Thursday, January 15, 2015
Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender
A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:
In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....
In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.
Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.
January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Tuesday, December 30, 2014
"The Steep Cost of America’s High Incarceration Rate"
The title of this post is the headline of this recent Wall Street Journal commentary authored by Robert Rubin and Nicholas Turner. Here are excerpts:
One of us is a former Treasury secretary, the other directs a criminal-justice institute. But we’ve reached the same conclusions. America’s overreliance on incarceration is exacting excessive costs on individuals and communities, as well as on the national economy. Sentences are too long, and parole and probation policies too inflexible. There is too little rehabilitation in prison and inadequate support for life after prison.
Crime itself has a terrible human cost and a serious economic cost. But appropriate punishment for those who are a risk to public safety shouldn’t obscure the vast deficiencies in the criminal-justice system that impose a significant drag on the economy....
[Mass incarceration] is not only a serious humanitarian and social issue, but one with profound economic and fiscal consequences. In an increasingly competitive global economy, equipping Americans for the modern workforce is an economic imperative. Excessive incarceration harms productivity. People in prison are people who aren’t working. And without effective rehabilitation, many are ill-equipped to work after release.
For the more than 600,000 people who leave prison and re-enter society every year, finding employment can be a severe challenge. Prison time carries a social stigma, which makes finding any job, let alone a good job, all too difficult....
The costs of incarceration extend across generations. Nearly three million American children have a parent in prison or jail. Growing up with an incarcerated parent can harm childhood development. Research by Pew shows that children with fathers who have been incarcerated are nearly six times more likely to be expelled or suspended from school. Incarceration therefore helps perpetuate the cycle of family poverty and increases the potential for next generation criminal activity....
Model programs are being piloted at the state level. For example, the Vera Institute of Justice’s Pathways from Prison to Post-Secondary Education project is working with more than 900 students in 14 prisons. The program provides college classes and re-entry support such as financial literacy training, legal services, employment counseling and workshops on family reintegration. A 2013 meta-analysis by RAND has already found that recidivism decreases when a former inmate graduates from college, which also boosts lifetime earning potential.
And clearly, we need significant sentencing and parole reform. There is widespread bipartisan agreement that we are using prison for too many crimes and for too long, with concentrated effects in many communities. One possibility for reform is the Smarter Sentencing Act, introduced by Democratic Sen. Dick Durbin and Republican Sen. Mike Lee, which boasts 30 co-sponsors and was successfully reported out of the Senate Judiciary Committee this spring. The bill’s House companion also enjoys strong bipartisan support. There are also examples of progress in statehouses around the country. In 2013, 35 states passed bills to change some aspect of how their criminal justice systems address sentencing and parole; since 2009, more than 30 states have reformed existing drug laws and sentencing practices, according to reports from Vera this year.
The time has come to make sensible reform in these four areas — sentencing, parole, rehabilitation and re-entry — a national priority. Doing so could accomplish a tremendous amount for families, communities and the U.S. economy.
Saturday, December 13, 2014
"The Misleading Math of ‘Recidivism’"
The title of this post is the headline of this effective recent piece of reporting and analysis by Dana Goldstein for The Marshall Project. Here are excerpts:
Recidivism, the rate at which former inmates run afoul of the law again, is one of the most commonly accepted measures of success in criminal justice.... [But] recidivism, though constantly discussed, can be widely interpreted — and misinterpreted....
In some studies, violating parole, breaking the law, getting arrested, being convicted of a crime, and returning to prison are all considered examples of recidivism. Other studies count just one or two of these events as recidivism, such as convictions or re-incarceration.
When the federal government calculates a state’s recidivism rate, it uses sample prisoner populations to tally three separate categories: rearrests, reconvictions, and returns to prison, all over a one- to five-year period from the date of release. In contrast, a widely cited 2011 survey from the Pew Center on the States relied on states’ own reporting of just one of those measures: the total number of individuals who returned to prison within three years.
Both the federal and Pew statistics leave out an entire group of former prisoners: those who break the law but don’t get caught. That’s why some recidivism research ... relies on subjects’ self-reports of illegal activity.
Another inconsistency across recidivism studies is the period of time they cover. Though three to five years is considered the gold standard, many studies examine a much smaller time frame. One recent study claimed that a parenting program for prisoners in Oregon reduced recidivism by 59 percent for women and 27 percent for men. But the study tracked program participants for only a single year after they left prison. The likelihood of reoffending does decrease after one year. But according to the Bureau of Justice Statistics, an additional 13 percent of people will be rearrested four years after their release....
In its 2011 Brown v. Plata decision, the U.S. Supreme Court cited California’s stratospherically high recidivism rates (according to the Bureau of Justice Statistics, close to 70 percent of former inmates in the state return to jail or prison within three years of release) as evidence that California prisons do not rehabilitate, but instead “produce additional criminal behavior.” The justices blamed recidivism on overcrowding and the lack of adequate medical services behind bars, and ruled those conditions unconstitutional. The ruling required California to decrease its prison population.
But what if the court’s take on the causes of California’s high recidivism rate is wrong? What if it isn’t primarily prison overcrowding that causes reoffending, but an overly punitive parole system — the same trend that drives the majority of recidivism in New York? That’s what the data shows. Parolees in California are actually less likely than parolees in New York or Illinois to commit a new crime. Yet they are exponentially more likely to be arrested and sent back behind bars for violating the conditions of their parole, according to an analysis of BJS data from researcher Ryan G. Fischer. California law punishes technical parole violations with a few days to four months in a county jail or state prison....
[U]sing federal recidivism data for inmates who left state prisons in 1994, parole violations accounted for the entirety of the gap between California’s recidivism rate and the recidivism rates of other large states. In other words: Because of the differences in how states and localities enforce parole, recidivism rates tell us little about the reoccurrence of the types of crimes with which the public is most concerned: crimes that have a victim.
Monday, December 08, 2014
Notable new resources from DOJ and DOE to improve education in juve justice systems
I am pleased and intrigued to see this new DOJ press release titled "Attorney General Holder, Secretary Duncan, Announce Guidance Package on Providing Quality Education Services to America's Confined Youth." Here are notable excerpts from the press release which, inter alia, links to a whole array of additional related resources:
Attorney General Eric Holder and Secretary of Education Arne Duncan today announced a Correctional Education Guidance Package aimed at helping states and local agencies strengthen the quality of education services provided to America’s estimated 60,000 young people in confinement every day....
“In this great country, all children deserve equal access to a high-quality public education — and this is no less true for children in the juvenile justice system,” said Attorney General Holder. “At the Department of Justice, we are working tirelessly to ensure that every young person who's involved in the system retains access to the quality education they need to rebuild their lives and reclaim their futures. We hope and expect this guidance will offer a roadmap for enhancing these young people's academic and social skills, and reducing the likelihood of recidivism.”
“Students in juvenile justice facilities need a world-class education and rigorous coursework to help them successfully transition out of facilities and back into the classroom or the workforce becoming productive members of society,” said Secretary Duncan. “Young people should not fall off track for life just because they come into contact with the justice system.”...
“High-quality correctional education is thus one of the most effective crime-prevention tools we have,” Attorney General Holder and Secretary Duncan wrote in a dear colleague letter to chief state school officers and state attorneys general. “High-quality Correctional education – including postsecondary correctional education, which can be supported by Federal Pell Grants — has been shown to measurably reduce re-incarceration rates. Less crime means not only lower prison costs — it also means safer communities.”...
Providing young people in confinement with access to the education they need is one of the most powerful and cost-effectives strategies for ensuring they become productive members of their communities. The average cost to confine a juvenile is $88,000 per year — and a recent study showed that about 55 percent of youth were rearrested within 12 months of release. Inmates of all ages are half as likely to go back to jail if they participate in higher education — even compared to inmates with similar histories.
Wednesday, December 03, 2014
New report from Center for American Progress examines barriers for those with criminal records
The Center for American Progress this week released this notable new report titled "One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records." Here is an excerpts from the report's introduction:
Between 70 million and 100 million Americans — or as many as one in three — have a criminal record. Many have only minor offenses, such as misdemeanors and nonserious infractions; others have only arrests without conviction. Nonetheless, because of the rise of technology and the ease of accessing data via the Internet — in conjunction with federal and state policy decisions—having even a minor criminal history now carries lifelong barriers that can block successful re-entry and participation in society. This has broad implications — not only for the millions of individuals who are prevented from moving on with their lives and becoming productive citizens but also for their families, communities, and the national economy.
Today, a criminal record serves as both a direct cause and consequence of poverty. It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well. It is a consequence due to the growing criminalization of poverty and homelessness. One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society....
Moreover, the challenges associated with having a criminal record come at great cost to the U.S. economy. Estimates put the cost of employment losses among people with criminal records at as much as $65 billion per year in terms of gross domestic product....
The lifelong consequences of having a criminal record — and the stigma that accompanies one — stand in stark contrast to research on “redemption” that documents that once an individual with a prior nonviolent conviction has stayed crime free for three to four years, that person’s risk of recidivism is no different from the risk of arrest for the general population.
Put differently, people are treated as criminals long after they pose any significant risk of committing further crimes — making it difficult for many to move on with their lives and achieve basic economic security, let alone have a shot at upward mobility. The United States must therefore craft policies to ensure that Americans with criminal records have a fair shot at making a decent living, providing for their families, and joining the middle class. This will benefit not only the tens of millions of individuals who face closed doors due to a criminal record but also their families, their communities, and the economy as a whole....
This report offers a road map for the administration and federal agencies, Congress, states and localities, employers, and colleges and universities to ensure that a criminal record no longer presents an intractable barrier to economic security and mobility.
Bipartisan momentum for criminal justice reform is growing, due in part to the enormous costs of mass incarceration, as well as an increased focus on evidencebased approaches to public safety. Policymakers and opinion leaders of all political stripes are calling for sentencing and prison reform, as well as policies that give people a second chance. Now is the time to find common ground and enact meaningful solutions to ensure that a criminal record does not consign an individual to a life of poverty.
Some notable new postings at the Collateral Consequences Resource Center
Busy with end-of-semester activities at the end of a busy semester, I have not been able to keep up lately with my usual review of significant postings from the various websites and blogs linked in my sidebars. But I have still made sure to keep up a "new kid" on the cyber-block, the Collateral Consequences Resource Center, because it covers a bunch of issues not too often discussed in other like fora. And these recent postings seemed especially worth highlighting:
Friday, November 28, 2014
Latest New York recidivism numbers provide more to be thankful for
This New York Daily News article, headlined "Ex-cons returning to New York prisons for new felonies hits all time low: data," reports on encouraging news about recidivism rates in the Empire State. Here are the details:
The number of ex-cons returning to New York prisons for new felonies has reached an all-time low, according to the latest data.
Approximately 10% of former inmates get sent back to the big house for crimes committed after they’re released — the lowest recidivism rate since state authorities began counting in 1985. At the same time, the overall prison return rate is hovering at about 40% — mainly due to repeated parole violations....
There was a significant drop in repeat felonies after the state amended its draconian Rockefeller drug laws, according to the data released by the Department of Corrections. Those 1970s-era laws mandated prison sentences for even low-level offenders.
The decline also accompanied a 20% drop in violent crimes and serious property crimes over the past 15 years.
Those who did wind up behind bars for a second time were often there for failing to meet parole stipulations like required drug programs, curfews and counseling. Most of those ex-cons return to prison within 18 months, the state data showed.
Programs designed to help transition prisoners back to civilian life have also helped to smooth the way, according to state officials. The number of ex-inmates sent back to prison within three years of release had dropped from 19% in 1985 to 9% in 2010, according to the data....
The state prison system released 24,605 inmates in 2010. Of those, 2,682 served their entire sentences without parole — and they had a higher-than-average return rate at 18%. Individuals with more past convictions were likelier to return with new ones, the report said.
Sunday, November 23, 2014
Reviewing the potential and pitfalls in a notable problem-solving court in NYC
Today's New York Times has this terrific lengthy account of the work of a unique "problem-solving court" in New York. The piece is headlined "In a Queens Court, Women in Prostitution Cases Are Seen as Victims," and here are small excerpts from an article that merits a read in full:
The Human Trafficking Intervention Court in Queens, which is marking its 10th anniversary next month, ... serves as a model for a statewide 11-court program that began last year. The intention is to change the legal conversation around the multibillion-dollar sex trade by redefining the women in it as victims instead of criminals. Most are offered a deal: Take part in a set number of counseling sessions, usually five or six, and the charges will be dismissed and the record sealed.
After 13 months, the five New York City courts are still a work in progress, their success tracked more in individual stories than statistics. “This court is not devised to solve the problems of trafficking,” Judge Serita said of the program, “but to address one of the unfortunate byproducts, which is the arrest of these defendants on prostitution charges.”
All defendants in the specialized courts are presumed to be victims at risk, the first of many assumptions made, in part, because of the silence surrounding sex trafficking. That silence also makes it tougher to shift social mores. Not only do the police and the justice system still treat prostitution as a crime, but the women themselves, most undocumented, often don’t define themselves as having been trafficked — whether out of fear, shame or choice....
At no point in the proceedings does the judge, the prosecutor or the defense lawyer ask if the defendants have been trafficked; nor is there a quid pro quo to give up a trafficker. It is rare, but the hope is that the women, perhaps after working with counselors, will feel comfortable describing the conditions that led them to prostitution....
On Fridays, Judge Serita usually hears more than 40 cases in three hours. “How are you today?” she asks each of the women, inquiring whether they take English classes and praising their progress. Several defendants said they noticed less that she was an Asian woman and more that she had a warm demeanor. On other days, she presides over the drug treatment and mental health courts in Queens.
The trafficking court, she acknowledged, is a Catch-22: For people to feel less like criminals, they must first go through the criminal justice system. Leigh Latimer, the Legal Aid Society lawyer assigned to Judge Serita’s court, agreed. “There is a somewhat more recent view that clients are potentially victims, but we’re still arresting them at a very rapid pace,” she said. “We’re trying to solve their problems through being arrested, which is not an affirming process.”...
On several Fridays, nearly a dozen women said during interviews in Mandarin that they did not feel like trafficking victims, but victims of the police. The women all spoke on the condition of anonymity because their cases were still pending. “My name has been tarnished,” said one woman, who was upset that her case was “lumped with all those others.” She denied performing a sex act, but the police report contradicted that, Ms. Affronti said.
Another woman explained that she was arrested at 4 a.m. on her sixth day of work. She and her sister, who quit after the second day because she sensed “something was not right,” owed more than $80,000 to friends and family members who raised the money for them to come to the United States from Fuzhou. That type of pressure to pay back smuggling agents — often with interest as high as 12 percent — is considered “debt bondage.” It is a more subtle condition of human trafficking, but is pervasive in New York’s Asian communities, lawyers say.
November 23, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
"On Life Support: Public Health in the Age of Mass Incarceration"
The title of this post is the title of this notable new report from the Vera Institute of Justice as part of a new initiative called Justice Reform for Healthy Communities. A helpful report overview starts this way:
Each year, millions of incarcerated people — who experience chronic health conditions, infectious diseases, substance use, and mental illness at much higher rates than the general population — return home from correctional institutions to communities that are already rife with health disparities, violence, and poverty, among other structural inequities.
For several generations, high rates of incarceration among residents in these communities has further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.
Several factors in today’s policy climate indicate that the political discourse on crime and punishment is swinging away from the punitive, tough-on-crime values that dominated for decades, and that the time is ripe to fundamentally rethink the function of the criminal justice system in ways that can start to address the human toll that mass incarceration has had on communities.
At the same time, the nation’s healthcare system is undergoing a historic overhaul due to the passage of the Affordable Care Act (ACA). Many provisions of the ACA provide tools needed to address long-standing health disparities. Among these are:
> Bolstering community capacity by expanding Medicaid eligiblity, expanding coverage and parity for behavioral health treatment, and reducing health disparities.
> Strengthening front-end alternatives to arrest, prosecution, and incarceration.
> Bridging health and justice systems by coordinating outreach and care, enrolling people in Medicaid and subsidized health plans across the criminal justice continuum, using Medicaid waivers and innovation funding to extend coverage to new groups, and advancing health information technology.
Saturday, November 15, 2014
"Does Prison Privatization Distort Justice? Evidence on Time Served and Recidivism"
The title of this post is the title of this notable paper by Anita Mukherjee now available via SSRN. Here is the abstract:
I contribute new evidence on the impact of private prisons on prisoner time served and recidivism by exploiting the staggered entry and exit of private prisons in Mississippi between 1996 and 2004. Little is known about this topic, even though burgeoning prison populations and an effort to cut costs have caused a substantial level of private contracting since the 1980s. The empirical challenge is that prison assignment may be based on traits unobservable to the researcher, such as body tattoos indicating a proclivity for violent behavior.
My first result is that private prisons increase a prisoner's fraction of sentence served by an average of 4 to 7 percent, which equals 60 to 90 days; this distortion directly erodes the cost savings offered by privatization. My second result is that prisoners in private facilities are 15 percent more likely to receive an infraction (conduct violation) over the course of their sentences, revealing a key mechanism by which private prisons delay release. Conditional on receiving an infraction, prisoners in private prison receive twice as many.
My final result is that there is no reduction in recidivism for prisoners in private prison despite the additional time they serve, suggesting that either the marginal returns to incarceration are low, or private prisons increase recidivism risk. These results are consistent with a model in which the private prison operator chooses whether to distort release policies, i.e., extend prisoner time served beyond the public norm, based on the typical government contract that pays a diem for each occupied bed and is imperfectly enforced.
Thursday, November 06, 2014
New California report finds many challenges in sex offender monitoring
As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:
Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.
The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....
The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.
The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....
Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.
The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.
The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.
November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack
Tuesday, November 04, 2014
"Profiles in Probation Revocation: Examining the Legal Framework in 21 States"
The title of this post is the title of this notable new research report just released by the Robina Institute of Criminal Law and Criminal Justice. Via the Robina Institute at this webpage, here are the basics of the report's coverage and contents:
The Robina Institute is pleased to present the publication of Profiles in Probation Revocation: Examining the Legal Framework in 21 States, a close look at probation revocation practices in twenty-one states and the Model Penal Code. The first publication of the Probation Revocation Project, Profiles on Probation Revocation, allows for a comparison across selected jurisdictions. This report reveals a wide variation in probation practices in the United States and we hope it will further the dialogue on community supervision and probation practices.
This publication is the first in a series that will be produced by the Probation Revocation Project. The focus of this publication is the legal framework of probation: that is, how have the legislature and courts defined the purpose and functions of probation in each state? The focus of one or more subsequent publications will be how probation actually works within that legal framework.
In addition, I received from one of the authors of the report this more extended summary of its coverage:
The report compiles — in a convenient format — the results of a yearlong research project conducted by the Robina Institute on the laws relating to probation revocation in 21 American states. By leafing through the volume’s four-page “legal profiles,” readers can easily see how much variation exists in statewide laws of probation and probation revocation, while zeroing in on issues of greatest interest. Whether a reader’s jurisdiction is included in the report’s 21 states or not, the legal profiles contain a wealth of information that will allow for comparison with one’s own system.
The focus of the report is probation revocations and what leads up to them. Each legal profile describes a particular state’s approach to issues collected under twelve headings concerning probation. These are: Definition and Purpose, Forms of Probation, Length of Term, Early Termination, Supervision, Conditions, Modification of Conditions, Extension of Probation Term, Revocation Procedures, Legal Standard for Revocation, Revocation and Lesser Sanctions, and Appeal. The selected topics embrace aspects of the use of probation that may contribute to (or, conversely, reduce) revocation rates or the numbers of probationers who enter revocation proceedings.
Each profile begins with the nature of the probation sanction itself, including lengths of term and the burdens placed on probationers through sentence conditions. These are the early precursors of revocation rates. The profiles also focus on what happens during the probation term, and how the law allows the terms of conditions of probation to lighten or grow more restrictive in individual cases. For example, legal arrangements during the probation period that encourage probationers to succeed — or at least do not impede their success — will have an impact on revocation numbers. Finally, the profiles give close attention to each state’s probation revocation process itself, including the legal grounds for revocation, the identity of the ultimate decisionmaker (judicial versus administrative), rules for hearings, procedural rights that accrue to the probationer, and the range of sanctions that may be imposed after a sentence violation is proven or admitted.
The report relies on official legal source materials such as statutes, court rules, caselaw, administrative rules and policies, and publicly-available documents. The report seeks to describe, more or less, the “law-on-the-books,” while realizing that the official sources do not necessarily reflect actual practices of probation supervision and revocation on the ground. Even so, the report provides new and valuable comparative information about statewide legal superstructures for probationary sentences. While not a full portrait of what happens in individual states, the report illuminates crucial legal boundaries within which local and case-specific discretion must be exercised.
Thursday, October 30, 2014
New York Times editorial makes the case for California's Prop 47
Today's New York Times has this editorial headlined "California Leads on Justice Reform: Prop 47 Could Take the State a Step Further in Reducing Overcrowding." Here are excerpts:
For a long time, the conventional political wisdom was that no one ever lost an election for being too tough on crime. That wisdom has been turned on its head in recent years, as both politicians and the public are realizing how much damage the lock-’em-up mind-set has caused....
A familiar retort is that crime is down precisely because the prisons are full, but that’s simply not true. Multiple studies show that crime has gone down faster in states that have reduced their prison populations.
An encouraging example comes from California, the site of some the worst excesses of the mass incarceration era, but also some of the more innovative responses to it. For five years, the state has been under federal court order to reduce extreme overcrowding in its prisons. In response, voters in 2012 overwhelmingly approved a ballot measure to scale back the state’s notorious “three-strikes” law, leading to the release, so far, of more than 1,900 prisoners who had been serving life in prison — in some cases, for petty theft.
Dire warnings that crime would go up as a result were unfounded. Over two years, the recidivism rate of former three-strikes inmates is 3.4 percent, or less than one-tenth of the state’s average. That’s, in large part, because of a strong network of re-entry services.
The 2012 measure has provided the model for an even bigger proposed release of prisoners that California voters will consider on the ballot next week. Under Proposition 47, many low-level drug and property offenses — like shoplifting, writing bad checks or simple drug possession — would be converted from felonies to misdemeanors.
That would cut an average of about a year off the sentences of up to 10,000 inmates, potentially saving the state hundreds of millions of dollars annually. To keep people from returning to prison, or from going in the first place, the savings would be invested in anti-truancy efforts and other programs like mental health and drug-abuse treatment. Some would go to victims’ services, a perennially underfinanced part of the justice system.
Law-enforcement officials, not surprisingly, oppose the measure, warning that crime will go up. But they’ve already been proved wrong on three-strikes reform. Californians — who support the proposition by a healthy margin, according to polls — have now seen for themselves that they don’t have to choose between reducing prison populations and protecting public safety.
It is very rare for lawmakers anywhere to approve legislation to shorten sentences for people already in prison; it is virtually unheard-of to do it by ballot measure. California’s continuing experiment on sentencing can be a valuable lesson to states around the country looking for smart and safe ways to unravel America’s four-decade incarceration binge.
Prior related posts on California's Prop 47:
- Inititative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
October 30, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, October 28, 2014
BJS releases latest official data on adult offenders on probation or parole
Today the Department of Justice's Bureau of Justice Statistics (BJS) released its latest data on adult offenders under community supervision via the publication excitingly titled "Probation and Parole in the United States, 2013." This BJS webpage provides this summary of this BJS publication:
Presents data on adult offenders under community supervision while on probation or parole in 2013. The report presents trends over time for the overall community supervision population and describes changes in the probation and parole populations. It provides statistics on the entries and exits from probation and parole and the mean time served. It also presents outcomes of supervision, including the rate at which offenders completed their term of supervision or were returned to incarceration....
At yearend 2013, an estimated 4,751,400 adults were under community supervision — down about 29,900 offenders from yearend 2012.
Approximately 1 in 51 adults in the United States was under community supervision at yearend 2013.
Between yearend 2012 and 2013, the adult probation population declined by about 32,200 offenders, falling to an estimated 3,910,600 offenders at yearend 2013.
The adult parole population increased by about 2,100 offenders between yearend 2012 and 2013, to about 853,200 offenders at yearend 2013.
Both parole entries (down 6.2%) and exits (down 7.8%) declined between 2012 and 2013, with approximately 922,900 movements onto and off parole during 2013.
Thursday, October 16, 2014
"Risk and Needs Assessment: Constitutional and Ethical Challenges"
The title of this post is the title of this timely and notable new paper by Melissa Hamilton recently posted on SSRN. Here is the abstract:
Across jurisdictions, the criminal justice system is enamored with the evidence-based practices movement. The idea is to utilize the best scientific data to identify and classify individuals based on their potential future risk of reoffending, and then to manage offender populations according to risk and criminogenic needs. Risk-needs tools now inform a variety of criminal justice decisions, ranging from pre-trial outcomes, to sentencing, to post-conviction supervision. While evidence-based methodologies are widely exalted as representing best practices, constitutional and moral objections have been raised.
Risk-needs tools incorporate a host of constitutionally and morally sensitive factors, such as demographic and other immutable characteristics. The constitutional analysis herein engages equal protection, prisoners’ rights, due process, and sentencing law. In addition, the text examines the philosophical polemic aimed uniquely at sentencing as to whether risk should play any role at all in determining punishment.
The Article then appraises potential alternatives for risk-needs methodologies if the concerns so raised by critics prove legitimate. Any option comes with significant consequences. Retaining offensive variables incites political and ethical reproaches, while simply excising them weakens statistical validity of the underlying models and diminishes the promise of evidence-based practices. Promoting an emphasis on risk at sentencing dilutes the focus of punishment on blameworthiness, while neglecting risk and needs sabotages a core objective of the new penological model of harnessing the ability to identify and divert low risk offenders to appropriate community-based alternatives.
October 16, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (5) | TrackBack
Friday, October 10, 2014
Oklahoma has impressive early success with revised earned credit program
This local article, headlined "Most Oklahoma inmates granted early release since March have stayed out of trouble," reports on another positive state criminal justice reform effort. Here are the details:
Santajuan M. Stepney was released from prison in March after serving less than half of a 10-year sentence for possession of marijuana. By mid-July, he was back in prison, this time sentenced to two years for beating his wife in Canadian County.
Stepney, 31, was among about 1,500 inmates granted an early release by the Corrections Department after they had good-behavior credits restored through the once-obscure Earned Credits program. The releases in question began in March, according to the agency.
A state lawmaker recently questioned the program, saying restoration of good-behavior credits and early release is in the name of saving money, while Corrections Department officials have defended its expanded use....
Jerry Massie, a spokesman for the Corrections Department, said Stepney and inmate Brian Harvey, who was granted early release in March, are the only members of the group who’ve returned to prison since being set free under the Earned Credits program....
Last week, Rep. Aaron Stiles told The Oklahoman he believes Robert Patton, who was hired as the Corrections Department’s executive director earlier this year, is directing staff to release inmates by restoring the good behavior credits that had been lost due to infractions while behind bars. Stiles said Patton is doing so to save money as the cash-strapped prison system continues to struggle with tight budgets and overcrowded prisons.
The lawmaker said “several” Corrections Department employees have contacted him about the mass release of inmates with good behavior credits restored. He said some of the employees, who feared speaking openly, “made recommendations that certain people not be released, but they get overruled by upper level DOC administration.”
“It is all about saving money,” Stiles said last week. “They had 1,800 inmates in county backup. So how do you make room for 1,800 prisoners? Release 1,800 convicts early.”
The Earned Credits program has been around about 20 years, officials say, but it’s never been as widely used as it is now. Essentially, the program allows inmates to have good-behavior credits restored if they’ve been lost as a result of misconduct. The program does not apply to inmates who are required to serve a minimum amount of their sentence, such as 85 percent crimes like rape, murder, and many sex crimes.
Terri Watkins, a spokeswoman for the Corrections Department, said increased use of the program isn’t all about saving money. She said it’s part of a series of changes made by Patton, and that those changes will continue in the future.
This partial report about early success with a revised corrections program in one state does not, obviously, prove conclusively that significant early releases can be achieved without a huge public safety impact. Nevertheless, given the ugly reality that recidivism rates for released prisoners can often exceed 40%, the folks in Oklahoma must be doing something right if only less than 0.15% of prisoners released early this year have committed a crime requiring requiring being sent back to prison so far.
Sunday, October 05, 2014
Could we reduce recidivism with tattoo removal prison programming?
The (only slightly tongue-in-cheek) question in the title of this post is prompted by this interesting new research paper available on SSRN authored by Kaitlyn Harger. The piece is titled "Bad Ink: Visible Tattoos and Recidivism," and here is the abstract:
This study examines whether tattoo visibility affects recidivism length of ex-offenders. Conventional wisdom suggests that visible tattoos may negatively influence employment outcomes. Additionally, research on recidivism argues that employment post-release is a main determinant of reductions in recidivism. Taken together, these two bodies of literature suggest there may be a relationship between tattoos visible in the workplace and recidivism of released inmates.
Using data from the Florida Department of Corrections, I estimate a log-logistic survival model and compare estimated survival length for inmates with and without visible tattoos. The findings suggest that inmates with visible tattoos return to incarceration faster than those without tattoos or with tattoos easily hidden by clothing.
Though I cannot fully parse the data reported in this paper, among the seemingly significant findings is that " inmates with tattoos located on their face, head, neck, or hands, return to incarceration faster than inmates with tattoos in other visible locations. In general, ex-offenders with tattoos located on their face, head, neck, or hands fail 674 days earlier than ex-offenders with visible tattoos in other locations." Though this relationship between tattoo and criminal offending may well be a story more about correlation than causation, it certainly suggest to me that we might well start paying a more attention to "bad ink" as we focus efforts on efforts to reduce recidivism.
Wednesday, October 01, 2014
"The Curious Disappearance of Sociological Research on Probation Supervision"
The title of this post is the title of this new paper available via SSRN. The piece strikes me as timely, intriguing and important. It is authored by sociologist Michelle Phelps, and here is the abstract:
At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population.
This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.
Tuesday, September 23, 2014
Split NJ Supreme Court holds that state's sex offender GPS tracking is punishment subject to ex post facto limits
As reported in this local article, headlined "Some sex offenders can't be forced to wear GPS monitors, N.J. Supreme Court rules," the top state court in the Garden State issued a significant constitutional ruling concerning GPS tracking of sex offenders. Here are the basics:
New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago, the state Supreme Court ruled in a split decision today.
The court voted 4-3 to uphold an appellate panel's decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.
Justice Barry Albin wrote today that the Riley, 81 of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served.... A spokesman for the Parole Board did not respond when asked how many released sex offenders could be affected by the ruling.
Riley was convicted of trying to have sex with an 11-year-old girl in 1986. At the time, New Jersey law did not allow a sentence that included parole for life. But while Riley was in prison, the state enacted Megan's Law in 1994, requiring sex offenders to not only register with local authorities upon release but be placed under parole supervision for life. Then, in 2007, Gov. Jon Corzine signed the Sex Offender Monitoring Act, requiring the state's most dangerous sex offenders to wear GPS devises.
When Riley was released two years later, court papers say, he was not subject to any parole supervision. But he was designated a Tier III offender under Megan's Law — which applies to those who are considered a high risk for committing another offense. Under that tier, Riley was subject to "Internet registration and the most comprehensive degree of community notification," court papers say.
Six months later, though, Riley was told he would need to wear the pager-sized monitor on his ankle 24 hours a day and 7 days a week and carry a cell phone-sized tracking unit when he left his home, the papers say The devise must also be plugged into an electrical outlet to be charged one to two hours each day, the papers say. During that time, Riley could not move further than the length of the cord. And he was assigned a parole officer with access to his home. Riley would be subject to prosecution for a third-degree crime if he didn't comply....
The Supreme Court ... agreed with the lower court that the "retroactive application" of Riley to the GPS program violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing "additional punishment to an already completed crime." The court also rejected the state's argument that the GPS monitor is not punitive but "only civil and regulatory."
"Parole is a form of punishment under the Constitution," Albin wrote for the high court. "SOMA is essentially parole supervision for life by another name." Albin added that "the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called 'minor and indirect.'" The court also rejected the state's assertion that the Parole Board made its decision as a result of the Megan's Law designation, saying that designation "was based primarily on Riley’s previous sexual-offense convictions."
The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.
September 23, 2014 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Monday, September 15, 2014
Encouragingly, private prison company CCA turning focus to reducing recidivism
This recent Wall Street Journal article, headlined "Prison Firm CCA Seeks to Reduce Number of Repeat Offenders: Company Pushes to Reduce Costs Associated with Recidivism," reports on a private industry's latest encouraging response to the latest market realities in corrections. Here are the details:
The nation's largest private prison company is shifting its focus toward helping release more inmates and keep them out — a reaction, company officials say, to changing policies around the country on the severity of criminal punishment.
After three decades of surging prison populations, the number of people behind bars is starting to decline, albeit slowly. There were more than 2 million people locked up in federal and state prisons and jails in 2012, the last year for which the Justice Department has published data. That year saw prisons and jails release 27,500 more inmates than they took in, marking the fourth year of a declining prisoner population.
Yet repeat offenders remain a costly headwind. A Justice Department study of data from 2005 to 2010 in 30 states found that three out of four released prisoners will be rearrested within five years of their release. Getting a high-school equivalency degree while in prison, however, can greatly reduce the chances of being rearrested, studies show. A 2013 study by the Rand Corp. think tank concluded that spending $140,000 to $174,000 on education programs for a hypothetical group of 100 inmates would save as much as $1 million in re-incarceration costs over a three-year period.
Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.
He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people—nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.
"This is a watershed moment for our company and we hope it will be for our entire industry," Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that."...
Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, has doubts about the company's new initiative. "It must be a challenge for CCA to implement programs that could reduce recidivism when that runs counter to the private prison model itself," she said. "We can only hope that CCA's interest in such programs indicate a shift away from its previous stance that 'reductions in crime rates' are a 'risk factor' for business and toward a completely new business model that does not rely on ever-growing mass incarceration."
Over the past two decades, government agencies have gravitated toward contracting with CCA or other private prison firms, often with a goal of saving money on the daily cost of housing inmates. In recent years, however, company officials are increasingly being asked by governments to cut down the cost of repeat offenders, Mr. Hininger said. Mr. Hininger compared the cost of recidivism on government budgets to the cost of long-term pension obligations and health-care coverage — issues that elected officials hadn't often thought of when drafting year-to-year budgets in the past but are now of increasing concern in more state capitals....
Jason Clark, a spokesman for the Texas Department of Criminal Justice, which contracts with CCA at some facilities, said the state began a push to expand rehabilitation and re-entry programs, which led to a drop in its recidivism rate from 25.3% to 22.6% over a three-year period. "Those are real numbers and real savings because less people are coming back into the prison system," Mr. Clark said. "We believe that continuing to invest in diversion and treatment initiatives is the best strategy to maintain a stable and successful criminal-justice system."
In a speech broadcast to CCA's roughly 15,000 employees, Mr. Hininger said the company plans to expand its postprison work around the country, noting that currently much re-entry work is done by small businesses and nonprofit groups that lack CCA's ability to scale up such work in larger facilities in many cities. He declined to say which cities. "What we've seen as we've looked around the U.S., it is a little fragmented, as smaller operators providing these solutions," Mr. Hininger said in the interview. "We see an opportunity to provide some consistency and expertise."
Mr. Hininger emphasized rehabilitation has always been part of CCA's work, but said that going forward it would be part of each employee's job description. He said that from the first day a prisoner arrives, that prisoner should be evaluated and steered toward effective rehabilitation programs.
Stories like this partially account for why I tend to be more hopeful than most other reform advocates concerning the role that private industry might play in improving the state of incarceration nation. Though I worry about how a profit motive can and will skew priorities and incentives in corrections, modern mass incarceration is the product of government agents playing politics much more so that the product of private actors pursuing profits. Consequently, I am eager to be open-minded about the potential for private players to improve the status quo, even while so many others claim that private prisons are sure to make bad matters worse.