Monday, July 14, 2014
The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:
Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.
Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence. This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis. This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile. It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.
July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, July 08, 2014
Senators Paul and Booker introducing another important bipartisan CJ reform bill
As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:
The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.
Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.
Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.
The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.
Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.
Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."
Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...
The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.
But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.
Some recent and older related posts:
- Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?
- Is it too early want the new Senator from NJ to get going on sentencing reform?
- Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Could significant federal criminal justice reforms become more likely if the GOP wins Senate in 2014?
- "The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."
- Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform
July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack
Notable Third Circuit discussion of revocation of supervised release standards
Hard-core federal sentencing fans eager for some extended summer beach reading should check out today's Third Circuit panel decision in US v. Thornhill, No. 13-2876 (3d Cir. July 8, 2014) (available here). The key facts of the case alone take the Third Circuit more than 15 pages to recite, but the start of the majority opinion efficiently spotlights the legal issue that thereafter gets resolved:
In 1984, Congress enacted the Sentencing Reform Act, a measure which profoundly “revise[d] the old sentencing process.” Mistretta v. United States, 488 U.S. 361, 367 (1989). One of the reforms effected by the Act was the elimination of special parole and the establishment of a “new system of supervised release.” Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991). The “new system” was codified in 18 U.S.C. § 3583, and included a provision at subsection (g) which mandates the revocation of supervised release and the imposition of a term of imprisonment under certain enumerated circumstances. 18 U.S.C. § 3583(g).
The question we consider is: once § 3583(g)’s mandatory revocation provision is triggered, what guides a district court’s exercise of discretion in determining the length of the defendant’s term of imprisonment? We conclude that this exercise of discretion is guided by the sentencing factors set forth in 18 U.S.C. § 3553(a).
I do not think there is much groundbreaking in the legal analysis in Thornhill, though a partial dissent by Judge Rendell adds intrigue to the ruling. Here are key paragraphs from the start and ends of the six-page dissent:
I part ways with the majority’s disposition, however, because I would remand so that the District Court can meaningfully consider those sentencing factors in connection with the mandatory imprisonment of Ms. Thornhill upon revocation of her supervised release. The length of her term of imprisonment is squarely at issue, and the § 3553(a) factors should be weighed. This is especially true because the District Court varied upward in giving Ms. Thornhill a sentence of three years....
We simply cannot know how meaningful consideration of the § 3553(a) factors, which we now require, would have affected Ms. Thornhill’s sentence. Speculation on our part as to what the Court might have been considering, and whether those reasons coincide with § 3553(a), cannot be enough to uphold Ms. Thornhill’s above-guidelines sentence. In short, Ms. Thornhill deserves to have the rule announced today applied to her case. I respectfully dissent from the majority’s disposition.
Friday, June 27, 2014
"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"
The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:
The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.
Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.
The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.
I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.
June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Wednesday, June 11, 2014
Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events. Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:
The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics. Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues. Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment." In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.
June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack
Tuesday, June 10, 2014
DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board. And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.
As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines. Here are the basics of the compromise advocated by DOJ via its submitted testimony:
After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....
Assessing whether the amendment should be applied retroactively requires balancing several factors. The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders. While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....
Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....
Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.
With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.
Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.
Some recent related posts:
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Wednesday, June 04, 2014
"Max Out: The Rise in Prison Inmates Released Without Supervision"
The title of this post is the title of a notable new report Public Safety Performance Project of The Pew Charitable Trusts. This press release about the report provides a helpful summary of its main findings, and here are excerpts from the release:
More than 1 in 5 state inmates maxed out their prison terms and were released to their communities without any supervision in 2012, undermining efforts to reduce reoffending rates and improve public safety, according to a report released today by The Pew Charitable Trusts.
A wide range of laws and policies adopted in the 1980s and ’90s has resulted in a sharp increase in the rate at which inmates serve their full sentences behind bars, leaving no time at the end for parole or probation agencies to monitor their whereabouts and activities or help them transition back into society by providing substance abuse, mental health, or other intervention programs....
Key findings of the report, Max Out: The Rise in Prison Inmates Released Without Supervision, include:
Between 1990 and 2012, the number of inmates who maxed out their sentences in prison grew 119 percent, from fewer than 50,000 to more than 100,000.
The max-out rate, the proportion of prisoners released without receiving supervision, was more than 1 in 5, or 22 percent of all releases, in 2012.
Max-out rates vary widely by state: In Arkansas, California, Louisiana, Michigan, Missouri, Oregon, New Hampshire, and Wisconsin, fewer than 10 percent of inmates were released without supervision in 2012. More than 40 percent of inmates maxed out their prison terms and left without supervision in Florida, Maine, Massachusetts, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, and Utah.
Nonviolent offenders are driving the increase. In a subset of states with data available by offense type, 20 and 25 percent of drug and property offenders, respectively, were released without supervision in 2000, but those figures grew to 31 and 32 percent, or nearly 1 in 3, in 2011.
In the past few years, at least eight states—Kansas, Kentucky, New Hampshire, North Carolina, Ohio, Oklahoma, South Carolina, and West Virginia—adopted reforms to ensure that authorities can supervise all or most offenders after release from prison. These policies, most of which are too new to evaluate, typically carve out the supervision period from the prison sentence rather than add time for it after release. This allows states to reduce prison spending and reinvest some of the savings in stronger recidivism-reduction programs....
These new policies are backed by data that indicate inmates released to supervision are less likely to commit new crimes than those who max out and return home without oversight....
The report outlines a policy framework to guide state leaders in reducing max-outs and recidivism. It recommends that policies require post-prison supervision, carve out the community supervision period from prison terms, strengthen parole decision-making, tailor conditions to offenders’ risks and needs, adopt evidence-based practices, and reinvest savings in community corrections.
Thursday, May 29, 2014
Report on how Chicago makes it nearly impossible for some sex offenders to register
A helpful reader alerted me to this notable local report from Chicago headlined "Chicago police fail to register sex offenders 601 times in just three months." Here is how the story starts:
On February 13 of this year, Bruce Harley went to the Chicago Police Department Headquarters to register as a sex offender. He was one of 22 people who were turned away that day because the office was simply too busy. That’s according to police records. A month later, on March 21, Bruce Harley was approached by Chicago police officers on the West Side of Chicago.
According to an arrest report, Harley wasn’t doing anything illegal but was “loitering in an area known for narcotic activity.” Officers ran Harley’s name and found he had failed to register. Harley told the officers he had tried to register on February 13 but had been turned away. He was arrested anyway and is now in the Cook County Jail, where it costs taxpayers $52,000 a year to house him.
I first heard about sex offenders being prevented from registering a few months ago. I spent several days waiting in line with offenders outside the criminal registration office at Chicago police headquarters. I couldn’t believe it when officers came out of the office and told dozens of men who had been waiting for hours that they might as well go home because the office was too busy to register them all. Then the officers warned the men that they could be arrested for failing to register even though they’d just waited for hours in line to do just that.
I went back several times and saw the same scenario play out.
Terrific Posnerian disquisition on supervised release challenges and "best practices"
The always-interesting Judge Richard Posner has another one of his always-interesting discussions of federal sentencing policies and practices today on the Seventh Circuit's opinion in US v. Siegel, No. 13-1633 (7th Cir. May 29, 2014) (available here). The topic du jour is federal supervised release, and the full Siegel opinion is a must-read for all who work within the federal criminal justice system. And this paragraph from the start of the opinion and then a later passage highlight why:
We have consolidated these two criminal appeals because (with an exception discussed at the end of the opinion) both challenge only conditions of supervised release, imposed by the district court, and because the challenges raise closely related issues concerning such conditions. The issues ramify far beyond these two cases, however, which exemplify common but largely unresolved problems in the imposition of such conditions as a part of federal criminal sentencing....
In summary, these cases must be remanded for reconsideration of the conditions of supervised release imposed on these defendants that we have raised questions about. And for the future we recommend the following “best practices” to sentencing judges asked to impose (or minded on their own to impose) conditions of supervised release:
1. Require the probation service to communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before the sentencing hearing.
2. Make an independent judgment (as required in fact by 18 U.S.C. § 3553(a)) of the appropriateness of the recommended conditions—independent, that is, of agreement between prosecutor and defense counsel (and defendant) on the conditions, or of the failure of defense counsel to object to the conditions recommended by the probation service.
3. Determine appropriateness with reference to the particular conduct, character, etc., of the defendant, rather than on the basis of loose generalizations about the defendant’s crime and criminal history, and where possible with reference also to the relevant criminological literature.
4. Make sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the probation officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.
5. Require that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release. That would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the defendant’s experiences in prison.
"Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime"
The title of this post is the title of this important new report released this morning by the National Association of Criminal Defense Lawyers. The genesis of the report and its essential elements are well summarized via the text of an e-mail I received from NACDL about this report. Here is the start of this e-mail:
At an event this morning at the Open Society Foundations in Washington, DC, the National Association of Criminal Defense Lawyers (NACDL) is releasing a major new report -- Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime – A Roadmap to Restore Rights and Status After Arrest or Conviction. With more than 65 million people in America having some form of a criminal record, the universality and import of the problem this nonpartisan report tackles is tremendous. NACDL's Task Force on the Restoration of Rights and Status After Conviction held hearings all over the country, featuring testimony from more than 150 witnesses from every corner of the criminal justice system, as part of the research leading to this report. Included among the witnesses were those who have faced unfair, irrational, and often life-altering barriers arising from a brush with the criminal law. Many of their stories are captured in the report. And many more are available in the complete transcripts of the Task Force’s hearings.
With more than one in four adults in the United States having some form of a criminal record, and more than 2.2 million people currently behind bars in the United States, more than any other nation in the world, the vast impact of the problem of collateral consequences and legal barriers to reentry is undeniable.
- More than 19 million people in America have a felony conviction on their record.
- There are 14 million new arrests each year.
- The burden of the collateral consequences of a conviction, just as arrests figures and so much else about America’s criminal justice system, is racially and ethnically disparate. For example, a criminal record hits black job seekers harder than white job seekers.
- The U.S. lags behind other countries in the area of the restoration or rights and status.
- Giving people the opportunity to move beyond a criminal record enhances public safety and saves money.
- These secret collateral consequences are frequently the result of legislative bodies reflexively and irrationally creating laws as a response to the crime-du-jour, most often without seeking out the appropriate data to craft sound policy.
- At last count, the American Bar Association’s National Inventory of the Collateral Consequences of Conviction (http://www.abacollateralconsequences.org/) has identified more than 45,000 separate collateral consequences in existence.
Often without any nexus whatsoever to the offense charged and/or for which an individual has been convicted, many people who have a brush with the law lose everything from their voting rights and their Second Amendment right to bear arms, to access to federal student loans. Some even lose their homes as a result of draconian laws designed to exclude entire families from public housing as a result of the alleged misdeeds of a single family member.
Wednesday, May 28, 2014
"Candidates for Maryland governor seek votes by helping ex-convicts"
The title of this post is the headline of this recent Baltimore Sun article which serves as more proof that the modern politics of crime and punishment have changed. Not long ago, candidates for governor would seek votes by talking up who could hurt lawbreakers more. Now the theme is helpping, and here is how this article starts:
When Democrat Douglas F. Gansler stopped by a Baltimore sports bar recently, the ex-convict behind the bar struck up a conversation. It's a tough road, the worker told Gansler, to get any job.
"I'm trying to turn my life around," he said. "I've got a newborn son." Gansler nodded emphatically, and dove into the wonky details of a seemingly unconventional plank in a former prosecutor's platform for governor. Gansler, like all the Democrats vying for the state's top political job, has a detailed plan to ensure ex-offenders do not go back to prison. The issue resonates in heavily Democratic Baltimore.
As public perception shifts about whether the "war on drugs" has succeeded, and as prison populations rise to unprecedented and costly levels, political experts say many candidates across the country have traded a tough-on-crime attitude for a more nurturing approach.
The three Democrats in Maryland's primary race for governor emphasize proposals for programs such as job training to help inmates successfully rejoin their communities. At forums, in policy papers, to community groups and on the campaign trail, each is pushing ideas to reduce recidivism.
"Compared to the candidates four years ago, it's a very different tone," said Jason Perkins-Cohen, executive director at Job Opportunities Task Force, which tries to help ex-offenders get work. "Candidates are sensing the mood has changed."
Nationwide, re-entry has become a bipartisan talking point, though Maryland's Republican candidates for governor have not made helping former inmates a top issue leading up to the June 24 primary.
Thursday, May 22, 2014
Newt Gingrich and Van Jones say "Prison system is failing America"
Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America." Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:
Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.
Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.
It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.
Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.
When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.
The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.
At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?
We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.
Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....
Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.
Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....
Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.
Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.
Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...
We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.
May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, May 20, 2014
"Save money, reduce crime: Alternative sentencing works, so Ohio needs to do more of it"
The title of this post is the headline of this notable lead editorial appearing in today's Columbus Dispatch. The Dispatch has a reputation as a pretty conservative paper (e.g., it has endorsed only GOP Prez candidates for nearly a century), so I see this editorial as further significant proof that more and more traditional conservative voices are seeing the value of (and now actively making the case for) sentencing and prison reforms. Here are excerpts from this editorial:
Ohio has made progress in easing prison crowding by offering alternatives for nonviolent offenders. But a look at the numbers shows that more can be done. The good news is, Ohio already knows what works: putting nonviolent felons in programs that make them better prepared to lead crime-free lives rather than in expensive prisons with hardened criminals. The challenge is to find the resources for the up-front investment.
Alternative-sentencing programs, such as the 18 community-based correction facilities and other programs based on drug-and-alcohol treatment and life-skills training, have a record of reducing recidivism. But the state hasn’t invested in them equally across the state, according to Ohio Division of Rehabilitation and Correction Director Gary C. Mohr....
A proposal contained in one of the mid-biennium budget-review bills would provide about $13 million to add 400 to 500 community-facility beds across the state. Because stays in such programs typically are three months, each of those beds could allow three people per year to get help and treatment rather than a prison stay. That saves taxpayers money and increases the chance that the offender will go on to a productive life — a double win.
As Ohio’s prisons grow more crowded and potentially more dangerous, the need for more alternatives becomes clearer. One in every 175 Ohio adults is in a state prison, and with nearly 51,000 inmates, the system has 30 percent more than it was designed for. Considering that each of those inmates costs taxpayers nearly $23,000 a year and that a large number are low-level, nonviolent offenders, it’s an expensive way to deal with societal problems.
A change to state sentencing law in 2011 aimed to ease the burden by steering more nonviolent offenders to community-based correction programs. The largest counties responded, and two years ago the prison population seemed to be on the decline. But Ohio’s wave of heroin and other opiate addictions, combined with too few alternative-treatment options, have swelled the prison population again.... But Mohr now finds himself with a new peak population and no reduction in sight unless the state invests more in alternatives.
Legislators should take note of the successful track record of alternative correction and steer available funds in that direction. Ohio won’t benefit from more prisons; putting low-level criminals in prison is a lousy business model with a poor return on investment. Spending less to provide the type of supportive correction that can turn around lives is a much smarter proposition. And it saves prison beds for those who pose the greatest threat to society.
Recent related post:
Saturday, May 03, 2014
"Harsh Sentencing, Overstuffed Prisons — It's Time for Reform"
The title of this post is the headline given to this new Wall Street Journal commentary authored by Mortimer Zuckerman. Here are excerpts:
Too many people are in prison who should not be there. How many? Most of them! It is not that they are innocent of the offenses that put them there. It is that they are in prison mainly because we have criminalized vast areas for nonviolent offenders and compounded that with a distorted sentencing system. Criminal justice cries out for reform. Congress and the Justice Department have begun to listen.
Since 1980 the U.S. federal prison population has grown by about 800% (to 216,787 this week, according to the Bureau of Prisons), while the country's population has increased only a third. By comparison, under President Reagan, the total correctional-control rate (that includes everyone in prison or jail or on probation or parole) was less than half what it is today. And here's another shocker: At the federal level, nonviolent offenders account for 90% of prisoners....
Federal prisons today house nearly 40% more inmates than they were designed for, many of them repeat offenders. According to an April 2011 report from the Pew Center on the States, more than 40% of state ex-convicts return to their cells within three years of release, and in some states the recidivism rate approaches 60%. The inflexible mandatory-sentencing rules inflict punishments that in many cases no reasonable judge would impose — and then the system turns out prisoners who are more harmful to society than when they went in. For instance, a June 2013 paper by Anna Aizer of Brown University and Joseph J. Doyle Jr. of MIT found that putting a minor in juvenile detention reduced his likelihood of graduating from high school by 13% and increased his odds of being incarcerated as an adult by 23%.
There is now an awakening to the desperate situation we created (out of the best of motives). It is manifest in Congress, which has a bipartisan bill before it to refocus federal resources on incarcerating violent offenders and move away from low-level ones. We also see the urge for reform in Attorney General Eric Holder, as well as in the states, which together have six times as many prisoners as the federal government....
The states are laboratories of reform led by vigorous governors—who realize that prisons cost the states more than $50 billion a year, up from about $9 billion in 1985. Beginning in 2007, Texas, under the leadership of Gov. Rick Perry, rejected a proposal to build eight more prisons (and has saved an estimated $2 billion overall in projected corrections spending). Instead, Texas is shifting nonviolent offenders from state prisons into alternative treatment, and budgeting for rehabilitative programs for addicts and mentally-ill prisoners. A March 2013 Pew Charitable Trust report on state and consumer initiatives found that the rate of parole failure had dropped 39% since 2007 and Texas had its lowest crime rate since the 1960s.
More than a dozen other states — including Ohio, Georgia and South Carolina — are shortening or even eliminating prison time for the lowest-risk, nonviolent offenders. Instead of spending on more prisons, many states are increasing the number and compensation of parole caseworkers, who in the past have been almost perpetually overwhelmed. Technology like ATM-style check-in stations and ankle bracelets with GPS helps.
But funding is required for the roughly 650,000 federal and state prisoners who are released every year into society. You cannot drop them on the curb to fend for themselves, for two-thirds are rearrested within three years. Enlisting family members to help once their relative leaves prison is one proven way to reduce recidivism. Sentencing nonviolent offenders to a minimum-security prison or even to home confinement is not only cheaper but also eliminates the strain on separated families and reduces the contagion of crime.
We have to be smart and tough on criminal-justice spending, with the goal of getting the most public safety from the more-efficient expenditures of taxpayer dollars. The central idea must be to return significant criminal-justice discretionary dollars to local authorities. Reserve expensive prison beds for career criminals and violent felons, and give local jails the responsibility and funding to oversee low-level inmates involved with less-violent crimes.
The politics of all this are admittedly touchy. But we cannot remain in the mind-set created by the 1980s crime explosion that led to a narrowing of criminals rights and tougher penalties. Think of all the billions spent building prisons that could have been spent on roads, hospitals, schools and airports. If we do not support the initiatives of all three government branches to reform the system, the verdict could only be: Guilty of waste and injustice.
Tuesday, April 01, 2014
"Sex offender housing restrictions do more harm than good"
The title of this post is the headline of this notable Concord Monitor editorial. Here are excerpts:
Of all the constituents that politicians want to help out, sex offenders probably rank at the very bottom of the list. But the New Hampshire Senate should summon the courage to do just that. By helping sex offenders, as strange as it sounds, the Senate will end up making life safer for everyone else.
At issue is legislation that would ban cities and towns from placing broad restrictions on where sex offenders may live. Several communities have attempted such restrictions, and lower-court judges have already struck down two as unconstitutional: one in Franklin and one in Dover. In both cities, local officials wanted to keep convicted sex offenders from living too close to places where children regularly gather: schools, day care centers and playgrounds. Several other communities still have such ordinances on the books, among them Tilton, Sanbornton, Northfield and Boscawen.
The impulse to keep sex offenders away from kids via zoning is completely understandable. But there is strong reason to resist. And there is strong reason to set such policy at the state level, rather than leaving it to individual communities.
A growing body of evidence — gathered not just by civil liberties lawyers, but from law enforcement officers, public officials and child advocacy groups — suggests that residency restrictions are placebo pills at best and counterproductive at worst. Such ordinances give communities a false sense of security while driving sex offenders underground or into rural areas where they can’t access the services that give them the best chance at rehabilitation....
An Iowa study, for instance, showed that sexual-abuse convictions had remained steady since statewide residency restrictions went into effect five years earlier but that the number of sex offenders failing to register their addresses with local police departments, as the law required, had more than doubled.And a study in the journal Federal Probation draws a clear link between housing instability — an obvious consequence of residency ordinances — and criminal recidivism. Instead, it suggests a strategy of identifying and carefully monitoring the highest risk offenders and creating stable lives for the rest through treatment and access to housing, jobs and services.
When a sex offender has served his sentence, it is in everyone’s interest that he succeed on the outside. Passing this bill would help.
Friday, March 28, 2014
"Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law"
The title of this post is the title of this new article by Melissa Hamilton now available via SSRN. Here is the abstract:
Risk has become a focal point of criminal justice policy. Officials draw upon the sciences for the best evidence to differentiate between offenders at high risk of being a future threat to society, for whom preventive incapacitation may be justifiable, and those at low risk, for whom diversion might alleviate the overuse of imprisonment. A recent turn in evidence-based practices is to borrow the newest technologies developed in the forensic mental health field to better classify offenders accordingly to their predicted likelihood of recidivism.
Actuarial risk assessment is considered the new frontier as a progressive sentencing reform, representing best practices in predicting recidivism risk. The actuarial turn is adjudged to offer probabilistic estimates of risk that are objective, reliable, transparent, and logical. Policy groups, state legislatures, judges, and probation offices actively promote the use of actuarial risk assessment, believing the empirically-derived tools effectively standardize sentencing practices, mitigate bias, and thereby increase the legal and moral standing of sentencing outcomes.
Actuarial prediction is promoted as founded upon scientific and empirical principals. This Article critically analyzes the predictive abilities of actuarial risk prediction tools utilizing statistical, empirical, and legal methods. A specific focus herein is the risk prediction of those criminals for whom fear is strongest: violent and sexual offenders.
Several questions are of interest: Is widespread reliance on actuarial sentencing justified? Are actuarial risk results sufficiently relevant, valid, and reliable for sentencing law? Is actuarial evidence too prejudicial, confusing, and misleading to meet evidentiary standards in sentencing?
The Article addresses proponents’ arguments that, regardless of any weaknesses, actuarial risk results should be admissible because they constitute merely one piece of evidence in a multi-faceted decision and that any flaws or errors in the evidence can be deduced through normal adversarial processes.
March 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack
Tuesday, March 25, 2014
Illinois commission advocates against putting all juve sex offenders on registry
As explained in this AP article, headlined "Commission: Remove Juveniles From Sex Offender Registries," a new public policy report urges Illinois officials to no longer require juvenile sex offenders to register. Here are the basics:
Requiring juveniles to register as sex offenders impairs rehabilitation efforts for a crime that very few of them ever commit again, according to a study released Tuesday. The Illinois Juvenile Justice Commission’s report recommends ending the practice of making offenders younger than 17 add their names to sex-offender registries, which can negatively affect an offender for years. Every juvenile convicted of a sex crime must register, and 70 percent of the 2,553 currently registered must do so for life, the report said.
The 150-page review of laws and treatment practices regarding juvenile sex crimes calls for the state to abolish the categorical requirement for young offenders’ registration. The report [available here], which the General Assembly requested in 2012, says sex crimes committed in youth are seldom repeated in adulthood and that individualized, community-based treatment plans are highly effective and more productive than incarceration.
“Automatic, categorical registries do not protect public safety,” commission chairman George Timberlake, a retired chief circuit judge from Mount Vernon, told The Associated Press. “There’s no evidentiary basis that says they do and more importantly, they have very negative consequences in the effects they have on the offenders’ life, and perhaps the victim’s life.”
Timberlake said the victim, often a family member, loses confidentiality through offender registration and can also suffer from not being able to resume a familial relationship with an offender who is required to register. He added that a registry might be appropriate based on risk. Many states offer courts flexibility.
The report recommends developing statewide standards and training for courts and law enforcement professionals for intervening with young sex offenders and victims. It also calls for a consistent assessment tool for evaluating risks an individual juvenile poses. Also, the report says, offenders whenever possible should be kept in treatment programs in their homes that involve parents as opposed to locking them up.
March 25, 2014 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack
Monday, March 24, 2014
AG Eric Holder announces new rules for federal halfway houses
Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses. The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."
Here is more from the start of the press release:
In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society. Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues. For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation. The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.
Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.
Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses. This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.
Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.
Wednesday, March 05, 2014
Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?
The question in the title of this post is my reaction to this wonderful new AP news from my own state, which carries the headline "State reports record-low Ohio prisoner return rate." Here are the details:
Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars. The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.
The rate affects not just the prison system’s bottom line but the bigger goal of reducing crime in Ohio, prisons director Gary Mohr said. “If our people being released from prison are committing less offenses, then we have less crime victims,” Mohr told The Associated Press. “I think that’s the most important piece.” Saving money on prison operations also means more state dollars can be spent earlier in people’s lives on things like education, he added.
Going forward, the expansion of Medicaid is expected to help connect incarcerated people to needed resources as they come home. The state projects that roughly 366,000 residents will be newly eligible for coverage by the end of June 2015 by increasing the state-federal health care program for poor children and families. Mohr says a lower return rate will also help the state reduce its prisoner population, currently about 50,500.
A 2011 sentencing law meant to lower the number hasn’t had the desired impact, leading to fears that the state may need to spend millions to build a new prison after 2017, while pushing judges to rethink sentences and placing a greater emphasis on rehabilitation. The current prison population hasn’t changed much since 2011, despite projections that it would drop to 47,000 by 2015 and continue to decline.... Ohio’s prisoner population could grow to 52,000 in two years and top 53,000 in six years, Mohr warned last year....
It’s not that the 2011 law is failing. Challenges, including a recent increase in violent crime and an uptick in cases filed by prosecutors, are holding back promises that the law would lower the prisoner population. Ohio Supreme Court Chief Justice Maureen O’Connor has said the courts are also part of the problem and called on judges to be more diligent about reducing the number of offenders behind bars.
The rate announced Wednesday is based on a three-year study of inmates released in 2010.
The report/study on which this article is based is available at this link under the simple title "DRC Recidivism Rates." I would be grateful for any and all help figuring out if there are other big important conclusions or lessons (good or bad) to be drawn from this report beyond the one discussed above.
March 5, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, March 04, 2014
"15 Years In Environment Of Constant Fear Somehow Fails To Rehabilitate Prisoner"
The 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.