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

Monday, February 25, 2013

California unable to keep up with sex offender who disable GPS tracking devices

The Los Angeles Times has this new article highlighting yet another dysfunction in California's operation of its criminal justice system.  The full headline provides an effective summary of the lengthy piece: "Paroled sex offenders disarming tracking devices: Thousands of high-risk parolees are removing GPS monitors, often with little risk of serving time, because jails are too full to hold them.  Some have been charged with new crimes."  Here is how the article gets started:

Thousands of paroled child molesters, rapists and other high-risk sex offenders in California are removing or disarming their court-ordered GPS tracking devices — and some have been charged with new crimes including sexual battery, kidnapping and attempted manslaughter.

The offenders have discovered that they can disable the monitors, often with little risk of serving time for it, a Times investigation has found.  The jails are too full to hold them. "It's a huge problem," said Fresno parole agent Matt Hill. "If the public knew, they'd be shocked."

More than 3,400 arrest warrants for GPS tamperers have been issued since October 2011, when the state began referring parole violators to county jails instead of returning them to its packed prisons.  Warrants increased 28% in 2012 compared to the 12 months before the change in custody began.  Nearly all of the warrants were for sex offenders, who are the vast majority of convicts with monitors, and many were for repeat violations.

The custody shift is part of Gov. Jerry Brown and the legislature's "realignment" program, to comply with court orders to reduce overcrowding in state prisons.  But many counties have been under their own court orders to ease crowding in their jails.   Some have freed parole violators within days, or even hours, of arrest rather than keep them in custody. Some have refused to accept them at all.

Before prison realignment took effect, sex offenders who breached parole remained behind bars, awaiting hearings that could send them back to prison for up to a year.  Now, the maximum penalty is 180 days in jail, but many never serve that time.  With so little deterrent, parolees "certainly are feeling more bold," said Jack Wallace, an executive at the California Sex Offender Management Board.

Rithy Mam, a convicted child stalker, was arrested three times in two months after skipping parole and was freed almost immediately each time.  After his third release, his GPS alarm went off and he vanished, law enforcement records show.  The next day, he turned up in a Stockton living room where a 15-year-old girl was asleep on the couch, police said.  The girl told police she awoke to find the stranger staring at her and that he asked "Wanna date?" before leaving the home.

Police say Mam went back twice more that week and menaced the girl and her 13-year-old sister, getting in by giving candy to a toddler, before authorities recaptured him in a local park.  He is in custody on new charges of child molestation.

Californians voted in 2006 to require that high-risk sex offenders be tracked for life with GPS monitors strapped to their bodies.   The devices are programmed to record offenders' movements and are intended, at least in part, to deter them from committing crimes. The devices, attached to rubber ankle straps embedded with fiber-optic cable, transmit signals monitored by a private contractor.

They are easy to cut off, but an alarm is triggered when that happens, as it is when they are interfered with in other ways or go dead, or when an offender enters a forbidden area such as a school zone or playground.  The monitoring company alerts parole agents by text message or email.

Arrest warrants for GPS tamperers are automatically published online.  The Times reviewed that data as well as thousands of jail logs, court documents and criminal histories provided by confidential sources.  The records show that the way authorities handle violators can vary significantly by county.

I am pleased that the LA Times is looking into how GPS tracking of sex offenders is working (or not working) in California these days.  But I am disappointed that this article, which is quick to present a few ugly examples of bad criminals committing more crimes because of the failings of GPS, does not even try to explore whether overall sex offender recidivism rates are down since GPS tracking got started in California.

Whether it is the innocent person wrongly convicted or the guilty pedophile wrongly freed, it is always going to be easy for reporters to find anecdotes to document a singular failing of any part of a massive criminal justice system.  It is much harder to determine — and yet ultimately much more important for making sound reforms — whether and how any particular part of a massive criminal justice system is doing more harm than good and thus needs to be drastically reformed or just tweaked.

February 25, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, January 25, 2013

Important reminder that sentencing reform does not always complete offenders' need for help

This notable new local article, headlined "Newly released California 'three-strikers' face new challenges," provides an intriguing report on the new problems facing certain offenders even after they receive the benefits of sentencing reform. Here are excerpts:

In an unforeseen consequence of easing the state's tough Three Strikes Law, many inmates who have won early release are hitting the streets with up to only $200 in prison "gate money" and the clothes on their backs.

These former lifers are not eligible for parole and thus will not get the guidance and services they need to help them succeed on the outside, such as access to employment opportunities, vocational training and drug rehabilitation.  The lack of oversight and assistance for this first wave of "strikers" alarms both proponents and opponents of the revised Three Strikes Law -- as well as the inmates themselves.

"I feel like the Terminator, showing up in a different time zone completely naked, with nothing," said Greg Wilks, 48, a San Jose man who is poised to be released after serving more than 13 years of a 27-years-to-life sentence for stealing laptops from Cisco, where he secretly lived in a vacant office while working as a temp in shipping and receiving.

Experts say California voters didn't have this situation in mind when they approved Proposition 36 in November by an overwhelming margin.  Under the new law, judges cannot impose a life sentence on most repeat offenders who commit minor crimes. But the law also allows about 3,000 inmates whose last strike was a minor crime to petition for early release or shorter sentences -- as long as a judge finds they don't pose a serious risk to public safety.

Because of the way the state's complex sentencing laws work, many of those strikers have already been locked up longer than their newly calculated terms and usual period of parole, leaving many to fend for themselves without supervision or assistance once they are released.

So far, none of three dozen or so strikers who have been resentenced since November or with the help of the Three Strikes Project before the election has been rearrested.   But some say it's only a matter of time.   "It's pretty clear if you release people early without any supervision, there's an increased ability of them to re-offend," said Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders. "It's a very, very dangerous policy."

Supporters of the revised three strikes policy are concerned that a notable uptick in crime -- even minor crimes by strikers -- will make the new law look like an ill-advised failure.

To reduce the risk, the same Stanford University Law School instructors who co-wrote Proposition 36 are now organizing a statewide effort to create re-entry plans for strikers using a combination of public and private services.  They're planning to meet with operators of homeless shelters and innovative transitional programs from around the state, like San Francisco's Delancey Street Foundation, one of the country's leading residential self-help organizations for former substance abusers, ex-convicts, homeless people and others who have hit bottom.

"We want these people to succeed," said Michael Romano, director of Stanford's Three Strikes Project. "We don't want them committing crimes and creating more victims." Proponents say the main reason they didn't foresee the situation is that the rules regarding parole changed significantly -- after officials had already approved the ballot language for Proposition 36....

Three-strikers face greater re-entry challenges than normal inmates, said Joan Petersilia, a Stanford law professor.  About 38 percent receive some level of mental health treatment in prison, compared with 22 percent of the general population.

Romano and his group are hoping to turn to the same donors who funded Proposition 36 for help in creating a statewide re-entry program.  A lot rides on the strikers' success. If they do well -- with the help of people like liberal billionaire George Soros, who donated heavily to Proposition 36 -- advocates could use their success to advance the cause of prison reform. If they fail, it could weaken the national effort to reduce mass incarceration.

January 25, 2013 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, January 17, 2013

Notable new research exploring connections between incarceration and mental health

4.coverVia The Crime Report, I just learned that the December 2012 issue of the Journal of Health and Social Behavior has two notable new research articles concerning links between incarceration and psychiatric disorders. (Having just recently seen Silver Linings Playbook, which I recommend, I am tempted to call these articles companion pieces to that intriguing movie in which criminal justice realities play a more important role than football.)  Here are links to the articles, along with their abstracts:

Jason Schnittker, Michael Massoglia, & Christopher Uggen, "Out and Down: Incarceration and Psychiatric Disorders":

Psychiatric disorders are unusually prevalent among current and former inmates, but it is not known what this relationship reflects.  A putative causal relationship is contaminated by assorted influences, including childhood disadvantage, the early onset of most disorders, and the criminalization of substance use. Using the National Comorbidity Survey Replication (N = 5692), we examine the relationship between incarceration and psychiatric disorders after statistically adjusting for multidimensional influences.

The results indicate that (1) some of the most common disorders found among former inmates emerge in childhood and adolescence and therefore predate incarceration; (2) the relationships between incarceration and disorders are smaller for current disorders than lifetime disorders, suggesting that the relationship between incarceration and disorders dissipates over time; and (3) early substance disorders anticipate later incarceration and other psychiatric disorders simultaneously, indicating selection. Yet the results also reveal robust and long-lasting relationships between incarceration and certain disorders, which are not inconsequential for being particular.  Specifically, incarceration is related to subsequent mood disorders, related to feeling “down,” including major depressive disorder, bipolar disorder, and dysthymia.  These disorders, in turn, are strongly related to disability, more strongly than substance abuse disorders and impulse control disorders. Although often neglected as a health consequence of incarceration, mood disorders might explain some of the additional disability former inmates experience following release, elevating their relevance for those interested in prisoner reintegration.

Kristin Turney, Christopher Wildeman, & Jason Schnittker "As Fathers and Felons: Explaining the Effects of Current and Recent Incarceration on Major Depression":

Dramatic increases in the American imprisonment rate since the mid-1970s have important implications for the life chances of minority men with low educational attainment, including for their health.  Although a large literature has considered the collateral consequences of incarceration for a variety of outcomes, studies concerned with health have several limitations: Most focus exclusively on physical health; those concerned with mental health only consider current incarceration or previous incarceration, but never both; some are cross-sectional; many fail to consider mechanisms; and virtually all neglect the role of family processes, thereby overlooking the social roles current and former prisoners inhabit.

In this article, we use stress process theory to extend this research by first considering the association between incarceration and major depression and then considering potential mechanisms that explain this association. Results from the Fragile Families and Child Wellbeing Study (N = 3,107) show current and recent incarceration are substantially associated with the risk of major depression, suggesting both immediate and short-term implications.  In addition, consistent with stress proliferation theory, the results show the well-known consequences of incarceration for socioeconomic status and family functioning partly explain these associations, suggesting the link between incarceration and depression depends heavily on the consequences of incarceration for economic and social reintegration, not only the direct psychological consequences of confinement.

January 17, 2013 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Friday, November 09, 2012

New Vera Institute report looks at performance funding for criminal justice reform

Pif-slideAs detailed in this helpful post by Alison Shames, headlined "Performance Incentive Funding Focus of New Vera Report," the Vera Institute of Justice has just released a terrific new research report on a notable new structure for developing criminal justice reform and helping to ensure a cost-effective criminal justice system.  Here is an explanation of the report (along with a link to the full report and an executive summary and additional resources):

The idea that our tax dollars should be directed towards programs that deliver positive outcomes to the community is neither novel nor radical — but there are some interesting and innovative “pay for success” strategies for achieving this.  Social impact bonds, which are being piloted in the United Kingdom, New York City, and Massachusetts, are perhaps among the best known of these.  In the field of criminal justice, performance incentive funding (PIF) is another promising approach being tried in the United States.

PIF programs encourage local jurisdictions to supervise more offenders in the community and achieve better outcomes, namely lower recidivism and fewer prison commitments. They are premised on the idea that if the supervision agency or locality succeeds in sending fewer low-level offenders to prison — thereby causing the state to incur fewer costs—some portion of the state savings should be shared with the agency or locality.  By delivering fewer prison commitments, agencies or localities receive a financial reward, which is reinvested into evidence-based supervision programs.

A new report from Vera’s Center on Sentencing and Corrections — Performance Incentive Funding: Aligning Fiscal and Operational Responsibility to Produce More Safety at Less Cost — details how PIF programs can lead to better offender outcomes while reducing overall corrections costs.  It presents the findings of a summit held in September 2011, which was convened by Vera, the Pew Center on the States, and Metropolis Strategies, to discuss the key challenges and tasks that states must address to develop and implement a PIF program.

Achieving positive outcomes, such as reduced recidivism and revocations and safer and stronger communities, is a goal that tax payers, policymakers, and criminal justice professionals can all agree on.  By emphasizing the use of evidence-based practices, reporting on outcomes, and paying for success, PIF programs can help states reduce their corrections costs, strengthen their community supervision programs, and build safer neighborhoods.

November 9, 2012 in Data on sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 30, 2012

California appeals court upholds probation condition prohibiting use of medical marijuana

This local article, headlined "Antioch man cannot use medical marijuana while on probation for pot sales, court rules," reports on an interesting ruling from a California intermediate appellate court. Here are the details:

A state appeals court ruled in San Francisco on Monday that trial judges can ban the use of medical marijuana in some cases as a condition of probation for people convicted of possessing the drug for sale.

A three-judge panel of the Court of Appeal unanimously upheld a sentence in which Contra Costa County Superior Court Judge Leslie Landau last year prohibited Daniel Leal, 28, of Antioch, from using medical marijuana during his three years of probation.

Leal was sentenced to the probation term as well as to nine months in county jail after being convicted of possessing marijuana for sale in two incidents in Antioch in 2008 and 2009 and carrying a concealed, loaded gun in the first incident. Leal, who has completed his jail sentence, appealed the probation condition barring him from using medical marijuana.

He argued the ban violated his right to use the substance under the state's voter-approved Compassionate Use Act of 1996, which allows patients with a doctor's approval to use marijuana for medical purposes. Leal, who had approval for marijuana treatment for high blood pressure, contended the probation condition wasn't related to his crimes and that there could have been a way to limit his use of medical marijuana without prohibiting it entirely.

But Justice Anthony Kline, writing for the appeals panel, said the ban on use of the substance was justified by "abundant evidence of need to rehabilitate Leal and protect the public."...

Kline wrote in Monday's decision that trial judges setting probation conditions must balance the need to protect the public with California residents' right to use medical marijuana. He said there could be cases in which a ban would not be justified if a defendant posed little threat to society and had proved a compelling need for marijuana to alleviate pain.

But the evidence in Leal's case didn't show an overriding medical need and did show "both rehabilitative and public protection value in interfering with Leal's medical use of marijuana while on probation," Kline wrote.

Leal's lawyer in the appeal, Donald Lipmanson of Sebastopol, said no decision has been made on whether to ask the California Supreme Court to review the case. Lipmanson said the decision was consistent with other state appeals court rulings on the issue, but said the panel's purpose in issuing the detailed 22-page opinion may have been "to send a very clear message that if you end up being convicted of possessing marijuana for sale, don't expect to be able to continue using medical marijuana."

The full opinion in California v. Leal, No. A131366 (Cal. 1st App. Oct. 29, 2012), is available at this link.

October 30, 2012 in Criminal Sentences Alternatives, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (9) | TrackBack