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
Tuesday, February 24, 2015
"Can prisons predict which inmates will commit more crimes?"
The question in the title of this post is part of the headline of this new lengthy AP article, which follows with the headline "States trying secretive, psychological assessments." Here are excerpts from the piece:
States are trying to reduce prison populations with secretive, new psychological assessments to predict which inmates will commit future crimes and who might be safe to release, despite serious problems and high-profile failures, an Associated Press investigation found.
These programs are part of a national, data-driven movement to drive down prison populations, reduce recidivism and save billions. They include questionnaires often with more than 100 questions about an offender's education, family, income, job status, history of moving, parents' arrest history — or whether he or she has a phone. A score is affixed to each answer and the result helps shape how the offender will be supervised in the system — or released from custody.
Used for crimes ranging from petty thievery to serial murders, these questionnaires come with their own set of risks, according to the AP's examination. Many rely on criminals to tell the truth, and jurisdictions don't always check to make sure the answers are accurate. They are used inconsistently across the country, sometimes within the same jurisdiction. The same defendant might be scored differently in the same crime.
Supporters cite some research, such as a 1987 Rand Corp. study that said the surveys accurately can predict the likelihood of repeat offenses as much as 70 percent of the time if they are used correctly. But even the Rand study, one of the seminal pieces of research on the subject, was skeptical of the surveys' overall effectiveness. It's nearly impossible to measure the surveys' impact on recidivism because they are only part of broader efforts.
Some surveys have the potential to punish people for being poor or uneducated by attaching a lower risk to those who have steady work and high levels of education. The surveys are clouded in secrecy. Some states never release the evaluations, shielding government officials from being held accountable for decisions that affect public safety.
"It is a vast improvement over the decision-making process of 20, 30 years ago when parole boards and the courts didn't have any statistical information to base their decisions on," said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts, which is working with the Justice Department to shape reforms nationally....
The Justice Department's position on the surveys is inconsistent. On one hand, the department is helping bankroll this movement by providing millions of dollars to help states develop and roll out new policies. Yet it's also putting on the brakes and is reluctant to use them for the federal prison population.
"Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct," Attorney General Eric Holder told the National Association of Criminal Defense Lawyers in August. "They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place."
Cost savings, however, make these tools appealing to states. North Carolina, for instance, could save $560 million by 2017, a Justice Department report concluded. Between 2011 and 2014, the North Carolina prison population decreased by more than 3,000 people, according to the state. These reforms, including the use of risk assessments, has saved the state nearly $84 million, and it plans to route $32 million of those savings for community treatment programs.
Thursday, February 19, 2015
"Parole Release Hearings: The Fallacy of Discretion"
The title of this post is the title of this notable and timely new paper by R. Kyle Alagood now available via SSRN. Here is the abstract:
Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process. The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally. This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States.
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:
Wednesday, February 11, 2015
New bipartisan federal prison reform bill introduced (with good chance of passage?)
This article from The Hill, headlined "Senators unveil prison reform bill," reports on the latest iteration of a bipartisan federal criminal justice reform proposal. Here are the details:
Two members of the Senate Judiciary Committee are reintroducing a prison reform bill they say will achieve a major goal of criminal justice reformers: reducing the size of the federal inmate population. Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.) pushed the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act at a press conference Tuesday.
The law is meant to reduce the number of people — currently just over 210,000 — incarcerated in federal prisons. The package proposed by the two senators takes a more moderate approach to reducing prison populations than other proposals that would implement reductions to mandatory sentences. It also supports programs that help prisoners avoid returning to crime after being released.
Prisoners would undergo a risk assessment to determine whether they present a low, medium or high risk of committing another offense. Prisoners determined to have a low or medium risk of offending again would be eligible to earn time off of their sentences by participating in recidivism reduction programs, including drug counseling or vocational training, a release from Whitehouse’s office said.
In total, prisoners can earn 25 percent of their sentence off through the law. The bill, though, prevents certain types of prisoners, like those serving time for sex offenses or terrorism, from benefiting from the law. "We want to go forward with what's passable without subjecting the bill to the kind of Willie Horton-type critique that it might receive,” Whitehouse said of the decision not to have the law cover some types of prisoners....
Cornyn and Whitehouse said they are open to debating additional measures, including changing the mandatory minimum sentences for nonviolent drug crimes. But they touted their measure as a good starting point for a larger conversation about criminal justice. “This is a debate that we welcome,” Cornyn said when asked whether sentencing reform could conceivably be added to the bill. “There's a lot of things we can do to improve our criminal justice system, and there's a lot of it being discussed. Things like mandatory minimums, sentencing reform, over criminalization, particularly of the regulatory environment. There are a lot of things we can do better.”
"Given the new open amendment process in the United States Senate, anybody who's got a good idea and 60 votes — 59 plus theirs — can offer it by way of an amendment," he added.
Whitehouse said that having a criminal justice bill moving through the Senate could buoy other ideas for reforming the criminal justice system. "I think if this bill proves to be a catalyst for further legislation in the area of sentencing reform and criminal justice reform, John and I would have no objection to that,” he said....
Some, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), have been reluctant to support changes to the mandatory sentences. But Grassley recently expressed an openness to having his committee consider the idea in an interview at a conservative event last month.
As the title of this post highlights, I have little idea if this CORRECTIONS Act has a real chance at passage. But I am keeping my fingers crossed.
Saturday, February 07, 2015
Ohio Gov John Kasich advocating significant resources devoted to addiction services for prisoners
As reported in this local article, headlined "Addiction programs for incarcerated included state budget," Ohio's GOP Governor John Kasich is now showing through his latest budget proposal that he remains deeply committed to "smart on crime" sentencing and prison reforms. Here are the details:
Eight of 10 people come to Ohio prisons with a history of abusing drugs and alcohol. Most leave without treatment or a recovery plan, with predictable results. On the outside, they return to old addictive habits that often trigger criminal behavior.
Gov. John Kasich’s proposed state budget calls for a $61.7 million collaboration by two agencies to treat offenders both behind bars and once they are released. “This is not tinkering with recovery programs. This is going to be a remarkable leap forward, addressing a large group of people coming to our prisons who in many cases aren’t being served at all,” said Gary Mohr, director of the Ohio Department of Rehabilitation and Correction.
The big-picture goal is to help ex-offenders succeed outside prison and, in the long run, to cut prison costs charged to taxpayers. Statistics show that about 10 percent of inmates who get alcohol and drug treatment later return to prison, compared with about 27 percent of those who don’t get treatment.
The change pushed by Kasich would shift responsibility for inmate-recovery services from Rehabilitation and Correction to the Department of Mental Health and Addiction Services. It involves moving 120 people who work for prisons to the mental-health agency budget at a cost of $12.5 million annually. They will, however, continue working in the same jobs.
Prison officials estimate that about 4,500 of the roughly 30,000 inmates with moderate to severe addiction problems are getting recovery services. Officials from the two agencies won’t predict how many more inmates will be treated until the program is in place, but Stuart Hudson, prison chief of medical services, said it will be a “substantial increase.”...
Mental-health director Tracy Plouck said much of the $61.7 million, beyond the $25 million to absorb the DRC staff, will go for community recovery services once inmates return home.
Prison officials have struggled for years with an influx of inmates who commit nonviolent crimes, many of them related to their addictions. For about 20 percent of new prisoners, a drug charge is their most serious offense. Many are in and out of prison so quickly there isn’t time or resources to get them involved in recovery programs, Mohr said.
“We’re not reaching enough people and we’re not reaching them early enough,” Mohr said. “Ohioans are paying $22,500 a year for each prisoner, and we should be doing more than warehousing them. We are committed to helping people improve their lives.” Ohio’s recidivism rate of 27.1 percent is far better than the national average of over 40 percent.
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
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
Thursday, January 29, 2015
"The Eternal Criminal Record"
The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website:
For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.
The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.
In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.
Monday, January 26, 2015
Could charter schools within the prison system help reduce recidivism?
The question in the title of this post is prompted by this interesting article from Georgia headlined "Gov. Deal wants new charter high schools for prison system." Here are excerpts:
Gov. Nathan Deal in the both the amended 2015 and 2016 budgets is [recommending the legislature devote] money to help lower the recidivism rate in Georgia’s prisons. He’s including over $15 million dollars for two new charter high schools in the prison system so inmates can actually earn a diploma as opposed to just a GED. He says seven out of ten Georgia inmates have neither.
“Education can open the door of opportunity while shutting the revolving door that has plagued our prison system for far too long,” says Deal.
The recommendation includes nearly 30 academic positions for the new schools which would begin with the 2015-2016 school year. Deal says the schools would partner with the newly renamed Georgia Career College System, formerly the state’s technical colleges, to teach vocational skills. He says private prisons would also be given incentives to do the same.
“With a high school diploma or a GED, these individuals will certainly be better equipped to get a job and hopefully able to assume a greater pursuit of a job opportunity in the future because they have this basic education behind them,” says Deal.
He’s also including money to help inmates better assimilate into society once released through a transitional housing program for those inmates considered at highest risk for reoffending. Another $5 million is being proposed to expand the state’s accountability courts to keep non-violent offenders out of prison.
Thursday, January 22, 2015
"Heroin addiction sent me to prison. White privilege got me out and to the Ivy League."
The provocative title of this post is the headline of this provocative Washington Post piece authored by Keri Blakinger. Here is how it gets started (with links from the original):
I was a senior at Cornell University when I was arrested for heroin possession. As an addict — a condition that began during a deep depression — I was muddling my way through classes and doing many things I would come to regret, including selling drugs to pay for my own habit. I even began dating a man with big-time drug connections that put me around large amounts of heroin. When police arrested me in 2010, I was carrying six ounces, an amount they valued at $50,000 — enough to put me in prison for up to 10 years. Cornell suspended me indefinitely and banned me from campus. I had descended from a Dean’s List student to a felon.
But instead of a decade behind bars and a life grasping for the puny opportunities America affords some ex-convicts, I got a second chance. In a plea deal, I received a sentence of 2½ years. After leaving prison, I soon got a job as a reporter at a local newspaper. Then Cornell allowed me to start taking classes again, and I graduated last month. What made my quick rebound possible?
I am white.
Second chances don’t come easily to people of color in the United States. But when you are white, society offers routes to rebuild your life. When found guilty of a drug crime, white people receive shorter sentences than black people. And even after prison, white men fare better in the job market than black men with identical criminal records.
It was prison that clued me in to just how much I benefit from systemic racism in our society. Until then, I hadn’t thought much about white privilege, which is exactly how privilege works — as a white person, I could ignore it. But sitting behind bars, I saw how privilege touches almost everything, especially the penal system.
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.
Sunday, September 07, 2014
Editorial laments how some part of Ohio are "addicted to prisons"
The Toledo Blade has this lengthy new editorial headlined "Addicted to Prisons" that discusses lots of interesting facets of Ohio's criminal justice system. Here are excerpts:
Stark differences in judges, as well as access to local treatment programs, have created appalling disparities in how justice is handed out to addicts and nonviolent drug offenders in Ohio. Two cases involving heroin addicts, portrayed today in a front-page column by The Blade’s deputy editorial page editor, Jeff Gerritt, show what Ohio is doing right and what it continues to do wrong.
In Hardin County, Kaylee Morrison, 28, was just sentenced to four years in prison, where she will cost taxpayers $100,000 while failing to get the help she needs to manage her addiction. In neighboring Marion County, Clayton Wood, 29, was sentenced to drug court, where he gets treated in his community while working full time and paying taxes.
Ohio’s heroin and opioid epidemic has rocked the state’s criminal justice system, flooding its crowded prisons and burdened courts with addicts and minor drug offenders who would be more effectively — and inexpensively — treated in their communities. Of the more than 20,000 people entering Ohio’s prisons each year, the share of inmates admitted for opioid- and heroin-related crimes has increased more than 400 percent in the past 13 years.
Moving Ohio to a more cost-effective, rational, and humane criminal justice system will take, among other things, more drug courts, sentencing and code reforms, and a significant shift of resources from state prisons to community-based treatment programs....
Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community-based sanctions could handle more effectively at a fraction of the $25,000 a year it costs to imprison them.
More than 5,000 people a year go to prison in Ohio for drug crimes, mostly low-level offenses. Almost the same number of incoming prisoners — most of them addicts — have never been arrested for, or convicted of, a violent offense. Moreover, nearly 45 percent of those who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.
Incarcerating minor drug offenders is costing Ohio tens, if not hundreds, of millions of dollars. Ohio taxpayers get little return on that investment, as untreated addicts return to their communities unequipped to cope with their disease.
Adult felony drug courts, which combine treatment with more-frequent but shorter sanctions, offer an excellent alternative. Residents of every Ohio county should have access to one. Still, such specialized dockets, with assigned probation officers, exist in fewer than a third of Ohio’s 88 counties....
With or without drug courts, judges need sufficient resources in their communities to treat drug addiction and serve as cost-effective alternatives to incarceration. Such programs give judges more sentencing options.
Nearly 10,000 offenders leave Ohio’s prisons each year with an intense history of addiction. As part of its re-entry efforts, DRC must ensure they are linked to treatment programs immediately after they’re released, including support groups and medication-assisted treatment.
Finally, the administration of Gov. John Kasich and the Ohio Supreme Court, through symposiums and other outreach effects, should educate all Ohio judges on how addiction works. Likewise, the General Assembly must make sure that Ohio’s legal code doesn’t mandate inappropriate or ineffective penalties and sanctions for offenses that are rooted in addiction.
The growing number of addicts and low-level drug offenders in Ohio’s costly and crowded prisons is a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its opioid and heroin epidemic. Changing course will require a far greater understanding of addiction among those who make and execute Ohio’s laws and criminal code, and a seismic shift in resources and investments from the state’s prisons to its struggling communities.
The article referenced in the first paragraph of this editorial is headlined "Criminalizing addiction: Whether drug users go to prison depends on where they live," and it is available at this link.
Friday, August 29, 2014
"Mass Probation: Toward a More Robust Theory of State Variation in Punishment"
The title of this post is the title of this intriguing new paper by Michelle Phelps available via SSRN. Here is the abstract:
Scholarship on the expansion of the criminal justice system in the U.S. has almost exclusively focused on imprisonment, investigating why some states lead the world in incarceration rates while others have restrained growth. Yet for most states, the predominant form of punishment is probation, and many seemingly progressive states supervise massive numbers of adults on community supervision. Drawing on Bureau of Justice Statistics data from 1980 and 2010, I analyze this expansion of mass probation and develop a typology of control regimes that theorizes both the scale and type of formal punishment states employ. The results demonstrate that mass probation rearranges scholars’ conclusions about the causes and consequences of the penal state.
Wednesday, August 27, 2014
Drug addiction specialist laments that "our prison system does little more than teach addicts how to be better addicts"
I just saw this notable recent Washington Post commentary by David Sack, a psychiatrist and addiction specialist, headlined "We can’t afford to ignore drug addiction in prison." The piece merits a full read and here are excerpts:
As the addiction epidemic rages and prisons overflow, our nation seems to be backing away at last from the “lock ’em up and throw away the key” mindset that has characterized the failed war on drugs.... Sure, this is inspired largely by the need to relieve the pressure on our prison system, which is straining to cope with a population that has more than quadrupled since 1980. But it’s also recognition that we can't incarcerate ourselves out of our drug problems.
As someone who helps people with addictions, I consider this good news. But I'd be more encouraged if we also focused on improving conditions in prison. In the long run, this will have more power to reduce our inmate population. As it is, our prison system does little more than teach addicts how to be better addicts.
Inmates are likely to find a drug trade as active as the one outside prison walls.... Of the more than 2.3 million people in American prisons and jails, more than 65 percent meet medical criteria for substance abuse addiction. When you combine this with those who have histories of substance abuse, were under the influence when they committed a crime, committed it to get drug money, or were incarcerated for a drug or alcohol violation, the percentage rises to 85 percent. In other words, if an inmate is looking for encouragement to “Just say no,” odds are he won't find it from his bunkmates.
But most disturbing is the fact that inmates who do hope to kick an addiction can’t count on getting the help they need. The National Center on Addiction and Substance Abuse (CASA) at Columbia University found that only 11 percent of inmates with substance use disorders received treatment at federal and state prisons or local jails. The best that most can hope for is occasional mutual support or peer counseling meetings. No wonder that more than half of inmates with addiction histories relapse within a month of release.
So what is needed? Inmate evaluations to spot addictions and underlying issues that may be fueling them.... Consistent treatment by a trained staff that includes addiction medicine specialists who understand how to use evidence-based treatments, including medication-assisted therapy. Long-term treatment programs that follow the inmate into his community and continue to support him after his release.
It’s a substantial investment, and your first thought may be, “We can't afford to do that.” But the reality is we can’t afford not to do it. As it stands now, only 1.9 cents of every dollar our federal and state governments spend on substance use and addiction go to pay for prevention and treatment; 95.6 percent pay for the consequences. That means we are shelling out billions of dollars to clean up the mess of addiction rather than doing what we know pays off -- helping people overcome it.
A 2010 CASA study, for example, determined that if we gave quality addiction treatment and aftercare to every inmate who needed it, we'd break even on the investment in only a year if just more than 10 percent were successful in staying employed, out of trouble and drug free. In dollar terms, that translates to an economic benefit for the nation of more than $90,000 annually per former inmate. Studies confirm that addicts pressured to undergo treatment by the legal system fare as well or better than those who seek treatment voluntarily....
While it’s tempting to think punishment is the answer [to drug crimes and addiction], prison alone doesn’t teach addicts how to change their thinking and behavior, doesn’t help repair damaged neural pathways and doesn't take away drug cravings or offer strategies to prevent relapse. In most cases, prison just buys a little time before the addict relapses and re-offends, perpetuating the cycle and hurting himself along with the rest of us.
Friday, August 22, 2014
"The Debt Penalty: Exposing the Financial Barriers to Offender Reintegration"
The title of this post is the title of this intriguing new paper authored by Douglas Evans with the Center for Research and Evaluation at the John Jay College of Criminal Justice. Here is the paper's summary:
Financial debt associated with legal system involvement is a pressing issue that affects the criminal justice system, offenders, and taxpayers. Mere contact with the criminal justice system often results in fees and fines that increase with progression through the system. Criminal justice fines and fees punish offenders and are designed to generate revenue for legal systems that are operating on limited budgets. However, fines and fees often fail to accomplish this second goal because many offenders are too poor to pay them.
To compound their financial struggles, offenders may be subject to other financial obligations, such as child support payments and restitution requirements. If they do not pay their financial obligations, they may be subject to late fees and interest requirements, all of which accumulate into massive debt over time. Even if they want to pay, offenders have limited prospects for meaningful employment and face wage disparities resulting from their criminal history, which makes it even more difficult to pay off their debt.
An inability to pay off financial debt increases the possibility that offenders will commit new offenses and return to the criminal justice system. Some courts re-incarcerate offenders simply because they are unable to settle their financial obligations. Imposing financial obligations and monetary penalties on offenders — a group that is overwhelmingly indigent — is not tenable. States often expend more resources attempting to recoup outstanding debt from offenders than they are able to collect from those who pay. This report explores the causes and effects of perpetual criminal debt and offers solutions for encouraging ex-offender payment.
August 22, 2014 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3) | TrackBack
Sunday, August 17, 2014
"Adverse childhood events: Incarceration of household members and health-related quality of life in adulthood"
Via The Crime Report, I came across this new report in the August 2014 issue of the Journal of Health Care for the Poor and Underserved. The piece has the title that is the title of this post, and here is the abstract:
Background. Incarceration of a household member has been associated with adverse outcomes for child well-being.
Methods. We assessed the association between childhood exposure to the incarceration of a household member and adult health-related quality of life (HRQOL) in the 2009/2010 Behavioral Risk Factor Surveillance System controlling for age, race/ethnicity, education, and additional adverse childhood experiences.
Results. Adults who lived in childhood with an incarcerated household member had higher risk of poor HRQOL compared with adults who had not (adjusted relative risk [ARR] 1.18; 95% CI 1.07, 1.31). Among Black adults the association was strongest with the physical health component of HRQOL (ARR 1.58 [95% CI 1.18, 2.12]); among White adults, the association was strongest with the mental health component of HRQOL (ARR 1.29, [95% CI 1.07–1.54]).
Conclusions. Living with an incarcerated household member during childhood is associated with higher risk of poor HRQOL during adulthood, suggesting that the collateral damages of incarceration for children are long-term.
Also appearing in the same journal issue are these two additional studies exploring the impact of prisoner release and health-care:
Tuesday, August 12, 2014
Is preventing ex-prisoners from being homeless the key to preventing recidivism?
The question in the title of this post comes from my take-away from this notable article discussing a recent reentry initiative in Washington state. The article is headlined "Housing First” Helps Keep Ex-Inmates Off the Streets (and Out of Prison)," and here are excerpts:
Many of the roughly 10,000 inmates who exit U.S. prisons each week following incarceration face an immediate critical question: Where will I live? While precise numbers are hard to come by, research suggests that, on average, about 10 percent of parolees are homeless immediately following their release. In large urban areas, and among those addicted to drugs, the number is even higher — exceeding 30 percent.
“Without a safe and stable place to live where they can focus on improving themselves and securing their future, all of their energy is focused on the immediate need to survive the streets,” says Faith Lutze, criminal justice professor at Washington State University. “Being homeless makes it hard to move forward or to find the social support from others necessary to be successful.”
Although education, employment, and treatment for drug and mental health issues all play a role in successful reintegration, these factors have little hope in the absence of stable housing. Yet, few leaving prison have the three months’ rent typically required to get an apartment. Even if they did, landlords are given wide latitude in denying leases to people with a criminal record in many states. Further, policies enacted under the Clinton administration continue to deny public housing benefits to thousands of convicted felons — the majority of whom were rounded up for non-violent offenses during the decades-long War on Drugs. Some are barred for life from ever receiving federal housing support.
As a result, tens of thousands of inmates a year trade life in a cell for life on the street. According to Lutze, with each passing day, the likelihood that these people will reoffend or abscond on their parole increases considerably.
Lutze and a team of researchers recently completed a comprehensive assessment of a Washington State program that aims to reduce recidivism by providing high-risk offenders with 12 months of housing support when they are released from prison. The study tracked 208 participants in three counties and found statistically significant reductions in new offenses and readmission to prison. It also found lower levels of parole revocations among participants....
Lutze says stable housing not only reduces violations of public order laws related to living and working on the street, but it increases exposure to pro-social networks and provides a sense of safety and well-being conducive to participating in treatment and other services.
That not only improves community safety, she says, but it “reduces the economic and human costs of ex-offenders cycling through our jails and prisons just because they do not have a safe place to live.”
While this seems like a common sense strategy, programs that place housing at the forefront of prisoner reentry are actually relatively scarce in the U.S., and have historically been driven by a handful of pioneering non-profits.
Sunday, July 27, 2014
Another effective review of how Obamacare could be "an antidote to crime"
Regular readers likely recall a number of posts in which I highlighted ways in which the Affordable Care Act (aka Obamacare) could have a significant impact on a number of criminal justice realities in the years to come. A helpful readers alerted me to this notable new Christian Science Monitor article on this topic headlined "Obamacare for ex-inmates: Is health insurance an antidote to crime?". Here are excerpts:
In the enduring quest to discover what can prevent criminals from reoffending, a new holy grail is emerging: health-care services.
Excitement is stirring inside the justice system, as corrections officials work to link inmates who are leaving custody with health services in their communities, courtesy of President Obama’s Affordable Care Act (ACA). The idea is to enroll thousands of ex-offenders in Medicaid, the federal-state health insurance program for the poor, thus making them eligible for treatment for mental health issues, substance abuse, and chronic medical problems that most have never before consistently received on the outside.
The hoped-for result: a reduction in the share of those who reoffend, and a drop in incarceration costs related to securing public safety. “This is a huge opportunity,” says Kamala Mallik-Kane, who studies correctional systems, inmates, and health policy at the nonprofit Urban Institute. “The unprecedented step of connecting these newly eligible people to health insurance has incredible potential to change the trajectory of inmates to reintegrate back into society and not back into the justice system.”...
[But] it is much too soon to know if the excitement among justice experts is justified. No state or county expects to see, this early, a sea change in its correctional systems, recidivism rates, or health-care costs. And it’s not known, for instance, at what rate ex-offenders who enroll in Medicaid actually use health services in their communities.
Many experts, moreover, are wary of the notion that health reform and access to Medicaid for formerly imprisoned men can truly transform America’s criminal-justice system. “Medicaid enrollment for inmates is not the silver bullet,” says Paul Howard, a senior fellow at the Manhattan Institute, a conservative think tank and director of its Center for Medical Progress.
He suggests that Medicaid, a $265 billion federal expenditure in 2013, is not yielding adequate results for the cost – and that it’s time to take “a long and hard look” before expanding it to serve even more people. “Extending those benefits to a historically transient and difficult population with a whole host of social-issues challenges will not change their approach to health care or [their] behaviors,” warns Mr. Howard.
Enthusiasts for Medicaid sign-ups for ex-inmates build their hopes on research indicating that recidivism rates fall when prisoners and ex-prisoners receive mental health treatment. A 2010 study by David Mancuso of the Washington State Institute of Public Policy, a state-based policy think tank, found that for state residents enrolled in Medicaid and receiving substance abuse treatment, arrest rates dropped by as much as 33 percent compared with rates for those who didn’t receive treatment, leading to lower correctional costs and better public safety.
In any case, about 8 million prisoners leave America’s prisons and jails every year. Since the rollout of Obamacare last October, ex-offenders account for about 1 million of the 6 million new Medicaid beneficiaries enrolled in expansion states.
While incarcerated, prisoners have a constitutionally protected right to health care, with costs usually covered by the state (even if they have their own health insurance). Typically, privately contracted health companies or public hospital systems provide such care. Most jails and prisons have on-site clinics – in some cases, even full-service hospitals.
While some say the quality of prisoner care could be better, it’s more robust than what usually greets indigent ex-inmates on the outside. In many states, inmates who’ve been diagnosed with chronic conditions receive a small supply of medication upon release, but often no medical provider or insurance for refills – creating a gap in their health care. Correctional health professionals across the United States share stories of inmates who get rearrested so they can get medication....
Substance abuse or mental health issues afflict the vast majority of prison inmates in the US. More than 1 million incarcerated people suffer from mental illness, the Department of Justice estimated in 2006 – almost half the total in custody. As for substance abuse, the picture is even bleaker, affecting between 60 and 80 percent of all inmates, found a 2013 report of the US Office of National Drug Control Policy.
The strongest case study might be Connecticut, which has one of the most comprehensive approaches to Medicaid enrollment in the nation. The state runs all its jails and prisons, making change easier to administer uniformly. It has four jails and 11 prisons, holding almost 17,000 inmates. Here, a person making less than about $15,800 a year qualifies for Medicaid.
The link is obvious between greater access to health care and lower recidivism rates, say state officials. “If you don’t feel well, you don’t act well,” says James Dzurenda, state correction commissioner. “The Affordable Care Act gives our released offenders access to health care, which is critical to release offenders back into the community safely, increase public safety, and ultimately reduce victimization.”...
Last year, Connecticut processed 7,794 Medicaid applications from state criminal-justice agencies. In the same period, state prison population and arrest rates dropped by about 3.4 percent, according to reports from the state Office of Policy and Management....
Enrolling in Medicaid does not guarantee an ex-inmate will instantly turn over a new leaf, of course. Moreover, the cumulative effect promises to be difficult to tease out: None of the programs now in place track inmates after they reenter the community, so there is no way to tell if ex-offenders are actually using the health insurance. Often, ex-inmates stick with their former habits of heading directly to emergency rooms for care, driving up public health costs, according to a recent study of former prisoners in Rhode Island.
Some related prior posts:
- "Can Obamacare Reduce the Cost of Corrections?"
- "Obamacare Is a Powerful New Crime-Fighting Tool"
- Might Obamacare end up reducing prison populations "more than any reform in a generation"?
Saturday, July 19, 2014
US Attorney for NJ: "Ex-offenders get time, now they need opportunity"
Especially in the wake of this US Sentencing Commission's big decision yesterday to vote for retroactive application of its new reduced drug guidelines (basics here and here), a recent opinion piece by the U.S. Attorney for the District of New Jersey, Paul Fishman, struck me as especially timely. This piece is headlined "Ex-offenders get time, now they need opportunity," and here are excerpts:
Every year, my office prosecutes several hundred defendants who have violated criminal laws passed by Congress. For most of those defendants, a term in federal prison is warranted. Whether they are public officials who betray their oaths, predators who threaten the safety of our neighborhoods and our children, or thieves who cheat the health care system, investors or the government — incarceration is the appropriate punishment.
But prison is usually not meant to last forever. More than 95 percent of federal prisoners will be released after serving their sentences. Altogether, 700,000 federal and state prisoners are released every year, along with millions more who stream through local jails.
Most return to their communities, trying to put their lives back together and avoid the pitfalls that got them in trouble. Bearing the stain of their convictions, they compete for jobs, look for housing and seek educational opportunities.
A staggering number don't succeed. Nationally, two-thirds of people released from state prisons are arrested again; half of those will end up back inside. Forty percent of federal prisoners return to jail in the first three years.
This level of recidivism is unacceptable. Offenders, their families and their communities are devastated by it. Public safety suffers for it. And with more than $74 billion spent annually on federal, state and local corrections, we can’t afford it.
Prison alone isn't enough. Any smart law enforcement model prevents crime by supporting ex-offenders. That is why my U.S. Attorney's Office — along with federal judges, the federal public defender, and the U.S. Probation Office — began the "ReNew" program, a federal re-entry court in Newark. Those leaving federal prison at serious risk of reoffending are invited to participate.
They are closely supervised, meeting biweekly with federal Magistrate Judge Madeline Cox Arleo, our office, and the federal defenders, and more regularly with probation officers. And they are supported in obtaining housing, jobs, education, counseling and legal assistance. My office provides services to the team and participants and supervises research into the program's efficacy.
This week, the judge will preside over the first graduation ceremony for those who have successfully completed 52 weeks in the program. It is a hugely inspiring milestone for everyone involved, but especially for the graduates reimagining their lives despite great adversity....
Recently, my office launched the New Jersey Re-entry Council, a partnership with acting New Jersey Attorney General John Hoffman, other federal and state agencies, and NGO community members to share resources and ideas.
But there is one more partner we need: you. Finding a job after release is the most important key to success. In a recovering economy, securing a job after prison can be especially difficult. If you have a company that can train or hire our participants, or if you have access to housing, we need to hear from you....
One of every 100 adults in the United States is behind bars. Most will come home. They will have paid their debt and need a chance to support themselves, their families and their communities. We can look at ex-offenders returning to our communities as a risk, or we can help give them that chance. The potential rewards for their lives, for the economy and for our safety are incalculable.
Monday, July 14, 2014
The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:
Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.
Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence. This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis. This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile. It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.
July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, July 08, 2014
Senators Paul and Booker introducing another important bipartisan CJ reform bill
As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:
The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.
Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.
Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.
The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.
Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.
Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."
Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...
The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.
But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable Third Circuit discussion of revocation of supervised release standards
Hard-core federal sentencing fans eager for some extended summer beach reading should check out today's Third Circuit panel decision in US v. Thornhill, No. 13-2876 (3d Cir. July 8, 2014) (available here). The key facts of the case alone take the Third Circuit more than 15 pages to recite, but the start of the majority opinion efficiently spotlights the legal issue that thereafter gets resolved:
In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States, 488 U.S. 361, 367 (1989). One of the reforms effected by the Act was the elimination of special parole and the establishment of a “new system of supervised release.” Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991). The “new system” was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).
The question we consider is: once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendant’s term of imprisonment? We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).
I do not think there is much groundbreaking in the legal analysis in Thornhill, though a partial dissent by Judge Rendell adds intrigue to the ruling. Here are key paragraphs from the start and ends of the six-page dissent:
I part ways with the majority’s disposition, however, because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon revocation of her supervised release. The length of her term of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the District Court varied upward in giving Ms. Thornhill a sentence of three years....
We simply cannot know how meaningful consideration of the § 3553(a) factors, which we now require, would have affected Ms. Thornhill’s sentence. Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guidelines sentence. In short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition.
Friday, June 27, 2014
"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"
The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:
The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.
Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.
The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.
I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.
June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, June 11, 2014
Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events. Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:
The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics. Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues. Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment." In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.
June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack
Tuesday, June 10, 2014
DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board. And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.
As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines. Here are the basics of the compromise advocated by DOJ via its submitted testimony:
After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....
Assessing whether the amendment should be applied retroactively requires balancing several factors. The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders. While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....
Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....
Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.
With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.
Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.
Some recent related posts:
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, June 04, 2014
"Max Out: The Rise in Prison Inmates Released Without Supervision"
The title of this post is the title of a notable new report Public Safety Performance Project of The Pew Charitable Trusts. This press release about the report provides a helpful summary of its main findings, and here are excerpts from the release:
More than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety, according to a report released today by The Pew Charitable Trusts.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs....
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:
Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.
In the past few years, at least eight states—Kansas, Kentucky, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, and West Virginia—adopted reforms to ensure that authorities can supervise all or most offenders after release from prison. These policies, most of which are too new to evaluate, typically carve out the supervision period from the prison sentence rather than add time for it after release. This allows states to reduce prison spending and reinvest some of the savings in stronger recidivism-reduction programs....
These new policies are backed by data that indicate inmates released to supervision are less likely to commit new crimes than those who max out and return home without oversight....
The report outlines a policy framework to guide state leaders in reducing max-outs and recidivism. It recommends that policies require post-prison supervision, carve out the community supervision period from prison terms, strengthen parole decision-making, tailor conditions to offenders’ risks and needs, adopt evidence-based practices, and reinvest savings in community corrections.
Thursday, May 29, 2014
Report on how Chicago makes it nearly impossible for some sex offenders to register
A helpful reader alerted me to this notable local report from Chicago headlined "Chicago police fail to register sex offenders 601 times in just three months." Here is how the story starts:
On February 13 of this year, Bruce Harley went to the Chicago Police Department Headquarters to register as a sex offender. He was one of 22 people who were turned away that day because the office was simply too busy. That’s according to police records. A month later, on March 21, Bruce Harley was approached by Chicago police officers on the West Side of Chicago.
According to an arrest report, Harley wasn’t doing anything illegal but was “loitering in an area known for narcotic activity.” Officers ran Harley’s name and found he had failed to register. Harley told the officers he had tried to register on February 13 but had been turned away. He was arrested anyway and is now in the Cook County Jail, where it costs taxpayers $52,000 a year to house him.
I first heard about sex offenders being prevented from registering a few months ago. I spent several days waiting in line with offenders outside the criminal registration office at Chicago police headquarters. I couldn’t believe it when officers came out of the office and told dozens of men who had been waiting for hours that they might as well go home because the office was too busy to register them all. Then the officers warned the men that they could be arrested for failing to register even though they’d just waited for hours in line to do just that.
I went back several times and saw the same scenario play out.
Terrific Posnerian disquisition on supervised release challenges and "best practices"
The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:
We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....
In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:
1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.
2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.
3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.
4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.
5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.