Wednesday, October 07, 2015

Astute review of (too-often neglected and really critical) back-end criminal justice developments

The October issue of Governing magazine has this lengthy new article that effectively spotlights aspects of criminal justice punishment systems that have too often been ignored or overlooked. The article merits a read in full, and its extended headline highlights why everyone should be interested in the stories within: "The Changing Relationship Between Ex-Criminals and Their Parole Officers: Rather than acting as former offenders' enemies, parole and probation officers are now working to be their mentors. Can it reduce recidivism?". Here are excerpts:

Oftentimes, parole and probation officers are the only positive role models offenders have. About a decade ago, criminologists began asking if parole and probation visits were a missed opportunity for law enforcement.  What if officers developed a more supportive relationship with offenders?  What if they demonstrated to clients that they weren’t just checking boxes and delivering sanctions?  The working theory was that given some personal attention, offenders might be more receptive to advice about resolving conflicts and avoiding crime.
Amid a flurry of academic journal articles and pilot projects, researchers from the University of Cincinnati developed EPICS, short for Effective Practices in Community Supervision, a new model for structured face-to-face meetings between officers and their clients.  While universities in Australia and Canada produced similar approaches based on the same underlying theory, EPICS has become the go-to model for parole and probation in much of the United States.  Since 2006, more than 80 state and county criminal justice departments have adopted EPICS....
By focusing on behavioral change, rather than just threats of being thrown back in jail, EPICS and similar efforts may help break the cycle of incarceration. “I don’t think the majority of people on supervision like being criminals,” says Scott Taylor, who runs the department of parole and probation in Multnomah County. “They just can’t figure how to get out of it.”

Law enforcement agencies in this country have been engaged in community supervision for more than 150 years, basing their practice on the idea that some convicted criminals can reintegrate into society, so long as they meet with assigned officers on a regular basis.  Community supervision takes two primary forms: probation and parole.  Generally speaking, probation is an alternative to incarceration, and parole is early release from prison.  People on probation tend to be convicted of less serious offenses than people on parole....

EPICS is part of a larger change that is developing within the nation’s parole and probation systems.  Parole boards are under scrutiny for keeping people in prison without explaining why they don’t qualify for supervised release in the community.  Many states have changed sentencing requirements so that nonviolent offenders are increasingly the responsibility of local jails and community supervision agencies, not state prisons.  Parole and probation officers are using risk assessment tools to concentrate services on the people who are most likely to reoffend.

Since 2000, anywhere from 4.5 million to 5 million adults have been under community supervision in a given year, but as prisons come under increasing pressure to lower their inmate populations, the number of offenders on parole and probation is certain to grow. In the past, parole and probation agencies have generally ignored research that suggests ways to reduce recidivism; the field has been stuck in a mode of monitoring and enforced compliance.  As more offenders are released to community supervision, however, agencies are showing an interest in ideas designed to cut down on criminal behavior.  EPICS is one of those ideas.

October 7, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Tuesday, October 06, 2015

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Friday, October 02, 2015

"What happens when Americans in prison come home?"

The question in the title of this post is a set-up for this terrific podcast now available via Radio Open Source (a weekly arts, politics and ideas public radio out of WBUR Boston). Highlights from the podcast are available at this link, and her is how the website with the podcast describes its context and contents:

We’re going inside the almost invisible world of American prisons, following President Obama and Pope Francis. This month we met and spoke to four survivors of mass incarceration — Azan Reid, Unique Ismail, Douglas Benton, and Marselle Felton — in a church basement in Codman Square, Dorchester.  We asked them: what did prison do, or undo, in you?  What do you see now that you didn’t see then?  And what don’t we know about you?

It’s a story of ambient violence and neglect in Boston’s Mattapan and Dorchester neighborhoods in the 1980s and ’90s.  Twenty years on these men are stuck in the fight of their lives — to beat the odds and stay out of the pipeline back to prison.  Amid it all there’s anger, regret, and wisdom; they’re panicked and hopeful, too.  As a bipartisan group of senators wonder how America might stop being the world’s runaway jailer, we’re looking at hints of an aftermath: what will happen when and if the 2 million Americans presently incarcerated come home?

Pastor Bruce Wall of Global Ministries Christian Church oversaw the discussion and joined us in studio with his impressions.

October 2, 2015 in Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Friday, September 25, 2015

Depressing new 2005 released-prisoner recidivism data from BJS (with lots of spin possibiities)

I just received notice of this notable new Bureau of Justice Statistics report titled "Multistate Criminal History Patterns of Prisoners Released in 30 States."  Though the BJS report and this BJS press release and this BJS summary are primarily focused on state prisoners released in 2005 who were thereafter arrested in another state, the biggest big-picture message is that for the BJS cohort of roughly 400,000 studied state prisoners released in 2005, nearly 80% were rearrested within the next five years. I cannot help but be depressed and saddened that only about one in five persons released from state prisons in 2005 was able to avoid significant contact with the criminal justice system over the subsequent five years.

Unsurprisingly, Bill Otis and other supporters and advocates of modern American incarceration levels have generally stressed these disconcerting recidivism data to assert crime is certain to increase if we enact reforms to significantly reduce our prison populations and let more folks out of prison sooner. But it bears remembering that these 2005 released prisoners served their time in state prisons and were released when the national prison population was continuing to grow and limited state resources were generally being devoted toward sending more people to prison and spending less money trying to keep people out of prison (or to aid reentry when prisoners were being released). These data thus also suggest what many reform-advocating criminologists have long said: the life disruptions and other impact of a prison term (especially when followed by poor reentry efforts) is itself criminogenic and thus serves to increase the likelihood an offender will commit crimes once released.

However one thinks about these new BJS data, it is depressingly obvious that the experience of prison for those prisoners released in 2005 seems to have done a very poor job of encouraging past offenders from becoming repeat offenders. I am cautiously hopeful that an array of prison and reentry reforms enacted by many states over the last decade will result in a much lower recidivism rate for state prisoners now being released in 2015. But only time (and lots of careful data analysis) will tell.

September 25, 2015 in National and State Crime Data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (8)

Wednesday, September 16, 2015

"Who Pays? The True Cost of Incarceration on Family"

Download (1)The title of this post is the title of this new report based on research by a number of public policy groups.  Here is the executive summary:

For decades, individuals, families, and communities—especially low-income people and communities of color—have faced destabilizing and detrimental impacts as a result of our nation’s unfair criminal justice policies. The repercussions of these policies extend far beyond sentencing and incarceration, affecting the employment, education, housing, and health of individuals and their families for years to come. A unique contribution to the body of research, the study explores the ways in which women support their incarcerated loved ones, often jeopardizing their own stability. Our nation can no longer afford the devastating financial and familial costs of incarceration if we truly want to foster communities that are healthy, sustainable, and just.

As a result of this research, recommendations are made for three key categories of critical reforms necessary to change the criminal justice system and to help stabilize and support vulnerable families, communities, and formerly incarcerated individuals: Restructuring and Reinvesting, Removing Barriers, and Restoring Opportunities.

Restructuring and Reinvesting: Following the lead of states like California, all states need to restructure their policies to reduce the number of people in jails and prisons and the sentences they serve. The money saved from reducing incarceration rates should be used instead to reinvest in services that work, such as substance abuse programs and stable housing, which have proven to reduce recidivism rates. Additionally, sentencing needs to shift focus to accountability, safety, and healing the people involved rather than punishing those convicted of crimes.

Removing Barriers: Upon release, formerly incarcerated individuals face significant barriers accessing critical resources like housing and employment that they need to survive and move forward. Many are denied public benefits like food stamps and most are unable to pursue training or education that would provide improved opportunities for the future. Families also suffer under these restrictions and risk losing support as a result of their loved one’s conviction. These barriers must be removed in order to help individuals have a chance at success, particularly the many substantial financial obligations that devastate individuals and their families. On the flip side, when incarcerated people maintain contact with their family members on the outside, their likelihood of successful reunification and reentry increases, and their chances of recidivating are reduced. For most families the cost of maintaining contact is too great to bear and must be lowered if families are to stay intact. Removing cost and other barriers to contact is essential.

Restoring Opportunities: Focusing energy on investing and supporting formerly incarcerated individuals, their families, and the communities from which they come can restore their opportunities for a brighter future and the ability to participate in society at large. Savings from criminal justice reforms should be combined with general budget allocations and invested in job training and subsidized employment services, for example, to provide the foundation necessary to help individuals and their families succeed prior to system involvement and upon reentry.

Our nation’s criminal justice system has dramatic impacts on the lives of individuals who are incarcerated and the lives of those they touch. These effects wreak financial, physical, and emotional havoc on women, families, and communities, undermining potential for a better life. The true costs of our criminal justice system are complex, deeply rooted, and demand a closer look at the multiple impacts on individuals and families. When these costs are understood and acknowledged, it becomes clear that the system — and society more broadly — must change.

September 16, 2015 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 09, 2015

Noting federal prison reforms possible without statutory changes

A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes.  The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:

Many past U.S. Congress’s have drafted criminal reform bills, only to have them lay dormant in committee.  Traditionally, the press releases and sound-bites have only provided false hope to those serving time.  The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress.  Then there’s the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum.  There are others, but none worth mentioning....

There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy.  First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting “earned” good conduct time towards program eligibility.  Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624.  Next, early deportation options should also be explored for those who are in the U.S. illegally.

We have a problem of aging, sick inmates in the federal prison system.  There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy.  It’s expensive with some estimates being as high as $57,000 per year per inmate.  The recidivism studies show far lower rates of recidivism for elderly offenders.

Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC’s are penal or correctional facilities within the meaning of the applicable statues.  “Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate.”  So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....

While we wait for the next prison reform bill, let’s hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.

September 9, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Tuesday, September 08, 2015

"The Pointless Banishment of Sex Offenders"

The title of this post is the headline of this New York Times editorial in today's paper.  Here are excerpts:

It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.

Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.

Protecting children from sexual abuse is, of course, a paramount concern.  But there is not a single piece of evidence that these laws actually do that.  For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges.  The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.

Lately, judges have been pushing back.  So far in 2015, state supreme courts in California, Massachusetts and New York have struck down residency laws....  The United States Supreme Court has not yet weighed in on residency restrictions, although a 2003 ruling upholding mandatory registration for sex offenders suggested that such laws may violate the Constitution.

It is understandable to want to do everything possible to protect children from being abused.  But not all people who have been convicted of sex offenses pose a risk to children, if they pose any risk at all . Blanket residency-restriction laws disregard that reality — and the merits of an individualized approach to risk assessment — in favor of a comforting mirage of safety.

September 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (15)

Friday, September 04, 2015

"American Criminal Record Exceptionalism"

The title of this post is the titel of this new paper by Kevin Lapp now available via SSRN. Here is the abstract:

In recent decades, criminal records have proliferated and come to be more consequential than ever. James B. Jacobs’s new book, THE ETERNAL CRIMINAL RECORD (2015), documents their broad scope, wide availability, and the long, devastating shadow that criminal records cast.

In this Review, I organize the material in this challenging book into three different claims about American criminal record policy: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent.  I explain how this results in an inexpensive means of sorting and inflicting punishment by devolving a great portion of the work to private actors and the general public.  It also presents a public policy conundrum for American criminal justice: the more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals.  This, it turns out, increases recidivism, therefore undermining the public safety goal at the heart of comprehensive, accessible criminal records.  To counter this perverse outcome, I marshal evidence and optimism for reforms that Jacobs considers either unattainable or unwarranted, including the possibility of juvenile justice policy serving as a blueprint for a more redemptive criminal record policy for all.

September 4, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Wednesday, September 02, 2015

Prison realities and reform insights from "Mr. Smith Goes to Prison"

51Qm5bXG9NL._SY344_BO1,204,203,200_Politico magazine has this fascinating excerpt from a new book titled "Mr. Smith Goes to Prison: What My Year Behind Bars Taught Me About America’s Prison Crisis."  The book is authored by Jeff Smith, a former Missouri state senator, who spent a year in federal prison for violating federal election laws, and parts of the excerpt read a bit like the Y-chromisone version of Orange is the New Black. But, as these passage highlight, it appears the book covers much more than just the fish-out-of-water elements of prison life for a white-collar offender:

Long story short: Five years after losing the election, I pleaded guilty to two counts of obstruction of justice for impeding the federal investigation Carnahan had initiated. But I requested an unorthodox sentence: two years of home confinement and full-time community service during which I would be allowed to leave my house only to teach civics and coach basketball at a St. Louis charter school I’d co-founded a decade earlier. It would’ve saved taxpayers about $175,000: two years of a teacher’s salary, plus the cost of housing a federal prisoner, since I would’ve paid for my electronic monitoring. More than 300 people, including a bipartisan group of the state’s top elected officials, wrote public letters to the to the judge requesting clemency and arguing that — as the prison counselor in Kentucky would later note — locking me up would be a waste. But the Feds portrayed me as the mastermind of a “textbook case of political corruption” and pushed for a harsh sentence at the top of the federal guidelines. The judge gave me a year and a day in federal prison.

Six months later, I was adrift in a sea of sharks — a professor-turned-politician-turned-felon forced to learn prison patois and the politics of survival. Among other areas, I’d studied and taught criminal justice policy as a political scientist for a decade. But in prison I would be the student, not the teacher.

This is the story of what I learned — about my fellow prisoners, the guards and administrators, and the system in which we operated. It is a cautionary tale of friendship and betrayal. It is a story of how politics prepared me — and didn’t — for prison, and how prison prepared me for life. But more broadly, it is a scathing indictment of a system that teaches prisoners to be better criminals instead of better citizens, and a prescription for how America can begin to decarcerate and harness the untapped potential of 2.2 million incarcerated people through programs that will transform offenders’ lives, infuse our economy with entrepreneurial energy, increase public safety and save taxpayers billions by slashing sky-high recidivism rates....

Prisons have been called “training grounds for rapists,” and according to one estimate based on two decades of surveys, nearly 300,000 rapes occur annually in U.S. prisons. The most recent Justice Department data concluded that from 2003 to 2012, nearly 2 million inmates were sexually assaulted, costing society as much as $51.9 billion annually, including the costs of victims’ compensation and increased recidivism. Advocates hoped that passage of the 2003 Prison Rape Elimination Act (PREA), which sought to prevent, uncover and address sexual assault, would help, but many large states have refused to comply with it (with little consequence). In 2011, a typical prisoner’s likelihood of being raped was roughly 30 times higher than that of a given woman on the outside, suggesting a depressingly steady trendline despite PREA’s passage. And since reporting assaults will only bring more trouble from fellow prisoners and COs alike, most victims remain quiet, rendering official prison data unreliably low.

Exacerbating this is a dearth of post-rape psychological treatment during incarceration and reentry, which increases the likelihood that victims will suffer from PTSD as well as their odds of recidivism — especially for crimes involving sexual assault. Tragically, prison rape often causes compensatory aggression as untreated victims commit rapes upon release to reclaim their manhood in the same way they imagine it was lost. This vicious cycle by which (frequently) nonviolent offenders become violent is the opposite of the duty that “correctional institutions” are meant to perform....

I spent less than a year in prison. In the words of my first cellie, I had less time in prison than he had done on the prison toilet. I had every advantage upon re-entry: I was a white guy with a Ph.D. from a top school, community and family support, and financial savings. Yet getting a decent job was a struggle. I often think about the re-entry of the guys I was locked up. Most had a GED earned in prison; some hadn’t had a visit in years, or even a decade, and had no one to call on the phone; few had savings to fall back on. They would be coming home to a world in which four of five landlords and nine of 10 employers run criminal background checks on prospective tenants and employees to screen out felons, in which many are not allowed to vote or use food stamps and in which they must immediately find money to pay for a halfway house room and urinalysis tests even as they cannot afford clothes for a job interview.

Mass incarceration is driven in large part by sky-high recidivism rates, and when one contemplates the myriad obstacles to successful prisoner re-entry, one grasps that the system is not, as many claim, broken at all; rather, it appears to be a well-oiled machine, keeping millions of people out of our economic mainstream. And only a shift in our cultural mindset — a realization that people who are incarcerated could, to paraphrase President Obama after his recent prison visit to a federal prison, be our brothers, our sons, our mothers, or ourselves — will change that.

September 2, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (1)

Friday, August 28, 2015

Massachusetts SJC rules local sex offender restrictions preempted by state law

As reported in this Boston Globe article, "Massachusetts cities and towns cannot broadly restrict where sex offenders can live, the state’s highest court ruled Friday, declaring that measures in place in more than 40 municipalities were in conflict with state law."  Here is more on the ruling: 

The decision came as the Supreme Judicial Court upheld a lower court ruling on a Lynn ordinance that the judges said would have affected 95 percent of the city’s residential properties.  The court decried the measure, which it said conflicted with a 1999 state law that set up a system to keep track of sex offenders in communities.

“Except for the incarceration of persons under the criminal law and the civil commitment of mentally ill or dangerous persons, the days are long since past when whole communities of persons, such Native Americans and Japanese-Americans may be lawfully banished from our midst,” the ruling said.

Timothy Phelan, who sponsored the Lynn ordinance when was City Council president in 2011, called the decision discouraging and disappointing. SJC rules against sex offender zone laws in Mass.  “It seems like the rights of children are taking a back seat to what is politically correct,” Phelan said.

The ordinance placed strict limits on the ability of Level 2 and 3 sex offenders — those deemed by the state to have moderate and high risks of reoffending — from living within 1,000 feet of a park or school.

John Reinstein, the attorney who argued the case on behalf of three registered sex offenders, said the strong language in the ruling is “a shot across the bow to any attempt to provide the authority for broad-based restrictions to cities and towns.” Reinstein began work on the subject while he was legal director of the American Civil Liberties Union of Massachusetts and continued after his retirement in 2013.

He and his colleagues had urged the court to reject the law on constitutional grounds, arguing that it violated the fundamental rights of sex offenders to move freely within the state and choose where they live.

Friday’s decision instead followed a lower court ruling in deciding that the ordinance violated “home rule” provisions because it is a local measure in conflict with state law. The outcome leaves open the possibility that lawmakers could restore the ability of municipalities to create residency restrictions for sex offenders.

The full unanimous Massachusetts SJC ruling is available at this link.

August 28, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, August 26, 2015

New research report examines impact of "Realignment" on crime in California in 2014

Via an email from the Center on Juvenile and Criminal Justice (CJCJ), I received news about this notable new research report titled "Realignment and Crime in 2014: California’s Violent Crime in Decline." Here is how the CJCJ report was summarized in the email I received:

A new report from the Center on Juvenile and Criminal Justice examines the impact of Public Safety Realignment on county crime given newly produced 2014 data. CJCJ finds no causal relationship between Realignment and changes in rates of reported Part I offenses.

• Since Realignment was implemented in 2011, statewide violent crime and property crime have generally decreased. This decline seems to be a continuation of the downward crime trend of the past two decades that has not demonstrably been affected by Realignment.

• Almost all counties experienced a decrease in their rates of state prison commitments for non-violent offenses in 2013 versus 2010. However, these declines showed no correlation with changes in crime rates in individual counties in 2014 versus 2010. For example, Orange County’s rate of non-violent prison admissions decreased by 53 percent along with substantial reductions in crime, while adjacent Riverside County saw a 30 percent decrease in non-violent prison admission rates along with less favorable crime trends.

• Trends in motor vehicle theft, which some researchers have connected to Realignment, were highly erratic among individual counties (for example, down 35 percent in Fresno County; up 102 percent in Shasta County). No correlations between Realignment and motor vehicle theft were apparent.

This report builds on CJCJ's previous county-level analyses finding that no definitive conclusions can be drawn about the impact, if any, of Realignment on crime at this time. Instead, this report highlights nine “model counties” that have shown uniquely large decreases in reliance on state prisons alongside uniquely large reductions in property, violent, and total crime. Policymakers should study the measures taken in these nine counties to better implement effective and safe statewide decarceration strategies.

August 26, 2015 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Tuesday, August 18, 2015

"Can a Federal Prisoner Be Too Old to Jail?"

The title of this post is the headline of this notable new National Journal article.  Here are excerpts:

When you're locked in federal prison, how old do you have to be to count as "aging"?

That's the question two federal agencies are grappling over, and the answer they pick will determine how the government spends more than $800 million in public funding for prisons.  And for tens of thousands of federal inmates, it could mean the difference between becoming eligible for a late-life release program and spending their twilight years behind bars.

The Federal Bureau of Prisons is struggling to adjust to an aging prison population, a product, in part, of criminal-justice reforms of the late 1980s that dramatically reduced federal parole and imposed mandatory minimum sentences for some offenses.  In fiscal 2013, the Federal Bureau of Prisons spent nearly 20 percent of its $6.9 billion budget to incarcerate inmates aged 50 and older.  And without a policy intervention, those costs are set to rise: Inmates aged 50 and older make up the fastest-growing segment of the prison population, according to Justice Department Inspector General Michael Horowitz.

To meet those costs, the Bureau of Prisons is requesting a 6.1 percent increase in funding for fiscal 2016, an increase from the bureau's $6.9 billion budget in 2015.  But in a report released in May, the Justice Department Office of the Inspector General suggested the Bureau of Prisons consider an alternative solution: expand a "compassionate-release" program that reduces the term of imprisonment for elderly inmates.

To be eligible for the reduced sentencing program, inmates must have "chronic or serious medical conditions relating to the aging process" that "substantially diminish their ability to function in a correctional facility" for which "conventional treatment promises no substantial improvement," according to a statement from the Bureau of Prisons.  They must also have served more than half of their sentence.  For inmates looking for early release under nonmedical circumstances, the time-served bar is higher: "the greater of 10 years or 75 percent of their term."...

But for any of the above criteria to be considered, the inmate must be aged 65 or older. The Inspector General report did not explicitly call on the Bureau of Prisons to lower the limit in its May report.  Instead, it recommended the bureau reconsider the age bar and noted the potential advantages of setting it at age 50.

The lower threshold would cut incarceration costs and relieve prison overcrowding without significantly increasing recidivism rates, the report said.  The report notes several ways in which prisoners 50 and over differ from the rest of the prison population.  Older inmates cost an average of 8 percent more to confine, but they are also less likely to end up back in prison after release.  While the recidivism rate among all prisoners is 41 percent, for those released after age 50, the rate falls to 15 percent.

According to the Inspector General report, lowering the threshold age from 65 to 50 and instituting a 5 percent release rate for only those inmates in minimum or low-security institutions or medical centers could reduce incarceration costs by approximately $28 million per year.  Federal prisons with the most aging inmates spent "five times more per inmate on medical care" and "14 times more per inmate on medication" than institutions with the fewest aging inmates, the report said.

The 65-or-over bar for the program is relatively new, set in 2013 in an effort to clarify the release program's eligibility criteria following a separate Inspector General report released earlier that year....  For now, it's unclear whether the Bureau of Prisons will lower the minimum age for its compassionate-release program.  In its response to the May Inspector General report, the agency said it would "raise the issue with relevant stakeholders for further discussion."

August 18, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Saturday, August 08, 2015

Ohio Gov (and GOP Prez candidate) links Obamacare and crime/recidivism reduction

I am a big fan of Ohio Gov John Kasich for a variety of reasons, and my affinity for the guy is significantly enhanced by the fact that he has, as noted in this article, appropriately linked health care reforms and public safety.  The article is headlined "Kasich Says Obamacare Empties Prisons — In a Good Way," and here are excerpts:

The Ohio governor says the program, unpopular with Republicans, has reduced recidivism rates. Ohio Gov. John Kasich defended his expansion of Medicaid under Obamacare at Thursday night’s Republican presidential debate.

The Medicaid expansion, unpopular among many of the Republican faithful, has benefited mentally ill prison inmates, said Kasich. “I’d rather get them their medication so they could lead a decent life,” he said.

“Eighty percent of the people in our prisons have addictions or problems,” Kasich added. “We now treat them in the prisons, release them in the community and the recidivism rate is 10 percent….”

I have highlighted in a number of prior posts that a lot of "wonks" have sensibly suggested that Obamacare might prove over time to be an extraordinarily valuable public safety achievement. Here are some of these prior posts:

August 8, 2015 in Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Tuesday, August 04, 2015

AG Lynch and Secretary Duncan make pitch for Pell Grant pilot program for federal prisoners

628x471Attorney General Loretta Lynch and Secretary of Education Arne Duncan have this notable new USA Today op-ed under the full headline "To cut crime, turn jailbirds into bookworms: We need a prison to productivity pipeline." Here are excerpts:

Few interventions have been shown to reduce recidivism and prepare people in prison to lead law-abiding, productive lives like access to quality postsecondary education and training. The benefits of investing in these opportunities, which also include improved employment outcomes, extend to the individual and to society. In a study funded by the Justice Department’s Bureau of Justice Assistance, RAND Corporation estimated that incarcerated individuals who participate in correctional education are 43% less likely to return to prison within three years. And for every dollar invested in correctional education programs, five dollars are saved on re-incarceration costs. A recent report from the President’s Council on Economic Advisors notes the annual cost of incarceration for a single juvenile is over $100,000 — almost twice as high as tuition, room and board and fees at the most expensive college in the country and nearly 100 times as expensive as a year of intensive mentoring.

Nearly every person behind bars will one day leave prison — approximately 700,000 annually. Setting these Americans up for success is smart economics and a critically important investment in our future.

Unfortunately, for many incarcerated individuals, this type of life-changing opportunity is unavailable. In 1994, Congress amended the Higher Education Act to ban incarcerated individuals in federal and state penal institutions from accessing Pell Grants, which could be used to help qualified inmates pay for college classes or training. This ban was passed despite the fact that higher education has been shown to reduce recidivism and despite the fact that incarcerated students made up less than 1% of all Pell Grant recipients.

The Obama administration has taken an important step toward helping people in prison contribute to the economy, transition back into their communities and stay out of the justice system after they reenter society. The Department of Education announced a new Pell Grant Experimental Site program that will allow a limited number of incarcerated individuals to be eligible to receive Pell Grants to pay for education and training programs from colleges and universities. The Department of Justice is providing technical assistance to the correctional facilities under the pilot program. We will test how restoring Pell Grant eligibility could affect educational and other outcomes. This pilot will not prevent any eligible Pell recipient from receiving a grant. What we learn will inform our efforts — and the efforts of states and localities — moving forward in this area....

By preparing these learners to achieve their academic and career goals, we strengthen the families and communities that depend on their success. And that is fundamentally good for America.

August 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

"Should prison sentences be based on crimes that haven’t been committed yet?"

The question in the title of this post is subheadline of this new Marshall Project feature story about modern risk assessment tool being used at sentencing.  The lengthy piece, carrying the main headline "The New Science of Sentencing," merits a read in full, and here are excerpts:

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes.  As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science.  The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record.  They are now used at some stage of the criminal justice process in nearly every state.  Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself.  A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely.  Those deemed high risk could spend more time behind bars....

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?...

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

August 4, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Tuesday, July 28, 2015

Obama Administration talking up restoring Pell grants for incarcerated

As reported in this Wall Street Journal article, the "Obama administration plans to restore federal funding for prison inmates to take college courses, a potentially controversial move that comes amid a broader push to overhaul the criminal justice system." This strikes me as big (and potentially controversial) news, and here are more of the details:

The plan, set to be unveiled Friday by the secretary of education and the attorney general, would allow potentially thousands of inmates in the U.S. to gain access to Pell grants, the main form of federal aid for low-income college students. The grants cover up to $5,775 a year in tuition, fees, books and other education-related expenses.

Prisoners received $34 million in Pell grants in 1993, according to figures the Department of Education provided to Congress at the time. But a year later, Congress prohibited state and federal prison inmates from getting Pell grants as part of broad anticrime legislation, leading to a sharp drop in the number of in-prison college programs. Supporters of the ban contended federal aid should only go to law-abiding citizens....

A 2013 study by the Rand Corp. found that inmates who participated in education programs, including college courses, had significantly lower odds of returning to prison than inmates who didn’t. Some congressional Democrats have proposed lifting the ban. Meanwhile, administration officials have indicated they would use a provision of the Higher Education Act that gives the Education Department the authority to temporarily waive rules, such as the Pell-grant ban, as part of an experiment to study their effectiveness.

Education Secretary Arne Duncan and Attorney General Loretta Lynch are expected to announce the program, which likely would last three to five years to yield data on recidivism rates, at a prison in Jessup, Md., on Friday. Key details aren’t yet clear, such as which institutions and what types of convicts would be allowed to participate.

An Education Department spokeswoman declined to comment. Asked Monday whether the agency would restore Pell grants for prisoners, Mr. Duncan told reporters, “Stay tuned.”

Stephen Steurer, head of the Correctional Education Association, an advocacy group, said two Education Department officials told him at a conference early this month the agency was moving to restore Pell grants for prisoners and allow many colleges and universities to participate. Money from the grants would directly reimburse institutions for the cost of delivering courses in prisons rather than go to prisoners, Mr. Steurer said.

“It will be substantial enough to create some data and to create enough information for some evaluation,” said Rep. Danny Davis (D., Ill.), who is co-sponsoring a bill with Rep. Donna Edwards (D., Md.) to permanently restore Pell grants for prisoners. “I think the political landscape has actually changed since the 1990s,” said Ms. Edwards. “We haven’t really been able to get a handle on recidivism. We have to present some training and opportunities. These are programs that work.”

She said her bill would cost relatively little up front—in the tens of millions of dollars—while having the potential to cut societal costs over the long term by reducing recidivism rates. Maryland spends nearly $40,000 a year per prisoner, she said.

But spending tax dollars on college for prisoners strikes many as an affront to families that have borrowed heavily in recent years to cope with skyrocketing college costs, causing student debt to soar to $1.3 trillion. “If we really want to keep people out of prison, we need to promote education at younger ages,” said Rep. Chris Collins (R., N.Y.).

Last year, New York Gov. Andrew Cuomo tabled a plan to use state dollars on in-prison college courses because of opposition from lawmakers. But in California, Gov. Jerry Brown signed legislation in June that includes $12 million to promote statewide priorities, including college classes in state prison, said state Sen. Loni Hancock, whose 2014 bill paved the way for an agreement between California corrections officials and the chancellor of the state’s community colleges. Ms. Hancock said classes could begin as soon as this fall.

July 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, July 21, 2015

Eighth Circuit rejects "safe sex" special condition of supervised release

Thanks to a number of kind readers, I received lots of notice of an Eighth Circuit opinion today that understandably has already received lots of attention.  These excerpts from US v. Harris, No. 14-2269 (8th Cir. July 21, 2015) (available here), highlights why: 

At sentencing, the district court determined that Harris was an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the statutory minimum of 180 months’ imprisonment. The court, on its own initiative, also imposed a novel special condition of supervised release that “there be no unprotected sex activities without probation office approval during the period of supervised release.”  In a later written order and judgment, the court attempted to modify the special condition to say that Harris “shall use contraceptives before engaging in sexual activity that may otherwise cause pregnancy unless such use would violate his religious scruples or is expressly rejected by his sexual partner.” ...

The district court observed that Harris had fathered ten children out of wedlock with seven different women and declared that Harris’s conduct was “creating a very serious social problem” that was “more serious than a lot of the things that we do deal with on conditions ofsupervised release.”  During the hearing, the court again raised a “social problem of apparently a great deal of unprotected sex.”...

[T]he special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

The special condition also is not reasonably related to the statutory factors set forth in § 3583(d).  As in United States v. Smith, 972 F.2d 960 (8th Cir. 1992), where this court set aside a special condition attempting to regulate a defendant’s fathering of children while on supervised release, the condition here is not related to the nature and circumstances of Harris’s offense.  The court did not find that Harris’s sexual activity was related to his unlawful possession of a firearm.  Nor did the district court explain how restrictions on Harris’s sexual activity would deter Harris from future criminal conduct, protect the public from future crimes by Harris, or assist in Harris’s training, medical care, or correctional treatment.  For similar reasons, the condition impermissibly involves a greater deprivation of liberty than is reasonably necessary to afford adequate deterrence, protect the public from future crimes, and provide the defendant with needed training, care, or treatment. As in Smith, the district court sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.

We conclude that the district court exceeded its authority under § 3583(d) when it imposed the special condition of supervised release at sentencing.

July 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (2)

Intriguing federal civil rights case assailing New York sex offender family restrictions

A helpful reader altered me to this fascinating story, headlined "Bronx Dad's Case Tests Restrictions on Sex Offenders," concerning a fascinating federal court case being litigating in New York. Here are the basic details via the press account (with links):

With a name resembling a kindergartner's alphabet primer, the lawsuit ABC v. DEF takes on far more insidious themes -- namely the parental rights of a Bronx man who spent eight years in prison for raping his ex's teenage niece.     

A federal judge issued an order in the case last week that could earn that man unspecified financial compensation from New York state.  Three law professors interviewed by Courthouse News say they have never heard a sex offender case quite like it.

Though the case was unsealed last year, a pseudonym still shields the name of the 50-year-old plaintiff.  The docket meanwhile evinces a powerful support network for his cause, including dozens of family members and friends who wrote to the court on his behalf.  Doe's attorney, Debevoise & Plimpton partner Michael Mukasey, is a former U.S. attorney general.

It's been 10 years since a jury found that Doe committed second-degree rape and other offenses against his ex-wife's niece, who accused him of assaulting her when she lived with the family between the ages of 13 and 14.  The jury acquitted Doe of the first-degree charges, and he is appealing the counts for which he was convicted, maintaining that he is innocent.

While still behind bars, Doe and his wife divorced, and he remarried another woman he had known for 25 years.  They had a child, "M.S.," shortly before Doe successfully completed his sex-offender and substance-abuse rehabilitation programs in the fall of 2012.  Since Doe requires permission to contact anyone under the age of 18, parole officers ordered him away from his new home -- and into a homeless shelter -- when his son turned 1 month old.

A Bronx Family Court already allowed the father of six to have unsupervised visits with his teenage daughter, and social workers saw no danger with his raising a newborn son.

Doe's accuser, now in her mid-20s, complained to a parole officer about his ability to rebuild his life. "Why should he live happy and comfortable when he took something from [me] that [I] can't get back?" she asked them, according to court papers.

After this conversation, a Manhattan bureau chief of New York State's parole division ordered Doe away from his new family in a one-paragraph directive stating that the "victim's perspective is always important." Bureau Chief Joseph Lima officer noted in his decision that Doe's crimes "occurred within the family constellation and in some instances while other family members were present in the residence."

Doe's attorney Mukasey noted in a legal brief that all four of their client's adult children wrote letters to the court on behalf of their father. "He has a close relationship with his five oldest children, who range in age from 14 to 27," the brief states. "Mr. Doe has never been accused of neglecting or abusing any of these children; to the contrary, they speak fondly of their relationship with him and his importance in their lives. Mr. Doe desperately wants to establish an equally loving bond with his one-year-old son, plaintiff M.S."...

Neither Mukasey nor his co-counsel would respond to press inquiries. Their amended complaint sought a court order reuniting the family, plus unspecified monetary damages for deprivation of Doe's rights to due process and intimate association. U.S. District Judge Paul Engelmeyer pushed the case forward to discovery Wednesday, in a 36-page opinion and order.

Since parole officers can impose "several dozens" of conditions on the lives of registered sex offenders, Engelmeyer said their expansive powers must face a check. "In addition to the power to decide whether Doe may have contact with any person under age 18, a parole officer has the authority to grant or deny permission for Doe to own a camera, computer, scanner, or cell phone; possess 'any children's products' or photos of minors; rent a post office box; obtain a driver's license; 'rent, operate or be a passenger in any vehicle'; travel outside of New York City; visit an arcade, bowling alley, beach, or swimming pool; or have visitors at his approved residence," the opinion notes.

Refusing to grant immunity, Engelmeyer wrote "there are sound reasons not to give parole officers discretion, unreviewable in a subsequent court action, over so many aspects of a parolee's life." His ruling allows Doe's claims against six DOCCS officials to advance to discovery. In a phone interview, Georgetown University Law professor Abbe Smith called the decision a "terrific development."

"If you commit a crime, and you're punished, you should be allowed to serve your debt to society and then move on," said Smith, who co-directs the university's Criminal Defense and Prisoner Advocacy Clinic. "[The Bronx father] has a newborn son. I can't imagine on what basis he could be deprived from having contact from his own child."  Smith added that she never heard of a case like this before because, "typically, parole officers have immunity," and the ruling emphasizes that they cannot have "limitless discretion."

David Rudovsky, a Penn Law School professor and founding partner of the Philadelphia-based firm Kairys, Rudovsky, Messing & Feinberg, LLP, called the case "significant" because it expands upon a Second Circuit case striking down restrictive probation terms involving relationships with close family members.  Unlike that case, however, the ruling in Doe's lawsuit "extended that doctrine to a damages claim against a parole officer," Rudovsky said in an email....

Florida State University professor Wayne Logan, an expert on sex-offender registries, said he had not heard of such a case either....  Smith, the Georgetown professor, said that she felt sympathy for the Doe's victim, but she said that criminal justice must "root for people to rebuild their lives."

"Marriage and making a family, becoming gainfully employed, those are all signs that a person has abandoned their lawless ways," she said.

July 21, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, July 15, 2015

"Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"

The title of this post is the title of this notable new article by multiple authored recently posted on SSRN.  Here is the abstract:

The United States is in the midst of a public health crisis: Every year, well over 24,000 Americans die from opioid overdose.  This staggering death toll is equivalent to a weekly jumbo jet crash. After a decade of rapid growth, overdose caused by prescription opioids and heroin now tops the accidental death rankings, beating out automobile accidents, AIDS, and other high-profile killers.  Overdose does not discriminate, cutting across all geographic, economic, and racial divides.  But some groups are especially vulnerable. This article is dedicated to one such group: individuals re-entering the community from correctional settings.  In the immediate two weeks after release, people in this group are almost 130 times more likely to die of an overdose than the general population.

It is easy to cast post-incarceration substance use — and consequent overdose — as the re-entering individual’s character weakness or a propensity towards reckless behavior. Nevertheless, modern addiction science reframes such relapse as a foreseeable consequence of the chronic nature of substance use disorders.  This scientific evidence also provides clear guidance on how most of the resulting fatalities can be prevented.  This article considers the creation of fatal overdose risk among formerly incarcerated individuals as an unacceptable collateral harm emanating from criminal justice involvement.

In order to address this largely overlooked public health problem, we explore a range of legal channels that can help persuade the state (broadly construed) to address a risk to which it substantially contributes.  We consider a number of doctrinal approaches, guided by the belief that spending time behind bars must not translate to a death sentence for so many Americans.  Whether as a part of possible legal actions or an action agenda on its own right, we present a number of programmatic interventions and policy reforms that may alleviate this crisis.  Our analysis also highlights the potential role of the Affordable Care Act (ACA) in facilitating overdose prevention before, during and post-incarceration. This agenda is especially timely given the current move by federal and state governments towards releasing large numbers of individuals incarcerated on drug-related charges to ease prison over-crowding or as a result of legal reforms, pardons, or exonerations.

In Section I, we provide an overview of the opioid overdose epidemic and the special vulnerability among criminal justice-involved individuals.  In Section II, we examine the scientific evidence on prevention measures that should be, but are currently rarely deployed to address this vulnerability.  In Section III, we explore various legal theories that could be invoked in efforts to motivate government actors to take a greater responsibility for preventing post-incarceration overdose deaths.  In Section IV, we cover additional mechanisms to motivate institutional change.  We conclude by outlining a policy and programmatic agenda for reducing the vulnerability of criminal justice-involved individuals to opioid overdose.

July 15, 2015 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Sunday, July 12, 2015

The Marshall Project covers parole realities (and life without it)

The Marshall Project has a series of notable new piece about modern parole realities, and this lead one carries the headline "Life Without Parole: Inside the secretive world of parole boards, where your freedom may depend on politics and whim." Here is an excerpt:

America's prisons hold tens of thousands of people ... primarily confined not by the verdicts of a judge or a jury but by the inaction of a parole board. Michigan is one of 26 states where parole boards are vested with almost unlimited power to decide who gets out of prison when, and why.

With more than 1.5 million people behind bars, the United States has the highest incarceration rate in the world, and the financial costs are staggering. As politicians from both parties seek alternatives to mass imprisonment, the parole process has emerged as a major obstacle.

A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.

A recent revision of the Model Penal Code, an influential document written by legal scholars, declared parole boards "failed institutions."

"No one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals," a draft of the document says....

Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.  In New Mexico, the law directs the board to take into account "the inmate's culture, language, values, mores, judgments, communicative ability and other unique qualities."

The boards' sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members.  At least 18 states have one or more former elected officials on the board.  In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.

While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all. And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else.

"Not only are they closed, they're paranoid closed," said Janet Barton, the former operations manager of Missouri's parole board. "Closed to the extreme."  Few others in the criminal justice system wield so much power with so few professional requirements and so little accountability.

Here are the other pieces in the series so far:

July 12, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, July 11, 2015

"Can capitalism keep people out of prisons?"

Images (2)The title of this post is the headline of this intriguing Quartz piece discussing social impact bonds which caught my eye.  Here are excerpts:

The tendency for former criminals to end up back in prison generates over $50 billion every year in corrections costs nationally.  After Medicaid, it is the second fastest growing budget item in the US.  Three years ago, Goldman Sachs, New York City, and then-mayor Michael Bloomberg’s foundation aimed to do something about this, and inked a $9.6 million deal to reduce the recidivism rate of youth offenders at Rikers Island Prison using cognitive behavioral therapy.

The transaction, known as a Social Impact Bond (SIB), was structured with no upfront cost to the city and let investors (Goldman) and philanthropists (Bloomberg) assume the upfront risk for the social programs provided to current and former inmates, while the government only had to pay back the investors for the programs that actually worked.

The Rikers Island Prison SIB is one example of fast-emerging interest and activity around these kinds of strategies, which are also known as pay-for-success financings. SIBs create packages for achieving social progress where government only pays when it saves money; the investor can receive higher returns for higher impact, and the provider of the service can grow.

Given the ability for SIBs to save money and deliver better social outcomes, they appeal to both fiscal conservatives and social progressives, and over $40 million has been mobilized to date in the US. In the three years since the Rikers Island SIB was initiated, four other SIBs addressing early childhood education, homelessness, and prison recidivism in the US have been implemented.

But on July 2, the independent evaluator of the Rikers Island SIB announced that the program had failed to reduce recidivism among the participants by more than the 10% minimum that would have required the city to make payment to the investors.  Put another way, any change in the recidivism rate of the program participants compared to a control group was determined to be statistically insignificant.

Although the approach had been used with success on older youths, the specific program at Rikers had not been tested and was being implemented in the challenging setting of a prison. New York City will terminate the program at the end of August, and Goldman will receive $6 million of the $7.2 million it had so far lent to fund the program, due to a $6 million loan guarantee by Bloomberg.

The results of the Rikers Island SIB and the launch of the other transactions raise a host of questions about whether or not these structures can actually transform public finance and bring more capital to social services....

The case for SIBs is strong.  For one thing, prevention is harder to fund than downstream problems.  Government is great at running an ambulance service at the bottom of a cliff for those who fall, but it does not often take the steps needed to prevent people from falling in the first place.  One reason is that prevention has no clear constituency to lobby for budget — consider the prospect of prison operators and unions lobbying legislators versus organizing people who have not been victims of crime advocating for more effective prison release programs.

What’s more, our current system for funding social programs is not tied to outcomes. Because legislators fund (or cut) social programs based on legal mandates, pressure from taxpayers, or simple political expedience, activities are funded — not outcomes.  Service providers are paid for inputs rather than for producing meaningful outcomes — e.g. turning around the lives of juveniles, or preparing children for success in school.  It is easier to monitor how many juveniles are institutionalized and pay a per diem than to consider what is needed to keep a troubled youth with his family and community — even though institutionalization is a bad outcome for the youth and taxpayers....

The bulk of SIBs have been in criminal justice, juvenile detention, or sheltering the homeless. These sectors use high cost strategies of institutionalizing people who would be more effectively served in de-institutionalized settings.  Most people (and even elected officials) can see the benefit of spending less on prisons, shelters, and dysfunctional juvenile detention centers.  But what about areas where more spending is needed, such as early childhood education or job training or mental health?

In most cases, government entities are responsible for paying if the desired outcomes are generated.  Even if investors accept the counter-party risk of the government, the ability of governments to make these commitments is subject to budget constraints and requires a complete re-engineering of procurement processes.

However, there are promising SIB opportunities that do not rely on public payors, such as workforce development and job readiness programs in which private sector employers agree to pay for the program if it delivers qualified employees.  In the health sector, hospital systems and insurance companies that are now responsible for managing the overall health outcomes of communities can also structure innovative contingent payment transactions....

With enabling legislation being passed around the country, and federal grants arriving to cover development costs, more and more SIBs are coming down the pike despite the Rikers Island results. SIBs have created great value simply by bringing together many unlikely parties to tackle some thorny social issues, but the jury is still out on their long-term growth and impact.

July 11, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4)

Thursday, July 09, 2015

ACLU and Koch reps make pitch for SAFE Act and federal sentencing reforms

This notable new Politico commentary advocating for federal criminal justice reform is authored by Anthony Romero, executive director of the American Civil Liberties Union, and Mark Holden, general counsel of Koch Industries. The piece is headlined "A New Beginning for Criminal Justice Reform," and here are excerpts:

The U.S. criminal justice system is in a state of crisis — and Congress is finally moving to address it. On June 25, Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) introduced the bipartisan Safe, Accountable, Fair and Effective Justice Act. Known as the SAFE Justice Act, the legislation is an important step in addressing America’s ballooning, costly and ultimately unjust federal sentencing and corrections system, which needlessly throws away lives and decimates entire communities.

The criminal justice system’s problems are evident all around us.  Over the past three decades, Congress has steadily increased the size and scope of the federal criminal code, ensnaring people who have no business being behind bars, without a corresponding benefit to public safety.  From 1980 to 2013, the federal criminal code increased from 3,000 crimes to approximately 5,000 crimes.  Over the same period, our federal prison population skyrocketed from 24,000 to 215,000 — a 795 percent overall increase — while federal spending on prisons also soared from $970 million to more than $6.7 billion — a 595 percent increase.

While we have a good handle on how much taxpayers’ money we’ve wasted on over-criminalization and mass incarceration, the cost in human lives is incalculable.  Almost every single federal prisoner serving life without parole for nonviolent offenses has one thing in common: a drug offense that resulted in a de facto death sentence. This excessive reliance on punitive sentencing destroys individual lives, families and communities. It is not clear it makes communities any safer.  In addition, it is fiscally irresponsible and morally repugnant.

This points to a simple conclusion: The criminal justice system must be reformed. It must be dramatically altered to maximize public safety, minimize its cost to taxpayers and ensure that justice is served — for the victims of crimes, the individuals who commit them and for society at large....

The SAFE Justice Act would incorporate lessons learned in [reform] states and apply many of them at the federal level. It seeks to address several specific issues with the current criminal justice system. Four areas of reform are particularly promising: First, it begins the process of reversing over-criminalization and the over-federalization of the criminal code.  The act forces the federal government to disclose the creation of new criminal offenses — a common-sense action that would clarify just how large the criminal code is and how fast it has grown.  It also empowers the victims of federal over-criminalization to seek redress via the Office of the Inspector General.  It also contains various reforms to protect against wrongful conviction, reduce pre-trial detentions, and eliminate federal criminal penalties in state jurisdictions, including penalties for actions such as drug possession.

Second, it would reform sentencing.  Today, mandatory minimums force too many people to plea to lengthy prison sentences — punishments that may not fit the crime.  The act seeks to undo this broken system by encouraging judges to offer probation to low-level offenders, while increasing pre-judgment probation.  It also would restrict mandatory minimums to specific categories of people — such as high-level members of drug-trafficking organizations rather than street dealers — as originally intended by Congress.

Third, it would reduce recidivism. Too often, the criminal justice system’s flaws turn federal prisons into revolving doors for repeat offenders.  The legislation proposes to address this problem with a number of reforms, including shorter sentences for people who participate in specific educational and vocational programs.  These reforms can ensure that people who leave federal prison are better equipped to rejoin their communities and contribute to society.

Fourth, it would increase transparency.  The bill would require that federal agencies issue regular reports on recidivism rates, prison populations and other key statistics. It also would require that cost analyses be presented to judges prior to sentencing to help them make prudent decisions.

This is only a partial list of the reforms proposed in the SAFE Justice Act. They are a good start — but they are not enough to reverse the damage, financially and in terms of human lives, caused by decades of misguided policies.  In particular, members of Congress from both parties should continue to devote particular attention to ensuring that criminal laws penalize only the people who intend to commit crimes, an important distinction that many new federal criminal laws miss.  More broadly, they must identify and pass targeted policies that are smarter on crime, rather than just tougher.

Prior related post:

July 9, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Friday, July 03, 2015

New CRS report: "Risk and Needs Assessment in the Criminal Justice System"

A helpful colleague alerted me to this intriguing new Congressional Research Service report concerning risk assessments and other crime-control focused criminal justice reforms. Here is the report's summary:

The number of people incarcerated in the United States has increased significantly over the past three decades from approximately 419,000 inmates in 1983 to approximately 1.5 million inmates in 2013.  Concerns about both the economic and social consequences of the country’s growing reliance on incarceration have led to calls for reforms to the nation’s criminal justice system.

There have been legislative proposals to implement a risk and needs assessment system in federal prisons.  The system would be used to place inmates in rehabilitative programs. Under the proposed system some inmates would be eligible to earn additional time credits for participating in rehabilitative programs that reduce their risk of recidivism.  Such credits would allow inmates to be placed on prerelease custody earlier.  The proposed system would exclude inmates convicted of certain offenses from being eligible to earn additional time credits.

Risk and needs assessment instruments typically consist of a series of items used to collect data on behaviors and attitudes that research indicates are related to the risk of recidivism.  Generally, inmates are classified as being high, moderate, or low risk. Assessment instruments are comprised of static and dynamic risk factors.  Static risk factors do not change, while dynamic risk factors can either change on their own or be changed through an intervention.  In general, research suggests that the most commonly used assessment instruments can, with a moderate level of accuracy, predict who is at risk for violent recidivism.  It also suggests that no single instrument is superior to any other when it comes to predictive validity.

The Risk-Needs-Responsivity (RNR) model has become the dominant paradigm in risk and needs assessment.  The risk principle states that high-risk offenders need to be placed in programs that provide more intensive treatment and services while low-risk offenders should receive minimal or even no intervention.  The need principle states that effective treatment should focus on addressing needs that contribute to criminal behavior.  The responsivity principle states that rehabilitative programming should be delivered in a style and mode that is consistent with the ability and learning style of the offender.

However, the wide-scale adoption of risk and needs assessment in the criminal justice system is not without controversy.  Several critiques have been raised against the use of risk and needs assessment, including that it could have discriminatory effects because some risk factors are correlated with race; that it uses group base rates for recidivism to make determinations about an individual’s propensity for re-offending; and that risk and needs assessment are two distinct procedures and should be conducted separately.

There are several issues policymakers might contemplate should Congress choose to consider legislation to implement a risk and needs assessment system in federal prisons, including the following:

• Should risk and needs assessment be used in federal prisons?

• Should certain inmates be excluded from earning additional time credits?

• Should risk assessment be incorporated into sentencing?

• Should there be a decreased focus on punishing offenders?

July 3, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Tuesday, June 30, 2015

Virginia Gov creates commission to study bringing back parole in state sentencing scheme

DownloadI have long thought and feared that the broad move in the 1980s and 1990s to abolish parole in the federal sentencing system and in many state systems was a significant (and rarely recognized) contributor to modern mass incarceration problems.  Consequently, I am intrigued and pleased to see this recent press report headlined "McAuliffe creates commission to study bringing parole back to Virginia." Here are the details of what is afoot in Virginia, as well as some highlights of the enduring political issues and debates that surround parole abolition and reforms:

Gov. Terry McAuliffe will create a commission to study reinstating parole in Virginia, two decades after it was abolished by then-Gov. George Allen amid a wave of tough-on-crime laws across the country.... McAuliffe (D) signed an executive order to review whether doing away with parole reduced crime and recidivism, analyze costs and make recommendations.

“It’s time to review whether that makes sense. Is it keeping our citizens safe? Is it a reasonable, good, cost-effective way? Are we rehabilitating folks?” he said. “Are sentences too long for nonviolent offenses? Are we keeping people in prison too long?”

The move is consistent with McAuliffe’s push to restore voting rights to thousands of former prisoners and remove from state job applications questions about criminal records, known as the ‘ban the box’ campaign. It also comes at a time when the country is redefining the way it enforces its laws, and sometimes questioning the strict policing and corrections strategies of the 1990s....

Carl Wicklund, the executive director of the American Probation and Parole Association, said research suggests that the laws of the 1990s were not necessarily effective, and politicians from both parties are embracing change. Parole gives inmates motivation to better themselves in hopes they could be let out early, he said. “People are starting to look at that, how do you incentivize people when they’re in prison to actually start to get their act together?” Wicklund said.

But others say that crime declined in Virginia in the two decades since parole was abolished and that the prisons are not overflowing with nonviolent first-time offenders. “I want to ask them which murderer, rapist or armed robber they want to get out of jail,” said former Virginia attorney general Jerry Kilgore (R), a lawyer in private practice who was Allen’s secretary of public safety. “Under the old system, murderers were serving a fourth to a third of their time.”

C. Todd Gilbert (R-Shenandoah), a former prosecutor, said Virginia tends to lock up what he called “the right people”: violent offenders, repeat offenders, chronic probation violators and drug dealers. “Why the governor would want to tinker with undoing a good thing is beyond me,” he said. “It’s pure politics. I’m sure he’s getting a tremendous amount of pressure from the base of his party to tear down the criminal justice system. Criminal apologists would love nothing more than to have no one serve any time for practically anything.”

In the interview with WTOP (103.5 FM), McAuliffe said it is his job to protect citizens, but also safeguard taxpayer dollars. The state houses 30,369 inmates at a cost of $27,462 per year per inmate and a total of $833 million annually, he said. Inmates must serve at least 85 percent of their sentences before they can be released for good behavior. “The question now, 20 years later, is has it made us safer or have we spent a lot of money and we haven’t done what we need to do for rehabilitation?” he said.

Former Virginia attorney general Mark L. Earley Sr. — a Republican whom Allen once portrayed as an ally in abolishing parole — will chair the commission with McAuliffe’s secretary of public safety, Brian Moran, and his secretary of the commonwealth, Levar Stoney. The Commission on Parole Review must complete a final report by Dec. 4. “I want everybody just to relax here. We’re not saying let everybody out. We’re not doing that. We’re going to do a comprehensive study,” McAuliffe said.

The effects of parole abolition were also the subject of a study by the Senate Finance Committee released in November, which deemed the policy change a success. “Virginia has the third-lowest rate of violent crime and the second-lowest recidivism in the nation,” the 74-page report concluded. “Sentencing reform is working as intended.”

But the American Civil Liberties Union of Virginia said there is little evidence that parole abolition has made Virginians safer. In fact, the state’s incarceration rate has increased and crime rate has declined at a slower rate than states that have reduced their incarceration levels, the group said. “By removing the opportunity for parole, the commonwealth has also compounded the disproportionate impact that our criminal justice system has on people of color,” said ACLU executive director Claire Guthrie Gastañaga.

Democrats generally praised McAuliffe for revisiting the policy. “It’s an issue of public safety and our commitment to rehabilitation, are we actually doing that in Virginia?” said Del. Charniele L. Herring (D-Alexandria), chairwoman of the House Democratic caucus. Virginia House Minority Leader David J. Toscano (D-Charlottesville) said the commission could recommend relaxing parole for some offenders, but not others. “I don’t believe the governor has any interest in encouraging any policy that’s going to release hardened criminals in advance of their sentence being served,” he said.

But Republicans denounced any effort to roll back one of the landmark reforms of Allen’s governorship. Del. Robert B. Bell (R-Albemarle), a criminal lawyer and former prosecutor who is planning to run for attorney general in 2017, said changing the state’s policy “would be an enormous step back for public safety in Virginia” and would create a “backdoor out of prison” after jurors, detectives and victims have left the courtroom.

House Speaker William J. Howell (R-Stafford) said he agreed that the current system has served the commonwealth well and has become a national model. “While there are always improvements to be made, the notion that Virginia needs wholesale criminal justice reform seems to be more about politics than policy,” he said.

Parole abolition was popular in Virginia when Allen pushed for it, said Chris LaCivita, a Republican strategist who worked on Allen’s 1993 campaign. Allen won the governor’s office that year by an 18-point margin on the promise to abolish parole, and the General Assembly, then controlled by Democrats, passed it his first year in office, he said. “When Allen abolished parole in 1994, it was for violent offenders,” LaCivita said. “And the primary reason was because so many of those who were convicted of violent crimes were only serving a part of their sentence.”

As of 2000, 16 states had done away with discretionary release on parole, and four other states had gotten rid of the practice for certain crimes, according to the Bureau of Justice Statistics. Experts said few, if any, states seem to have reversed course. If Virginia were to do so completely, it might be the first, said Keith Hardison, the chief administrative officer of Association of Paroling Authorities International, which represents parole board staffers. “It’s not unexpected, because it seems like a logical extension of some of the changing, perhaps backing off somewhat of the ‘get tough’ era, and the ‘nothing works’ era,” he said.

Arlington Commonwealth’s Attorney Theo Stamos (D) said it “makes abundant sense” to revisit the policy but noted that she did not feel abolishing parole was a mistake. Crime has dwindled in Virginia since parole was abolished, and while she said there might not be a causation, it was a factor to be considered. “It’s a function of a lot of things, but clearly, the bad folks who are in for a long time . . . for the time that they’re in for, they’re not committing crimes on the street,” she said. Stamos noted that no matter what the commission finds, it would be up to the Republican-controlled General Assembly to restore parole — an unlikely outcome.

June 30, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Friday, June 26, 2015

"A Second Chance: Rebiography as Just Compensation"

I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it.  The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within.  Here is the abstract:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances."  For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation.  Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender?  In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation?  Secondly, what is the relationship between "rebiography" and "privacy"?  In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.

Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.”  In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases.  In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism.  The article goes on to examine legislative and judicial options for rebiography.

June 26, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

Thursday, June 25, 2015

Noticing Senator Cornyn's notable role in federal criminal justice reform efforts

ImagesRegular readers know that Senator Charles Grassley is perhaps the most critical current player in the current debates over federal sentencing reform because of his role as Senate Judiciary Committee Chair.  But this new National Journal article, headlined "Cornyn's New Role: The 'Bridge' on Tricky Bipartisan Bills," highlights the key role now being played by the current Senate whip.  Here are excerpts from an interesting piece about Texas Senator John Cornyn:

On April 10, John Cornyn toured a huge prison in rural east Texas, about a three-hour drive north of his Houston birthplace. Nearly 700 security employees stroll the H.H. Coffield facility, which has a maximum capacity of around 3,800 prisoners, and Cornyn, a three-term senator who rose to the Texas Supreme Court and attorney general positions during the lock-'em-up-and-throw-away-the key 1990s, was there to draw attention to a project helping prisoners learn the skills they need to rehabilitate — and get out.

"Some of the inmates were so poorly educated they couldn't even read a tape measure," said Cornyn in an interview in his Washington office this week. "Which if you think about it, it doesn't say much for our public education system, but it also just shows how big a problem we have when people have zero coping skills — no education — and they basically have lived a continuous life of crime, and they know nothing else in terms of the challenges. We have to break that cycle."

Almost seven months into his role as Senate majority whip, Cornyn talks quite a bit about breaking cycles, whether in prisons or the nature of crises in the Senate. His official role is to keep the Republicans in line and on-message, but he also has been an influential figure — the "bridge," as one Democrat puts it — on bipartisan pieces of legislation, particularly on two in the Judiciary Committee that bedeviled the last Congress: a criminal-justice reform package — the cause du jour infiltrating liberal and conservative think tanks, as well as the 2016 presidential debate — and patent-reform legislation with Sen. Chuck Schumer. Neither is on the Senate GOP leadership's short list, but both bills could see floor action with Cornyn's help, especially if the appropriations process breaks down, leaving room in the schedule.

On criminal justice, Democrats see Cornyn as an instrumental figure in creating the package that requires low-risk offenders to participate in recidivism-reduction programs for an earlier release—saving taxpayer money and making communities safer — and that includes a bipartisan bill reducing mandatory-minimum prison sentences. That bill is supported by members across the ideological spectrum but was opposed by Cornyn — who says now that it wasn't ready for "prime time" — along with Sen. Chuck Grassley, now the Judiciary Committee chairman, and others last year.

"I think we need a marriage of both of those proposals," said Cornyn, who would like to build on his bill to include some sentencing reforms. "I think looking at nonviolent offenders, low-risk offenders, I think there's some things we can do."

"My hope is that in the near future we will have a product that we can then have a hearing on and then mark up, and my hope is that we'll get something to the president this year," he added.

Sen. Dick Durbin, who is leading the sentencing-reform effort with Sen. Mike Lee, said Tuesday that Congress could have a "dramatic impact" on the federal prison population by addressing even just a "very narrow" category of drug offenses not involving firearms, gangs, violence, or terrorism.

Grassley has been an obstacle on the issue, according to Sen. Jeff Flake, a Judiciary panel member. Grassley was not invited to a White House meeting to discuss the topic this year and was advised in his hometown paper to take up sentencing reform a few months ago. But he seems more willing to move the package now — he said recently that the committee has the "capability" of reaching a bipartisan agreement this year — and has been convening meetings to see if a compromise can be struck.

Sen. Sheldon Whitehouse, a Judiciary Committee Democrat, sees Cornyn as the "bridge" trying to get their bills through the panel. "As you know, I think Chairman Grassley has gone to the floor three separate times to express his displeasure and dissatisfaction with the mandatory-minimum bill," said Whitehouse. "So by way of the chairman putting a marker down that he's not pleased with a piece of legislation in his committee, it would be hard to imagine much of a bigger, louder marker than that."

"And I think Senator Cornyn is a very helpful voice in trying to be a bridge among the different parties involved here," he added. "Whether it's Chairman Grassley, or Senator Lee or Senator Durbin, I think both Senator Cornyn and I are trying to be that bridge, but given that the chairman is a Republican and given that Senator Cornyn is a former attorney general, former judge, and leader within the Republican caucus, I think Senator Cornyn is a particularly important figure in the bridge between Senator Lee and Chairman Grassley."

June 25, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 24, 2015

"I know there needs to be [sentencing] reform,” Sen. Chuck Grassley says. “We need this.”

Secondary_150623_chuck_grassley_gty_1160The title of this post is the (slightly modified) subheadline of this lengthy new Politico report, headlined "Riots spur Senate look at sentencing reform." Here are excerpts:

After the Baltimore and Ferguson riots ignited nationwide discussions of race and criminal justice, a bipartisan group of top Senators is making headway on a sentencing reform compromise to release well-behaved prisoners early and reduce some mandatory-minimums.

But the fledgling proposal — yet to be committed to paper — faces potential resistance from the wings of both parties: Liberals and libertarians who want it to go further, and tough-on-crime conservatives who fear that it lets convicts off the hook.

The group, led by Senate Judiciary Chairman Chuck Grassley (R-Iowa), is writing legislation to allow convicts with low risks of recidivism to earn time off their sentences. They’re also contemplating reductions to some nonviolent drug-related mandatory minimums — and maybe even increasing others on white-collar crime in the name of sentencing equality. Talks are ongoing.

The path forward is uncertain, however. Grassley must thread the needle between his colleagues like Sens. Rand Paul (R-Ky.) and Patrick Leahy (D-Vt.) — who say the war on drugs is dead and want to ditch mandatory minimums completely — and lawmakers like Sens. Marco Rubio (R-Fla.) and Jeff Sessions (R-Ala.), who are leery of ditching all such sentencing requirements and still back a tough-on-crime mindset that dominated the GOP in the 1980s and 1990s. It also marks a transition for Grassley, who’s never been a big advocate for reducing mandatory minimums and has been labelled an arch-nemesis of criminal justice reform by newspapers back home in Iowa.

“I have different views than Paul and those guys,” Grassley said in a short interview. “They’d make you believe [people are incarcerated] for smoking one pot or one ‘roach’ … But they’re not; they’re in for a lifetime of violent crime.” “But I know there needs to be reform,” he quickly added. “We need this.”

It’s a political gamble. On the one hand, the group risks being accused of writing a watered-down overhaul; on the other, lawmakers don’t want to be accused of letting convicts off too easily. Striking a balance between those two positions has been difficult in the past — and one of the reasons such legislation hasn’t been enacted in previous congresses.

“You’ve got to be very careful,” said Sessions, a former U.S. Attorney for the Southern District of Alabama who’s already skeptical of the burgeoning deal. He launched into a lecture: “Historic criminal justice reform in the early 1980s has led to this dramatic drop in the crime rate. I mean, the murder rate is less than half of what it was — and so [mandatory minimums were] a fundamental component… I don’t want us to go further than we should in reducing sentences.”

The new compromise package comes amidst heightened inter-racial tensions following the deaths of unarmed black men at the hands of police officers. And when a young white man murdered nine black churchgoers in Charleston, S.C., because of their skin color, the nation was again plunged into discussions of race relations. “My hope is that in light of what happened in South Carolina, we think beyond the symbolism of the [confederate] flag, to changes that really show we’re committed to fairness when it comes to racial equality,” said Democratic Minority Whip Dick Durbin (D-Ill.), who is part of the compromise group.

For supporters of sentencing reform, reform is needed in the name of equality. Many mandatory minimums disproportionately affect African Americans because they are used for sentencing drug-related crimes that plague predominately lower-income, urban populations. “We’re housing too many of our citizens who are committing nonviolent crimes,” said civil rights activist Rep. John Lewis (D-Ga.). “So many people, especially, low-income people who can’t hire lawyers — and it’s not fair.”...

Over the past few years, reform negotiations have been dominated by people like Paul and more libertarian-type Republicans, as well as Democrats such as Leahy. The pair have teamed up on legislation that effectively eliminates mandatory minimums by allowing judges to override them. But the idea of eliminating mandatory minimum makes people like Grassley and his co-Republican negotiator, Sen. John Cornyn, nervous.

“Having been a judge for 13 years and attorney general, my observation is we have to be careful,” Cornyn said during a Tuesday interview in his Senate office. “Even though people may be well intentioned, there could be very negative consequences.”

The package marries provisions of two bills that passed the Judiciary panel last Congress. The first, sponsored by Cornyn and Sen. Sheldon Whitehouse (D-R.I.), another member of the group, focuses on the back end of sentencing reform by letting inmates out early and giving them tools to assimilate back to normal life. The program would only be offered for prisoners considered to have a low risk of re-offending and who do not have prior convictions. Those who have committed more serious crimes such as rape, murder or terrorism wouldn’t be eligible.

“The people coming out of prison are better prepared to re-enter society and be productive as opposed to regressing back into their life of crime,” under the program, said Cornyn, who notes that states have found positive results by implementing these sorts of programs. In Texas, Cornyn’s home state, such reductions have allowed them to close three prisons, he says. The deal would also take a page out of a bipartisan bill called “Smarter Sentencing” that would reduce mandatory minimums for drug crimes.

The compromise would leave intact mandatory minimums on violent offences as well as convictions that involve the use of firearms (an important exception for Cornyn), importing heroin and cocaine (a requirement of Grassley’s), gang involvement and terrorism, among others. “It’s narrow category of drug sentencing… but it would have a dramatic impact on the population in our federal prisons,” Durbin said.

Critics like Leahy, however, are bound to have reservations because the bill likely won’t go far enough. “Passage of mandatory minimum sentencing laws has not made us safer, but it has driven our federal prison population to historic highs — a nearly 800 percent increase in 30 years,” the former Judiciary chairman said in late April, speaking to The Constitution Project. “I oppose all mandatory minimums.”

Leahy, one of the Democrats’ lead voices on this issue, also isn’t a fan of the Cornyn bill — ultimately abstaining from voting on the measure last year because he believes it will just exacerbate racial disparity with its “high risk,” “low” designations. Paul’s office would not weigh in on the package that’s still in the works.

Other lawmakers are taking the opposite tack. When asked about such a package, Sessions on Monday ranted about “safer streets … where children can be raised,” and likened the debate to a “pendulum that tends to swing.” Rubio has also written op-eds expressing reservations about getting rid of certain minimum sentence requirements. And Grassley, whose committee staff is taking the lead on the matter, is sympathetic to those worries. In fact, it’s ironic that Grassley — who was not invited to the White House when Obama hosted Republicans to discuss this issue — is taking the lead on the compromise. Back home, the Des Moines Register called him a “stumbling block remains stubbornly in place.”

But Grassley says he’s always favored reducing some minimum sentences. He also wants to increase others, however — placing him at odds with some Democrats he’s currently negotiating with. He’d like to increase mandatory minimums on white color crimes like fraud, he says.

While they applauded the idea of allowing prisoners to earn more time off their sentences, several Congressional Black Caucus members engaged in the criminal justice reform talks threw cold water on that particular pitch. “That’s not the way to do it,” said Rep. Hank Johnson (D-Ga.). “I would oppose that for the same reason I’m opposed to mandatory minimums on other crimes: They take discretion away from the judge and put too much discretion in the hands of the prosecution.” Rep. Keith Ellison (D-Minn.) said the idea would “clearly” addresses the question of equal treatment for black and white offenders, but he has “an objection to mandatory minimums beyond the equity question.”...

Other pieces of the package still up in the air include provisions limiting asset seizures, or funding police body cameras — but Grassley worries bringing those into the negotiations at this point may hinder talks.

Cornyn suggested the group would be open to changes in committee and on the floor — so long as they don’t take the bill too far off course from the direction it’s headed, he added. And despite potential pitfalls to come, Whitehouse seemed confident they could deliver: “There’s a sweet spot for people who support reconsideration of mandatory minimums… there is a sweet spot in the middle.”

June 24, 2015 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, June 23, 2015

DOJ indicating it will appeal Judge Glesson's remarkable federal expungement order

As reported in this prior post, last month US District Judge John Gleeson examined the collateral workplace consequences of an old federal fraud conviction in the course of ordering the (legally questionable?) remedy of expungement in Doe v. US, No. 14-MC-1412 (EDNY May 21, 2015) (available here).  Now, as reported in this Wall Street Journal article, headlined "Justice Department Sets Its Sights on Rare Expungement Order," it appears that the Second Circuit will have a chance to consider this matter. Here are the basics:

The Justice Department spearheads the federal government’s efforts to help people convicted of crimes return to society after paying their dues, but a case in Brooklyn is putting its views to the test. The U.S. Attorney’s Office for the Eastern District of New York signaled Friday that it will appeal a rare order by a federal judge expunging the fraud conviction of a health-care aide and mother of four who said her efforts to hold down a job have been sabotaged by her criminal record.

In his May order, U.S. District Judge John Gleeson nodded to “a growing recognition that the adverse employment consequences of old convictions are excessive and counter-productive.” He cited a 2011 letter by then Attorney General Eric Holder pressing state attorneys general to reassess state laws that limit the job prospects of ex-offenders. That same year, Mr. Holder established a council of 20 government agencies whose goal is “to remove federal barriers to successful reentry, so that motivated individuals — who have served their time and paid their debts — are able to compete for a job, attain stable housing, support their children and their families, and contribute to their communities.”

“If the government is trying to look out for people in these situations, why take this case of all cases?” said Brooklyn lawyer Bernard H. Udell, who is representing the woman whose conviction Judge Gleeson expunged. A spokeswoman at the Justice Department’s headquarters in Washington, D.C., declined to comment. A spokeswoman for the U.S. attorney’s office in Brooklyn had no immediate comment.

In 2002, Judge Gleeson sentenced the woman, who is identified in court documents by the pseudonym Jane Doe, to five years of probation for feigning injury in a staged car crash and falsely claiming to have received medical services as part of a scheme to collect insurance money. She landed several jobs as a health-care aide since her conviction but lost them after her record came to light in background checks, according to her petition. Judge Gleeson cited several factors in support of his decision to expunge her record, including the 17 years that have elapsed since she committed a crime, the trouble she has had keeping jobs, her age (mid-50s) and the nonviolent nature of her crime.

The Brooklyn U.S. attorney’s office opposed the petition in Judge Gleeson’s court, saying in a January legal brief that employers in the health-care industry were entitled to know about her criminal past. The brief said expungement should be used only in extreme circumstances, citing cases involving illegal arrests and police misconduct.

Prior related post:

June 23, 2015 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Sunday, June 14, 2015

Fascinating account of how "how neoliberalism lies at the root of the carceral state"

LogoThe always interesting poly-sci prof Marie Gottschalk has this especially interesting new piece in the Boston Review headlined "The Folly of Neoliberal Prison Reform."  The lengthy piece merits a full read; these excerpts from the start and end of the piece are intended to highlight the article's themes and strong flourishes:

Amid deficit-allergic neoliberal politics, everyone can agree on the appeal of budgetary savings.  So now it is not just liberals going after mass incarceration. A group of brand-name conservatives, including Newt Gingrich, Grover Norquist, and, most recently, former governor Rick Perry of Texas, has endorsed various budget-cutting initiatives that would reduce prison populations.  Utah Senator Mike Lee, an influential Tea Party Republican, has delivered speeches on “the challenge of over-criminalization; of over-incarceration; and over-sentencing.”

This bipartisanship has fostered a wave of optimism; at last it seems the country is ready to enact major reforms to reduce the incarceration rate.  But it is unlikely that elite-level alliances stitched together by mounting fiscal pressures will spur communities, states, and the federal government to make deep and lasting cuts in their prison and jail populations and to dismantle other pieces of the carceral state, such as felon disenfranchisement and the denial of civil liberties, employment, and public benefits to many people with criminal convictions.

For one thing, the carceral state has proved tenacious in the past.... If there is to be serious reform, we will have to look beyond the short-term economic needs of the federal and state governments. We can’t rely on cost-benefit analysis to accomplish what only a deep concern for justice and human rights can.  Indeed, cost-benefit analysis is one of the principal tools of the neoliberal politics on which the carceral state is founded....

[T]he carceral state was not built by punitive laws alone, and it can be dismantled, at least in part, by a change in sensibilities.  The carceral state was born when police officers, parole and probation agents, judges, corrections officials, attorneys general, local district attorneys, and federal prosecutors began to exercise their discretion in a more punitive direction as they read the new cues coming from law-and-order politicians.

That discretion could be turned toward lenience.  President Obama and state governors have enormous, largely unexercised, freedom to grant executive clemency.  Federal judges have considerable wiggle room to depart from the federal sentencing guidelines, as the Supreme Court confirmed in United States v. Booker (2005) and reconfirmed in Gall v. United States (2007).  The Department of Justice could put an end to overcrowding in federal penitentiaries by calling a halt to the federal war on drugs. The Federal Bureau of Prisons (BOP) could “eliminate thousands of years of unnecessary incarceration through full implementation of existing ameliorative statutes,” according to a report by the American Bar Association.  For example, the BOP and many state departments of corrections could release more infirm and elderly inmates early via a process known as compassionate release.

Prosecutors may be the linchpins of penal reform. The late legal scholar William Stuntz described them as the “real lawmakers” of the criminal justice system because they enjoy vast leeway in charging and sentencing decisions.  Attorneys general and district attorneys also set the tone and culture of their offices and determine how prosecutors working under them exercise their discretion....

Alleviating the root causes of poverty and inequality will take a long time.  In the meantime, no compelling public safety concern justifies keeping so many people from poor communities locked up and so many others at the mercy of the prison beyond the prison. The demands of justice and human rights compel thoroughgoing change, whatever the cost-benefit analysis returns.

I am a bit less pessimistic than this piece about what "neoliberal" cost-benefit analysis might achieve in the context of modern sentencing and prison reform, in part because I think mass incarceration was fueled (and is sustained) more by "classical" notions of justice and victim-rights than this article acknowledges. I especially think that "neoliberal" cost-benefit analysis has an especially important role to play in ratcheting back the modern drug war. That all said, there is much I agree with in this article, and it should be read by everyone eager to think deeply about modern criminal justice reform goals and means.

June 14, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Tuesday, June 09, 2015

Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions

DownloadThis lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:

As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.

The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.

It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.

“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.

In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.

“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”

Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”

Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.

The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.

“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....

Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.

Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....

Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....

Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”

“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...

Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.

He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.

To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.

“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”

June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)

Sunday, June 07, 2015

"Expunging America's Rap Sheet in the Information Age"

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

As the Wall Street Journal recently put it, “America has a rap sheet.”  Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line.  At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life.  The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.

States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered.  The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age.  Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record.  The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.

This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.

June 7, 2015 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (2)

Friday, June 05, 2015

"Sex Offender Law and the Geography of Victimization"

The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN.  The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated.  We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.

Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live.  To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders.  We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk.  Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs

Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."

June 5, 2015 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4)

Wednesday, June 03, 2015

Spotlighting significant back-end impact of Prop 47 sentencing reform in California

This notable recent Los Angeles Times article, headlined "Under Prop. 47, former felons find themselves shedding a stifling label," details a significant (and perhaps unexpected) back-end effect of the sentencing reform California voters put in place the last election cycle. Here are excerpts:

Proposition 47, an initiative that reduced drug possession and several other nonviolent felonies to misdemeanors ... has prompted the release of more than 3,700 inmates from state prison.

Opponents of the measure said it would make California's streets more dangerous by releasing criminals and would strip away much of the incentive that got people into drug treatment — keeping a felony off their record.  But another part of the law that drew less attention allows people who have already served their time to ask a court to reduce years-old convictions from felonies to misdemeanors.

Thousands of people ... have taken advantage. Since the measure passed, judges in Los Angeles County have received more than 6,660 applications to reduce old felonies to misdemeanors.  Los Angeles County estimates that as many as 300,000 applications could be filed in cases stretching back decades.  (A spokeswoman for the court said officials are not tracking the outcomes of the applications.)

Alhambra Police Chief Mark Yokoyama, president of the California Peace Officers' Assn., which lobbied against the measure, said he's not opposed to people with an old felony or two getting reductions if they've turned their lives around.  He likes that they have that option, he said, but he thinks only a small sliver of the population with felony records falls into that category.

Christine Ward, executive director of Crime Victims Action Alliance, another opponent of the law, said reducing old felonies undermines accountability for offenders. "In our state right now," she said, "we're really minimizing criminal behavior."

But others say the law helps people who are now law-abiding eliminate the barriers of a felony record.  For [some], being labeled a felon affected [doing their] job.  For others, it held them back from getting work or housing. Some say it prevented them from getting custody of their grandchildren.  And many agreed the stigma of a "felon" label felt stifling....

From a back office in the Compton courthouse, Deputy Public Defender Carole Telfer runs a one-stop shop for people looking to reduce their felonies under the ballot measure.  Light pink memo notes — all scribbled with phone numbers and nearly identical "Call re: Prop 47" messages — explode from a green shoe box on her desk.  Nearby, there's a brown accordion folder filled with prisoners' handwritten letters....

Even people who aren't eligible for early release under Prop. 47 are grateful, Telfer said, calling it one of the most rewarding assignments in her 35-year career as a public defender.

After the measure passed, Telfer began with the cases of people still behind bars on charges eligible for reduction. But it was often people with decades-old convictions ... who were most anxious to get through the process. They often call to tell her how eager they are to put the felonies — crimes committed by someone who no longer felt like them — behind.

June 3, 2015 in Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, June 02, 2015

Might Charles Koch put big money behind big reform of federal clemency process?

Post - March 2013 (5)The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:

Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative.  The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.

"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"

Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.

Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.

"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....

Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.

Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.

Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.

"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."

I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.

Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation.  I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.

With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates.  This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."  

June 2, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

"Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code"

The title of this post is the title of this notable new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community.  Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts.  Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.

One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases.  Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long.  This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an

June 2, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Friday, May 22, 2015

"Who Are Woman Sex Offenders and Why Are They Treated Like Men?"

The title of this post is the headline of this intriguing piece posted at Dissident Voice written by Sonia Van den Broek, who admits at the start of the piece how she became a female charged with a sex offense:

For the first quarter of my life, I didn’t think much about sex offenders. Call it thoughtlessness or a naïve little bubble; it was probably both. This thoughtlessness might not be unique. But I began thinking about sex offenders when, at age 25, I was charged with a sex crime.

I had had sexual contact with my 17-year-old neighbor. I’m not proud of this and, if given the chance, would absolutely reverse that decision. But I slept with him once and joined the burgeoning ranks of women charged with sex offenses.

Here is some of what she goes on to say about this very interesting topic:

While women sex offenders are a low portion of the population, they do exist and in higher numbers than before 1994 (when the Jacob Wetterling Improvements Act was established).  There is a trend toward sexual contact with teenage males.  Often, the women are motivated by a desire for companionship or have a sense that their current adult-age relationships are unfulfilling.

In other instances, the women are prison guards or case managers who have had sex with inmates. In the state of Colorado, any incarcerated person is legally incapable of consenting to sex, so that any sexual contact he or she does have is considered a crime. Once in a while, a woman will have sexual contact with an intellectually disabled person, sometimes without realizing that this person’s consent is not actually legal.

Women very rarely have sexual contact with children younger than 13. I’ve known only two women in this category and both were motivated by other factors: anger, a history of abuse in their own childhoods, resentment, and a feeling of being trapped.  Most female sex offenders aren’t motivated by power and control, which, among male offenders, is the leading motivation for sexual contact with someone before the age of puberty.  Actually, regardless of the victim’s age, power and control are a much more compelling motivator for men than for women.

Of course, I don’t condone this behavior in the least.  I’m not saying that women who sleep with 17-year-olds should be given a free pass or skip blithely past the consequences. But I do believe we need to rethink the way that we treat and rehabilitate these women. We need to focus less on the scintillating sexual details and more on the emotions and needs that motivated them.

Here lies perhaps the greatest injustice: in the sex offender system, women are treated exactly like men.  Treatment providers aren’t given special instruction in dealing with women.  The treatment programs are written for men, using statistics about male offenders and past treatment models of men.  Imagine!  Although women’s motivations and victims are diabolically different, they receive the same treatment model as men who rape women, prey on young children, and commit serial crimes.

At the moment, the justice system hides behind the fact that there isn’t enough research into female offenders.  This is partly true: women offend at a much lower rate than men, and so studying their motivations takes a little more work.  But as the sex offender laws expand to include more and more actions, there are an increasing number of women caught in sex crimes.

A lack of evidence should never be the reason for poor rehabilitation.  It should be the impetus, in fact, for working harder to understand why some women commit sex crimes and how to prevent it in the future.  When I asked a treatment provider for data about the effects on teenage males of sex crimes committed by women, she had one study. It was a tiny example, too: 13 males from the Midwest. Only that. In a nation that routinely penalizes women for sexual contact with teenage males, only one study existed that documented this phenomenon.  By contrast, decades of research and hundreds of studies have informed the treatment material and methods for men who commit sex crimes.

Research about recidivism rates is also based primarily on male populations and varies drastically.  Estimates about recidivism rates for sex offenders range from 2.5% for another sex crime to to 43% for any crime at all.  But since the law doesn’t differentiate among sex offenders, these studies are nearly useless.  A woman who has sex with a teenager is in the same category with a developmentally disabled person who is an exhibitionist, and those two are in the same category with a man who raped and murdered a child.  The lumping-together of sex offenses creates confusion even while it feeds public hysteria....

Treating sex offenders, especially women offenders, has become drastically un-therapeutic. “Treatment” revolves around complex rules, low self-esteem, and the constant fear of punishment.  It does nothing to address the complex emotional choices that led people to their crimes.  Rather, the justice system beats down already hurting women.

May 22, 2015 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Friday, May 15, 2015

Spectacular work on sex offender registration rules and other "collateral" stories at CCRC

Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center.  The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans.  Here is how it gets going:

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.

It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories:

  • 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
  • 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
  • 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. 

And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, May 13, 2015

"What Private Prisons Companies Have Done to Diversify in the Face of Sentencing Reform"

The title of this post is this interesting Bloomberg Business article, and here are excerpts:

America’s overall prison population has increased by 500 percent over the last 40 years, and the U.S. incarcerates more people than any other country, by far.  State and federal authorities began turning to private prison companies in the 1980s to handle overflowing facilities, and today about 8 percent of prisoners in the U.S. are housed in privately run prisons. Almost all are run by the two largest providers: Corrections Corporation of America and GEO Group.

In September 2014, then-Attorney General Eric Holder announced that the federal prison population had declined for the first time since 1980.  There were nearly 5,000 fewer prisoners in federal prisons in the 2014 fiscal year, compared to the year before, he said. The latest figures for state prisons are only from 2013, which showed an increase of 6,300 prisoners from the previous year.

Both GEO Group and CCA — which last year pulled in a combined $3.3 billion in annual revenue — have taken moves in recent years to diversify into services that don't involve keeping people behind bars.  GEO Group in 2011 acquired Behavioral Interventions, the world’s largest producer of monitoring equipment for people awaiting trial or serving out probation or parole sentences.  It followed GEO’s purchase in 2009 of Just Care, a medical and mental health service provider which bolstered its GEO Care business that provides services to government agencies.

“Our commitment is to be the world’s leader in the delivery of offender rehabilitation and community reentry programs, which is in line with the increased emphasis on rehabilitation around the world,” said GEO chairman and founder George Zoley during a recent earnings call.  

For $36 million in 2013, CCA acquired Correctional Alternatives, a company that provides housing and rehabilitation services that include work furloughs, residential reentry programs, and home confinement.  “We believe we’re going to continue to see governments seeking these types of services, and we’re well positioned to offer them,” says Steve Owen, CCA’s ‎senior director of public affairs.

Brian W. Ruttenbur, a managing director at CRT Capital Group’s research division, says that neither GEO or CCA will be significantly hurt by sentencing reform in the near future. “The big growth in recent years has been with [U.S. Immigration and Customs Enforcement, or ICE] and both of these companies have historically made heavy investments there,” Ruttenbur says.  Immigration detainees are commonly held in the same private facilities that contain state and federal prisoners, and a Government

Accountability Office analysis of ICE data showed that immigration detentions more than doubled between 2005 and 2012. Alex Friedmann, associate director of the Human Rights Defense Center and managing editor of Prison Legal News, says sentencing reform will probably not affect immigration detainees. “Immigration reform might, but even under proposed reform legislation, detention will likely increase,” he says. In 2015, more than $2 billion in federal contracts are up for bid to run five or more prisons that meet the “Criminal Alien Requirements” and house non-U.S. citizens.

May 13, 2015 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 06, 2015

Now what for Frank Freshwaters, captured 56 years after walking away from Ohio honor camp in 1959?

This lengthy Washington Post article provide these amazing details of the real-life (and ready-for-TV) tale of a recently-captured fugitive who was been on the lam since the Eisenhower administration:

For a week, U.S. marshals staked out the trailer park at the swampy edge of the world. They watched as an old man with a white ponytail, glasses and beard slowly shuffled around his Melbourne, Fla., mobile home. The name on the mailbox said William Harold Cox, but the marshals knew better. After seven days of surveillance, they confronted Cox with a mug shot of a much younger man, dated Feb. 26, 1959.

“He said he hadn’t seen that guy in a long time,” said Maj. Tod Goodyear of the Brevard County Sheriff’s Office, which assisted in the stakeout. “Then he admitted it and basically said, ‘You got me.'”

As the marshals suspected, the old man was actually Frank Freshwaters, a felon on the lam for 56 years. His arrest on Monday brings to an end a half-century saga that reads like a Hollywood script, complete with a deadly crime, dramatic prison escape and a cunning trap to catch a wanted fugitive. The tale even includes a tie-in to the movie it already resembles: “The Shawshank Redemption.”

Freshwaters’s story is one of spurned second chances. Back in the summer of 1957, he was a 20-year-old kid with a full head of dark hair and a lead foot. One night in July, he was speeding through Ohio when he hit and killed a pedestrian. Freshwaters was sentenced to up to 20 years in prison only to have the sentence suspended, according to the Associated Press.

But Freshwaters squandered his good fortune. He violated probation by climbing back into the driver’s seat and was locked up in February 1959 in the Ohio State Reformatory. It would prove to be a fitting setting for Freshwaters. After its closing in 1990, the reformatory would be used as a set for “The Shawshank Redemption,” a 1994 movie about a wrongfully convicted man who escapes from prison.

Freshwaters never escaped from the reformatory, however. Instead, he secured a transfer to a nearby “honor camp,” according to the AP. It was from there that Freshwaters disappeared on Sept. 30, 1959.

The 22-year-old didn’t disappear without a trace, however. In 1975, he was arrested in Charleston, W.Va., after allegedly threatening his ex-wife. He was found hiding under a sink in his house, the AP reported. At the time, investigators said Freshwaters had fled to Florida and obtained identification and a Social Security number under the alias William Harold Cox. Then he moved to West Virginia, where he drove a mobile library for the state government and worked as a trucker.

But Freshwaters caught a second break. The governor of West Virginia refused to extradite him to Ohio. Freshwaters was freed from jail and disappeared once again.

It now appears as if he made his way down to Florida, where he continued to live under his alias, even receiving Social Security checks. Back in Ohio, meanwhile, his file gathered dust until earlier this year, when a deputy marshal reopened the 56-year-old case....

Authorities took the senior citizen into custody. During a court appearance on Tuesday, a wheelchair-bound Freshwaters waived extradition, freeing the way for him to return to Ohio and finish the up-to-18 years remaining on his manslaughter sentence. Barring another escape, he could be as old as 97 upon his release.

As far as second lives go, Freshwaters’s Florida hideout was no beachfront home in Zihuatanejo, Mexico, the location where the wrongfully convicted character Andy Dufresne settles down after escaping from Shawshank. But it was far better than an Ohio prison.

The kind reader who sent me the link to this account of the Freshwaters' story added this query: "So is it really worth it for the the state of Ohio to incarcerate an ill 79 year old rehabilitated felon for the rest of his life?"  

May 6, 2015 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (7) | TrackBack

Tuesday, May 05, 2015

"What are We Hoping for? Defining Purpose in Deterrence-Based Correctional Programs"

The title of this post is the title of this important and timely new paper by Cecelia Klingele now available via SSRN. Here is the abstract:

One of the most popular program models in criminal justice today is that popularized by Hawaii Opportunity Probation with Enforcement (HOPE). HOPE and other programs like it grow out of research suggesting that the most effective way to prevent violations of conditions of supervision is to more accurately detect them, respond to them immediately, and impose consistent and predictable sanctions for every detected violation. Proponents of these programs assert that they not only change behavior for the better, but that they increase the legitimacy of probation by addressing violations as they occur.

Even if program compliance rates are as high as supporters claim, serious questions remain about whether these programs, while advancing compliance, may undermine the larger goal of promoting desistance from crime. Anecdotal evidence suggests that both the conditions and sanctions imposed on program participants are often significantly more severe than the model itself requires, and are sometimes at odds with encouraging behavior that is known to foster desistance. This Essay argues that system actors have an obligation to consider the purpose of correctional intervention when evaluating program "success."

May 5, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Tuesday, April 28, 2015

"Solutions: American Leaders Speak Out on Criminal Justice" (with some notable omissions)

The first part of the title of this post is the title of this fascinating new publication released today by the Brennan Center for Justice.  Here is how the 164-page text is described in an e-mail I received this morning:

In a remarkable cross-ideological effort, this book includes essays by public figures and experts who will play a leading role in the nation’s debate over the coming year.  The book contains original essays by Joseph R. Biden, Jr., Cory Booker, Chris Christie, Hillary Rodham Clinton, Ted Cruz, Mike Huckabee, Cathy L. Lanier, Martin O’Malley, Janet Napolitano, Rand Paul, Rick Perry, Marco Rubio, Bryan Stevenson, Scott Walker, and Jim Webb, among others.

In his foreword, former President William J. Clinton writes, “There is one area where we have a genuine chance at bipartisan cooperation: the over-imprisonment of people who did not commit serious crimes.  The drop in violence and crime in America has been an extraordinary national achievement.  But plainly, our nation has too many people in prison and for too long — we have overshot the mark.”

This book offers a first-of-its-kind preview of the solutions likely to be debated in the lead up to 2016. There is striking consensus around one idea: the need to reduce mass incarceration.  Solutions range from releasing low-level offenders waiting for trial to using federal grants to change police practices … from eliminating prison for low-level drug crimes to increasing mental health treatment.

This effort, spearheaded by our Justice Program director Inimai Chettiar, aims to elevate ending mass incarceration as a vital national issue in need of urgent attention. We look forward to your partnership in the months ahead — as these reforms are debated before the nation.

I am very interested in seeing what everyone in this new publication has to say, and I suspect the words of the presidential candidates in this collection will prove especially important in the months ahead. In short, this is must-read, perhaps especially as sad, harmful and disturbing events continue to unfold in Baltimore this week.

That all said, I must state that I am a bit put off by the fact that Bill Clinton authors the foreword without noting his own significant role in helping to encourage the adoption and preservation of, in his words, the "too many laws [that were] overly broad instead of appropriately tailored [which has resulted in] some [who] are in prison who shouldn’t be, others [who] are in for too long, and without a plan to educate, train, and reintegrate them into our communities." Relatedly, I am deeply disappointed that none of the other three living Presidents, all of whom have long and notable criminal justice track records (especially both President Bushes) are included in this important collection of "American Leaders" speaking out.

Particularly notable and disconcerting is the absence of anything in this collection by our most recent in former President, George W. Bush, especially in light of Bill Clinton's justifiable concerns about the importance of efforts to "educate, train, and reintegrate [former offenders] into our communities." As often highlighted on this blog (and in too few other places), President George W. called America "the land of second chance" in his 2004 State of the Union address while spotlighting prisoner re-entry issues and proposing "a four-year, $300 million prisoner re-entry initiative to expand job training and placement services, to provide transitional housing, and to help newly released prisoners get mentoring, including from faith-based groups."

In his important 2004 SotU speech, President Bush compelling advocated that "when the gates of the prison open, the path ahead should lead to a better life."  But now, more than a decade later, and thanks largely to the failings of both Congress and President Bush's successor in the Oval Office, there is still far too little attention given to the needs and challenges of former offenders.  President Bush highlighted 11 years ago that persons released from prison each year represented  "another group of Americans in need of help," but it seems only now have a number of other "American Leaders" gotten the message. 

April 28, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 26, 2015

Highlights from AG Holder remarks at Bipartisan Summit on Criminal Justice Reform

Thanks largely to the GOP Senators in charge of Senate procedure, we still do not yet know whether Loretta Lynch will be confirmed as the next Attorney General and thus we still have Eric Holder serving in this important role a full six months after he announced his resignation.  Today, in that role, AG Holder gave this address to the "Bipartisan Summit on Criminal Justice Reform." Here are excerpts:

[T]his country faces serious challenges—an excessive prison population that is draining our resources and devastating our communities; systemic institutional biases that disproportionately affect people of color; and an overreliance on incarceration at the expense of alternatives proven to prevent recidivism and strengthen our society. These are momentous and complex issues calling for urgent and concrete solutions and it is abundantly clear that we cannot allow the status quo to persist.

But it is equally evident that we have an unprecedented opportunity – even at this time of deep division and stubborn gridlock – to bring about a fundamental shift in our criminal justice system, and to act together to drive historic change. That opportunity is presented not only by the wide range of distinguished individuals who have come to this conference to speak out against injustice and speak up for progress, but also by the rare consensus emerging across the country. Recently, we have seen conservative stakeholders like Koch Industries and Americans for Tax Reform join with progressive voices like the Center for American Progress to form a new coalition dedicated to this cause....

In the last year, federal prosecutors have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two, representing the lowest rate ever recorded by the U.S. Sentencing Commission. Last year we also saw the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration while also cutting the overall crime rate, marking the first simultaneous national reduction in both crime and incarceration rates in more than four decades.

Of course, we also recognize that challenges to re-entry, and the likelihood of recidivism, can be exacerbated by an array of collateral consequences that make it more difficult for formerly incarcerated individuals to get a job, to further their education, to find housing and to participate fully in this country’s democratic institutions. For example, across this country today, an estimated 5.8 million Americans – more than the individual populations of 31 U.S. states – are prohibited from voting because of current or previous felony convictions. Nearly 150 years after Reconstruction, when felony disenfranchisement laws were first widely implemented throughout the South to intentionally reduce the electoral strength of former slaves, 40 percent of these individuals are African-American – meaning that nearly one in 13 African-American adults is currently ineligible to cast a ballot. In three states – Florida, Kentucky and Virginia – that ratio is one in five.

These statistics describe a nation at odds with the promise of its founding, and in tension with its most vital ideals. They demand that we examine our institutions and reorient our practices to create the more perfect Union that our earliest citizens imagined and the more just society that all Americans deserve....

In 2011, while only 30 percent of Americans were black or Hispanic, the U.S. prison population was 60 percent black and Hispanic, a disparity that is simply too stark. But justice reinvestment policies can help. The Council of State Governments Justice Center recently examined data from three states – Georgia, Connecticut, and North Carolina – that have employed a Justice Reinvestment approach. And I am pleased to announce that today our Bureau of Justice Assistance is releasing a report showing that these common-sense reforms produced a marked reduction in incarceration rates – particularly among men and women of color.

In Georgia, since sweeping criminal justice reforms were enacted three years ago, prison admissions have fallen by 8 percent and admissions among African Americans have fallen by 11 percent. In Connecticut, the total number of people in state prisons has declined by 17 percent since 2008, while the number of incarcerated African Americans and Hispanics has dropped by 21 percent and 23 percent, respectively. In North Carolina, expanded access to substance abuse treatment and new supervision practices, among other crucial reforms, have led to a 21 percent drop in total prison admissions between 2011 and 2014, while African-American and Hispanic admissions dropped by 26 percent and 37 percent, respectively. And in each of these cases, policies that reduced racial disparities had no adverse effect on public safety. In fact, all three states experienced a reduction in their overall crime rates....

We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.

That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.

The report referenced in this speech is available at this link and a summary is on this webpage.

March 26, 2015 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, March 23, 2015

"A Commentary on Statistical Assessment of Violence Recidivism Risk"

The title of this post is the title of this timely paper by Peter Imrey and A. Philip Dawid now available via SSRN. The piece, as evidenced simply by the abstract, seems quite technical. But it seems that the piece is making an especially important technical point. Here is the abstract:

Increasing integration and availability of data on large groups of persons has been accompanied by proliferation of statistical and other algorithmic prediction tools in banking, insurance, marketing, medicine, and other fields (see e.g., Steyerberg (2009a;b)).  Controversy may ensue when such tools are introduced to fields traditionally reliant on individual clinical evaluations.  Such controversy has arisen about "actuarial" assessments of violence recidivism risk, i.e., the probability that someone found to have committed a violent act will commit another during a specified period.

Recently Hart et al. (2007a) and subsequent papers from these authors in several reputable journals have claimed to demonstrate that statistical assessments of such risks are inherently too imprecise to be useful, using arguments that would seem to apply to statistical risk prediction quite broadly.  This commentary examines these arguments from a technical statistical perspective, and finds them seriously mistaken in many particulars. They should play no role in reasoned discussions of violence recidivism risk assessment.

March 23, 2015 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 19, 2015

Making the effective case for graduated reentry to reduce incarceration and recidivism

This notable new commentary at Vox, headlined "We don’t need to keep criminals in prison to punish them" and authored by Mark A.R. Kleiman, Angela Hawken and Ross Halperin, is a must-read for would-be criminal justice reformers. Th piece is lengthy (with lots of helpful links), and here are excerpts to whet the appetite:

While it lasts, prison is horrible for the prisoner and expensive for the state. And things often don't get better when it ends: of the people released from prison today, about 60 percent will be back inside within three years.

The transition from prison to the "free world" can be very tough, both for the offender and for the neighborhood he returns to. In the month after getting out, a person released from prison has about a dozen times the mortality rate of people of the same age, race, and sex in the same neighborhood, with the leading causes of death among former inmates being drug overdose, cardiovascular disease, homicide, and suicide.

This shouldn't be a surprise. Consider someone whose conduct earned him (much more rarely "her") a prison cell. Typically, that person went into prison with poor impulse control, weak if any attachment to the legal labor market, few marketable skills, and subpar work habits. More often than not, he's returning to a high-crime neighborhood. Many of his friends on the outside are also criminally active. Maybe, if he's lucky and has been diligent, he's learned something useful in prison. Perhaps he's even picked up a GED. But he hasn't learned much about how to manage himself in freedom because he hasn't had any freedom in the recent past. And he hasn't learned to provide for himself because he's been fed, clothed, and housed at public expense.

Now let him out with $40 in his pocket, sketchy if any identification documents, and no enrollment for basic income support, housing, or health insurance. Even if he has family or friends who can tide him over during the immediate transition, his chances of finding legitimate work in a hurry aren't very good. If he's not working, he has lots of free time to get into trouble and no legal way of supporting himself....

For the transition from prison to life outside to be successful, it needs to be gradual. If someone needed to be locked up yesterday, he shouldn't be completely at liberty today. And he shouldn't be asked to go from utter dependency to total self-sufficiency in one flying leap. He needs both more control and more support. Neither alone is likely to do the job.

Of course, both control and support cost money. But so does prison. The trick is to start the re-entry process before what would otherwise have been the release date, so the money you spend in the community is balanced by the money you're not spending on a cell. The average cost of holding a prisoner comes to about $2,600 per month. At the same time, even very intrusive supervision leaves a released offender freer than he would have been on the inside. So even a program that looks expensive and intrusive compared with ordinary re-entry or parole is cheap and liberating compared with a cellblock....

There's no way to guess in advance how many prisoners would succeed in making the transition: for all the statistical work on risk assessment, looking into the soul remains hard, and looking into the future impossible. It's not even obvious whether the success rate would be higher with men or with women, with younger or older offenders, with those convicted of nonviolent crimes or of violent ones. But there's good reason to think the success rate would be higher for graduated release than for the current approach, and that the costs of the program could be more than recouped from the savings in reduced incarceration, now and in the future. But budget savings aren't the main goal: the greatest benefits would flow to the offenders, to their families, to their neighborhoods, and to those who otherwise would have been the victims of their future crimes.

Can we really get back to a civilized level of incarceration while continuing to push crime rates down? We can't know until we try. Graduated re-entry might work. That's more than can be said for any other proposal now on the table. If we find a version of it that works somewhere, expand it there and try it elsewhere. If not, go back to the drawing board. But sticking with the existing system, and accepting its disastrous results, is not a reasonable choice.

March 19, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Effective review of the import and impact of new reentry certificates for former offenders

The Marshall Project has this interesting new piece of original reporting on an important new component of reentry effort.  The piece is headlined "Forgiving vs. Forgetting: For offenders seeking a new life, a new redemption tool," and here is an excerpt:

[T]he granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability.

“These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates — available in that state since 2011 — more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”

“That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.”

Paul Biebel, the presiding judge for Chicago's criminal court, agrees that the certificates are a promising new option. "Only over the last few years have we seen more of these coming through the court," he says of the certificates, "but I feel very strongly that they are an additional tool in a judge's toolbox to evaluate people.  We judges are prepared to send people to prison.  But now, if the evidence proves rehabilitation, we also have a tool for redeeming people."

March 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Thursday, March 12, 2015

"Prisons Are Making America's Drug Problem Worse"

The title of this post is the headline of this notable new Politico piece.  Here are excerpts that reinforce my fear that one of the biggest problems with the modern drug war is that we are fighting it so very poorly:

After two decades of rapidly rising incarceration rates — rates that continued to rise even as crime sat at record historic lows — America today has nearly 2.2 million adult inmates in local, state and federal jails and prisons, including about 300,000 who have a history of heroin addiction.  The BOP spends $110 million annually on drug treatment programs for approximately 80,000 inmates identified as dependent on narcotics.  But for the 10,000 or so federal inmates dependent on heroin or other opioids, millions of those dollars are currently spent on outdated, ineffective approaches that wrongly prohibit medication-assisted therapies — approaches that, in other words, fail to help prisoners addicted to opioids during their sentence and ultimately return them afterwards to society as addicted as they were when they went into jail.

It doesn’t have to be that way.  A recent study of opioid-dependent inmates leaving Rikers Island jail in New York City showed that nearly nine out of ten inmates who were not medicated relapsed within a month, as opposed to just 2 out of 5 inmates who were on medication-assisted treatment.  The difference to society between those two numbers — in terms of health outcomes, reduced crime, and improved employment stability — is huge.

Science notwithstanding, the U.S. criminal justice system has resisted medication-assisted therapy, with only a few large urban jails (e.g. New York City, San Francisco, Albuquerque) and a handful of state prisons such as those in Rhode Island and Vermont opting to use it.  Yet most major correctional experts, including the U.S. Bureau of Justice Assistance (BJA), the National Re-Entry Resource Center and the National Commission on Correctional Health Care, all recommend increasing the availability of medication-assisted therapy for opioid dependence in the country’s jails and prisons.  The U.S. Bureau of Justice Assistance (BJA) recently concluded that the effects of MAT are “many times greater” than behavioral therapies without medications.

Beyond the correctional world, the World Health Organization, UNAIDS, the United Nations Office on Drug Policy, and the National Institute on Drug Abuse (NIDA) all agree that people dependent on heroin and other opioids should have access to medication-assisted therapy.  In a recent publication, NIDA stated, “Taking these medications as prescribed allows patients to hold jobs, avoid street crime and violence, and reduce exposure to HIV.” The White House Office of Drug Control Policy calls MAT combined with behavioral therapy the “standard of care” for opioid dependence and recently announced that drug courts, which offer treatment as an alternative to prison for some criminal offenders, will be required to offer MAT in order to continue to receive federal dollars.

Nevertheless, despite the evidence to the contrary, the Federal Bureau of Prisons prohibits such treatments entirely for “routine” (non-detox) purposes.  Corrections officials frequently cite security concerns to justify denying buprenorphine and methadone therapy to inmates, fearing the medicine will be diverted to other prisoners — despite the fact that these issues can be resolved with tighter security measures and closer staff supervision (the prison systems of Western Europe, Scotland, Canada and even Iran can attest to that).

March 12, 2015 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, March 04, 2015

First Circuit creates hard and firm standards before allowing sex offender penile plethysmograph testing

Long-time readers likely can recall the occasional post throughout the years setting out some appellate jurisprudence as to when and how a court may rely upon or order sex offenders to be subject to penile plethysmograph testing.  The First Circuit has added to this jurisprudence today in via a lengthy panel ruling in US v. Medina, No. 13-1936 (1st Cir. March 4, 2015) (available here), which starts and ends this way:

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges.  We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing....

A district court has significant discretion in setting a term of supervised release. A district court also has significant discretion to craft special supervised release conditions. But a district court's exercise of its discretion must still accord with the statutory framework governing supervised release.

Here, we conclude that the District Court improperly determined the relevant guidelines range in setting the term of supervised release; imposed a blanket pornography ban without explanation and contrary to directly applicable precedent; and then imposed an extraordinarily invasive supervised release condition without considering the condition's efficacy in achieving the statutory purposes of such conditions, given both the particular defendant whose liberty was at stake and the evident concerns he directly raised about the appropriateness and reliability of the condition to which he was being required to submit. Although we have been deferential in reviewing district courts crafting of special conditions of supervised release, Congress and our precedent required more of the district court in this instance.  We thus vacate the supervised release sentence term, as well as the conditions challenged on this appeal, and remand the case for resentencing.

Some related prior posts:

P.S.: I am truly sorry I could not resist using a juvenile and sophomoric double-entendre in the title of this post.  It has been a long day.

March 4, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, February 27, 2015

"A Second Chance: Education's Role in Reversing Mass Incarceration"

The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby.  Here is how it starts: 

The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society.  The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men?  What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program?  The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value.  At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.

Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars.  Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records.  Another day of Black History month has borne witness to our persistent troubles.

According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails.  And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested.  The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population.  But even more troubling is the fact that, on any given day, one in 15 black men are in prison.  And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine.  "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports.  These shameful statistics suggest that creating channels of reentry are imperative.

February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Thursday, February 26, 2015

Encouraging recidivism realities after three-strikes reform in California

This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast.  Here are excerpts:

Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....

Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.

“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...

In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”

Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.

After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.

February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack