Tuesday, March 04, 2014

"15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner"

OnionThe title of this post is the headline of this amusing new item in The Onion sent my way by one of my terrific students.  Here are highlights from this all-too-biting satire:

Reportedly left dumbfounded by the news that recent parolee Terry Raney had been reincarcerated on charges of assault and battery, officials at Woodbourne Correctional Facility struggled Tuesday to make sense of how the prisoner had not been rehabilitated by 15 years of constant threats, physical abuse, and periodic isolation.

“It just doesn’t seem possible that an inmate could live for a decade and a half in a completely dehumanizing environment in which violent felons were constantly on the verge of attacking or even killing him and not emerge an emotionally stable, productive member of society,” said chief warden Albert Gunderson, who noted that, as hard as it was to believe, Raney’s recidivism proved that his criminal impulses had not in fact been corrected by the sense of grave distrust he felt toward every other person in the facility, including both fellow inmates and prison authorities, every day since 1999....

Gunderson [also] noted his additional confusion at how the man’s criminal record and the social stigma of his prison sentence had somehow failed to land him a steady job immediately upon his release.

March 4, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Sunday, February 16, 2014

New York Gov makes serious push for serious educational programming behind bars

This new AP article, headlined "Gov. Cuomo wants state to fund college classes for NY prisoners," reports on a notable new prison proposal coming from a notable elected official. Here are the basics:

Gov. Andrew Cuomo is proposing to fund college classes in New York prisons, saying a college degree will reduce the likelihood an inmate will return to crime when released. The program will offer associate and bachelor's degree education at 10 prisons, one in each region of the state.

According to Cuomo's office, New York currently spends $60,000 per year on each prisoner, and it will cost approximately $5,000 per year to educate an inmate. Cuomo didn't specify the cost of the overall program. The state will issue a Request for Proposal from qualified educational associations in March.

Since 2007, the state Department of Corrections has partnered with colleges, including Cornell University and Bard College, to offer privately funded degree programs at 22 prisons. The new program will expand on that.

February 16, 2014 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (2) | TrackBack

Monday, February 10, 2014

Registered sex offender makes case against sex offender registry

Guy Hamilton-Smith, a registered sex offender and law school graduate who has so-far been denied the opportunity to become a member of the bar, has this new op-ed in the Lexington Herald-Leader under the headline "Sex-offender registry misguided thinking." Here are excerpts:

I am a sex offender. I know well the tremendous power of those words. In 2007, I pled guilty to possession of child pornography.

Nothing here is meant to defend what I did or to minimize the gravity of my actions. I had a major problem with pornography, and I was far too deep in denial and too scared to reach out to anyone.  Help eventually came when my girlfriend discovered child porn on my computer and went to the police.  I was then and remain grateful to her for taking that step.

As I went through the legal process after my arrest, I developed a keen interest in the law, and a sincere desire to advocate on the behalf of those who are hated, who are lost, and who are forgotten.  With luck, I managed to win acceptance to law school despite my conviction.  I worked harder than I'd ever worked in my life, because I knew I'd have a lot to do to overcome my past.  I did well in school, graduated, secured a job at a law firm after disclosing my past, and applied to take the bar exam.  Recently, the Kentucky Supreme Court ruled that I will not be allowed to take the bar exam until I am no longer on the sex-offender registry, which will be another 18 years from now.

But the point I want to make is not about me. It isn't about my case. I am not here to say whether the court's decision was right or wrong. The principles at play are much larger than me.  

Strange as it may sound coming from a felon and a sex offender, I believe in the necessity of punishment.  How else, after all, are people supposed to make amends for the harm that they cause? ... I believe in many ways that my life was saved by virtue of my arrest.  I am sensitive to the fact that my crime, and the crimes of others on the sex offender registry, are serious. I do not mean to denigrate the plight of victims, as I was also a victim at one point in my own childhood.

My point, rather, is simply this: punishment that becomes unmoored from considerations of proportionality, redemption and reintegration becomes poison, and we — society, victims and perpetrators — become diminished by it.

Nowhere is this more evident than the sex-offender registry.  Those who find themselves constituents of the registry are routinely and uniformly denied the same second chance afforded to so many other criminal defendants after they have served their sentences.  

The impetus behind the registry is the popular belief that sex offenders always commit new sex crimes.  That view, however, is at odds with data from the Department of Justice and others....

I know that I am not a sympathetic figure by virtue of my crime.  I know that I can never change the past or undo the things that I have done.  My hope here is that we can have a discussion in this country that is long overdue — namely, what it is that we hope to achieve from our system of criminal justice.

February 10, 2014 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, February 06, 2014

"Profiting from Probation: America's 'Offender-Funded' Probation Industry"

The title of this post is the title of this notable new report from Human Rights Watch. Here is the start of the report's summary:

The United States Supreme Court has ruled that a person sentenced to probation cannot then be incarcerated simply for failing to pay a fine that they genuinely cannot afford. Yet many misdemeanor courts routinely jail probationers who say they cannot afford to pay what they owe — and they do so in reliance on the assurances of for-profit companies with a financial stake in every single one of those cases.

Every year, US courts sentence several hundred thousand people to probation and place them under the supervision of for-profit companies for months or years at a time.  They then require probationers to pay these companies for their services.  Many of these offenders are only guilty of minor traffic violations like speeding or driving without proof of insurance.  Others have shoplifted, been cited for public drunkenness, or committed other misdemeanor crimes.  Many of these offenses carry no real threat of jail time in and of themselves, yet each month, courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees.

This report, based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013, describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatized probation that prevails in well over 1,000 courts across the US.  It shows how some company probation officers behave like abusive debt collectors.  It explains how some courts and probation companies combine to jail offenders who fall behind on payments they cannot afford to make, in spite of clear legal protections meant to prohibit this.  It also argues that the fee structure of offender-funded probation is inherently discriminatory against poor offenders, and imposes the greatest financial burden on those who are least able to afford to pay.  In fact, the business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in installments over time.

The problems described in this report are not a consequence of probation privatization per se.  Rather, they arise because public officials allow probation companies to profit by extracting fees directly from probationers, and then fail to exercise the kind of oversight needed to protect probationers from abusive and extortionate practices.  All too often, offenders on private probation are threatened with jail for failing to pay probation fees they simply cannot afford, and some spend time behind bars.

February 6, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, January 20, 2014

"Obamacare Is a Powerful New Crime-Fighting Tool"

The title of this post is the headline of this notable recent article from The Atlantic. The subheading highlights its themes: "An astonishing two-thirds of the 730,000 prisoners released each year have substance abuse or mental health problems. But no one has been willing to pay for their treatment — until now."  Here is an excerpt:

An astonishing two-thirds of the 730,000 men and women released from America’s lockups each year have either substance abuse problems, mental health problems, or both. Very often, those problems were largely responsible for getting them locked up in the first place. Most addicted and mentally ill prisoners receive little or no effective treatment while they’re incarcerated or after they’re turned loose, so it’s little surprise that ... they soon wind up back in jail. But for some, that revolving door may stop spinning this year, thanks to a little-noticed side-effect of President Obama’s Affordable Care Act. Obamacare, it turns out, might be a crime-fighting tool.

Numerous studies support the common-sense notion that treating offenders’ drug addictions and mental illnesses helps keep at least some of them from going back to jail. Get that junkie off heroin, and maybe he won’t steal your car stereo for fix money; get that mentally ill homeless person on proper medications, and maybe she can find a job instead of turning tricks in alleys. “It’s not the drug itself, it’s the stealing and robbing they do to get the drug,” says Abbie Zimmerman, a therapist at Transitions Clinic, a program based in San Francisco’s hard-bitten Hunter’s Point area that treats former prisoners (including Sanders, who is now an outreach worker there). “If I can keep them sober, I can keep them out of jail.”

But no one has been willing to pay for such treatment for hundreds of thousands of ex-cons. And they certainly can’t afford it themselves: According to a recent report by the Council of State Governments, the vast majority of released prisoners re-enter society with little money and no health insurance. But now many of those former prisoners are eligible for insurance, courtesy of the federal government.

Among many other reforms, the ACA is drastically expanding Medicaid, the federal insurance scheme for the poor. Previously, able-bodied childless adults were generally not covered by Medicaid, regardless of how impoverished they might have been. But starting this year, any American citizen under age 65 with a family income at or below 138 percent of the federal poverty line — about $25,000 for a family of three — is eligible for Medicaid (at least in the two dozen states that have so far agreed to participate in this aspect of Obamacare). Meanwhile, citizens and legal immigrants earning between 138 percent and 400 percent of the poverty line are now entitled to subsidies to help pay for private insurance. Taken together, those two provisions mean that tens, perhaps hundreds, of thousands of the inmates released every year are now eligible for health insurance, including coverage for mental health and substance abuse services.

Providing treatment to those former prisoners could yield enormous benefits for all of us. The average cost to incarcerate someone for a year is roughly $25,000. That means if only one percent of each year’s released inmates stay out of trouble, taxpayers will save nearly $200 million annually — and the pool of troubled ex-cons looking to steal your car stereo will be that much smaller. “Success in implementing the Affordable Care Act has the potential to decrease crime, recidivism, and criminal justice costs, while simultaneously improving the health and safety of communities,” sums up a recent report by the federal Department of Justice.

It all looks great on paper. But there are significant obstacles to making this work in the real world. One is the simple fact that many former prisoners aren’t even aware of their new entitlements. “I don’t really know what Obamacare is,” says Ernest Kirkwood, a Transitions client who spent 29 years in prison, when I tell him I’d like to talk to him about the new health care regime. “I never read the newspaper.”

Making services available is one thing. Getting people whose judgment isn’t that great in the first place to actually use them is another. Plenty of drug users and mentally ill people don’t want to admit they have a problem. The stigma that persists around mental illness keeps some should-be patients away. Richard Rawson, a professor of psychiatry specializing in substance abuse at the University of California, Los Angeles, points out that an earlier experiment that provided residential treatment to just-released drug offenders didn’t work as well as hoped. “People said, ‘I just got out, I don’t want to be in rehab for another year,’” he says.

January 20, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, November 18, 2013

Are special jail facilities for veterans (and other special populations) key to reducing recidivism?

The question in the title of this post is prompted by this notable Los Angeles Times article headlined "Separate jail facilities seek to cut recidivism rates among veterans." Here are excerpts:

The N-Module-3 housing wing at the San Diego County Jail was recently repainted red, white and blue.  Brightly colored paintings now hang on the walls: one of the Statue of Liberty, another of the U.S. flag, and one of a screaming eagle landing with talons outstretched.  Hanging from the ceiling are the service flags of U.S. military branches and the POW/MIA flag.

The paintings and the flags are key to a program begun this month that aims to reduce recidivism among veterans who have slipped into the criminal justice system after leaving the structured world of military service.

Thirty-two veterans serving sentences or awaiting trial have volunteered to live in the module separate from the other prisoners and participate in classes meant to increase their chances of making a law-abiding return to civilian life.  "We're all dedicated to making this work, nobody wants to go back," said Jeremy Thomas, 22, who served with the Marines in Afghanistan and lost his left hand when a roadside bomb exploded.

Each of the veterans has agreed to take classes Monday through Friday from 7 a.m. to 2:30 p.m. to assist with problems of post-traumatic stress disorder, anger management, substance abuse, parenting and other issues.  "We hope that by putting them together we can rekindle that esprit de corps they had when they were serving their country," said San Diego County Sheriff Bill Gore, whose department runs the jails. "It's a great population to work with."

The program was spurred both by a sense of obligation toward the veterans and also an increased need to reduce recidivism to accommodate the state's prison realignment program that threatens to overwhelm the capacity of local jails.  "We've got to do things differently," Gore said....

Nationwide, a small but growing number of jails have housing and programs specifically targeting veterans, an effort that the VA encourages and supports by forming partnerships with local law enforcement.  "Being treated as a veteran reminds them of a time when their lives made sense and they deserved the respect of others," VA Secretary Eric Shinseki, a retired Army general, told a recent convention of the American Correctional Assn.

An estimated 1 in 9 prisoners in the U.S. is a military veteran, according to the Department of Justice.  But only 1 in 6 is being helped by the VA with the challenge of resuming life after incarceration, said Shinseki, who has vowed to get more help for those veterans.

The California prison system does not house veterans separately from other prisoners but does encourage formation of veterans-only discussion groups at its 34 institutions, a spokesman said.  VA "reentry specialists" regularly meet with prisoners on the verge of being released to tell them of benefits and therapy programs.

In Los Angeles County, where the Sheriff's Department runs the largest jail system in the country, 291 prisoners are housed in veteran-only dorms where they participate in programs including Alcoholics Anonymous and Narcotics Anonymous and classes in art, computers and relationship counseling.

One of the oldest and most successful of the veterans-behind-bars programs is run by the San Francisco Sheriff's Department at its jail in San Bruno. Begun in 2010, the San Francisco program houses 48 veterans in a separate "pod" where they can receive help from specialists from the VA and the Bay Area nonprofit group Swords to Plowshares....

Most of the jail deputies are volunteers who preferred working with the veterans. "In here, the staff is totally different than out there," said inmate Kimbra Kelley, 49, a former Marine.

There are incentives for inmates to participate, seemingly small to outsiders but very large in the life of the incarcerated: pillows, more television time, more time in the exercise yard, extra mattresses, an extra visit each week from family members, access to a vending machine and, soon, a microwave oven. "This is the future, gentlemen: incentive housing," sheriff's Lt. Steven Wicklander told the inmates during a visit this month.

If any of the 32 veterans quits attending the classes and stays in his cell, he can be returned to general population. There's a waiting list among the 270 veterans in county custody to transfer to N-Module-3.  "We were given an opportunity, and we're going to hold on to it for dear life," said Dana Mulvany, 42, who served in the Navy.

November 18, 2013 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (13) | TrackBack

Friday, November 15, 2013

Is AG Eric Holder going to stay on the job until he truly reforms American criminal justice?

The question in the title of this post is inspired by this new Washington Post article headlined "Reforming justice system is personal goal for Eric Holder Jr."  Here are excerpts from the piece:

As the Justice Department seeks new ways to reduce the burgeoning U.S. prison population, its success is likely to depend on community programs such as the one in this small city in America’s heartland.

In the past 11 years, federal prosecutors here have authorized substance abuse treatment and other assistance for more than 100 low-level offenders as an alternative to prison sentences.  Eighty-seven have successfully completed the program and, in the process, saved the federal government more than $6 million by sparing it the cost of incarceration....

Justice officials see the program in Peoria as a model for other communities — and central to the criminal justice reforms that Attorney General Eric H. Holder Jr. is moving to implement.  In August, at an American Bar Association conference in San Francisco, Holder announced that low-level nonviolent drug offenders with no ties to gangs or large-scale drug organizations would no longer be charged with offenses that impose severe mandatory sentences.  He has also introduced policies to reduce sentences for elderly, nonviolent inmates, to find alternatives to prison for nonviolent criminals, and to improve reentry programs to curb repeat offenses.

The announcements have heralded some of the most significant criminal justice policy shifts from the department in years.  For Holder — who has said that as a U.S. attorney and judge he saw neighborhoods destroyed by both illegal drugs and the tough-on-crime legislation that has disproportionately affected black men — the issue has been personal.

“Day after day, I watched lines of young people, most often young men of color, stream through my courtroom,” Holder told ex-offenders Thursday during a visit to a St. Louis courthouse, one of a string of stops he is making to promote his reform agenda.  “I learned how drug abuse, crime and incarceration can trap people in a destructive cycle.  A cycle that weakens communities, tears families apart and destroys individual lives.”...

Many of the department’s criminal justice reforms have bipartisan support, and Republican governors in some of the most conservative states have led the way on prison reform.  Congress also has shown a renewed interest in reducing the nation’s prison population, including the introduction of a bill this week that would reauthorize the Second Chance Act, which funds grants for programs that support probation, parole and reentry programs across the country.

“Rather than incarcerating repeat offenders in the same families generation after generation, we can put our taxpayer dollars to better use to break this vicious cycle and turn lives around,” Sen. Rob Portman (R-Ohio), a former prosecutor and one of the bills sponsors, said in a statement.

Efforts to reduce the prison population have drawn criticism from some lawmakers, who are skeptical that new policies will reduce crime.  “I am skeptical,” Sen. Charles E. Grassley (Iowa), the ranking Republican on the chamber’s Judiciary Committee, said at a a hearing last week.  “Reducing prison sentences will bring prisoners out on the street sooner.  The deterrent effect of imprisonment would be reduced.  Many so-called nonviolent drug offenders have violent records.  Some of these released offenders will commit additional crimes.”...

In a Philadelphia courtroom earlier this month, the attorney general watched more than a dozen drug offenders in a “reentry” program report to a judge to discuss their personal and work situations.  Officials there said the program, which provides parenting classes, vocational training and job opportunities, has saved $1.5 million in annual incarceration costs because fewer ex-offenders are being sent back to prison.  The national revocation rate for ex-offenders who are not in such programs is 47 percent; the rate among participants in the seven-year-old Philadelphia program is about 20 percent.

During his stops Thursday, Holder met with judges and pretrial service officers and watched as a district court judge encouraged ex-offenders to overcome their drug addictions and stay out of prison.  He spoke emotionally to a group about how his nephew struggled to overcome drug addiction.

Inside a federal courthouse in St. Louis, he watched a ceremony in which ex-offenders graduated from an intensive recovery program called EARN (Expanding Addicts’ Recovery Network). “I look at you all and I see myself,” he said. “I grew up in a neighborhood in New York City where people like you would have been my friends. We would have gone to school together. We would have tried to learn about girls together. We would have played basketball together. So I can’t help but feel mindful of the fact that, although I’m here in my capacity as attorney general of the United States, a few of the people I grew up with, good people like you, ended up taking different paths.”

“Some of them didn’t catch the same breaks,” the nation’s top law enforcement official said. “Some had to deal with drug issues. . . . I know that everyone makes mistakes — everyone. Including me. And that’s why I wanted to be here today to tell you in person how proud I am that each of you has decided not to let your mistakes define you and not to make excuses, but to make the most of the opportunities that you’ve been given.”

Right after President Obama's re-election, as noted in this post from last November, AG Holder was talking about staying on as AG for only "about a year" into this second Presidential term. But that year has now passed, and I have heard very little new buzz about AG Holder moving on. And, if he is truly committed to engineering significant and lasting criminal justice reform, I think he may need (at least) the next three years to really have a chance to get this done.

November 15, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, November 07, 2013

State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional

As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders."  Here is more:

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."

"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."

County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.

Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

New Michigan law adds to number of states requiring registered sex offenders to pay yearly fee

This local article report on yet another notable extra bit of punishment now for sex offenders in Michigan.  The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:

Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.

The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.

Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.

Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.

But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (86) | TrackBack

Wednesday, November 06, 2013

Senate Judiciary hearing focused on federal prisons and "Cost-Effective Strategies for Reducing Recidivism"

This motning, Tuesday November 6, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary titled "Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism." Here is the official agenda/hearing list:

Panel I

Panel II

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours.

Here at The Atlantic, Andrew Cohen sets out "5 Questions for Federal Prisons Chief When He Comes to Capitol Hill"

November 6, 2013 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

Tuesday, November 05, 2013

"Looking for Answers on Overcrowded Prisons"

The title of this post is the headline of this notable new AP article coming from Philadelphia.  The piece is primarily about federal corrections and re-entry issues, as well as on-going work of AG Eric Holder and the Department of Justice.  Here are excerpts:

Some ex-offenders here report to federal court twice a month so that judges can gauge their progress, from drug testing and parenting classes to education and job training. It's an attempt to address a stubborn problem: nearly 25 percent of offenders released into federal supervision were rearrested for a new offense within five years, according to the Administrative Office of the U.S. Courts.  Another 14 percent violate the conditions of their supervision.

Attorney General Eric Holder is taking a look at the Philadelphia program Tuesday to call attention to an overburdened prison system and the high incidence of repeat criminals, the first of three such visits to promote innovative crime prevention initiatives. Holder will visit St. Louis and Peoria, Ill., on Nov. 14.

"The common thread of these programs is that it is very difficult to get out of a cycle of crime without proper rehabilitation," Holder said in an interview.  "We should not be surprised" at high repeat offender rates "when we see people with education deficits, social deficits and we warehouse them and then just put them back into the same environment that they left."...

Seven years ago, federal judges in the Eastern District of Pennsylvania created a federal re-entry court that focuses on ex-criminal offenders with a significant risk of returning to a life of crime.  The goal of the program is to place participants on a path to employment rather than a cycle of crime.  Those who successfully complete the 52-week program can reduce their court-supervised release by a year. It aims to cut Philadelphia's high violent crime rate by addressing the social, family and logistical issues confronting ex-offenders when they return to society.

Of 186 participants in the Supervision to Aid Re-Entry, or STAR, initiative over the past seven years, 142 have successfully completed the program or remain in it. In a new change designed to keep ex-offenders on the right track, STAR will provide some participants with federal housing assistance under a federal voucher program.

"For every dollar we invest in programs like these we are going to save much more" in prison costs, an outcome that will enable spending limited law-enforcement resources on other priorities, Holder said.

While Philadelphia's program deals with high-risk offenders, the program in St. Louis is aimed at helping low-level drug offenders remain drug-free and the effort in Peoria, Ill., substitutes drug treatment for jail time for low-level drug offenders.

In all, 73 of 79 participants in the Peoria program have successfully completed it. The program operated by the U.S. Attorney's office, a federal court, the probation office and defense lawyers is designed for defendants whose criminal conduct was motivated by substance abuse. The Justice Department says over $6 million has been saved through the program — money that otherwise would have been spent on putting the defendants behind bars....

Federal prisons are operating at nearly 40 percent above capacity and almost half of the prisoners are serving time for drug-related crimes. Many of them have substance use disorders. In addition, some 9 million to 10 million prisoners go through local jails each year. "We cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder told the American Bar Association in August. "To be effective, federal efforts must also focus on prevention and re-entry."

November 5, 2013 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, October 13, 2013

Parole precogs: computerized risk assessments impacting state parole decision-making

PrecogsPredicting who is likely to commit a crime in the future is no easy task, as fans of "Minority Report" know well.   But states that retain discretionary parole release mechanisms to some extent require its officials to do just that.  And, as this lengthy Wall Street Journal article explains, state officials are (in my view, wisely) relying more and more on computerized risk assessment instruments when making parole decisions.  The WSJ piece is headlined "State Parole Boards Use Software to Decide Which Inmates to Release: Programs look at prisoners' biographies for patterns that predict future crime," and here are excerpts:

Driven to cut ballooning corrections costs, more states are requiring parole boards to make better decisions about which convicts to keep in prison and which to release. Increasingly, parole officials are adopting data- and evidence-based methods, many involving software programs, to calculate an inmate's odds of recidivism.

The policy changes are leading to a quiet and surprising shift across the U.S. in how parole decisions are made. Officials accustomed to relying heavily on experience and intuition when making parole rulings now find they also must take computerized inmate assessments and personality tests into account.

In the traditional system, factors like the severity of a crime or whether an offender shows remorse weigh heavily in parole rulings, criminologists say. By contrast, automated assessments based on inmate interviews and biographical data such as age at first arrest are designed to recognize patterns that may predict future crime and make release decisions more objective, advocates of the new tools say.

In the past several years, at least 15 states including Louisiana, Kentucky, Hawaii and Ohio have implemented policies requiring corrections systems to adopt modern risk-assessment methods, according to the Pew Charitable Trusts' Public Safety Performance Project. California is using computerized inmate assessments to make decisions about levels of supervision for individual parolees. This year, West Virginia began requiring that all felons receive risk assessments; judges receive the reports before sentencing with the option to incorporate the scores into their decisions.

Such methods can contradict the instincts of corrections officials, by classifying violent offenders as a lower recidivism risk than someone convicted of a nonviolent robbery or drug offense. Criminologists say people convicted of crimes like murder often are older when considered for release, making them less likely to reoffend. Inmates convicted of nonviolent crimes like property theft, meanwhile, tend to be younger, more impulsive and adventurous—all predictors of repeat criminality....

Wider acceptance of computerized risk assessments, along with other measures to reduce state corrections budgets, has coincided with the first declines in the national incarceration rate in more than a decade.

The number of inmates in state and federal facilities fell nearly 1% in 2011 to 1.6 million, after edging down 0.1% in the prior year. The 2011 decline came entirely from state prisons, which shed 21,600 inmates, offsetting an increase of 6,600 federal prisoners. Preliminary 2012 data shows an even larger fall in state inmates of 29,000.

Experts say one reason for the decline is that fewer parolees are returning to prison. About 12% of parolees were re-incarcerated at some point in 2011 compared with 15% in 2006, representing the fifth straight year of decline, according to Justice Department data.

Texas, by reputation a tough-on-crime state, has been consistently using risk assessment longer than many states and is boosting the number of prisoners it paroles each year. With its current system, in use since 2001, it released 37% of parole applicants in 2012 versus 28% in 2005 — some 10,000 more prisoners released in 2012.

Officials in Michigan credit computerized assessments, introduced in 2006 and adopted statewide in 2008, with helping reduce the state's prison population by more than 15% from its peak in 2007 and with lowering the three-year recidivism rate by 10 percentage points since 2005.

Still, experts say it is difficult to measure the direct impact of risk prediction because states have also taken other steps to rein in corrections costs, such as reducing penalties for drug offenses and transferring inmates to local jails.

Michigan's assessments withstood a legal challenge in 2011, when prosecutors sought to reverse the parole of Michelle Elias, who had served 25 years for murdering her lover's husband. A lower court, siding with the prosecutor, ruled the parole board hadn't placed enough weight on the "egregious nature of the crime," court documents say. The Michigan Court of Appeals overturned the decision and upheld Ms. Elias's release.

Yet earlier this month, the same appeals court ruled the Michigan parole board had abused its discretion by releasing a man convicted of molesting his daughter. He hadn't received sex-offender therapy while in prison, but three assessments, including one using [the computer program] Compas, had deemed him a low risk of reoffending. The appeals court, in an unpublished decision that echoed a lower court, said that Compas could be manipulated if presented "with inadequate data or individuals who lie."

The Compas software designer, Northpointe Inc., says the assessments are meant to improve, not replace, human intelligence. Tim Brennan, chief scientist at Northpointe, a unit of Volaris Group, said the Compas system has features that help detect lying, but data-entry mistakes or inmate deceptiveness can affect accuracy, he said. The company says that officials should override the system's decisions at rates of 8% to 15%.

P1-BN518_PAROLE_G_20131011180304Many assessment systems lean heavily on research by criminologists including Edward Latessa, professor at the Center for Criminal Justice Research at the University of Cincinnati. Parole boards, typically staffed with political appointees, have lacked the information, training and time to make sound decisions about who should be released, Dr. Latessa said. The process, he said, is one factor contributing to the population surge in the nation's prisons, including a fivefold increase in the number of prisoners nationwide from 1978 to 2009, according to the Department of Justice.

"The problem with a judge or a parole board is they can't pull together all the information they need to make good decisions," said Dr. Latessa, who developed an open-source software assessment system called ORAS used in Ohio and other states. Ohio adopted ORAS last year as the result of legislation aimed at addressing overcrowded prisons and containing corrections spending. Dr. Latessa does paid consulting work with state corrections agencies but isn't paid for use of the system. "They look at one or two things," he said. "Good assessment tools look at 50 things."

Some assessments analyze as many as 100 factors, including whether the offender is married, the age of first arrest and whether he believes his conviction is unfair. In Texas, a rudimentary risk-assessment measures just 10 factors. Data gathered in interviews with inmates is transmitted to the offices of Texas parole board members, who vote remotely, often by computer.

Parole officials say assessment scores are just one factor they consider. Some experts say relying on statistics can result in racial bias, even though questionnaires don't explicitly ask about race. Data such as how many times a person has been incarcerated can act as an unfair proxy for race, said Bernard Harcourt, a University of Chicago professor of law and political science. "There's a real connection between race and prior criminal history, and a real link between prior criminal history and prediction," Mr. Harcourt said. "The two combine in a toxic and combustive way."

Christopher Baird, former head of the National Council on Crime and Delinquency, said statistical tools are best used to help set supervision guidelines for parolees rather than determine prison sentences or decide who should be released. "It's very important to realize what their limitations are," said Mr. Baird, who developed one of the earliest risk-assessment tools, for the state of Wisconsin in the late 1970s. "That's lost when you start introducing the word 'prediction' and start applying that to individual cases."

October 13, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, October 07, 2013

"Evidence, Ideology, and Politics in the Making of American Criminal Justice Policy"

The title of this post is the title of this notable new paper available via SSRN authored by the prolific and profound Michael Tonry. Here is the abstract:

The development of a large and productive community of criminal justice programs, scholars, and researchers in the United States since the 1970s has not led to the emergence of a general norm of evidence-based policy making. Nor on many subjects have accumulations of improved knowledge had much influence. On a few they have.

The two best examples of influence are policing and early childhood prevention programs. Concerning policing, a plausible story can be told of an iterative process of research showing that police practices and methods do and do not achieve sought-after results, followed by successive changes in how policing is done. Concerning early childhood programs, a conventional scientific process of hypothesis testing and repeated pilot projects with strong evaluations led to widespread adoption of improved programs and techniques.

Concerning sentencing, sanctioning policies, firearms and violence, and drug policy, by contrast, strong bodies of accumulating evidence have consistently been ignored. Correctional rehabilitation research is a hybrid. Eclipsed in the 1970s by a gloomy view that “nothing works,” research on correctional treatment in the 1980s and 1990s demonstrated that a wide variety of programs can improve offenders’ lives and reduce reoffending. The findings have influenced the development of reentry and other programs that focus primarily on risk classification and reduction of recidivism rates, but only incidentally on addressing offenders’ social welfare needs.

October 7, 2013 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, October 03, 2013

Second Circuit finds substantive due process problems (and others) with penile plethysmography testing for convicted sex offender

Thanks to a number of helpful readers, I have not missed the news of a notable sentencing ruling by a Second Circuit paenl today in US v. McLaurin, No. 12-3514 (2d Cir. Oct. 3, 2013) (available here). Here is how the opinion starts:

David McLaurin, a convicted sex offender, was required by federal law to register any change in his address.  He failed to do so and, following his guilty plea, was sentenced in the United States District Court for the District of Vermont to fifteen months’ imprisonment and five years of supervised release.  As a condition of his release, McLaurin was required to “participate in an approved program of sex offender evaluation and treatment, which may include . . . plethysmograph examinations, as directed by the probation officer.” Judgment, United States v. McLaurin, No. 11 Cr. 113 (WKS), Dkt. No. 28 (D. Vt. Aug. 22, 2012), J. App. 9.

This examination involves the use of a device know as a plethysmograph which is attached to the subject’s penis.  In some situations, the subject apparently may be required, prior to the start of the test, to masturbate so that the machine can be “properly” calibrated.   The subject is then required to view pornographic images or videos while the device monitors blood flow to the penis and measures the extent of any erection that the subject has.  The size of the erection is, we are told, of interest to government officials because it ostensibly correlates with the extent to which the subject continues to be aroused by the pornographic images.

McLaurin objected to this requirement as unnecessary, invasive, and unrelated to the sentencing factors specified in 18 U.S.C. § 3553(a) and therefore impermissible as a discretionary condition of supervised release.  See 18 U.S.C. § 3583(d)(1). The district court nonetheless imposed the requirement without reference to the statutory goals of supervised release or to any expected benefits to the public or to McLaurin.  McLaurin now appeals.

We hold that this extraordinarily invasive condition is unjustified, is not reasonably related to the statutory goals of sentencing, and violates McLaurin’s right to substantive due process. We therefore vacate the condition.

October 3, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

"Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning"

The title of this post is the title of this new paper available via SSRN and authored by John Monahan and Jennifer Skeem. Here is the abstract:

After almost four decades of “just deserts,” the past several years have seen a remarkable resurgence of risk assessment as an essential component of criminal sanctioning.  In this article, we review current practice in the incorporation of risk assessment into the sanctioning systems of several illustrative states, and describe the major dimensions on which state practices differ.  We then elaborate the various meanings ascribed to the foundational concept of “risk” in criminal sanctioning, and contrast “risk” with what are now often called “criminogenic needs,” the fulfillment of which ostensibly reduce an offender’s level of “risk.”  Finally, we address the choice of an approach to risk assessment in sentencing, particularly in the resource-starved state of current correctional practice.

October 3, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack

Tuesday, September 24, 2013

Documenting the enduring challenges of reentry for parolees and society in Colorado

The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:

Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:

Predicting who will murder is now a science. In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.

The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania. "It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."

The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.

In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said. The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.

Pennsylvania is expected to apply the software for all parolees by the end of the year. Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.

A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles. Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.

September 24, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (2) | TrackBack

Monday, September 23, 2013

Litigation prompting California city to give up Halloween sex offender posting law

As reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:

An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.

Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.

"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...

Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.

The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....

In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.

There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."

September 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, September 16, 2013

Two new commentaries on California's enduring need for enduring sentencing and corrections reform

Commentators in California soundly and sensibly recognize that last week's "deal" to deal with the state's overcrowded prisons (basics here) is not a long-term solution to the range of issues that helped lead to the state's problems in the first place.  For example, this new Los Angeles Times op-ed by Lois Davis, a policy researcher at the Rand Corporation, stresses the need for better prison programming to reduce recidivism. Here are excerpts:

If California is serious about reducing its prison population, one crucial component will have to be reducing recidivism. Currently, a lot of the state's inmates are men and women who've been in prison more than once.  They get out, they have little training or education, they can't get jobs and, in many cases, they return to lives of crime and find themselves back behind bars.

But a major new study of correctional education in U.S. state prisons suggests there are things California could do to slow that revolving door.  Our research demonstrates that ex-offenders' futures may depend on what, if anything, they learn while behind bars....

My Rand Corp. colleagues and I recently completed a national study examining all the evidence on the effect of correctional education on recidivism and employment.  We found that inmates who participated in correctional education programs — remedial education to develop reading and math skills, GED preparation, postsecondary education or vocational training — were 43% less likely to return to prison within three years of release in comparison to those who did not participate. That's a 13-percentage-point reduction in the risk of reoffending.

Inmates who receive correctional education behind bars are not just significantly less likely to return to prison; they are also more likely to find jobs after being released.  Prisoners who participated in academic or vocational education programs had a 13% better chance of finding employment than those who did not. And prisoners who participated specifically in vocational training programs were 28% more likely to be employed after release from prison than those who were left out.

With times being tough and budgets tight, state policymakers, corrections officials and correctional education administrators will rightly ask whether the cost of providing such programs are worth the gains in lower recidivism. Our research shows that it is....

Failing to invest properly in education and training programs carries real risks, thrusting more uneducated and ill-equipped ex-cons onto the streets. And in California, that investment needs to be made not just in state prisons but in county jails too, since realignment has meant that many offenders who would have served their terms in prison are incarcerated in jails instead. The benefits of inmate education can extend far beyond prison walls. When former inmates are able to land jobs and stay out of prison, their families and communities gain too.

Similarly, though with a distinct reform focus, this local editorial stresses the need for broader sentencing changes in California.  Here is an excerpt:

California has spent the past two decades learning a harsh, expensive lesson: The state does not have the financial resources to keep pace with the consequences of the hard-line sentencing laws imposed in the 1990s....

Politicians have long known that comprehensive sentencing reform is the solution, but have largely balked for fear of being labeled soft on crime. Until now. The compromise between Gov. Jerry Brown and Republican and Democratic legislative leaders on prison overcrowding creates a rare opportunity for California to seriously address the issue....

The challenge will be crafting new sentencing laws that deter crime, provide a fair punishment for criminal transgressions and reduce the state's 65 percent recidivism rate -- the highest in the nation. The national average is about 45 percent....

Comprehensive sentencing reform is the logical next step for California to create a sustainable, efficient and just state prison system. Maybe we can leave politics out of it.

September 16, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, September 03, 2013

Utah (re)considering its approaches to sex offender sentencing

The Salt Lake Tribune has this notable new article about its prison population and sex offender sentencnig under the headline "Utah sex offender policy in spotlight as numbers soar: More prisoners, longer sentences but funding for treatment stays flat, triggering concerns."   Here are excerpts:

A dramatic increase in the number of sex offenders incarcerated in Utah over nearly two decades is raising questions about how the state deals with such crimes and concerns about whether all inmates are able to get needed treatment before they return to their communities.

The number of sex offenders in state custody has more than doubled — to 2,194 or 31 percent of the prison population — since 1996, the last year Utah lawmakers approved an increase in treatment funding.  Although Utah’s incarceration rate is significantly lower than that of other Western states and the U.S., it leads surrounding states when it comes to the percentage of prison inmates who are sex offenders.

One reason for that: Lawmakers have taken a tough stance on sex offenses, setting stiff penalties, such as a law passed in 2008 that set a 25-years-to-life penalty for child rape. “Our culture has a very strict credo, a moral sense, of what is appropriate sexually and what is not appropriate sexually,” said Rep. Eric Hutchings, R-Kearns and a member of the Criminal Justice Appropriations subcommittee. “That may be why we incarcerate a little bit more.”

The state’s approach also has historically been shaded by the view that “once a predator, always a predator” — a misconception that may finally be poised to shift with the accumulation of evidence that shows treatment works, Hutchings said. “The discussion is not over, but it’s happening in earnest,” Hutchings said. “The mind-set for a long time has been what are we going to get by putting this money into treatment. Why not focus instead on mandatory minimum sentences and keeping these people locked away.”...

The numbers reflect that philosophy of warehousing inmates.  Today, more sex offenders in Utah are sent to prison rather than placed on probation, and they serve longer sentences.  In 2012, for example, 92 percent of first-degree felony sex offenders went to prison, up from 72 percent in 1988.  During that period, the length of time served has doubled....

Still, “The reality is we are talking about a very large group of people at the prison who are some day going to get released,” said Jonathan Ririe, a Utah psychologist who works with sex offenders in the community. And that makes investing in treatment, as well as supervision outside of prison, critical, he added....

Utah inmates convicted of first-degree felony sex offenses who were released from prison during the past five years had, on average, served 7½ years.  But some serve far longer....

One Utah analysis of inmates who completed treatment showed about 20 percent returned to prison within a year, compared with 42 percent of those who did not complete treatment.  In both groups, most offenders returned because of parole violations rather than because they committed new crimes.

A 2003 Bureau of Justice Statistics report found that sex offenders were less likely than non-sex offenders to be rearrested for any crime.  That report also found that 5.3 percent of all sex offenders were rearrested for a sex crime within three years of being released.  The percentage was even lower — 3.3 percent — for child molesters.

Ririe said it is “frustrating” that Utah’s approach has been to continually adopt more stringent sentencing guidelines that lump sex offenders together rather than adopting a system that appropriately categorizes offenders by risk factors and allows judges and the parole board a greater role in assessing them individually.

September 3, 2013 in Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Monday, September 02, 2013

"Against Juvenile Sex Offender Registration"

The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:

Imagine if you were held accountable the rest of your life for something you did as a child?

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration.  And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.

No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment.  Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses.  Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior.  And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.

Compounding the problem is mandatory lifetime registration for child offenders.  This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida.  This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children.  And on that issue, we are failing.  The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation.  In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Tuesday, August 27, 2013

"Is it fair for sex offenders to stay listed on a registry for life?"

The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:

On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.

Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.

“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.

On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.

“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”

The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.

In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.

The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.

Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.

“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”

Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....

In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.

The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....

Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....

Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.

August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Tuesday, August 20, 2013

"North Carolina appeals court strikes social media ban for sex offenders"

The title of this post is the headline of this local press report on a notable intermediate state appeals court ruling today.  Here are the details:

The North Carolina Court of Appeals on Tuesday struck down North Carolina's ban on registered sex offenders using social media sites like Facebook and Twitter. The court said the ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and fails to target the 'evil' it is intended to rectify."

"The statute violates the First Amendment's guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment," wrote the court.

The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year. According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham's photo on Facebook.

The North Carolina law says registered sex offenders may not use commercial social media sites if they know the site "permits minor children to become members or to create or maintain personal Web pages."

But in its ruling, the appeals court said the law "arbitrarily burdens all registered sex offenders by preventing a wide range of communication and expressive activity unrelated to achieving its purported goal [of preventing contact with children.]"

North Carolina Attorney General Roy Cooper wanted the law but admits it may have to be rewritten, but he will try to appeal the North Carolina Supreme Court. Cooper notes that there are still laws on the books that investigators can use to charge suspects with soliciting children online. However, he believes we need a law to try to prevent child sex crimes before they happen....

If Cooper's attempt at an appeal fails, he says he will go back to the legislature to see if they can craft a new sex offender social media law that will withstand a legal challenge.

The full 21-page opinion in NC v. Packingham, No. 10 CRS 57148 (N.C. App Aug. 20, 2013), is available at this link.

August 20, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Thursday, August 15, 2013

"White women sent to Ohio prisons in record numbers, reports say"

The title of this post is the headline of this notable new press report about some notable criminal justice data coming out of the Buckeye State.  Here are the details:

Amanda Lane is the face of Ohio's fastest-growing prison trend. Lane, 28, is white and from rural Pickaway County, where she was convicted of drug charges and sentenced to 18 months in prison. The state's prisons are filling up with people just like her, a surge that has shocked researchers and experts.

White women, many from rural Ohio, are the fastest growing population in Ohio prisons. In fact, they made up 80 percent of the female felons sentenced to prison between June 30, 2012, and July 1, or fiscal year 2013, according to state records.

Compare that to fiscal year 2003, when white women sentenced to prison made up 55 percent of females in prison. In 1998, they made up 43 percent, according to state records.

On June 1, there were 3,974 female inmates in Ohio prisons; 2,962 were white, or nearly 75 percent. Nationally, the numbers of white women sentenced to prison rose 48 percent from 2000 to 2009, according to the Sentencing Project, a Washington, D.C., think tank. "It's a major shift," said Steve Van Dine, chief of the bureau of research for the Ohio Department of Rehabilitation and Correction, speaking about the trend here. "It's rather dramatic."

Researchers say it is clear where many of the the numbers are coming from: rural Ohio. "That's the thing that jumped out at me," said James Austin, a national researcher who studied women in Ohio prisons through a grant from the U.S. Justice Department. "The numbers weren't coming from Cleveland or Columbus, but from predominantly white, rural counties."...

In the men, the percentages have changed, as the number of whites sentenced to prison has grown. In June, there are 22,880 white men in prison, while there are 21,864 black men. But those numbers are not as dramatic as the shifts seen in women felons.

"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs. People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."

In a 2006 report for Ohio prisons, Austin found that "the increase in admissions has been largely limited to white females who tend to come from the more rural and suburban areas of the state. Compared to males, female admissions tend to be more white, older convicted of a non-violent crime, have short sentences (and) no prior incarcerations."...

Austin's report said one of the key reasons for the growth of white women in prison is that smaller, rural counties have a limited number of community-based programs for women, meaning judges have few programming options in sentencings. "In smaller counties, there are, generally, fewer programs for women," Austin said in an interview.

August 15, 2013 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (6) | TrackBack

Tuesday, August 13, 2013

New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than good

Ne-sex-offender-recidivism-report2-p1-smallAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:

A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.

The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....

On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”

The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.

The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....

Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.

Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.

The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....

State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.

The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....

Among the UNO report’s other findings:

» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....

» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.

The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.

August 13, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Key follow-up documents from AG Holder's big sentencing speech

I expect to post today some commentary and reactions to the Attorney General's big and important sentencing speech yesterday (basics here and here).  But, especially for lawyers and public policy advocates, as important as the speech may be some of the documents that the Justice Department released along with the speech.

First, linked via the Justice Department website from the text of AG Holder's speech is this notable eight-page DOJ document titled on its cover "SMART on CRIME: Reforming The Criminal Justice System for the 21st Century." The document expands on many of the themes appearing in AG Holder's speech and even has some of the same key text.  Here are snippets from this introduction of this document:

At the direction of the Attorney General, in early 2013 the Justice Department launched a comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and — in an era of reduced budgets — more efficiently....

The preliminary results of this review suggest a need for a significant change in our approach to enforcing the nation’s laws.  Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.

The reality is, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot prosecute our way to becoming a safer nation.  To be effective, federal efforts must also focus on prevention and reentry.  In addition, it is time to rethink the nation’s system of mass imprisonment.

Second, and right now available via a link at The Huffington Post, is this offical three-page memorandum from the Attorney General to all US Attorneys explaining in detail the new "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases."

August 13, 2013 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, August 12, 2013

Some sentencing-related highlights from AG Holder's remarks today to the ABA

HolderI am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder's high-profile remarks earlier today at the Annual Meeting of the American Bar Association's House of Delegates.  Everyone should make time to read AG Holder's remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans.  Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):

In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear.  And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.

It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor; a judge; an attorney in private practice; and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.

Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities.  As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach.  And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.

Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.

It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.  It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.  And it is well past time to implement common sense changes that will foster safer communities from coast to coast.

These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago.  He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable.  And he’s also made it part of his mission to reduce the disparities in our criminal justice system.  In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias.  And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine....

Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system.  We need to keep taking steps to make sure people feel safe and secure in their homes and communities.  And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.

At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies.  Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform.  And our efforts must begin with law enforcement.

Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.

This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law.  Some issues are best handled at the state or local level.  And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.

I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners.  I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly-afflicted areas within their districts.  And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.

By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime.  By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime....

Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one.  Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met.  To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices.  And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.

As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.

As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.  More than 219,000 federal inmates are currently behind bars.  Almost half of them are serving time for drug-related crimes, and many have substance use disorders.  Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.

As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens.  Right now, unwarranted disparities are far too common.  As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.

We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers.  One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.  This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition.  And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.

In this area and many others — in ways both large and small — we, as a country, must resolve to do better.  The President and I agree that it’s time to take a pragmatic approach.  And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.

We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences — regardless of the individual conduct at issue in a particular case — reduce the discretion available to prosecutors, judges, and juries.  Because they oftentimes generate unfairly long sentences, they breed disrespect for the system.  When applied indiscriminately, they do not serve public safety.  They — and some of the enforcement priorities we have set —have had a destabilizing effect on particular communities, largely poor and of color.  And, applied inappropriately, they are ultimately counterproductive.

This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.  They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.  By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation — while making our expenditures smarter and more productive.  We’ve seen that this approach has bipartisan support in Congress — where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.  Such legislation will ultimately save our country billions of dollars while keeping us safe.  And the President and I look forward to working with members of both parties to refine and advance these proposals.

Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances — and who pose no threat to the public.  In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons.  Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.  Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community.  But considering the applications of nonviolent offenders — through a careful review process that ultimately allows judges to consider whether release is warranted — is the fair thing to do.  And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.

Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs — such as drug treatment and community service initiatives — that can serve as effective alternatives to incarceration.

Our U.S. Attorneys are leading the way in this regard — working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases.  In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system —thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate.  And it’s why the Justice Department is working — through a program called the Justice Reinvestment Initiative — to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.

In recent years, no fewer than 17 states — supported by the Department, and led by governors and legislators of both parties — have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism.  In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs.  As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years — saving more than $400 million.

In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone.  The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety.  In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated.  While our federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year.

Clearly, these strategies can work.  They’ve attracted overwhelming, bipartisan support in “red states” as well as “blue states.” And it’s past time for others to take notice.

I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country.  And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.

In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes.  I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations.  And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.

The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.

Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good.  It makes plain economic sense. It’s about who we are as a people.  And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States.  After all, whenever a recidivist crime is committed, innocent people are victimized.  Communities are less safe. Burdens on law enforcement are increased.  And already-strained resources are depleted even further.

Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quoTo do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear.  We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work.  And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.

This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.

And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system.  To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.

August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

Wednesday, August 07, 2013

Should prisoners all get iPads?

Ipadbars_0The question in the title of this post is prompted by this intriguing Baltimore Sun story, which is headlined "Gansler proposes tablet computers for inmates: Gubernatorial hopeful says idea would help keep offenders from returning to jail." Here are the details:

Maryland Attorney General Douglas F. Gansler pushed a novel solution Monday for closing what he called the "revolving door" of ex-offenders returning to prisons.

Give inmates tablet computers.

As Gansler envisions it, the proposal would help offenders build both education credentials and social support before they leave prison. The gubernatorial hopeful says the wireless devices would replace brick-and-mortar libraries and classrooms in the state's prison system, providing each inmate with an Android tablet that could connect with e-books, the state's library system, law resources and online learning programs.

They would also allow limited — and monitored — email access, so inmates could connect with family members. "It has to work," Gansler said. "It's common sense that it will work."

The tablet idea is one element of Gansler's 10-part proposal for integrating former inmates into communities. Statistics show that roughly half of the offenders who are released will return to the state's prison system within three years. The most recent state data available puts the rate at 43 percent. Gansler, who presented his plan in Baltimore at the latest in a series of meetings outlining his platform for governor, called the state's approach to re-entry a "policy mess."

The Android proposal drew concern from some in the corrections world, particularly in light of the recent federal indictment of a dozen Baltimore City Detention Center guards, who are accused of smuggling in cell phones to help the Black Guerrilla Family gang run a drug ring.

"There's a lot of challenges with providing Internet access to inmates," said Nancy G. La Vigne, director of the Justice Policy Center at the Urban Institute. "There's a real concern — I think a valid one — that access to the outside can threaten both inmates and staff.

"While it's innovative to think about delivering education with new technology, a lot of things need to be sorted out."

In a presentation to the Corrections Technology Association in June entitled "iPads for Inmates", the Virginia firm HomeWAV LLC listed what it said were the positive benefits: social and job skills, mentoring and rehabilitation. The cons: "gangs," "nudity," "corruption."

"It's a fascinating concept," said Robert Coombs, spokesman for the National Reentry Resource Center, a policy group.

Only a few inmates in Maryland have Internet access, state corrections spokesman Rick Binetti said. All are low-security, pre-release inmates who are permitted to use the Internet only to look for jobs, and only under the direct supervision of correctional officers.

Several states have set up Web kiosks that give limited access to inmates. A company called JPay sells a $49.99 mini-tablet to inmates in prisons in Virginia and Louisiana. Access is limited to music, games and a few other applications.

A New York startup called American Prison Data Systems has been shopping the idea of an indestructible 7-inch Android tablet that states would purchase for inmates' personal use. CEO Christopher Grewe said he expects to finish negotiating pilot projects in three states by the end of 2013. He proposes giving one to each inmate in a low or medium-security prison to limit potential fights. He said they would be designed so that they couldn't be converted into weapons. Each device would come with free access to libraries and legal resources, and cost $500 per year per inmate.

Maryland spends an average of $38,383 per year per prisoner, the Vera Institute of Justice reported last year. Grewe has pitched his idea as a way for states to improve education opportunities for inmates and save money on maintaining expensive classrooms and libraries....

Grewe said that algorithms and a 24-hour center in Ohio would scan all outgoing and incoming email on a 12- to 24-hour delay, and that devices could be heavily restricted or shut off remotely. "We can filter it five ways to Sunday," he said. Prisons, he said, "can't postpone dealing with the digital revolution any longer."

Gansler, in pitching his idea to a room full of people who work with offenders, suggested anyone who has seen the Oscar-nominated film "The Shawshank Redemption" knows libraries can be used as a means of transporting contraband. Replacing them with more secure tablets, he said, would save money and make sense.

"We have the ability in the 21st century to educate children online," Gansler said. "You can learn a language online. … Why can't we educate our offenders?"

August 7, 2013 in Prisons and prisoners, Reentry and community supervision, Technocorrections | Permalink | Comments (4) | TrackBack

Friday, August 02, 2013

Could prison perhaps be helping to cause serious recidivism in Delaware?

The question in the title of this post is the first reaction I had upon seeing this lengthy local story, headlined "Study: 8 in 10 released inmates return to Del. prisons." Here are the details:

Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, according to a first-of-its-kind state study.  The 27-page report, Recidivism in Delaware, also found that 71% of released prisoners are convicted of a serious crime within three years, and that 68% return to prison for at least one day....

Conducted by the Delaware Criminal Justice Council, the report was a necessary initial step to evaluating the effectiveness of the state's justice system, including the programs available to prisoners while behind bars or after being freed. "These are people who have been sentenced to a year or more in prison, the more serious offenders, and we expected them to be the highest recidivists," said Drewry N. Fennell, the criminal justice council's executive director.

"It really gives us a baseline against which to measure our successes in the future. And our failures. And to know whether we are spending our time and money well in ways that really do enhance communities that people are going back to, as well as enhancing the lives of people who have been incarcerated. We don't want to invest in things that don't do that."

Delaware Gov. Jack Markell said the information should be used to develop better strategies to prevent crime and reduce the number of criminals who re-offend. "Too many people released from our prisons go on to commit more crimes. We need to change that," he said in a statement.

Delaware officials haven't studied how effective the corrections system is in keeping offenders from returning to prison since 2000, and that study was limited to a one-time snapshot of prisoners returning after their release in the 1980s and early 1990s.

Delaware Public Defender Brendan O'Neill, whose taxpayer-funded agency represents about 85% of the state's defendants, said he was surprised the rates included in the new report are so high. "It raises more questions than it answers now," O'Neill said, while applauding officials for finally conducting the long-needed study....

Delaware Attorney General Beau Biden said in a written statement that the report "highlights an alarming rate of recidivism that needs to be addressed by the criminal justice system." Biden said its findings underscore problems his office has been trying to address, such as prison sentences that don't "adequately reflect the seriousness of the crime" or deter future crimes, and the failure of judges to order pre-sentence reports for most serious felony cases.

Delaware embarked on the study on the orders of the General Assembly, which passed a bill in 2012 that required an annual report from the Criminal Justice Council's Statistical Analysis Center. The law, part of the Justice Reinvestment Initiative that looks to spend corrections dollars more wisely, requires one-year, two-year and three-year rates of re-arrest, reconviction and recommitment of released offenders....

Researchers studied 1,167 prisoners released in 2008 and 1,091 freed in 2009. About 91% were men. Fifty-nine percent were black, and 41% white. Those released in 2008 had slightly higher rates of going back into the criminal justice system than those freed in 2009. Of the 2008 group, 56% got arrested for a "serious offense" within one year, compared to 53% in 2009. Fennell said serious crimes include all felonies and Class A and B misdemeanors. Class B misdemeanors include crimes such as marijuana possession, prostitution and criminal contempt....

Perry Phelps, head of the Bureau of Prisons, cautioned, however, that the deck is often stacked against former inmates because they have trouble getting public assistance, college financial aid or jobs. Lawmakers, educators and employers need to face that reality and remove some of the barriers for those who truly want to reform to help prevent them from returning to their criminal ways, he said.

"We tell people in this country we forgive and forget. You go to jail and do your time and you are set free. But that's not the reality of it," Phelps said. "Some people are ostracized as criminals for so long when they go back to society."

A press release concerning this recidivism report is available at this link, and the full report is available at this link. Among the notable findings from the detailed report is that property offenders serving significant prison terms the first time around still have the highest recidivism rate, which leads me to worry (as my post title suggests) that property offenders may be folks most likely to learn about new and improved ways to commit new offenses while inside prison.

August 2, 2013 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Thursday, July 04, 2013

Missouri Gov vetoes bill to take juve sex offenders off state registry

As reported in this AP story, headlined "Nixon vetoes sex offender measure," the Governor of Missouri is apparently concerned this holiday week that a bill passed by his state's legislature will provide for too potential much freedom for juvenile sex offenders. Here are the basics:

Gov. Jay Nixon on Wednesday vetoed legislation that he said would remove sex offenders who commit their crimes as juveniles from websites that let the public know who they are, a day after he signed a measure that strengthens laws against sexual offenses.

Nixon said the vetoed measure is too broad. “It would grant this relief to juvenile sex offenders regardless of the sexual offense for which they were convicted to include forcible rape, forcible sodomy and child molestation,” said Nixon, who was state attorney general before becoming governor.

“Moreover, the bill would deprive victims of sex offenses the opportunity to be heard before an offender is removed from the very websites that are designed to protect victims and other members of the public.”...

State lawmakers return to the Capitol in September to decide whether they will try to override any vetoes.

On Tuesday, Nixon signed a criminal justice bill that includes a change to what constitutes rape. It had been defined as having sex with another person by use of “forcible compulsion,” which includes the use of a substance to physically or mentally impair another without his or her knowledge or approval. The new law broadens that to include instances in which someone is incapacitated, is incapable of consent or lacks the capacity to consent.

July 4, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, July 02, 2013

Released sex offenders in Great Britain soon to be required to take regular polygraph tests

Keep-calm-and-protect-kids-from-sex-offenders-6As reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program.  The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:

MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.

The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.

Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.

The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.

The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.

The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.

"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."

Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.

Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.

I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring.  That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.

Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty.  For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).

July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack

Friday, June 14, 2013

"Woman arrested 396 times sentenced to mental health and substance abuse program"

The title of this post is the headline of this notable little local story out of Chicago which provides some more proof concerning the inefficiencies and inefficacies of modern criminal justice systems. Here are the basics:

An Uptown woman who has been arrested 396 times meekly offered her gratitude and apologies to a Cook County judge Monday as she took a plea deal that will send her to a mental health and substance abuse treatment program.

“All of us are reaching out to you and offering you, maybe for the first time in your life, a hand, OK?” Judge Peggy Chiampas told Shermain Miles. “But you’ve got to reach out and grab all of our hands as well.”

Miles, who was dressed in a bright yellow prison jumpsuit, kept her hands behind her back and politely answered Chiampas’ questions. She told the judge, “I just want to thank you.”

“I’m not that person,” said Miles, 51, who has previously been known to shriek in courthouse lockups.

Miles has been at Logan Correctional Center in Lincoln since December.  She’d been released in April 2011 after serving thee years for an armed robbery conviction but was arrested several more times while on parole, triggering her return to prison.

Among the reasons for her later arrests was an alleged attack on Ald. James Cappleman (46th) last summer.  Miles pleaded guilty in that case Monday and in two separate cases of trespassing and drinking alcohol on a public way.

Chiampas sentenced Miles to time served for all three, but she said she only did so because Miles said she’d submit to a mental health evaluation and follow-up treatment, as well as treatment for alcohol abuse, at the Lincoln prison.

A representative from Cappleman’s office attended the hearing, and a prosecutor said the alderman is satisfied with the deal.  Adam Monreal, chairman of the Illinois Prisoner Review Board, also attended the morning hearing but couldn’t immediately say how the deal will affect Miles’ release from prison.

Annoyingly, this story does not explain why or how this woman has managed to get arrested 396 times (and I am actually a little suspect concerning this accounting because it would mean she was getting arrested, on average, at least once a month, every month, of her entire adult life without having faced any serious criminal justice consequences). 

Nevertheless, anyone who gets arrested even dozens of times obviously has major difficulty living as a law-abiding person and likely has mental health and substance abuse problems.  It should not take decades and hundreds of arrests for the criminal justice system to develop some programming that would effectively rehabilitate or more effectively incapacitate a person who is obviously a menace to local law enforcement and perhaps many others.

June 14, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4) | TrackBack

Tuesday, June 11, 2013

Documenting problems with using electonic tracking for crime control in Colorado

The Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring.  Here are exceprts:

One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.

Another parolee disappeared from his motel the day he was tethered to an electronic monitor.  He now is charged with raping two women and attempting to rape another.  A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.

Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble.  A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.

Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts.  Monitors are strapped to their ankles and receivers installed in their residences.  In the most serious sex-offender cases, parolee movements are tracked by a GPS system.

But problems arise.  Batteries run down.  Plugs get ripped from wall sockets.  The systems go dark.  The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....

Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case.  Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.

"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...

Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them.  Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.

Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders.  In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement.  There are currently more than 800 Colorado parole absconders....

The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.

Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.

In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."

He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."

June 11, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, June 05, 2013

"Indeterminate Sentencing Returns: The Invention of Supervised Release"

The title of this post is the title of this new article by Fiona Doherty just published in the June 2013 issue of the New York University Law Review. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release.  A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing.  Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender.  This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.  I conclude that the widespread use of supervised release has created a muddled and unprincipled form of indeterminate sentencing: one that flouts the insights and vision of the nineteenth-century indeterminacy movement as well as the twentieth-century determinacy movement.  Having dislocated once-celebrated theories of sentencing, federal supervised release now controls the lives of more than 100,000 people without offering any alternative theoretical basis for doing so.  This Article draws on the lessons of a 200 year history to expose the current nature of supervised release and to envision a more coherent role for its future.

I have long viewed supervised release as an important, but badly under-examined and under-theorized, aspect of the modern federal sentencing system.  Thus I am pleased to see a prominent article taking on SR in a prominent way.

June 5, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 02, 2013

Justifiable praise for Virginia Gov for new order restoring some felon voting rights

Today's New York Times has this notable editorial headlined "Restoring the Vote in Virginia." Here are excerpts:

Gov. Bob McDonnell of Virginia enlarged democracy on Wednesday when he announced an order requiring the automatic restoration of voting rights for nonviolent offenders who have historically had to fight through a bureaucratic maze to gain access to the polls.

Governor McDonnell’s order, which could cover more than 100,000 people, reflects a growing awareness that disenfranchisement serves no rehabilitative purpose — and may, in fact, contribute to further criminal behavior by forcing former offenders to the margins of society.

In all, nearly six million Americans — about 2.5 percent of the voting-age population — are barred from voting by a confusing patchwork of state laws that strip convicted felons of the right to vote, often temporarily, but sometimes for life.  Nearly two dozen states have softened their disenfranchisement policies since the late 1990s, with several states repealing or scaling back lifetime bans.

But the practice of barring offenders from the polls remains a pronounced and malignant problem in the South, where it was used starting in the late 19th and early 20th centuries to curtail the political power of African-Americans.  During that period, state legislatures in the South went so far as to disenfranchise citizens for what they viewed as “Negro crimes,” like theft, while exempting defendants convicted of “white crimes,” including fighting in the streets and even murder.

The burden of disenfranchisement continues to fall heavily upon blacks generally, but especially blacks in the South....

Mr. McDonnell, a Republican who was once a prosecutor, saw firsthand how disenfranchisement, combined with other obstacles, makes it harder for former offenders to forge lives outside of prison, and he has worked diligently to address the issue.

Under his order, people convicted of nonviolent felonies will have their right to vote restored if they have completed their sentences, satisfied court-ordered conditions and have no pending felony charges. Although details remain to be worked out, this important move helps restore fundamental rights for a neglected part of the population.

June 2, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, May 09, 2013

"Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment"

The title of this post is the title of this new paper on SSRN by Joan Petersilia and Jessica Snyder. Here is the abstract:

California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism.

We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?

May 9, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, May 06, 2013

Don't registered sex offenders need gun rights for personal self-defense more than others?

The question in the title of this post is my initial reaction to this big newpaper story from Iowa, headlined "50 sex offenders have gun permits: Law enforcement is concerned that state law allows offenders to easily obtain permits."  Here are excerpts from the lengthy Des Moines Register story,  which is less than fully informative about legal matters, but provides a lot of interesting facts nonetheless:

Joshua Duehr is one of more than 50 sex offenders in Iowa who can carry a gun in public. “I don’t leave the house without one,” said Duehr, who lives in Dubuque.

It’s legal — and it’s news that has surprised some state lawmakers and alarmed a few Iowa and national law enforcement officers.  An FBI official, the president of the Iowa State Sheriffs’ & Deputies’ Association, the president of the Iowa State Police Association and two state lawmakers told The Des Moines Register they have public safety concerns after learning that a two-year-old state law on gun permits allows registered sex offenders to obtain a weapons permit....

Some, if not most, applications by sex offenders for permits to carry weapons would have been denied by county sheriffs before 2011, according to officials from the Iowa Department of Public Safety.  But under a two-year-old state law, sheriffs no longer have discretion to reject such applications.

The law change means people convicted of misdemeanor sex crimes can now walk the streets, malls or virtually any public place in the state while carrying a gun.  Almost all of the sex offenders on the Register’s list were convicted of misdemeanors such as lascivious conduct with a minor or assault with intent to commit sexual abuse.

But the Register found three men convicted of felony sex crimes who had permits to carry weapons in public.  Two of those men had their permits revoked by sheriffs after the Register asked about their situations....

Some sheriffs were aware that sex offenders are carrying weapons in public, primarily because they issue the permits and have firsthand knowledge about the issue.  But other professionals in Iowa’s law enforcement community were caught off guard.

Rob Burdess, a Newton police detective and the president of the Iowa State Police Association, was unaware that sex offenders are being issued weapon permits until he was asked about it by the Register.  He noted that people with felonies or domestic abuse convictions are typically unable to obtain weapon permits, so he questions the logic of allowing sex offenders — even those convicted of non-felony offenses — to carry weapons in public....

[A] review of states surrounding Iowa found that some sex offenders can obtain permits to carry weapons even though authorities said they aren’t aware of a large number being issued.  Those states — including Nebraska, Missouri and Wisconsin — have laws similar to Iowa’s that do not specifically exclude sex offenders from obtaining such permits. Minnesota law, however, makes it a misdemeanor for a person required to register as a sex offender to carry a handgun.

Just as state laws vary, so do opinions about whether armed sex offenders inherently pose more of a risk than other citizens.  Sex offense recidivism rates are much lower than commonly believed, according to legislative testimony given in multiple states by Jill Levenson, an associate professor at Lynn University in Florida.  She is frequently recognized as a national expert on sexual violence....

National uniform crime data from 2006 — the most recent data available — show that about half of all reported sex offenses included a weapon of some form (including the use of fists) but less than 1 percent of all reported sex offenses included the use of a firearm, according to Jason Rydberg, a graduate student at Michigan State.  Iowa numbers mirror the national trend.  Of the roughly 5,750 people on Iowa’s sex offender registry, 47 — or less than 1 percent — used guns in their crimes, according to data from the Iowa Department of Public Safety....

The Association for the Treatment of Sexual Abusers, a national organization focused on the prevention of sexual abuse, generally advocates for cases to be reviewed individually when assessing if a sex offender is likely to reoffend or jeopardize public safety.  “There’s no blanket way of stating that sex offenders are more dangerous than everybody else,” said Maia Christopher, executive director of the association.

Iowa Rep. Clel Baudler, R-Greenfield and a former state trooper, isn’t reassured by the type of research offered by Levenson or groups like the Association for the Treatment of Sexual Abusers.  Until he was contacted for this article, Baudler was unaware that the new gun permit law he advocated for in 2010 has allowed dozens of sex offenders to obtain weapon permits....

An Iowa sheriff may deny a permit to carry a weapon if he believes probable cause exists that the person is likely to use a weapon in a way that would endanger themselves or others.  Those types of denials typically must be based on documented actions from the past two years.  Iowans who believe sheriffs have wrongly rejected their applications for a weapon permit may appeal.  Each appeal, generally reviewed by an administrative law judge, can cost a county government and taxpayers hundreds of dollars....

The cost and the real possibility of losing a case is one reason sheriffs don’t deny permits to carry weapons — even in cases where they have reservations — several sheriffs told the Register.

Washington County in January issued a permit to acquire a weapon to Ronald Nicholis Hahn Jr., who has been on the sex offender registry since 2005 because he was convicted of indecent exposure.  Dunbar said he approved the permit because Hahn passed background checks.  Hahn, 51, said he poses no threat to public safety and that he uses guns for hunting.  “My offense happened seven or eight years ago and it has nothing to do with weapons, so why should I be denied the ability to purchase a gun?” Hahn asked.

Rep. Matt Windschitl, R-Missouri Valley, indicated that he believes Iowa’s new weapons permit law doesn’t need to be revised to specifically ban sex offenders.  People convicted of felonies, including sex offenders, are already prohibited from obtaining a permit, he emphasized. “If their local sheriff does not have probable cause to restrict that person under current law from being able to obtain a permit, then that’s the situation at hand,” said Windschitl, a gunsmith who has advocated for multiple pro-gun bills.

Aggravatingly, this story fails to note that it is a serious federal crime, subject to up to 10 years imprisonment, for any and all persons convicted of a felony or a domestic violence misdemeanor from even possessing a gun. Thus, as the story indirectly notes, only persons without a felony or domestic violence conviction is even lawfully able to possess a gun, let alone get a lawful state permit for one. (I find notable that somehow three sex offender felons were able to get an Iowa gun permit, which perhaps highlights the need for background checks on how good current background checks are in the permit-issuance process in Iowa.)

More to the point of the question in the title of this post, if we think the Second Amendment right to bear arms is linked in some important and significant way to the natural right of personal self-defense (as Heller suggested), a reasonable claim might be made that it would be uniquely unconstitutional to deny gun permits to otherwise eligible persons on a state sex offender registry. There has long been considerable anecdotal evidence of considerable vigilante violence directed toward persons based simply on their presence on a sex offender registry. Given the history of private violence directed toward sex offenders — not to mention the possibility that local law enforcement might not be too quick to come to the aid of someone they know is a registered sex offender — I can fully understand why Joshua Duehr and other low-level registered sex offender might be afraid to move around in public without packing heat to potentially aid any efforts to exercise their natural right of self defense.

Though I do not fancy myself a Second Amendment expert, I wonder if a state law like Minnesota's  prohibiting misdemeanor sex offenders from having a firearm in constitutional in the wake of Heller and McDonald.  If and when a low-level sex offender in Minnesota or elsewhere could reasonably document a history of serious personal threats of serious violence directed toward him because of his placement on the registry and asserted a genuine belief in his need for a firearm in order to protect himself, could a state really require his name and address to stay on the sex offender registry while also denying him a right to keep and bear arms to defend himself?

May 6, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Reentry and community supervision, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (90) | TrackBack

Thursday, May 02, 2013

"Can a Hard-Core Criminal Become a Better Person?"

The title of this post is the headline of this notable new piece up at Slate coming from Quora where questions submitted by readers get answered by experts or persons in the know.   This question was answered by by Chris Richardson, a consultant, and here are excerpts:

Yes.  My father did.

He was born a sharecropper in Georgia in 1927.  His mother and father, never on easy terms (this is an understatement), separated when he was about 12 years old, and she moved with him and his younger sister to Boston, where she became a popular actress in the New Deal-funded black Shakespearean theater there....

They lived, of course, in the ghetto.  My father became a young hustler very early in his career there, pulling various scams to bring a little extra cash to the family....

When he was 14, the United States went to war.  My father wanted to join the fighting, but not only was his skin color a barrier, he was also too young to enlist.  But he knew he had to get out of Boston and the life of crime (and punishment); he didn't need to be clairvoyant to see in his future.

He eventually figured out how to join a mercenary group recruiting in Canada, was trained, outfitted, and shipped to China, where he fought against the Japanese during the war and later for the Communist Chinese government in various skirmishes afterward. From this, he learned the following: fluency in both Mandarin and Cantonese, much of which he retained in later life; a predilection for Asian women, and indeed for all things Asian; and how to do what was necessary to survive, including killing other humans without reservation or excessive remorse.

The latter skill paid off when, as a young man in the late 1940s, he was shipped to Los Angeles with nothing but a thank you from the Chinese government, a couple hundred bucks in his pocket and the shirt on his back.  He immediately learned that things hadn't changed much in his favor back home, so finding honest work for decent pay was not an option.  So he started hustling again, eventually becoming the leader of a group of drug smugglers bringing various contraband into Texas, Arizona, and California from Mexico. He learned Spanish.  In the course of these activities, he committed any number of violent crimes, including, rumor has it, murder.

A few years later, he was arrested for drug smuggling, tried, convicted, and sent to prison, where he remained for nearly 15 years, until his release in the early 1960s.

And this time, things were different.  The "crazy, liberal" California state government had created a program specifically designed to actually reform ex-convicts, including black ones, by sending them to college on special scholarships.  My father enrolled in Sacramento City College, transferred to UC-Davis (yes, that's my alma mater, too), and excelled. He earned multiple degrees in political science, met and married a crazy, rich white hippie chick from Orinda (my mother), fathered a son (me), and eventually landed a job as a professor of political science at the California State University in Chico.

He retired from Chico State in 1993, at the ripe old age of 66.  Nine years later, he died in his living room of a heart attack, five days before the first anniversary of the Sept. 11 terrorist attacks, having never committed another crime, other than the occasional traffic violation, again.

May 2, 2013 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Wednesday, May 01, 2013

New big Human Rights Watch report assails placing juve sex offenders on registries

Us0513_reportcoverAs reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:

Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author.  "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."

The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries.  One of the boys, from Flint, Mich., killed himself even after being removed from the list....

The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said.  "Many have a hard time finding — and keeping — a job, or a home."

According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....

Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries.  Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.

According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries.  Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.

The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....

Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.

"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...

Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul.  "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said.  "That's more important than the registry."

The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:

This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.

May 1, 2013 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, April 25, 2013

Colorado report documents significant costs of poor planning for sex offender sanctions

A helpful reader alerted me to this interesting new Denver Post piece headlined "Audit rips Colorado's lifetime-supervision sentence for sex offenders." Here are excerpts:

A 15-year-old state law that created a lifetime-supervision sentence for Colorado sex offenders provides insufficient treatment for many of the highest-risk inmates and has left thousands of others waiting for therapy in prison, according to a recent audit.

Demand for treatment in the Department of Corrections' Sex Offender Treatment and Monitoring Program greatly exceeds supply, the audit found.  Just one-sixth of inmates eligible to begin treatment are able to start the program each year — effectively keeping many sex offenders in prison indefinitely.

More than 1,000 inmates who are ready and waiting for treatment have passed their parole-eligibility dates, the auditors found. Their prolonged incarceration may be costing Colorado taxpayers as much as $30 million a year.

In a scathing audit given to corrections officials in February, Central Coast Clinical and Forensic Psychology Services Inc. also found the sex-offender program suffers from poorly qualified therapists and inappropriate levels of treatment given offenders.

"It's a disaster," said Laurie Kepros, who directs sexual-litigation cases for the Colorado public defender's office.  "Thousands of people are being told you have to have treatment to get out of prison" by a system failing to provide that treatment, she said. "We're paying for this every day."

Former Republican state Rep. Norma Anderson, who sponsored the 1998 law, said she recognizes the high cost of keeping many violent sex offenders in prison indefinitely and would like to see funding for treatment increased.  Still, "I'd rather have them there than out committing another sex crime," she said.  "I'm on the side of the victim and always will be."

Tom Clements, the state corrections chief who was killed March 19, had promised a swift response to the issues raised by the audit and fundamental changes to the sex-offender program in a March 8 letter to the legislative Joint Budget Committee.  Clements was shot to death at the door of his Monument home.  The suspected killer, Evan Ebel, was an inmate who had been released directly from solitary confinement to "intensive supervision" parole.

Clements' murder brought intense scrutiny to the state parole system because Ebel, paroled on robbery and related charges, had slipped off his ankle bracelet five days earlier.  Now, legislators say they also plan to scrutinize the sex-offender treatment program within the prisons — and the law that created potential lifetime sentences for sex offenses.

The law established indeterminate sentences — five years to life, for example — for many sex-offense crimes in Colorado.  Sex offenders who successfully complete a prison-treatment program and get paroled then enter a community-based lifetime-supervision program....

The number of Colorado inmates classified as sex offenders has grown from 21 percent to 26 percent of the total prison population in five years.  Much of the growth can be traced to the 1998 law. By 2012, more than 1,600 of the nearly 4,000 men classified as sex offenders in Colorado prisons were sentenced under the law.

The audit of the program was undertaken at the behest of state Rep. Claire Levy, a Boulder Democrat who serves on the Joint Budget Committee. She said it confirmed her longstanding concerns about the program's fairness and effectiveness. It affirmed that "low-risk sex offenders can be treated as effectively in the community," Levy said. "The lifetime-supervision law does not allow that."

The report described the state's sex-offender treatment program as "largely a one-size-fits-all program in which all treatment participants are generally expected to complete the same treatment exercises." This treatment occurs in groups that "are very large, often with 14 per group," the experts wrote.

The auditors reported that low-risk sex offenders in Colorado remain imprisoned at great cost, that the most dangerous offenders get too little attention and that nearly half the therapists they observed were "poor" — conducting group therapy sessions with behaviors "outside the range of what is acceptable for a therapist." In some cases, those therapists appeared bored and "sometimes expressed hostility," the authors reported.  "Therapists sometimes appeared demeaning and condescending, mocking their patients."

The state spends about $31,000 a year to keep a single person in prison. That's $30 million a year the state is spending unnecessarily if the prison system holds a thousand sex offenders who could be treated safely outside, said Kepros of the public defender's office....

The audit found Colorado prisons can yearly accept just 675 of 3,959 sex offenders who are within four years of parole eligibility, leaving 3,284 unable to participate in treatment. As a result, other sex offenders may be unable to get any treatment before their release "even if they present an exceptionally high risk" to the community, the audit said.  It noted that therapists and inmates alike described the treatment programs as "under-resourced," with little attention to individual needs and scant opportunity for private, individual therapy.

April 25, 2013 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, April 24, 2013

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

April 24, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, April 22, 2013

"Defensible Disenfranchisement"

The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN.  Here is the abstract:

As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders.  Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.

Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values.  In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility.  On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible.  Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.

April 22, 2013 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5) | TrackBack

Monday, April 15, 2013

Second Circuit finds Cameron Douglas's above-guideline sentence substantively reasonable

The latest (and perhaps final) significant chapter in the federal sentencing saga concerning Cameron Douglas was finished this morning when a Second Circuit panel rejected his claim that his second federal sentence was substantively unreasonableness in US v. Douglas, No. 11-5384 (2d Cir. April 15, 2013) (available here). In addition to thinking the Second Circuit panel came to the right basic outcome here, I am especially pleased that both the majority opinion and the concurrence in Douglas provide an extended discussion of sentencing practice and policy as part of the continuation of a (still nascent, but-not-yet-dormant) post-Booker common law of reasonableness review.

As I have explained in a number of prior posts (which are liked below), I have found the Cameron Douglas story of crime and punishment consistently worthy of attention — in part because the involvement of celebrities at his federal sentencings and in part because of the many legal and social issues raised by the seemingly lenient sentence Michael Douglas's drug-addicted son was given at his first sentencing and the seemingly harsh sentence he got the second time around (some backstory here).  The Second Circuit's Douglas opinion tells this story effectively (though leaving out the celebrity part), and then provide a lot of analytical meat for any and all federal sentencing fans to chew on.  I highly recommend reading the Douglas opinions in full, though I will here spotlight two notable passages from the opinions concerning the relationship between addiction and drug sentencing.

At the very end of the majority opinion (per Judge Gerard Lynch), we get these notable comments from the Second Circuit panel:

Finally, we take note of the argument, made by Douglas and supported by amici, that punitive sanctions are a less appropriate response to criminal acts by persons suffering from addiction than drug treatment. It may well be that the nation would be better served by a medical approach to treating and preventing addiction than by a criminal-justice-based “war on drugs.” See, e.g., Heather Schoenfeld, The War on Drugs, the Politics of Crime, and Mass Incarceration in the United States, 15 J. Gender Race & Just. 315 (2012); Juan R. Torruella, Déjà Vu: A Federal Judge Revisits the War on Drugs, or Life in a Balloon, 20 B.U. Pub. Int. L.J. 167 (2011).  But Congress has made a different choice, and this case is not a vehicle for deciding questions of comprehensive drug policy. For so long as the sale and possession of narcotics remain crimes, courts must struggle with the difficult task of sentencing those who commit such crimes.

We do not hold that district courts may not approach cases of addicted defendants who seek treatment and show promise of changing their lives with compassion and with due consideration of the relative costs and effectiveness of treatment versus long prison sentences.  Indeed, that is precisely how the district court approached Douglas’s original sentence in this case.  Sentencing courts are not required, however, to turn a blind eye to behavior that can reasonably be understood as demonstrating that a particular defendant has shown himself to be a poor candidate for treatment or for leniency.  District courts are in the best position to decide whether the defendant before the court is likely to respond to drug treatment or has spurned chances at rehabilitation and persisted in a life of “reckless, criminal, dangerous, destructive, [and] deceitful conduct.”  We therefore cannot say that the district court’s assessment of the sentence appropriate for Douglas was unreasonable.

And, at the very start of the concurring opinion by (my former boss) Judge Guido Calabresi, we get these notable comments:

I join the majority opinion in full because I agree that it is not substantively unreasonable for a district judge, after having given a defendant a number of breaks and second chances, to impose a sentence like this one. I write separately to emphasize my view that a term of imprisonment of between 5 and 10 years ought not to be seen merely as a punishment. It also must represent an expression of some faith that the convict might be rehabilitated within that time. Prisons should have a duty, therefore, not just to keep the convict locked away, but to enhance his ability to become a responsible citizen. When the convict’s crime involves drug addiction, a necessary part of this rehabilitation is enforced, medically monitored withdrawal. Congress has passed a law criminalizing possession of drugs by an inmate in federal prison, and there is no question that Douglas broke that law and manifested, as the majority opinion shows, a high level of culpability. There is also no question in my mind, however, that the incidence of this crime also demonstrates a significant level of culpability on the part of the jailing institution. When a prison cannot protect an addicted inmate from the capacity to relapse, it has failed to perform an essential obligation – an obligation that it owes both to the inmate and to the society that the inmate will someday rejoin.

Prior posts concerning Cameron Douglas's federal sentencings:

April 15, 2013 in Booker in the Circuits, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, April 13, 2013

"Hurricane Sandy has been good for the Gambino crime family"

The title of this post is the amusing first sentence of this New York Daily News article discussing the latest way-below-guideline federal sentencing outcome for extortion crimes in and around New York.  Here are the factual basics:

Reputed soldier Vincent Dragonetti is the third mobster convicted of extortion to be sentenced to perform community service for victims of last year’s weather disaster instead of jail time.

Federal Judge Dora Irizarry could have sent Dragonetti away for up to 51 months for his extortion of Brooklyn developer Sitt Asset Management, but he gave him 200 hours of service instead.

Irizarry previously sentenced Gambino associates Emmanuel Garofalo and Thomas Frangiapane to Sandy-related relief.

I am not eager to question the sentencing wisdom of Judge Irizarry or any other federal judge who concludes that the goals of sentencing set out by Congress in 3553(a) are better served by community service than by prison time.  That said, I hope that there will be proper monitoring of these community service sentences so that Sandy victims really do directly benefit from the alternative sentences given to these high-profile federal criminals.

April 13, 2013 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, April 04, 2013

"Pretrial Detention and the Right to Be Monitored"

The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it.  In the context of pretrial justice, however, we have the opposite problem.  Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system.  Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention.  But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims.  First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk.  In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense).  Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action.  The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts.  Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically.  To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them.  The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary.  Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint."  I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.

April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, March 25, 2013

New report assails Massachusetts sentencing and corrections policies and practices

CostofPrisonJPGThumb.ashxThis lengthy article from the Boston Globe discusses a big new forthcoming report highlighing failings in the sentencing and punishment systems in Massachusetts.  The article is headlined "Report slams state for lack of corrections reform: Crime down, prison costs up as study urges shorter sentences, focus on parole," and it gets started this way:

Despite steeply declining violent crime rates, the percentage of Massachusetts residents behind bars has tripled since the early 1980s, as the Commonwealth has clung to tough-on-crime laws that many other states have abandoned as ineffective, according to a study being released this week.

The 40-page report — endorsed by a coalition of prominent former prosecutors, defense attorneys, and justice officials — slams the state for focusing too much on prolonged incarceration, through measures such as mandatory minimum sentences, and for paying too little attention to successfully integrating prisoners back into society.

This is not just a social justice issue, the coalition argues, but a serious budgetary problem. The report estimated that policies that have led to more Draconian sentences and fewer paroles have extended prison stays by a third since 1990, costing the state an extra $150 million a year.

“It’s an odd set of numbers: crime going down while prison populations are still going up,” said Greg Torres, president of MassINC, the nonpartisan research group that commissioned the study. “What the report shows is that it’s a problem with the corrections systems front and back doors — sentencing and release.”

The study says Massachusetts, with its rising prison population, is heading in the opposite direction of several more traditionally law-and-order states — many of which have changed sentencing requirements, closed prisons, and cut costs. While other states have seen drops in incarceration in conjunction with falling crime rates, Massachusetts has seen the opposite.

In addition to the longer prison stays, Torres said, a reduction in post-release supervision has left Massachusetts with a recidivism rate higher than many other states, which in turn has sent more offenders back to prison. New data in the report show that six of every 10 inmates released from state and county prisons commit new crimes within six years. If the recidivism rate was cut by 5 percent, the report says, Massachusetts could cut $150 million from its more than $1 billion corrections budget.

Released in partnership with the newly formed grouping of law-enforcement officials, which is called Criminal Justice Reform Coalition, and Community Resources for Justice, a social justice nonprofit group, the report issues include a moratorium on the expansion of state prisons, reexamining sentencing guidelines, and expanding prerelease programs. “In the last 10 years we’ve learned a lot about what doesn’t work,” said John Larivee, chief executive of Community Resources for Justice and coauthor of the report.

One key to changing the state’s corrections system, the report’s authors stress, is building bipartisan consensus so neither side can later be accused of being soft on crime. “There’s more bipartisan common ground than you might expect,” said Wayne Budd, a Republican who is one of the reform coalition’s three co-chairmen.

In addition to Budd, the coalition is led by Kevin M. Burke, former state secretary of public safety, and Max D. Stern, president of the Massachusetts Association of Criminal Defense Lawyers.

UPDATE:  The full 40-page report, which is titled "Crime, Cost, and Consequences: Is it Time to Get Smart on Crime?," is now available via this link.

March 25, 2013 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, March 14, 2013

"Rethinking the Use of Community Supervision"

The title of this post is the title of this important new paper now available on SSRN and authored by Cecelia Klingele.  As practitioners and policy-makers know, the back-end of the criminal justice system and the use of alternatives to incarceration are critically important "real world" sentencing issues that only rarely get sustained attention from the legal academy.  I am so pleased that Cecelia Klingele is a leading voice help ensuring these important legal and policy issues get the scholarly attention they need and deserve.  Here is the abstract of her latest work in this regard:

Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration.  For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration.  Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole.  It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it.

This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.  While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation.  To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways.

First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense.  Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.

March 14, 2013 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack

Sunday, March 10, 2013

"Neighborhoods Seek to Banish Sex Offenders by Building Parks"

The title of this post is the headline of this notable new article in today's New York Times.  Here are snippets:

Parents who pick up their children at the bus stop in this city’s Harbor Gateway neighborhood say they often see men wearing GPS ankle bracelets and tell their children to stay away.  Just up the street, 30 paroled sex offenders live in a single apartment building, including rapists and child molesters. More than 100 registered sex offenders live within a few miles.

So local residents and city officials developed a plan to force convicted sex offenders to leave their neighborhood: open a tiny park.

Parents here, where state law prohibits registered sex offenders from living within 2,000 feet of a school or a public park, are not the only ones seizing on this approach. From the metropolis of Miami to the small town of Sapulpa, Okla., communities are building pocket parks, sometimes so small that they have barely enough room for a swing set, to drive out sex offenders.  One playground installation company in Houston has even advertised its services to homeowners associations as an option for keeping sex offenders away.

Within the next several months, one of Los Angeles’s smallest parks will open here in Harbor Gateway, on a patch of grass less than 1,000 square feet at the corner of a busy intersection.  But even if no child ever uses its jungle gym, the park will serve its intended purpose.  “Regardless of whether it’s the largest park or the smallest, we’re putting in a park to send a message that we don’t want a high concentration of sex offenders in this community,” said Joe Buscaino, a former Los Angeles police officer who now represents the area on the City Council.

While the pocket parks springing up around the country offer a sense of security to residents, they will probably leave more convicted sex offenders homeless. And research shows that once sex offenders lose stable housing, they become not only harder to track but also more likely to commit another crime, according to state officials involved with managing such offenders.

“Putting in parks doesn’t just break up clusters — it makes it impossible for sex offenders to find housing in the whole city,” said Janet Neeley, a member of the California Sex Offender Management Board.  “It’s counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life.”

Restrictions on where sex offenders can live, which have been passed in most states, have already rendered most residential areas in many cities off limits.   The number of homeless sex offenders in California has increased threefold since 2006, when the latest residency restrictions were passed, and a third of sex offenders on parole are now homeless, according to reports from the Sex Offender Management Board....

Mr. Buscaino said he supported housing for sex offenders, but said the pocket park would improve the quality of life in Harbor Gateway. “Let’s house them, absolutely, but not in a high-population area like this one,” he said.

Many of the sex offenders who live near Harbor Gateway have been placed there with the help of parole officers, precisely so they would not end up on the street.  The landlord of some nearby apartments where dozens of sex offenders on parole live, who spoke on the condition of anonymity for fear of retaliation, said that keeping paroled sex offenders together in transitional housing actually kept the community safer because it places controls on them even after they leave prison....

In some urban areas, however, there is already nowhere left for sex offenders to legally live.  In Miami, dozens of convicted sex offenders camped under a bridge, unable to find any other shelter, until the encampment was broken up several years ago.  Another camp in Miami, where a dozen offenders slept on the sidewalk, was dispersed last year when Marc Sarnoff, a city commissioner, had three pocket parks built in the neighborhood.

Mr. Sarnoff said he did not know where the offenders ended up.  “There has to be a strategy in place so they don’t just live on the sidewalk,” Mr. Sarnoff said.  “We need more resources in place so these guys don’t reoffend. But that’s beyond the city’s resources.  It has to be at the state level.”

March 10, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Sunday, March 03, 2013

Drug courts come to federal system (and New York Times' front page)

Y-jp-drug-court-articleInlineRegular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system.  But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention.  Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:

Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.  The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.  So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington.  About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.  “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison.... 

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement.  “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...

The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement.  He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.  Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress.  In return for successful participation, they receive a reduced sentence or no jail time at all.  If they fail, they are sent to prison....

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench.  “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor.  The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.  The opinion chronicled the case of three graduates of the drug court....

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”

Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.

Download Gleeson SOR in Nunez.Leitch

Some older and newer related posts about drug court programs and research:

March 3, 2013 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, March 01, 2013

Proof of bad people or bad punishments or bad programming?

PA infographic_page2The quirky question in the title of this post is prompted by this notable local article from Pennsylvania, which is headlined "6 in 10 will re-offend: State prison study sets baseline for progress." Here are the details:

Secretary of Corrections John Wetzel on Thursday morning released what he's calling a "landmark study" into recidivism rates at Pennsylvania's state prisons, and the study is noted not for the progress shown, but rather for the lack of change demonstrated.

For more than a decade, a consistent six in ten people released from Pennsylvania state prisons were either re-arrested or put back in prison within three years. What's "landmark" about the study is in part its scope -- more than 12 years -- but largely the fact is sets a "baseline" for going forward.

Wetzel said it marks the first step toward measuring progress. "Citizens of the Commonwealth should have every expectation of a corrections system that actually helps people correct themselves; one that is based on research, not on anecdotal stories and innuendo," said Wetzel.

While population and cost "remain essential measurements" in Gov. Tom Corbett's Corrections Reform initiative, he said, "The 'new normal' is to expect and require quantifiable results."

The study, which Wetzel called "the keystone of the Corbett Corrections Reform initiative," also helps the Department of Corrections and the Board of Probation and Parole understand who is most likely to re-offend and how.  “To get a true picture of whether our state prison system is meeting its goal of reducing future crime, we need to look at more than just the reincarceration of an individual,” Wetzel said.  “We need to look at re-arrests as well to see the whole picture of how and when individuals come into contact again with the criminal justice system.”

For example, the study found that more than half of those who will return to prison within three years after release will do so within the first years, which is by far the most risky period for recidivism.  Younger offenders are more likely to recidivate than older offenders.  Individuals most likely to reoffend appear to be property offenders. Individuals least likely to reoffend are those incarcerated for driving under the influence of intoxicants, rape and arson.

The study looked prisoners' background as well and found a released inmate who has 10 or more prior arrests is greater than 6 times more likely to recidivate than a released inmate with no prior arrest history other than the arrest for the current stay in prison.

According to the study, nearly two-thirds of all reincarcerations within three years of release from prison are for technical parole violations.  Nearly three-fourths of rearrests within three years of release from prison are for less serious offenses.

The study also confirmed the damning portrait of Community Corrections Centers outlined in an earlier study performed by Dr. Edward Latessa of the University of Cincinnati.  From 2005 through 2011, inmates paroled to a Community Corrections Center were actually more likely to be back in prison within a year as inmates paroled directly home.

Wetzel said the Department of Corrections can save taxpayers $44.7 million annually by reducing the one-year reincarceration rate by 10 percentage points.

The full 45-page report referenced in this article is available at this link, and the cool infographic that explains the reports key findings comes from the PA Department of Corrections website.  One key finding reflected in the infographic is that less than one in five new arrests are for an act of violence.  The majority of rearrests are for drug or public order offenses or parole violations.

Obviously, lots of different conclusions and responses can be based in this new recidivism data.  But I think most important is to stay ever open-minded about what can be the most effective and efficient kinds of criminal justices responses.  This report apparently reveals that for some offenders in some cases recidivism may be lower in the absence of a certain kind of punishment or programming.  It is, of course, bad enough when the work of a department of corrections fails to actual help "correct" people.  But the ultimate form of government waste exists when there is evidence that the taxpayer funded work of the criminal justice system may be making people worse criminals.

March 1, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack