Tuesday, March 11, 2014
"The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What To Do About It"
The title of this post is the title of this notable new paper by W.C. Bunting now available via SSRN. Here is the abstract:
This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.” While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based.
A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population. A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population. Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy.
The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.
Friday, March 07, 2014
Senate Judiciary Committee approves Recidivism Reduction and Public Safety Act
Yesterday the US Senate Judiciary Committee voted overwhelmingly in favor of a bill known as the Recidivism Reduction and Public Safety Act. This press release from Families Against Mandatory Minimums, headlined "FAMM Hails Continued Bipartisan Support for Criminal Justice Reforms," provides this information about the bill contents and context:
The bipartisan bill, a compromise negotiated by Senators Sheldon Whitehouse (D-RI) and John Cornyn (R-TX), is anticipated to help alleviate overcrowding in federal prisons — now at 138 percent of their capacity — and may help reduce federal prison costs, which consume a full quarter of the Department of Justice’s budget and threaten funding for other law enforcement programs. Among other things, the legislation passed today:
requires the federal Bureau of Prisons to classify all federal prisoners as being at high, moderate, or low risk of reoffending;
permits many prisoners to earn time credits for completing recidivism-reducing programs or “productive activities” like maintaining a prison job; and
allows low and moderate risk prisoners who earn a certain number of time credits to be released from prison early to serve the remainders of their sentences on prerelease custody in a halfway house, on home confinement, or under community supervision.
This article from Main Justice, headlined "DOJ Spends Too Much on Prisons, Leahy Says," reports than 15 Senators voted in support of this bill and that the only GOP member to vote against the bill was Senator Jeff Sessions.
For a variety of reasons, I expect bills to reform severe sentencing laws like the Justice Safety Valve Act and the Smarter Sentencing Act will continue to get a lot more attention than this Recidivism Reduction and Public Safety Act. But, for a variety of reasons, I think this bill, which may have the broadest support among the most important political players in Congress, could end up being the most important and consequential for helping to transform the nature and future of the federal sentencing system.
Wednesday, March 05, 2014
Michigan enacts Miller fix for current and future cases, just as its Justices are to consider past cases
As reported in this local article, headlined "Gov. Rick Snyder signs 'juvenile lifer' update as old cases head to Michigan Supreme Court," the Great Lakes State is busy this week working through all the fall-out from the U.S. Supreme Court's Miller Eighth Amendment ruling. Here are some of the details:
Michigan Gov. Rick Snyder on Tuesday signed legislation updating state sentencing guidelines in the wake of a 2012 U.S. Supreme Court decision that outlawed mandatory life terms without the possibility of parole for minors....
Senate Bill 319, sponsored by state Sen. Rick Jones (R-Grand Ledge), changes Michigan law for all pending and future cases involving juvenile defendants convicted of first-degree murder, felony murder or certain repeat sexual assault offenses. Instead of handing down mandatory life sentences in those cases, judges can also consider a term of between 25 and 60 years. Prosecutors may still file a request for a natural life sentence, but judges now have new authority to consider other options....
Michigan is home to some 360 juvenile lifers -- more than all but one other state -- but the new law will not have an immediate impact on most inmates already behind bars. The U.S. Supreme Court, in banning mandatory life sentences for minors, did not indicate whether the ruling should apply retroactively. The new law contains a "trigger" for resentencing hearings in case of a future court ruling.
The Michigan Supreme Court is set to consider the "retroactivity" question on Thursday, when justices are scheduled to hear oral arguments in three juvenile lifer cases. Two of the offenders, Raymond Carp and Cortez Davis, have exhausted the traditional appeals process but are seeking resentencing.
The third, Dakotah Eliason, is entitled to resentencing because his case is still on appeal, but his attorneys disputed the limited relief offered by the Michigan Court of Appeals, which told a sentencing judge to consider only two options: life with or without the possibility of parole. Michigan's new law, which also allows for a term of years less than life, makes that particular issue moot. The Eliason case asks the Michigan Supreme Court to consider other issues as well, however, so it's unclear how oral arguments will proceed.
It may be just coincidence that the Michigan legislature got a Miller fix enacted into law just before the Michigan Supreme Court considers retroactive application of Miller to past cases. But I have to think the Michigan Supreme Court might feel (consciously or unconsciously) at least a bit more comfortable concluding that Miller applies retroactively now that the state has a new sentencing scheme for juve murderers on the books.
Michigan media has been covering the Miller application/litigation story quite effectively in the run up to the state's Supreme Court hearing, and here are the headline links to some of the coverage in the last few weeks:
March 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?
The question in the title of this post is my reaction to this wonderful new AP news from my own state, which carries the headline "State reports record-low Ohio prisoner return rate." Here are the details:
Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars. The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.
The rate affects not just the prison system’s bottom line but the bigger goal of reducing crime in Ohio, prisons director Gary Mohr said. “If our people being released from prison are committing less offenses, then we have less crime victims,” Mohr told The Associated Press. “I think that’s the most important piece.” Saving money on prison operations also means more state dollars can be spent earlier in people’s lives on things like education, he added.
Going forward, the expansion of Medicaid is expected to help connect incarcerated people to needed resources as they come home. The state projects that roughly 366,000 residents will be newly eligible for coverage by the end of June 2015 by increasing the state-federal health care program for poor children and families. Mohr says a lower return rate will also help the state reduce its prisoner population, currently about 50,500.
A 2011 sentencing law meant to lower the number hasn’t had the desired impact, leading to fears that the state may need to spend millions to build a new prison after 2017, while pushing judges to rethink sentences and placing a greater emphasis on rehabilitation. The current prison population hasn’t changed much since 2011, despite projections that it would drop to 47,000 by 2015 and continue to decline.... Ohio’s prisoner population could grow to 52,000 in two years and top 53,000 in six years, Mohr warned last year....
It’s not that the 2011 law is failing. Challenges, including a recent increase in violent crime and an uptick in cases filed by prosecutors, are holding back promises that the law would lower the prisoner population. Ohio Supreme Court Chief Justice Maureen O’Connor has said the courts are also part of the problem and called on judges to be more diligent about reducing the number of offenders behind bars.
The rate announced Wednesday is based on a three-year study of inmates released in 2010.
The report/study on which this article is based is available at this link under the simple title "DRC Recidivism Rates." I would be grateful for any and all help figuring out if there are other big important conclusions or lessons (good or bad) to be drawn from this report beyond the one discussed above.
March 5, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack
Tuesday, March 04, 2014
Might Obamacare end up reducing prison populations "more than any reform in a generation"?
The question in the title of this post is drawn from the headline of this new Newsweek article that purports to explain "How Obamacare May Lower the Prison Population More Than Any Reform in a Generation." Here are a few highlights:
[The] the Patient Protection and Affordable Care Act (ACA) ... may be the biggest piece of prison reform the U.S. will see in this generation.
On the face of it, there’s no direct connection between the ACA and what experts refer to as the “justice-involved population.” There’s no mention of prisons or jails or even crime in the language of the law. However, in what proponents of the act are considering a happy public policy accident, the ACA may inadvertently change the makeup of the U.S. prison population by getting early help to those with mental health and drug abuse issues, ultimately reducing recidivism rates and saving states millions, if not billions, of dollars annually....
The last major study on mental health in prisons, conducted by the Bureau of Justice Statistics, found that 64 percent of inmates in state and federal prisons met the criteria for mental illness at the time of their booking or during the twelve months leading up to their arrest. For comparison, the rate of mental disorders among U.S. citizens stands at around 25 percent, according to the NIH. Sixty-nine percent of the country’s prison population was addicted to drugs or alcohol prior to incarceration....
Health and crime have become inextricable in the U.S. Health issues such as drug addiction and severe mental health disorders directly lead to illegal activities and eventual imprisonment. A high percentage of those incarcerated are guilty of crimes directly related to medical issues, such as illegal drug use or theft to support an addiction.
This population — the poor, homeless, addicted, and mentally ill — has never had any health safety net. With no jobs or income, they are highly unlikely to have private insurance, and Medicaid — the federally-funded health coverage option meant to protect the poorest Americans — is actually only available to a select group of individuals. Though it varies state by state, eligibility is always categorical, which means besides having a low income, Medicaid is only available to five types of people: pregnant women, children below a certain age, parents of Medicaid-eligible children, the disabled, and seniors.
Essentially, Medicaid left out poor, single, male adults without dependant children – the same demographic most likely to end up arrested and incarcerated. Starting in January 2014, however, the categories have been eliminated (at least in the states that have chosen to take the medicaid expansion — it is an optional aspect of the ACA). “That means that a lot of people who are going to jail for mental illness or substance abuse related crimes could potentially avoid jail,” says Marsha Regenstein, a professor of health policy at George Washington University.
Of course, these people are hard to reach, and eligibility doesn’t ensure coverage or healthier behavior. That’s why the bigger opportunity, according to many health and justice policy experts, is to reach and help this population at the points where they do become involved with the justice system....
[T]he right to health care only applies to the length of a person’s sentence.... [A] 2013 report in California, for example, found that 90 percent of prisoners had no health care upon release. Once released, prisoners are likely to discontinue their meds, delay seeing primary care doctors (out of concern for costs), and, as a result, end up in emergency rooms — where high treatment costs are passed on to everyone else via insurance premiums.
This is not just a public health issue; it’s a public safety concern. Lack of care for chronic conditions creates additional long-term problems, like being physically or mentally unfit for employment. In conjunction with a lack of appropriate care for their drug problems and an inability to effectively medicate their mental health disorders, the formerly incarcerated are likely to return to a life of crime.
Many hope and believe that change is on its way. The Justice Department estimates suggest that with the expansion of Medicaid, 5.4 million ex-offenders currently on parole or probation could get the health care they need. (It’s important to note that 25 states plus Washington, D.C. have implemented the Medicaid expansion as of 2014. However, many policy experts expect the remaining states to fall in line, citing the historical example of how CHIP was initially rejected by many states when it rolled out in 1997, but is now utilized in every state in the country.)
Even with coverage, those ex-offenders will still need to actually utilize those health, and the key will be making the connection at the time of release. The biggest challenge will be getting state justice systems and health systems — not exactly happy bedfellows in past years — to work together to create coordinated discharge planning between jails and community healthcare....
The cost savings associated with keeping former prisoners out of the ER and out of prisons will likely lead leadership at the highest levels — state governors, for example — to push for the types of collaboration that will keep ex-offenders healthy and out of trouble....
Ultimately, because there is no precise directive in the ACA, the choice on how to handle these issues will be made independently in every state, and in every county. In some cases, reform will be swift; in others, life may go on as though Obamacare never happened.
Monday, March 03, 2014
"Holder and Republicans Unite to Soften Sentencing Laws"
The title of this post is the headline of this notable new New York Times article, which includes these excerpts:
Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.
Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.
The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.
Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....
Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”
Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas
Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.
Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....
Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....
Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...
Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.
Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.
Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”
Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- Lots of (mostly positive) reactions to AG Holder's big sentencing speech
- Notable inside-the-Beltway discussion of modern sentencing politics
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
- Effective Heritage analysis of federal MMs and statutory reform proposals
March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack
Sunday, March 02, 2014
Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"
The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:
For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation. More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.
But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation. Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.
“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee. “We’re dealing with a box of dynamite.”
The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation. “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.
Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal. The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.
The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner. He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....
There is no ignoring the prison crisis. Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform. It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....
“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners. In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....
“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”
Friday, February 28, 2014
"The Private Prison Racket"
The title of this post is the headline of this lengthy piece from Politico. It carries this sub-headline: "Companies that manage prisons on our behalf have abysmal records. So why do we keep giving them business?". And here is one snippet of a piece that merits a full-read by all researchers and policy-makers interested in prison reform:
As inmate populations have soared over the last 30 years, private prisons have emerged as an appealing solution to cash-starved states. Privately run prisons are cheaper and can be set up much faster than those run by the government. Nearly a tenth of all U.S. prisoners are housed in private prisons, as are almost two-thirds of immigrants in detention centers — and the companies that run them have cashed in. CCA, the oldest and largest modern private prison company, took over its first facility in 1983. Now it’s a Wall Street darling with a market cap of nearly $3.8 billion. Similarly, GEO Group, the second largest private-prison operator, last week reported $1.52 billion in revenue for 2013, its most ever and more than a hundredfold increase since the company went public ten years ago.
But while privatizing prisons may appear at first glance like yet another example of how the free market beats the public sector, one need only look at CCA’s record in Idaho — which recently cancelled its contract with CCA — to wonder whether outsourcing this particular government function is such a good idea.
In July 2000, Idaho’s then-Governor Dirk Kempthorne made a decision similar to Jerry Brown’s. He opened the Idaho Correctional Center, the state’s first private prison. But it wasn’t long before the facility — built and operated by CCA — began to draw concerns. Prisoners in the 2,000-bed facility dubbed it “Gladiator School” for the rampant fighting that took place inside. A 2008 study by the Idaho Department of Corrections obtained by the American Civil Liberties Union showed that there were four times as many prisoner-on-prisoner assaults there than in all the state’s seven other prisons combined.
The ACLU sued CCA in 2010, alleging that violence had become an “epidemic” in the facility, and the Associated Press released a video showing a prisoner beaten unconscious while correctional officers stood around watching. A 2011 settlement required CCA to keep more officers on staff, but the company apparently didn’t bother to do that. Last year, a review of CCA’s staff records showed that prison employees had falsified as many as 4,800 hours over the course of seven months; they had understaffed the prison on purpose and fudged records to boost their personal incomes. The end result: Idaho will terminate its private prison experiment with CCA in June.
CCA’s failure in Idaho is just one example of the industry’s spotty record.
Some related posts on private prisons:
- Noticing racial disproportion in who ends up serving time in private prisons
- Is anyone making a broadside constitutional attack against private prisons?
- New report assails "lockup quotas" in private prison industry
- "Billions Behind Bars: Inside America's Prison Industry"
- ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
- Might private prisons actually cost taxpayers more than public prisons?
- "Who Benefits When A Private Prison Comes To Town?"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
- Notable review of Kentucky's (now-ending) experiences with private prisons
UPDATE: Steve Owen, who is senior director of public affairs for CCA, has this response to the piece linked/quoted above now in Politico, and here are excerpts:
A recent opinion piece in Politico Magazine about private prisons and our company, Corrections Corporation of America (CCA), was a rehash of stale arguments that failed to provide a balanced look at the important role we play in addressing the many corrections challenges our nation faces.
In reality, our company is helping federal, state and local governments find solutions to overcrowded facilities, skyrocketing taxpayer costs and inmates struggling to break the cycle of crime. Our company believes we have an opportunity and a responsibility to help inmates develop the skills and values they need to be successful when they are released from prison. We are a team of 16,000 correctional officers, chaplains, teachers, nurses and counselors providing high-quality corrections services at a cost savings for taxpayers.
The opinion writer opens his piece with ill-informed commentary about CCA’s relationship with California. In fact, there is perhaps no better example of the important role we can play in addressing corrections challenges. The difficulties the state has faced with overcrowded facilities are well documented, and for more than seven years, CCA has provided an important relief valve to help them manage their inmate population. Our facilities and professional staff have alleviated unsafe conditions and created opportunities for offenders to access a wide range of programs that prepare them to re-enter their communities once their time is served. The most recent iteration of our partnership is an innovative agreement that allows California to lease needed space from our company and staff the facility with public employees.
Additionally, the tools we are providing to help manage this difficult situation are being delivered at a significant cost savings. Overall, economists from Temple University, in an independent study receiving a partial grant from our industry, analyzed state government data and found companies like ours save 12 percent to 58 percent in long-term taxpayer costs....
Overall, we recognize that there’s a national discussion going on about our justice system, and people often feel passionately about what should be done to improve it. Much of that conversation is driven by frustration with sentencing and detention laws, which under longstanding policy our company doesn’t lobby for or take positions on. Where we can and do make a difference is in being an available tool for governments, providing them critical flexibility to meet their changing needs, while offering inmates services that can help turn their lives around. For our company, making that difference is an opportunity, a responsibility to our communities, and at the heart of our business.
Wednesday, February 26, 2014
Lots of recent (and long-overdue) new concerns about solitary confinement
Long-time readers know I have bemaoning the enduring use and reliance on extreme solitary confinement in many penal instututions for many years. Indeed, in some of my posts here and here from 2006 on this issue, during a time when constitutional litigation over lethal injection protocols was just getting revved up, I made assertions here and elsewhere that persons truly concerned about both human dignity and public safety ought to focus a lot more on the tens of thousands of humans in Supermax facilities and subject to long periods of solitary confinement than on the many fewer humans on (much nicer) death rows. And while it seems there has been remarkably limited progress on the lethal injection front over the last decade, recent developments suggest that extreme solitary confinement is finally getting the attention and criticisms it deserves.
Thanks in large part to this Senate hearing conducted yesterday under the title "Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences," both the old and new media have too many new pieces on this topic to provide a comprehensive accounting of what's now afoot on this front. Here are a few highlights from various sources and with telling headlines that help sketch the direction of the modern discussion:
From the Smithsonian magazine here, "The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage"
From the New York Times op-ed pages here, "My Night in Solitary"
From The Atlantic here, "Colorado's Prison Director Spent 20 Hours in Solitary — But That's Not Enough"
From NPR here, "N.Y. Becomes Largest Prison System To Curb Solitary Confinement"
From the AP here, Feds say Pa. prisons misuse solitary confinement"
From Slate here, "The Definitive Case for Ending Solitary Confinement; The practice is impractical as well as immoral. It harms prisoners, costs too much, and leads to more crime.
Two notable new commentaries via HuffPost
Though they both both likely merit their own posts, I will have to be content on this busy hump-day afternoon to just provide links to, and recommend folks read in full, these two new commentary pieces at The Huffington Post:
From Pat Oglesby, "Marijuana Taxes: Time Will Tell"
From Mark Osler, "Narcotic Sentencing's Long Arc and Obama's Year of Action"
"The Supreme Court and the Rehabilitative Ideal"
The title of this post is the title of this notable new paper by Chad Flanders now available via SSRN. Here is the abstract:
Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual. The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding. Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.
My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history. The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform. Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement. Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming. At best, the state must get out of the way. Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.
February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, February 25, 2014
Thanks to Gov. Brown, Plata, budget woes, state court rulings and/or _____, California lifers now have a real chance for parole
The weird "Mad-Libs" title to this post is my reaction and query in response to this notable new AP report headlined "California 'lifers' leaving prison at record pace." Here are the details:
Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out. Gov. Jerry Brown has granted parole to a record number of inmates with life sentences since he took office in January 2011, going along with parole board decisions about 82 percent of the time.
Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.
This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.
Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers. "This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance. "This is a change of philosophy that can be dangerous."
The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.
Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years -- almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles. Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population.
But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions. The court ordered prison officials to consider more than the severity of the applicant's underlying crimes. It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.
State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012. In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.
Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board. Brown has allowed 82 percent of the 1,590 paroles granted by the board.
Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release....
Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years. Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release....
The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder. Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s. Experts say older ex-cons are less prone to commit new crimes than younger ones.
Brown has reversed the parole board. On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration. One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime. "Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."
Ernest Morgan on the other hand, is a lifer Brown did let free. Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.... "So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."
In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official. "It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."
Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General
In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:
In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety. Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period. And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.
From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.
That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.
Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases. And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.
This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end. With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society. As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety. I’ve made the same request of high-ranking officials across the federal government. And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.
Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature. It is counterproductive to our efforts to improve reentry and reduce recidivism. And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.
I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue. And I encourage each of you to consider and take up this fight in your home states.
Monday, February 24, 2014
NY Times debates "Visiting Prisoners, Without Visiting Prison"
The Room for Debate section of the New York Times has has this new set of notable commentaries discussing the virtues and possible vices of using video feeds for prison visition. Here is the section's set up:
The attorney general, Eric Holder, recently instructed federal prisons to treat same-sex marriages the same as opposite-sex marriages, including visitation rights for spouses. But at many prisons, family visitation is increasingly difficult and even phone calls are exorbitantly expensive.
Some prisons have instituted “video visitation” as a solution. Does that help or create new problems?
Here are the contributions, with links via the commentary titles:
"A Service to Families and Children" by Doug Phillips, Sheriff's Office, Polk County, Iowa
"Symptoms of a Broken Prison System" by Glenn E. Martin, JustLeadershipUSA
"More Video Visits, and More In-Person Time" by Margaret diZerega, Vera Institute of Justice
"Potential for Exploitation, or Innovation" by Peter Wagner, Prison Policy Initiative
"Lessons From Military Families" by Barbara Van Dahlen, licensed clinical psychologist
Monday, February 17, 2014
"Follow the Money: How California Counties Are Spending Their Public Safety Realignment Funds"
The title of this post is the title of this intriguing paper available via SSRN authored by Jeffrey Lin and Joan Petersilia. Here is the abstract:
The California correctional system is undergoing a dramatic transformation under Assembly Bill 109 (“Realignment”), a law that shifted responsibility from the state to the counties for tens of thousands of offenders. To help manage this change, the state will distribute $4.4 billion to the counties by 2016-2017. While the legislation directs counties to use these funds for community-based programs, counties retain a substantial amount of spending discretion. Some are expanding offender treatment capacities, while others are shoring up enforcement and control apparatuses.
In this report we examine counties’ AB 109 spending reports and budgets to determine which counties emphasize enforcement and which emphasize treatment. We also identify counties that continue to emphasize prior orientations toward punishment and counties that have shifted their priorities in response to Realignment. We then apply quantitative and comparative methods to county budget data to identify political, economic, and criminal justice-related factors that may explain higher AB 109 spending on enforcement or higher spending on treatment, relative to other counties.
In short, our analysis shows that counties that elect to allocate more AB 109 funds to enforcement and control generally appear to be responding to local criminal justice needs, including high crime rates, a shortage of law enforcement personnel, and a historic preference for using prison to punish drug offenders. Counties that favor a greater investment in offender treatment and services, meanwhile, are typified by strong electoral support for the Sheriff and relatively under-funded district attorneys and probation departments.
Noticing racial disproportion in who ends up serving time in private prisons
This new Mother Jones piece, headlined "Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones," highlights a new study concerning the racial composition of private prison populations. Here is how the piece begins, with all the notable links (including a link to the discussed study) included:
It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.
The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.
The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50 — a subset that is more likely to be white than the general prison population. According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)
Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.
The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.
So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."
Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates. According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.
"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones. "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."
Friday, February 14, 2014
Series of thoughtful posts on faith-based prisons
Sasha Volokh this week has done an effective series of informative posts on what we know and do not know about faith-based prisons. The final one is available at this link, and it starts and ends this way:
This is the final post in a series on the effectiveness of faith-based prison programs, based on my recent Alabama Law Review article, Do Faith-Based Prisons Work? (Short answer: no.) Monday’s post introduced the issue, Tuesday’s post surveyed some of the least valid studies, Wednesday’s post critiqued the studies that used propensity score matching and discussed other possible empirical strategies, and Thursday’s post talked about the most valid studies–those that used rejected volunteers as a control group.
Throughout, I’ve been putting the faith-based prison research side-by-side with the private schools research, because evaluations of each raise similar methodological problems. The fact that both are voluntary means that they can attract fundamentally different sorts of people, so their good results might be attributable to the higher-quality participants they attract. Today’s post ties the ends together and asks whether there’s any way forward for faith-based prisons....
Let’s take the broad view and come back to the education studies that I’ve been using as a point of comparison throughout this Article. Finally, after decades of research, we have some credible studies estimating the effect of private schools. The best evidence, taken from studies comparing accepted and rejected applicants, indicates that private schools do have a positive effect on the students who attend them, at least for black students and at least for math scores.
On the one hand, one can observe that, next to these results (modest as they are), it’s all the more disappointing that faith-based prisons haven’t shown much in the way of significant positive effects. But on the other hand, it took decades of research and debate by different groups, each using a slightly different empirical approach — and many finding little to no effect — before we got even the mild results we have on private education. This suggests that we should encourage more research on the matter, in different contexts, using a variety of different empirical techniques.
The result is that, if there’s no strong reason to believe that faith-based prisons work at all, and even less reason to believe that they work better than comparably funded secular programs, there’s also little reason to believe that they don’t work, and in many cases they may be the only available alternative. It’s probably sensible to allow such programs to operate and to allow the process of experimentation to work its course, provided that all this can be done constitutionally.
Tuesday, February 11, 2014
Federal judges give California two additional years to deal with prison population problems
As reported in this AP article, "federal judges on Monday gave California two more years to meet a court-ordered prison population cap, the latest step in a long-running lawsuit aimed at improving inmate medical care." Here is more about the latest chapter in the long-running federal litigation that made it to the Supreme Court a few years ago and that continues to impact California's criminal justice system in profound ways:
The order from the three-judge panel delayed an April deadline to reduce the prison population to about 112,000 inmates. California remains more than 5,000 inmates over a limit set by the courts, even though the state has built more prison space and used some private cells.
"It is even more important now for defendants to take effective action that will provide a long-term solution to prison overcrowding, as, without further action, the prison population is projected to continue to increase and health conditions are likely to continue to worsen," the judges said in a five-page opinion scolding the state for more than four years of delay.
California has reduced its prison population by about 25,000 inmates during the past two years, primarily through a law that sends lower-level offenders to county jails instead of state prisons. It also has spent billions of dollars on new medical facilities and staff, including opening an $839 million prison medical facility in Stockton last fall.
Yet in its latest ruling, the special panel of judges tasked with considering the legal battle involving overcrowding said the state has continually failed to implement any of the other measures approved by the panel and the Supreme Court that would have safely reduced the prison population and alleviated unconstitutional conditions involving medical and mental health care. The judges said the delays have cost taxpayers money while causing inmates to needlessly suffer.
However, immediately enforcing the population cap would simply prompt the state to move thousands more inmates to private prisons in other states without solving the long-term crowding problem, the judges said. Given that choice, they adopted a proposal outlined by Gov. Jerry Brown's administration that it can reach the population cap by the end of February 2016 through steps that include expanding a Stockton medical facility to house about 1,100 mentally ill inmates and freeing more than 2,000 inmates who are elderly, medically incapacitated, or who become eligible for parole because of accelerated good-time credits.
The judges said the state also has agreed to consider more population-reduction reforms in the next two years, including the possible establishment of a commission to recommend reforms of penal and sentencing laws.
Brown said the ruling was encouraging. "The state now has the time and resources necessary to help inmates become productive members of society and make our communities safer," he said in a statement.
Brown's administration said the alternative would have been to spend up to $20 million during the fiscal year that ends June 30 and up to $50 million next fiscal year to lease enough additional cells to meet the court order. With the delay, Brown said the state can spend $81 million next fiscal year for rehabilitation programs that would otherwise be spent to house inmates.
Inmates' attorneys had wanted the judges to require the state to meet the population cap by May. "We're very disappointed," said Don Specter, director of the nonprofit Prison Law Office that represented inmates in the crowding lawsuit. "We believe that there are substantial constitutional violations continuing right now, which result in prisoners suffering and dying because of prison overcrowding."...
Republican state Sen. Jim Nielsen, who once headed the state parole board, called the court order "tragic" and said it would endanger public safety. He blamed Brown, a Democrat expected to seek re-election this year, and the court for what he called a "disastrous new system that will result in the early release of many serious and violent inmates." The state should instead increase capacity in prisons and jails while investing in rehabilitation and early intervention programs, Nielsen said in a statement.
UPDATE: This Los Angeles Times article suggests that this latest federal court order might grease the path toward California finally creating a sentencing commission. Here is how the article begins:
Talk of a sentencing commission to review whom California sends to prison and for how long helped Gov. Jerry Brown win a two-year grace period from federal judges who want crowding reduced to a safe level. But there is no official move by the governor's office or Legislature to create one.
Brown's office was quick to point out Monday's federal court order giving the state until early 2016 to reduce crowding notes that the state only "will consider the establishment of a commission to recommend reforms of state penal and sentencing laws." Spokesman Jim Evans noted that was not a "promise" to create such a commission.
The proposal for a sentencing reform came from Senate leader Darrell Steinberg(D-Sacramento), who included it in a September 2013 letter to the federal judges supporting Brown's request for more time to deal with crowding.
Monday, February 10, 2014
"Fewer prisons — and yet, less crime"
The title of this post is the headline of this lengthy new piece by Detroit Free Press columnist Brian Dickerson. The piece highlights the work of one GOP state legislator and details that Michigan's recent reductions in its prison populations has not been followed by a significant crime increase. Here are excerpts:
Americans are weary of paying for prisons. After stuffing more and more people behind bars for more than two decades, the vast majority of states, including Michigan, have taken steps in recent years to reduce both the number of people they imprison and the length of time offenders remain incarcerated.
As prison populations fall, moreover, crime rates are following suit. Nobody has proved a causal relationship between the two trends, but the fact that some of the biggest reductions in crime have occurred in states that slashed their inmate populations most dramatically has debunked the presumption that public safety depends on lengthy sentences and stingy parole policies.
States that spent the 1980s and ’90s building more and bigger penitentiaries have found a better return in programs designed to divert offenders from prison, and smooth re-entry for those who’ve served their time. Politicians on the front lines say the accompanying shift in voter attitudes has been nearly as startling as the thaw in public sentiment toward same-sex marriage.
State Rep. Joe Haveman, a Holland Republican who chairs the House Appropriations Committee and has made sentencing reform a quietly messianic crusade, tells fellow lawmakers worried about looking soft on crime that voters understand that locking up more offenders is a dead end. “This movement wouldn’t be taking place if the people of this country didn’t realize we’ve made some mistakes,” Haveman says. “I come from the second-most conservative district in the state and the third most conservative county in the country,” Haveman says, “and nobody’s saying I’m wrong about reducing our prison population.
“This isn’t just good policy,” he adds, “this is where the public wants us to go.”...
In a study released last year, the Pew Center for the States reported that Michigan’s rate of incarceration plummeted 12% between 2007 and 2012, to 441 prisoners per 100,000 residents. During the same five-year interval, reported crime dropped 17%, mirroring a national decline.
It’s hard to pin either trend to a single factor, but corrections experts point to Michigan’s relaxation of its notorious “650-lifer law,” which for two decades mandated a life prison sentence for anyone convicted of possessing more than 650 grams of cocaine or heroin. In 1998, then-Gov. John Engler signed bills permitting lesser sentences for future drug offenders and allowing those already serving life terms for drug offenses to seek parole.
Michigan’s change — the amended law allowed 650-lifers to seek parole after 20 years — was a modest one. But it anticipated a nationwide retreat from the draconian drug penalties that many states put in place during the 1970s and ’80s, setting off a slow but steady decline in the percentage of state prisoners incarcerated for possessing or selling drugs.
Michigan corrections officials also credit a decrease in the number of offenders sentenced to prison for all crimes, a slight increase in paroles, and changes in parole supervision that resulted in fewer parolees being returned to prison for minor parole violations....
Haveman, who spearheaded the passage of a 2012 bill that allows more juvenile offenders to expunge their criminal records if they stay out of legal trouble [is] working to revive a state sentencing commission that would be empowered to propose a new, data-driven scheme of criminal penalties modeled on best practices nationwide. But Haveman’s fellow Republicans remain fearful of going too fast, especially in an election year.
Last year, after the U.S. Supreme Court ruled that mandatory life sentences for juvenile offenders violated the constitutional ban on cruel and unusual punishment, Haveman introduced legislation that would allow Michigan inmates already serving life sentences for crimes that they committed as teens to seek new sentences consistent with the court’s decision.
But state Attorney General Bill Schuette insists that only juveniles sentenced since the high court’s ruling in Miller v. Alabama are entitled to the relief provided by the justices. Last week, Haveman’s Republican colleagues in the House agreed, adopting his bill only after the provision authorizing parole hearings for current juvenile lifers had been stripped out....
Haveman, whose western Michigan district is ground zero for the region’s Dutch Christian Reformed conservatives, is an unlikely champion for corrections reform. A former executive director of the Holland Home Builders Association, he credits the late state Sen. William Van Regenmorter, an Ottawa County conservative who earned national recognition for his advocacy on behalf of crime victims, with sparking his interest in criminal justice and prisons.
But Haveman says he’s been equally influenced by relationships that he and his wife have formed in the course of mentoring paroled inmates in a re-entry program sponsored by their church. That experience, supplemented by Haveman’s visits with corrections workers and inmates at 31 of Michigan’s 32 correctional facilities, convinced Haveman that he had a lot in common with many of those behind bars.
“I certainly was a dumb teenager, and I made mistakes,” Haveman said. “But if I’d grown up with the policing and enforcement policies that are in place today ... well, I’m not sure I’d be in the state Legislature.”
Saturday, February 08, 2014
Is anyone making a broadside constitutional attack against private prisons?
The question in the title of this post is prompted by this notable new blog post by Professor Michael Tigar over at his blog TigarBytes. The post is titled "Private Prisons Are Unconstitutional," and here is an excerpt:
In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants. In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the "mayor's court" provided a significant share of the town's financial resources. The mayor had a major role in the administration of town finances. The Court held this arrangement violated due process.
The due process evil of occupancy guarantees [in private prison contracts] works on two branches of government. The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment. It is but a small step from Tumey and Monroeville to such a conclusion.
However, there is an additional evil here. The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas. One must assess the influence -- direct and indirect -- on prosecutors to make sure that those prison beds are filled....
A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In New York, there was a federal injunction against sellers of fake Vuitton merchandise. Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators. There are several opinions in the case, but the upshot is that without strict judicial supervision, the "Vuitton system" posed too great a danger that the special prosecutors would pay more attention to Vuitton's interests than to their ethical obligation to prosecute fairly.
Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States. Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.
I do not pretend, in this post, to explore all the relevant case-law. I simply express a hope that somebody will start to litigate these issues.