staff supervision (the prison systems of Western Europe, Scotland, Canada and even Iran can attest to that).
Wednesday, March 11, 2015
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.
Monday, March 09, 2015
Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"
Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:
What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street? To my knowledge, this question has never been polled by any respected organization.
I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:
A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas. The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....
The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:
• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.
• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....
“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin. “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”
March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, March 08, 2015
Stirring (sentencing) civil rights sentiments in Selma speech
The events in Selma, Alabama a half century ago has led to a modern weekend of discussion and reflection on the achievements and work still to be done in the never-ending struggle for civil rights for all. President Obama, whom even his toughest critics will admit can give a good speech, spoke to these matters in a speech at an historic location in Selma. The full text of the speech is worth a read, and these sentiments from the text of President Obama's remarks which have obvious sentencing significance:
This is work for all Americans, and not just some. Not just whites. Not just blacks. If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination. All of us will need to feel, as they did, the fierce urgency of now. All of us need to recognize, as they did, that change depends on our actions, our attitudes, the things we teach our children. And if we make such effort, no matter how hard it may seem, laws can be passed, and consciences can be stirred, and consensus can be built.
With such effort, we can make sure our criminal justice system serves all and not just some. Together, we can raise the level of mutual trust that policing is built on — the idea that police officers are members of the communities they risk their lives to protect, and citizens in Ferguson and New York and Cleveland just want the same thing young people here marched for — the protection of the law. Together, we can address unfair sentencing, and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and workers, and neighbors.
- Should criminal justice reform be the new civil rights movement?
- Reflecting on race and criminal justice realities to honor MLK's legacy
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- Do (and should) marijuana reform advocates consider themselves civil rights activists like MLK?
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
Saturday, March 07, 2015
California voters through Prop 47 help fix prison crowding problems plaguing state for decades
Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s. Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues. But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.
I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way. The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:
California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.
The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday. Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.
But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47. “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview. “The thing we are grappling with is the tremendous rise in property crime.”
Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....
Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....
In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014. Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.
Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said. “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”
Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less. Prior to the measure, the threshold for misdemeanor property crimes was $450. Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.
Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”
Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure. Most of that money is slated for mental health and substance abuse programs.
I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.
Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).
Some prior related posts on California's Prop 47 and its early impact:
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Notable pitch for California Prop 47 based in mental health concerns
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
- Intriguing review of early impact of California's Prop 47 reducing offense seriousness
- Early report on the early impact of Proposition 47 in California
March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, March 06, 2015
Highlighting that mass incarceration is "Not Just the Drug War"
For lots of good reasons, the modern war on drugs is the focal point for lots of criticisms of criminal justice systems in the United States. But this effective Jacobin Magazine Q&A with Marie Gottschalk, author of the book "Caught: The Prison State and the Lockdown of American Politics," spotlights that the US affinity for record-levels of incarceration is about a lot more than the drug war. The full piece is today's must-read, and here are excerpts from its start:
[The] new book by University of Pennsylvania political scientist Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics, makes it clear that the problem is far worse than commonly suspected, and that the reforms on the table are unlikely to even make a dent in the forces that keep millions behind bars.
Contrary to what many progressives believe, Gottschalk argues it’s not primarily the War on Drugs that’s driving this beast. Instead, it’s an all-out assault that “extends a brute egalitarianism across the board.” Jacobin editor Connor Kilpatrick recently got a chance to interview Gottschalk.
Q: One of the most shocking stats in your book is that simply rolling back punishments for violent offenses to their 1984 levels in 2004 would have done more to lower the incarceration rate — a cut in state prison rates of 30 percent — than simply ending the drug war.
A: The intense focus in criminal justice reform today on the non-serious, non-violent, non-sexual offenders — the so-called non, non, nons — is troubling. Many contend that we should lighten up on the sanctions for the non, non, nons so that we can throw the book at the really bad guys. But the fact is that we’ve been throwing the book at the really bad guys for a really long time.
Legislators are making troubling compromises in which they are decreasing penalties in one area — such as drug crimes — in order to increase them in another area — such as expanding the use of life sentences. In doing so, they’re also fostering the mistaken idea that it is easy to distinguish the non, non, nons from the really bad guys.
Thursday, March 05, 2015
Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?
The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers. This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.
But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.
Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.
But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....
And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....
Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.
Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.
Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release. And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.
Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75. But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail." Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.
March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"
The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:
This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control. This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.
The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement. Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment. It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures. The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations. This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency. The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.
Tuesday, March 03, 2015
Student Guest Post: "Behind Bars In 140 Characters or Less"
I told students in my Sentencing Course this semester that they could earn extra credit in the class by providing me with blog-ready, cut-and-paste materials for this blog. One student did just that by providing me with this effective review of recent discussions of prison discipline in South Carolina:
"Behind Bars In 140 Characters or Less"
This February 19 article from the New York Times Magazine entitled “The Shame of Solitary Confinement” explores the abuse of solitary confinement sentencing for inmates of South Carolina prisons.
Dave Maass, an investigative researcher for the Electronic Frontier Foundation, used the 40-page South Carolina Department of Corrections Social Media Disciplinary Report to parse through punishments inmates receive for posting to Facebook or Twitter while behind bars. (His full report can be found here.) The distributed punishments range from loss of canteen privileges, good time, or visitation, to loss of property privileges or telephone rights.
On the record of some inmates, “disciplinary detention” for X number of days is listed. Disciplinary detention or “administrative segregation” are nicer terms for solitary confinement. Maass discovered that South Carolina inmates who made online posts were receiving seemingly disproportionate sentences of solitary confinement for their actions, a punishment typically received for “the worst of the worst” within prison. Now, simple rule violations, in South Carolina and (we have reason to believe) in other states, can land inmates in solitary. Could these disobedient actions not be equally, and perhaps more justly, punished by locating and confiscating the device, and sentencing the inmate to an overnight work shift, janitor duty, or a loss of other privileges short of years worth of solitary confinement?
The most troubling thing of all, Maass discovered, is that the undefined number of days could reach up to nearly thirty-eight years of solitary confinement for repeat offenders.
“In October 2013, for example, Tyheem Henry received a penalty of 37½ years in solitary confinement, for posting on Facebook on 38 different days. When Maass looked into the issue, he found that the agency was sending inmates caught posting on social-media sites to solitary confinement for an average of 512 days.”
In Tyheem Henry’s case, that’s nearly one year of solitary confinement per post on social media. In cases less egregious than Henry’s, where inmates posted only once or twice, the average length of solitary per post exceeded a year.
The policies behind prisons not wanting inmates to post to online sites is strong. The state is concerned that inmates may use the sites to intimidate witnesses or to plan the exchange of drugs or other contraband. Since prisoners generally are not allowed Internet access nor cell phones, presence of posts is also indicative of a possession of contraband and thereby an automatic rule violation.
Fortunately, Maass is hopeful that this punishment scheme is disappearing, thanks to South Carolina judges and Department of Corrections Director Bryan Stirling. On February 2, Stirling signed a new disciplinary mandate setting the maximum solitary punishment to sixty days per infraction/series of related infractions. Stirling reported that the new policy would prevent “stacking time,” the practice that allowed for the extended sentences discussed above.
“In January 2014, a few months after Stirling took office, a South Carolina state court judge, J. Michael Baxley, entered a hard-hitting directive in a long-running lawsuit on behalf of about 3,500 mentally ill prisoners. Baxley called the case “the most troubling” to come to the South Carolina courts, “far above all others,” in his 14 years on the bench. For mentally ill patients, isolation was “often used in lieu of treatment, with severe consequences,” Baxley found. Prisoners in South Carolina who suffered from depression, schizophrenia and other mental illnesses were almost twice as likely as other prisoners to go to solitary, for an average of 647 days.”
Citizens, taxpayers, and prison reformists should still be concerned, however. Is it going to take a Judge Baxley in each of the fifty states to add some structure to the punishment scheme for inmates? Shouldn’t there be at least some debate as to whether solitary confinement should be on the table at all for social media violations? After all, nearly 7% of South Carolina’s inmate population remains in solitary confinement.
“South Carolina’s record of abusing solitary may be particularly horrendous, but it’s not unique. California is being sued over prolonged solitary confinement — defined as lasting between 10 and 28 years (yes, again, years). In 2013, a county in New Mexico agreed to pay a settlement of $15.5 million to a man who, awaiting trial in jail on a drunken-driving charge, endured mental and physical suffering during 22 months of isolation. (He was never prosecuted.)”
Friday, February 27, 2015
"A Second Chance: Education's Role in Reversing Mass Incarceration"
The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby. Here is how it starts:
The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society. The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men? What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program? The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value. At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.
Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars. Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records. Another day of Black History month has borne witness to our persistent troubles.
According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails. And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested. The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population. But even more troubling is the fact that, on any given day, one in 15 black men are in prison. And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine. "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports. These shameful statistics suggest that creating channels of reentry are imperative.
February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Thursday, February 26, 2015
Encouraging recidivism realities after three-strikes reform in California
This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast. Here are excerpts:
Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....
Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.
“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...
In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”
Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.
After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.
February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?
The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber. Here are excerpts:
What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?
Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia. During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”
These potential jurors may have a point. Tsarnaev, 21, has been in solitary confinement for a year and a half. Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....
According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.
Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...
The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.
Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....
On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
- Gearing up (finally) for start of capital trial of Boston Marathon bomber
Wednesday, February 25, 2015
"Rape in the American Prison"
The title of this post is the title of this lengthy new Atlantic article about a part of the subjective experience of imprisonment for all too many prisoners despite notable efforts by Congress to address the problem of prison rape. Here are excerpts:
In 2003, ... Congress passed the Prison Rape Elimination Act, now usually known as PREA. It was intended to make experiences [of rape in prison] far less likely. But like many ambitious pieces of legislation, its promise has proved difficult to realize. The law required studies of the problem that took far longer than initially intended, and adoption of the guidelines they produced has been painfully slow, resting on the competence and dedication of particular employees. PREA has not been a complete failure, but it is also far from delivering on its promise....
Reports about prison rape by advocacy groups led to occasional efforts by federal lawmakers to address the problem. None of those initiatives gained any wide support until 2001, when Human Rights Watch released “No Escape: Male Rape in U.S. Prisons,” which focused less on perpetrators than on failures by correctional staff and policies to prevent rape. The report included harrowing first-person accounts. “The opposite of compassion is not hatred,” wrote one Florida prisoner, describing the violence he’d endured. “It’s indifference.” The revelations brought together liberal human rights activists, government-distrustful libertarians, and Christian conservatives. PREA was passed unanimously....
After PREA passed in 2003, the bipartisan commission announced it would obtain data on prison rape, write a report, and recommend a set of policy proposals “after two years.” The complexity and scope of the problem proved daunting, and it took nearly six; the report was released in 2009.
The next stop was Attorney General Eric Holder’s Department of Justice, which spent three years (two more than they had initially planned) deliberating over the law and translating its recommendations into final standards....
PREA specifically barred the commission from recommending standards “that would impose substantial additional costs” for prison administrators, and many told the commission that placing youth who were convicted as adults in their own facilities would be impossibly expensive. “We must house adolescents and adults separately,” Martin Horn, head of the New York City Department of Correction, said at a 2006 hearing in Miami. “This takes time, this takes staff, and this takes money. And you must ask Congress to provide it.”
Today, states only have to promise that they’re working to comply with PREA’s many requirements, including the separation of youth under 18 from older prisoners. If they fail to do so or simply refuse to certify their compliance, as the governors of seven states have done, they stand to lose 5 percent of their grant funding from the DOJ. While most states, including Michigan, are still assuring federal authorities that they are addressing prison rape, prisoners remain at risk.
Monday, February 23, 2015
Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US
I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control. I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.
I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech. This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:
The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma." In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.
It's true. There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.
In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).
In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.
Urging more media coverage of the "truly guilty and violent"
The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.
The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts. Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.
When we do write about the guilty, we prefer they be nonviolent offenders. We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.
We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.
But this means we neglect much that is immensely significant. There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections. That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.
Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.
Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.
There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.
Sunday, February 22, 2015
Early report on the early impact of Proposition 47 in California
This new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November. The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:
In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.
On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.
Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.
Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.
Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.
"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."
The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.
Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.
Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.
Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.
Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."
The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.
"PTSD in the Prison System"
The title of this post is the title of this paper by Julie Ann Davis now available via SSRN. Here is the abstract:
The treatment of Veterans with post-traumatic stress disorder in the federal prison system has fallen in quality, if it can ever be said to have been sufficient. This work presents an analysis of PTSD in Veterans, identifies the deficiencies in prison systems to address the mental health aspects of PTSD, and presents solutions to address the needs of our soldiers.
Wednesday, February 18, 2015
AP report details that, functionally, California kills many more sex offenders than murderers
Formally, California sends many more murderers to its death row than any other state and it has more condemned capital prisoners than two dozen other US death penalty states combined. But California has only managed to actually execute fourteen of those sentenced to die and nobody has been executed by the state in nearly a decade. Meanwhile, as this new AP report details, over the last eight years, while California has not moved forward with an execution of a single condemned murderer, a total of 78 sex offenders have been slaughtered inside California's prisons. Here are the basics:
California state prisoners are killed at a rate that is double the national average — and sex offenders ... account for a disproportionate number of victims, according to an Associated Press analysis of corrections records.
Male sex offenders made up about 15 percent of the prison population but accounted for nearly 30 percent of homicide victims, the AP found in cataloging all 78 killings that corrections officials reported since 2007, when they started releasing slain inmates' identities and crimes.
The deaths — 23 out of 78 — come despite the state's creation more than a decade ago of special housing units designed to protect the most vulnerable inmates, including sex offenders, often marked men behind bars because of the nature of their crimes.
In some cases, they have been killed among the general prison population and, in others, within the special units by violence-prone cellmates. Officials acknowledge that those units, which also house inmates trying to quit gangs, have spawned their own gangs.
Corrections officials blamed a rise in the prison homicide rate on an overhaul meant to reduce crowding. As part of the effort, the state in 2011 began keeping lower-level offenders in county lockups, leaving prisons with a higher percentage of sex offenders and violent gang members....
The problem is most acute with sex offenders. Last fall, the corrections department's inspector general reported that so many homicides occurred in the "increasingly violent" special housing units reserved for vulnerable inmates that the department could no longer assume that inmates there could peacefully co-exist. The report looked at 11 homicide cases that were closed in the first half of 2014 and found that 10 victims were sensitive-needs inmates. Using corrections records, the AP found that eight of them were sex offenders.
For a variety of reasons, most states have special facilities incorporated into their "death row," and condemned prisoners on death row are often eager to be well behaved in the hope of increasing their odds of getting out from under a death sentences eventually. Consequently, it can often be much safer for certain prisoners to be condemned and confined to death than to be in the general population. And this new AP report reinforces my sense that a serious California criminal likely would lead a more peaceful and safe life in prison if and when he murders and gets condemned to death than if he just commits a sex offense. (In addition to being a disturbing practical reality, these dynamics might perhaps prompt and incentivize a "rational rapist" in California to murder one or more his victims in order to ensure he can potentially avoid the dangers of the general prison population and live out his life peacefully pursuing appeal after appeal while safe and secure on death row.)
Tuesday, February 17, 2015
"How to Talk About Sentencing Policy — and Not Disparity"
The title of this post is the title of this terrific new piece by Nancy Gertner just published by the Loyola University Chicago Law Journal. I consider most everything Prof (and former Judge) Gertner writes about sentencing to be a must-read, and these passages from the start of the piece reinforce my sense that this new commentary is especially timely and important:
I want to talk about why I don’t want to discuss sentencing disparity, why this is an issue far, far less important than issues of sentencing fairness, of proportionality, of what works to address crime. Disparity-speak has sucked the air out of all interesting and meaningful discussion of criminal justice reform for the past several decades....
The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?...
To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?
And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.
February 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Monday, February 16, 2015
Notable new commentary on the notable work of the Colson Task Force
A helpful reader shared with me this notable commentary authored by Jim Liske, who is CEO of Prison Fellowship and is serving on the Charles Colson Federal Corrections Task Force. The FoxNews piece is headlined "Colson Task Force offers chance for Restorative Justice," and here are excerpts:
I am honored to serve on the new Charles Colson Task Force on Federal Corrections, which met for the first time in late January. Named for my organization’s founder, the Task Force is a bipartisan, nine-member panel chaired by J.C. Watts, that will address long-existing challenges in federal corrections and make data-driven recommendations to make the system more effective and just—for the sake of prisoners and our communities alike....
In the last several years, individual states have already begun to pursue prison reform that hold offenders accountable and yet give them hope for restoring their lives once they’ve served their time. Hawaii has seen success through its HOPE program, which guarantees “swift and sure sanctions” for those who violate the terms of their probation. This accountability-intensive approach, which affirms offenders’ potential by expecting them to do better, has been so effective, it’s being copied in courtrooms nationwide. Some states are increasing their use of earned-time credits, which allow people to earn the right to rejoin the community earlier by using their time productively, and still others are reducing sentences for non-violent offenses.
Reforms like these offer hope for evidence-based, cost-effective changes the Task Force will examine. But we can go a step farther. The time is right for prison reforms that aren’t just evidence-based, but values-based, reflecting our beliefs in the God-given dignity, value, and potential of every human being. Justice can be restorative when we make sure that the opportunity for both accountability and redemption are balanced at the core of our criminal justice system.
Why should justice be restorative? At its heart, crime isn’t about law-breaking; it’s about violating the peace and wholeness of the entire community. Public safety may require that we lock someone up, but that alone will not heal victims or the community or change the conditions that help breed crime. When the responsible party has the opportunity for redemption and restoration — by making amends to his victims, changing his thinking, and earning back the public’s trust by living a law-abiding, constructive life upon release—the community can find healing and move beyond the vicious cycle of crime and incarceration....
The Charles Colson Task Force is an important first step that honors the legacy of a visionary leader, but the challenges facing our criminal justice system cannot be solved by this group alone. It’s time for everyone with a stake in criminal justice and public safety—which is all of us—to call for reforms that elevate and prioritize victims’ voices, provide genuine opportunities for prisoners’ moral rehabilitation, and engage the entire community in breaking the cycle of crime.
We all need to speak up to create the kind of restorative society, based on the dignity and value of every life, that each of us wants to call home.
Prior related post:
Friday, February 13, 2015
"Pick a stat, any stat. They all tell you the same thing: America is really good at putting people behind bars."
The title of this post is a line from the start of this detailed analysis of incarceration rates and crime by Oliver Roeder, a senior writer for FiveThirtyEight. The piece merits a full read, and here are excerpts from the start and end of the piece:
There are 2.3 million Americans in prison or jail. The U.S. has 5 percent of the world’s population but 25 percent of its prisoners. One in three black men can expect to spend time in prison. There are 2.7 million minors with an incarcerated parent. The imprisonment rate has grown by more than 400 percent since 1970.
It’s supposed to help the country reduce crime in two ways: incapacitation — it’s hard to be a habitual offender while in prison — or deterrence — people scared of prison may do their best to not end up there. But recent research suggests that incarceration has lost its potency. A report released this week from the Brennan Center for Justice at the New York University School of Law finds that increased incarceration has had a very limited effect on crime over the past two and a half decades. At incarceration’s current elevated levels, the effect of more incarceration on crime is not statistically different than zero. It’s no longer working....
[C]rime trends are complicated. Surely no one is complaining about the recent decline, but no one fully understands it either. One thing is becoming clear: Increased incarceration’s role was minimal.
Recent related post:
Wednesday, February 11, 2015
"Incarceration’s Front Door: The Misuse of Jails in America"
The title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:
Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.
The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay courtimposed costs.
The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modernday debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.
While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.
“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”
The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.
Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses. As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.
Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail. The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring. Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.
Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.
Sunday, February 08, 2015
Highlighting the role of prosecutorial activity in modern mass incarceration
I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration. The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:
Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high. It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012. But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.
What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place. Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be. If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.
In a conversation with Slate, Pfaff explains his theory....
Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.
A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.
Q: Why would that be?
What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3. So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies. I can’t tell you why they’re doing that. No one’s really got an answer to that yet. But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.
As regular readers likely know, I am a big fan of John Pfaff's research. Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities. (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)
That said, in part because John's analysis is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges." In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year. But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s. These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."
In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system. But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted. (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)
My point here is not to assert that John's data analysis is misguided or inaccurate in any way. But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights. And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.
Prior posts about Prof. John Pfaff's important research:
- A systematic examination of prison growth (from 2007)
- Assessing the reality of modern prison growth (from 2009)
- A data-based exploration of prison growth and the drug war (from 2013)
- The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report (from 2014)
- "The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options" (from 2014)
February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack
Friday, February 06, 2015
Bipartisan Recidivism Risk Reduction Act introduced in US House
This notable press release from the office of Representative Jason Chaffetz provides the details of a federal prison reform bill that would be extremely consequential if it can get enacted. Here are excerpts from the release providing basic details about the bill:
Republicans Jason Chaffetz (R-UT) and Trey Gowdy (R-SC) joined with Democrats Cedric Richmond (D-LA) and Hakeem Jeffries (D-NY) to introduce H.R. 759, Recidivism Risk Reduction Act. This bipartisan legislation uses risk assessment tools to reduce recidivism, lower the crime rate, and reduces the amount of money spent on the federal prison system....
H.R. 759 would implement a post-sentencing dynamic risk assessment system to identify an inmate’s risk of recidivism. Then, using evidence-based practices developed by states, effective recidivism reduction programs are identified and utilized. The bill would then provide incentives for inmates to participate in those programs.
Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their term. Such arrangements reduce the cost of housing an inmate in the federal prison system.
The program will be phased in over a five year period. The savings will be reinvested into further expansions of proven recidivism reduction programs during this time. After that, it is anticipated that the savings can be used either for other Justice Department priorities such as FBI agents, US Attorney offices etc., or the savings can be used to help reduce the deficit. Similar programs have found success on a state level in several states including Texas, Oklahoma, Ohio, and North Carolina.
In addition, Reps. Chaffetz and Jefferies introduced HR 760, the Bureau of Corrections Renaming Act. This bipartisan legislation would simply rename the “Bureau of Prisons” – under the jurisdiction of the Department of Justice – the “Bureau of Corrections.” Over ninety percent of all federal prisoners will eventually be released. This small change will help the Bureau remember that its mission is not just to house people, but also to rehabilitate prisoners such that they are productive members of society when released. Forty-eight states throughout the country use the word ‘corrections’ in describing their prisons.
The Attorney General is directed to consult with appropriate federal agencies and stakeholders to design, develop, implement, and regularly upgrade an actuarial Post Sentencing Risk Assessment System which shall include one or more comprehensive risk and needs assessment tools, which shall be peer-reviewed and validated, and periodically re-validated, on the federal prison population for the specific purposes of this Act.
Prisoners will be divided into high, moderate, or low risks of recidivism. Prisoners will be periodically re-evaluated and have the opportunity to progress to low risk of recidivism. Prisoners who misbehave can move the other way – i.e. from low to moderate risk of recidivism. Bureau of Prisons shall incentivize prisoners to reduce their individual risk of recidivism by participating in and completing recidivism reduction programs.
Prisoners who have committed more serious crimes such as child abuse, terrorism, and violent felonies, are not eligible for the program.
If a prisoner is successfully participating in and/or completing programs, holding a prison job, participating in educational courses, participating in faith-based services and courses, or delivering programs or faith-based services and courses to other prisoners, the prisoner can earn [certain credits based on their risk levels]. Low risk prisoners will be eligible for consideration for alternative custody such as halfway houses, home confinement, ankle bracelets, etc.
This is not automatic – it must be reviewed and approved by the prison warden, the chief probation officer in the relevant federal district, and a judge in the relevant federal district.
This is not a reduction in sentence – prisoners are not being released and nothing in this Act affects Truth in Sentencing requirements that prisoners complete at least 85% of their sentence.
Some recent related posts:
- A positive perspective on possible prison reform emerging from Congress
- "Could 2015 be the year Congress finally gets serious about criminal-justice reform?"
UPDATE: Not to be overlooked (even though I managed to overlook it), this past week also saw another notable bipartisan federal bill of not introduced in both houses of Congress. This press release from the office of Senator Rand Paul provides the basics:
Today, Senator Rand Paul (R-KY), Senator Patrick Leahy (D-VT), Representative Thomas Massie (R-KY), and Representative Bobby Scott (D-VA) introduced the Justice Safety Valve Act (S. 353/H.R. 706) in the Senate and House of Representatives. The Justice Safety Valve Act would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases based upon mitigating factors.
February 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, February 05, 2015
"Could 2015 be the year Congress finally gets serious about criminal-justice reform?"
The title of this post is the subheading of this new Mother Jones piece which carries this main headline: "On These 5 Things, Republicans Actually Might Work With Dems to Do Something Worthwhile." Here are highlights (mostly) from the start and end of the piece:
Recently, bipartisan momentum has been building behind an issue that has historically languished in Congress: criminal-justice reform. Recent Capitol Hill briefings have drawn lawmakers and activists from across the political spectrum—from Sen. Al Franken (D-Minn.) to Koch Industries general counsel Mark Holden, whose boss, conservative megadonor Charles Koch, has made reform a key philanthropic priority.
The emergence of this unlikely coalition has been building for some time: Liberals have long been critical of the criminal-justice status quo, and many "tough on crime" conservatives — growing concerned by the staggering costs of mass incarceration and the system's impingement on liberty — are beginning to join their liberal and libertarian-minded colleagues. In the past, bills aimed at overhauling the criminal-justice system have stagnated on Capitol Hill, but the bipartisan players who are coming together to push for change means that there are some reforms that could realistically gain traction, even in this divided Congress....
Easing up mandatory minimums....
Sealing and expunging records....
Despite the bipartisan efforts, many experts still believe that there are plenty of issues that could pose serious obstacles to compromise. Beyond the disagreement on mandatory minimums, there's potential conflict on the role of for-profit prisons, which conservatives praise and Democrats like Booker loathe. Additionally, support for loosening drug penalties — particularly for marijuana — is growing broadly popular, but powerful Republicans remain vocal opponents....
There is one especially powerful force pushing along reform: The federal government is expected to spend nearly $7 billion on prisons this year, and conservatives in charge of Congress will be under pressure to bring down costs. "With every Congress, I'm hopeful for reform," Hurst says. "But this Congress' argument is based on money, not humanity, which is why it's more realistic that it'd happen."
February 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 04, 2015
A positive perspective on possible prison reform emerging from Congress
This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:
The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.
Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles. The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums. Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.
But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies. And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.
Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley. "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."
In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums. A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate. But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.
And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president. That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress. That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2. Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.
The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism. Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling. Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.
Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee. There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform. But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said. "There are some things where there is a pretty good shot of getting some bipartisan agreement." And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.
February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, February 03, 2015
"How to Stop Revolving Prison Doors With Books"
The title of this post is the title of this extended piece in the Harvard Political Review authored by Alice Hu. Here is how it starts and ends:
Education reduces crime. This connection seems like common sense, and indeed it has been researched, analyzed, and affirmed countless times. According to a 2007 collaborative study by Columbia University, Princeton University, and City University of New York, higher education reduces the crime rates of both juveniles and adults by impacting social behavior and economic stability.
The effect of education on crime-reduction is even more dramatic for a certain group within the population: the incarcerated. To many, the idea of convicts receiving a free college education behind bars is confounding and, more often, infuriating. When New York Governor Andrew Cuomo introduced a plan to publicly finance basic college education programs in state prisons, legislators in Albany called it “a slap in the face” for law-abiding citizens.
While this response is understandable, the arguments themselves neglect the actual effects of college-in-prison programs. According to the U.S. Department of Education, inmates who participated in education programs had a 43 percent lower chance of returning to prisons than those who did not. By drastically reducing the recidivism rate of former inmates, education in prisons returns a tremendous social benefit for all members of society. Prison education programs not only save an enormous sum of tax dollars spent on prisons annually, but they also have a profound effect on thousands of families and communities. The current resistance to college-in-prison is founded upon political rhetoric rather than any factual evidence. Indeed, this type of rhetoric by politicians is perhaps indicative of a large, troubling trend in education and incarceration....
College stops the revolving prison doors. It allows inmates the opportunity to reintegrate into society, to work, pay taxes, and contribute to society. It saves the public billions of tax dollars, money that can go toward higher education aid for students rather than prison expansion. The “tough on crime” rhetoric may have helped past politicians — Democrats and Republicans alike — to win elections, but it has done little to help the people inside or outside the prisons. Indeed, the adverse effect of forgoing college programs for inmates cuts across partisan lines and prison bars. Perhaps this is why President Clinton, who was once adamant about being “on the side of those who abide by the law,” has since commended Bard Prison Initiative as a “good investment in a safer, more productive society.” Politicians can choose to neglect the evidence and paint college-in-prison programs as unfair to law-abiding citizens, but the true injustice lies in the continuation of ineffective and costly practices when a solution is readily available — education. It is common sense, after all.
Monday, February 02, 2015
Getting a European perspective on crowded prisons
This new Wall Street Journal article, headlined "Overcrowding Puts Strains on Europe’s Century-Old Prisons," highlights that the US does not have the most densely populated prisons in the world even though we have the largest total prison population. Here are some details from the article:
While cities and states across the U.S. are selling off prisons as the inmate population shrinks, Europe faces the opposite challenge: how to cope with chronic overcrowding in old, cramped jails.
The fortresslike structure of Forest prison is in the otherwise chic Saint-Gilles district of Brussels. Built in 1910 to house 380 inmates, it currently holds 600, most of whom are awaiting trial. In two of the four wings, three inmates are held in 90-square-foot cells designed for one. Two share bunk beds while the third has a mattress on the floor. They eat there and share a toilet. In the other half, prisoners have individual cells but no running water. They must relieve themselves in a bucket that can go unemptied for 48 hours....
“It is medieval,” said Vincent Spronck, who became warden four years ago after a decade working in other prisons. “I didn’t know these conditions still existed until I got here.” The problem isn’t limited to Forest or even Belgium.
In central London, the 170-year-old Pentonville Prison houses 1,303 men in a space designed for 913. An official report found “significant, easily visible vermin infestations,” dirty cells, and rampant drug abuse, and suggested shutting it down.
La Modelo in Barcelona, built in 1904, held 1,781 inmates in space designed for 1,100 when it was last inspected by a team from the intergovernmental Council of Europe, the continent’s human-rights watchdog. Lisbon Central Prison (built 1885) has an official capacity of 886, but was holding 1,310 prisoners in May 2013. Korydallos Prison, built in the 1960s in Athens, should hold 840 people, but held 2,300 in April 2013.
“The whole structure is in a state of crisis,” said Hugh Chetwynd, head of division for the Council of Europe’s Committee for the Prevention of Torture. Overcrowding means “staff struggle to keep proper control, so they resort more to excessive force.” Prison populations per capita are growing in most European countries....
One solution is to send prisoners abroad. Belgium pays €43 million ($48 million) a year to the Netherlands to hold 600 prisoners over the border in a former military barracks in Tilburg. Belgium and Italy, which also has a long-term overcrowding problem, are building new prisons, but some experts argue this doesn’t resolve the problem. “You build big prisons…that leads to higher population rates,” said Peter Bennett, who was warden at four prisons before becoming director of the London-based ICPS. “All the research shows that sending people to prison doesn’t reduce the crime rate.”
Still, while there appears to be no strong relationship across countries between incarceration and crime rates, the crime rate in the U.K. has fallen as the prison population has risen. Peter Cuthbertson, director of the Center for Crime Prevention, said taking serial criminals off the streets cuts crime. “If you don’t do anything else,” he said, a criminal “can easily end up committing hundreds of crimes a year.” He said that longer sentences reduce recidivism rates and while overcrowding isn’t ideal, his solution is to build more prisons.
Indiana sentencing reforms highlight how low-level criminal justice is forced to fill public health gaps
This lengthy local article from Indiana, headlined "County jails fear onslaught of addicts, mentally ill from prisons," provides an effective showcase of the relationships between criminal-justice issues and public-health issues. Here is how:
With the passage of sentencing reforms last year, one study estimates that more than 14,000 low-level offenders, some with serious addictions and mental illnesses, will no longer be kept in prison. They will be diverted to county jails and community corrections programs that [Franklin County Sheriff Ken] Murphy and others say are ill-equipped to handle the onslaught.
Many such offenders need expensive mental health care — some requiring hundreds of dollars a month in medication. "These are people with real problems that need treatment," Murphy said. "We need a secure facility or work release or whatever where we can send these folks ... where they can receive treatment, and when they're released, somebody follows up with them."
Sheriffs across the state say jails are not designed for all that. Jails are meant to hold people awaiting trial, not to house and rehabilitate those who have been convicted. Many do not have mental health services. Some counties also lack money to expand treatment programs or to launch community corrections programs that provide alternatives to jail, such as housing and GPS monitoring. That, Murphy said, makes this legislative session critical for public safety.
The success of the criminal code reform under House Enrolled Act 1006, which took effect in July, hinges largely on providing funds for county programs. Without them, Murphy and others say, people with mental illness and substance abuse problems have a higher risk of failing and re-offending....
"County jails are totally based on the idea in our society that you are innocent until proven guilty," said Howard County Sheriff Steve Rogers. "(HEA) 1006 wants us to hold folks after they've been convicted. Then they won't be pretrial detainees." Rogers said HEA 1006 will put a strain on his jail's mental health resources. "If we can reduce the amount of people that have these mental health issues in our jail," Rogers said, "I think we can handle what 1006 will bring us."
Jails also lack educational programs and vocational training offered in the DOC. "We're not here to rehabilitate," said Capt. Harold Vincent, commander at the Howard County Jail. "That doesn't happen in the jail setting."
Inmates with mental illnesses and substance abuse problems are expensive to incarcerate because of their medical and psychiatric needs. In Marion County, for instance, about 30 percent of inmates are mentally ill, and they take up roughly $7.7 million of the sheriff's budget every year, Layton said. Eighty-five percent have substance abuse problems.
Medication for the mentally ill costs about $800 to $1,500 per dose per person, said Dr. Erika Cornett, medical director for the behavioral health division of Community Howard Regional Health. Some need an injection once a month, while others need two. That means one mentally ill inmate can cost a jail up to $3,000 a month in medication alone....
Will the political atmosphere be agreeable to spending more money on programs and services that help criminals? Some hope so.... Some, however, think there will be political resistance. Investing in other areas, such as education, is more popular.
This article is notable in part because it helps highlight that efforts to reduce prison populations and associated costs could be "penny wise, pound foolish" if there are not adequate resources devoted to services needed to aid localities with community supervision and reentry needs. More broadly, by detailing various links between health-care needs and criminal justice institutions, this article suggests that effective health-care reform (especially for the poor) may be as critical to public safety and to the public fisc as is effective sentencing reform.
Sunday, February 01, 2015
Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata
As long-time readers will recall, the US Supreme Court in 2011 in Plata upheld, by a 5-4 vote, a lower-court order that imposed on California a requirement to have its prison population reduced below 137.5% of capacity to remedy extreme Eighth Amendment violations in prison conditions (basics here). In their dissenting Plata opinions (as noted here and here), Justices Alito and Scalia predicted this ruling would likely produce "a grim roster of victims" and a massive number of "murders, robberies, and rapes" in California. Similarly, as noted here, in response to Gov Jerry Brown's realignment plan to deal with the Plata problems, the Los Angeles DA predicted "the greatest spike in crime of the last several decades."
Fast forward a few years and this local story now reports that "California’s prison system has hit a milestone, with new figures showing that the inmate population inside the state’s 34 adult prisons has fallen below a court-ordered cap more than a year ahead of schedule." Here is more:
California’s prisons steadily filled in the 1990s as tough-on-crime measures such as the “three-strikes” law won public support. In November 2006, the prison population hit 162,804 -- larger than Elk Grove’s current estimated population -- or 200.2 percent of the design capacity at that time.
Lawyers for the inmates said overcrowding had reached the point that medical and mental health care services for prisoners were unconstitutional, and they renewed their legal challenge to a system in which inmates were being housed in triple-deck bunks in prison gyms and other open spaces. The state disagreed and continued to fight, but in August 2009 a panel of three federal judges said the situation had “brought California’s prisons to the breaking point.”
The panel decreed that within two years the state would reduce inmate populations to 137.5 percent of capacity. The U.S. Supreme Court agreed in a 5-4 decision in 2011 that the prison population had to be reduced, prompting a series of efforts under Gov. Jerry Brown that led to Thursday’s levels.
Under the latest court orders, California has until Feb. 28, 2016, to cut its inmate population to the 137.5 percent benchmark. The early success in getting to that point can be traced largely to the governor’s prison realignment plan, passed in 2011, which shifted responsibility for nonviolent, low-level offenders from the state to counties.
Before that plan, as many as 60,000 inmates annually were sent to prisons as parole violators and served an average of 90 days. The Department of Corrections says realignment has cut the prison population by about 25,000 inmates. Counties statewide have seen an increase in jail inmates during that time frame....
[In addition,] 2,035 inmates have been released since passage of Proposition 47 in November, which redesignated several felony-level crimes, including some drug possession and property offenses, as misdemeanors. [And] 1,975 inmates in prison after a “third strike” have been released since voters approved Proposition 36 in 2012. The measure allows for inmates to seek resentencing if their third strike was not considered serious or violent.
So, one should ask, what has happened recently in California with respect to crime rates, especially violent crimes that produce the greatest harms to victims. This Crime & Consequences post provides a quick summary of the latest official data: "California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect. Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967."
Posts at C&C highlight data indicating an increase in car thefts and other property crimes in recent years in California. But I do not think even the greatest critics of Plata and the state's responses can assert that, as was predicted by a prominent prosecutor, California has experienced "the greatest spike in crime of the last several decades." In sharp contrast, violent crime has continued to drop in the state in the wake of Plata.
Though I doubt we will be hearing any sort of mea culpa from those who predicted that the public safety sky was sure to fall after Plata, I hope the California story will help inform assessments of future Chicken-Little-type predictions.