Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, November 19, 2017

"How Congress, the U.S. Sentencing Commission and Federal Judges Contribute to Mass Incarceration"

The title of this post is the title of this recently posted short article by US District Judge Lynn Adelman.  Here is its abstract:

This article argues that each of the major decision-makers in the federal sentencing process, Congress, the United States Sentencing Commission and the federal judiciary contribute substantially to mass incarceration.  The article first discusses how, beginning in the 1960s and continuing for the next three decades, Congress enacted a series of increasingly punitive anti-crime laws. Congress’s focus on crime was inextricably connected to the urban rebellion of the 1960s, and members of both political parties played important roles in passing the harsh legislation. 

Probably the worst of the laws that Congress enacted, and the one that contributed most to mass incarceration, was the mis-named Sentencing Reform Act of 1984 which abolished federal parole and established a commission to promulgate mandatory sentencing guidelines.  The commission proceeded to enact extremely harsh guidelines and virtually preclude sentences of probation.  The article laments how, even after the Supreme Court struck down the mandatory feature of the guidelines, federal judges continue to adhere closely to the guidelines when sentencing defendants.

Finally, the article argues that one of the fundamental problems plaguing federal sentencing is the widespread misconception that the most important indicator of an effective and credible sentencing system is the absence of inter-judge disparity rather than the exercise of informed discretion.

November 19, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Notable advocacy for Georgia as "national model" for sentencing reform

Newt Gingrich and Kelly McCutchen have this notable new local commentary headlined "Criminal sentencing reform in Georgia has become national model."  Here are excerpts:

Texas is celebrating 10 successful years of reform that has led to the lowest crime rates since 1967 and the lowest rate of incarceration in a generation.  Meanwhile, the state of Georgia is following in the Lone Star State’s footsteps by increasing public safety and reforming the criminal justice system.

This is especially important to note because the FBI reported last month that while the national crime rate is down, violent crime has increased slightly for two years in a row, due in large part to an increase in homicides in cities such as Chicago and Baltimore.

In 2012, Gov. Nathan Deal recognized the breakthroughs Texas was making and began a justice reinvestment plan that tackled some of the biggest challenges facing Georgia’s criminal justice system.

Chief among these challenges was that Georgia sent many low-risk offenders to prison for lengthy sentences. For too long, the assumption was that the most appropriate form of punishment was long-term incarceration.  However, research shows that low-risk, nonviolent offenders who serve long sentences tend to continue to commit crimes after being released.

Once Georgia’s sentencing challenge was identified, the state was able to restructure sentences for property and drug offenses.  Lawmakers came up with alternatives that actually held offenders accountable -- rather than simply punishing them -- and reduced the likelihood that they would reoffend.  Alternatives included substance abuse treatment and accountability courts, both of which more effectively address the causes of many offenders’ behavior. This low-level sentencing change allowed the state to focus on imprisoning serious offenders, which resulted in fewer victims of crime, increased safety outcomes and lowered costs.

Georgia also worked to improve the juvenile justice system, which was exceedingly expensive and not as effective as it could be. The state began to implement programs to help rehabilitate juvenile offenders outside of a detention setting. At the same time, the state shifted its focus toward helping juvenile offenders who had served time to return to society as productive citizens....

The results speak for themselves:

• Violent and property crime rates have been on a steady decline for over a decade, with property crime and total crime taking an even steeper decline since the reforms, compared to the years prior.

• Parole revocation is down 35 percent from 2007 to 2016, a sign that fewer released offenders are sent back to prison because they violated conditions of their supervision.

• The Georgia corrections system now includes 67 percent violent offenders, up 9 percent since 2009, which illustrates a renewed focus on violent crime over low-level drug crime.

Georgia’s story is an incredible one for many reasons. First, it disproves the widely held belief that incarcerating more offenders means less crime.  The reforms in Texas and Georgia -- as well as South Carolina, Mississippi and other states -- show alternatives can be more effective.

Second, it shows that being “tough on crime” by incarcerating offenders for long sentences –-- and for every offense, large or small -- is more about playing politics than getting results. The research tells us that long sentences for low-level, nonviolent offenders can result in worse public safety outcomes.  Housing lower-risk people with more dangerous offenders makes them more dangerous themselves.  In this way, harsh sentences make our streets less safe.

These successes should drive our public policy discussions about crime and safety. We are disturbed by the FBI report on violent crime. Crime, particularly violent crime, is a complex issue that requires careful analysis to identify specific causes and remedies at the local level.  Georgia has already been successful in doing that with nonviolent crimes. It will take a community-wide effort to determine the best ways to keep violent crime at bay.

Those of us on the side of reform vow to work with policymakers, political leaders, and law enforcement to continue on the path that has led to years of low crime rates. This nation cannot backslide into antiquated, tired and misinformed narratives for the sake of political capital and convenience.

November 19, 2017 in Elections and sentencing issues in political debates, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Thursday, November 16, 2017

New report asserts California could and should cut its prison population by another 30,000

SquarelogoThis notable report by Californians for Safety and Justice, titled "Safe and Sound: Strategies to Save a Billion in Prison Costs and Build New Safety Solutions," makes the case that California could and should reduce its prison population by another 30,000 in order to close prisons and free up resources to spend on drug rehabilitation, mental health, job training and other programs. Here is an excerpt from the long report's executive summary:

Between 2006 and 2016, California has seen: A 25% drop in state prison incarceration.  A 10% statewide average drop in county jail populations.  A 64% drop in the number of people on state parole and a 22% drop in the number of felony filings in criminal courts annually.  Today more than 1.5 million Californians are eligible to remove nonviolent felony convictions from their old conviction records — opening the door to new opportunities for stability and empowerment. Rehabilitation programs are becoming more available to people in the justice system to help stop the cycle of crime. Trauma recovery centers are expanding across the state — from just one five years ago to eleven centers today—providing crisis care and help for underserved survivors of violent crime.  And, with the incarceration declines, hundreds of millions of dollars are finally being reallocated from bloated, costly prisons to community-based treatment and prevention....

Despite this progress, the Golden State’s incarceration rate is still so high that it remains a historic anomaly. California still spends more than $11 billion a year on state prisons.  That’s a 500% increase in prison spending since 1981.  In fact, California spends as much today on prisons as every state in the United States combined spent on prisons in 1981 and it has increased annual prison spending at a rate that has significantly outpaced other states.  When local crime response costs in California are factored in, such as the cost of county jails, that figure is nearly doubled from $11 billion to $20 billion annually....

In the next five years, California leaders must commit to further reducing state incarceration and prison spending to finally achieve a balanced approach to public safety.  If California leaders can continue to rightsize the state’s incarceration rate — and substantially reduce prison spending — the state would have increased capacity to invest in new safety solutions that more effectively support people vulnerable to crime, prevent crime from happening in the first place and stop the cycle from continuing.

This report outlines the strategies available to local jurisdictions to reduce the flow of people into the justice system and the burdens local criminal justice systems face. It also describes the sentencing and prison length of stay reforms that can continue to safely reduce the number of people in state prison, strategies that are supported by data on what works to reduce recidivism.

If state leaders implement the sentencing and prison length of stay reforms outlined in this report, the state could safely reduce the length of prison terms for the majority of people in prison by 20%, and reduce the number of people in state prison by about 30,000.

November 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 15, 2017

West Virginia Supreme Court finds life sentence under recidivist statute violates state constitution's proportionality principle

During a recent class discussion on the future of Eighth Amendment jurisprudence as a limit on extreme prison terms, I mentioned the important reality that some state constitutions have punishment provisions with text providing defendants with more protections than the federal constitution.  For example, Article III, Section 5, of the West Virginia Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.  Penalties shall be proportioned to the character and degree of the offence."

Marc A. Kilmer is surely very grateful for the last sentence quoted above, because yesterday that provision led to the West Virginia Supreme Court, by a 4-1 vote, declaring his life sentence unconstitutional in West Virginia v. Kilmer, No. 15-0859 (W. Va. Nov 14,2017) (majority opinion available here).  Here are the essential from the start of the majority opinion:

Marc A. Kilmer was sentenced to life in prison under the recidivist statute based upon a predicate felony conviction for unlawful assault and two prior felony convictions for driving while license revoked for driving under the influence (DUI).  Mr. Kilmer argues on appeal that his life sentence violates the proportionality clause of Article III, Section 5 of the West Virginia Constitution because the two prior felony offenses do not involve actual or threatened violence.  The State asserts that the violence of the predicate felony for unlawful assault satisfies the goals of the recidivist statute and that Mr. Kilmer’s two prior felony convictions are factually similar to those in other cases in which we have upheld recidivist life sentences.  We conclude that the felony offense of driving on a license revoked for DUI does not involve actual or threatened violence and reverse the circuit court’s imposition of Mr. Kilmer’s recidivist life sentence.

The Chief Justice was the sole dissent to this opinion, and his dissenting opinion starts this way:

I dissent to the majority’s decision to reverse the petitioner’s recidivist sentence.  This sentence — life in prison with the possibility of parole — is mandated by the Legislature through West Virginia Code § 61-11-18(c) (2014): “When it is determined . . . that such person shall have been twice before convicted” of a felony, “the person shall be sentenced to be confined in the state correctional facility for life.” Id. (emphasis added).  Contrary to the majority’s conclusion, there is nothing constitutionally disproportionate about imposing a sentence of life with the possibility of parole upon a criminal who brutally beats and then sexually assaults an injured woman, when these violent offenses represent an escalation in the culprit’s existing felonious criminal record.

November 15, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Tuesday, November 14, 2017

New report explores "Florida Criminal Justice Reform: Understanding the Challenges and Opportunities"

This press release provides highlights regarding this big new report from the Project on Accountable Justice examining Florida's criminal justice system and relatively high levels of incarceration. Here are excerpts from the press release:

The Project on Accountable Justice (PAJ) [has] released an interactive, web-based research report focused on the Florida prison system.  The report, entitled “Florida Criminal Justice Reform: Understanding the Challenges and Opportunities,” is an effort to help citizens and policy makers understand some of the dynamics that make Florida’s prison system large, dangerous, and expensive.

The report shows how short-sighted policies and practices drove the state’s prison population to higher than one hundred thousand people, and how Florida’s experience differs from those of other states like New York.  In discussing the underlying dynamics of Florida’s prison system — who is going to prison and why, who is in prison and for how long — the report demonstrates a trifecta of ineffective and expensive strategies: 1) too many people are sent to prison for minor and nonviolent offenses; 2) overly punitive sentencing policies — like mandatory minimum sentences — keep people in prison for exceptionally long terms that are too often incongruous with the nature of their crime; and 3) the unavailability of prisoner review systems and incentive structures to reward prisoners for good behavior prevent state officials from introducing release strategies that could safely reduce the prison population while also making it more manageable....

“Florida Criminal Justice Reform” argues that policy makers should know how the state’s criminal justice system measures up, and suggests some key metrics: Is the system fair and unbiased?  Are prison sentences reserved for dangerous people who pose a threat to public safety? What are the costs and benefits of the prison system, in terms of rehabilitation and public safety, or recidivism and expense?  As former Florida Attorney General and PAJ Chairman Richard Doran asks, “Do the current investments, practices, and policy strategies employed by our state’s criminal justice and correctional systems result in the returns Floridians expect and deserve?”

“Florida Criminal Justice Reform” is an accessible and interactive introduction to these questions. Among its findings are the following:

  • Nonviolent offenses drive prison admissions. Seventy-two percent of people admitted to prison in FY2015 were sentenced for a nonviolent offense.

  • In FY2015, the state spent $300 million to incarcerate people for drug offenses, and $107 million to incarcerate people for probation violations.  The vast majority — more than 70 percent — of people sentenced to prison for a violation of probation were on probation for a nonviolent offense.

  • Florida’s mandatory minimum drug laws cost Florida taxpayers $106 million in FY2015.

  • Florida’s criminal justice system does not adhere to basic notions of fairness: your ZIP code and the color of your skin can sometimes matter more than your behavior.

  • Statewide, black Floridians are 5.5 times more likely to be imprisoned than white Floridians.

  • Residents of Panama City (14th Circuit) are 32 times more likely to be sent to prison for a VOP than people who live in Palm Beach (15th Circuit).

  • Statewide, black adults are almost twice as likely to be in prison for a drug offense than residents of the UK are to be in prison for any reason.

The report’s authors conclude with six recommendations, with guidance from previous research:

  • Enhance external oversight to improve transparency and effectiveness of Florida’s correctional facilities.

  • Build a risk-based system of pretrial practices to replace the current money-based bail system.

  • Keep youth out of confinement and the adult criminal justice system.

  • Review and modernize sentencing practices and policies.

  • Encourage local, community-driven solutions to crime through incentive funding.

  • Measure criminal justice success with better data collection and reporting.

“These reforms are possible and will make Florida a safer place to live and visit,” said the report’s lead author, Cyrus O’Brien. “A smaller system that judiciously reserved incarceration only for the purpose of incapacitating dangerous individuals would face fewer challenges and accomplish better results. Achieving a better system will require sustained, purposeful, and systemic reform.”

November 14, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Monday, November 13, 2017

Interesting reviews of accomplishments and challenges in dealing with drug cases in West Virginia

At a time when there is so much talk about reforming how the criminal justice deals with low-level drug offenders, I found both encouraging and depressing this recent local story reporting on recent developments in West Virginia.  The article is headlined "Drug offenses straining already overburdened jail system, prosecutor says," and here are excerpts:

With its jails and prisons already bursting at the seams, Kanawha County Prosecuting Attorney Chuck Miller figures West Virginia is either going to have to come up with another way of handling drug offenders or plan on building more correctional facilities.  Miller recently discussed the available alternative sentencing options with a legislative committee tasked with looking at problems facing the state’s correctional system, points out jails and prisons here are understaffed and overflowing, in large part because drug addiction and the crimes associated with it have spiraled out of control.

How bad is it? According to the Department of Military Affairs & Public Security, 43 percent of the offenders processed at one of the state’s regional jails last year had to go through a detoxification protocol due to substance abuse issues....

It’s not a new problem, either. State leaders long ago realized the prison population was outstripping available resources and in 2012 decided to carve out a data-driven strategy to address it — realizing that, left unchecked, they’d have to spend at least $200 million to build more prison cells plus another $70 million a year in operating costs.  Rather than build more prisons, West Virginia opted to increase its reliance on community-based resources, including drug courts and day report centers.

They’ve not been without success: More than 1,300 adults and juveniles have graduated from drug court, typically an 18-24 month program that helps low-risk offenders.  As of March 2016, West Virginia’s drug courts had graduated 857 and 506 juveniles, in each case just over half of those who’d been accepted in the program.  About 500 more were still active in the program.  According to the West Virginia Supreme Court:

• Recidivism rates for adults after one year was reported to be 1.88 percent, and after two years, 9.4 percent — much lower than the nearly 80 percent recidivism rate for drug offenders who’d been incarcerated. Recidivism for juvenile graduates was said to be 14.6 percent, compared to 55.1 percent for youths in traditional juvenile probation programs.

• Per participant adult drug court program costs — about $7,100 for adults and $6,900 for juveniles — was a fraction of the per diem for housing adult offenders in regional jail (more than $17,000 per year) or prison (more than $28,000 per year).  Likewise, the state said it spent $6,900 to rehabilitate its juvenile drug court alumni — a fraction of what it would have cost to keep them in a secure juvenile facility, a group home or a hospital treatment facility.

Day Report Centers also provide intensive supervision and individualized services, including counseling, to non-violent offenders in lieu of incarceration, helping parolees reintegrate into society and saving millions in jail costs.  Kanawha’s Day Report Center, for example, said its program had saved more than $3 million in jail costs in 2016.  Since its inception in 2005, KDRC has graduated nearly 1,000 clients and had a recidivism rate under 13 percent.

Also in West Virginia’s sentencing toolkit: Pre-trial diversion agreements which allow first-time offenders to avoid jail by obtaining counseling and other treatment, and home confinement, allowing offenders to serve their sentence at home with electronic supervision in lieu of incarceration.  Participants generally must stay within range of a landline telephone and are subject to random drug and alcohol testing....

The programs aren’t without their challenges, however. Pre-trial diversions, for instance, require offenders to undergo treatment, but “availability of detoxification treatment facilities is sparce,” Miller notes.  Likewise, home confinement requires a home and a landline phone.

But, with an opiate epidemic showing no sign of slowing, he said West Virginia is going to have to find answers — even if means building a secure facility dedicated to treating offenders with drug dependencies, one they couldn’t walk away from, or expanding traditional jails and prisons.

“If we have a facility devoted to drug treatment, maybe we’d decrease crowding in our jails and increase our success with people,” Miller said, adding, “We’re not going to prosecute our way out of it and every solution ... requires money.”

November 13, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Saturday, November 11, 2017

"Roughly one in 12 people in America’s prisons and jails is a veteran"

Veterans-day-thank-you-quotesThe title of this post is one of a number of notable facts reviewed in this new webpage up at Families Against Mandatory Minimums. The page carries the simple heading "Veterans Day," and here are excerpts:

Kenny. Ronald. Warren. Michael. All of these men served in our country’s Armed Forces.  Between them, their service extended to all branches of the military and earned them several Purple Hearts and other distinctions. They served bravely and with courage, and we honor them and all veterans today.

Ronald, Michael, Warren, and Kenny are also prisoners and former prisoners.  Roughly one in 12 people in America’s prisons and jails is a veteran.  Often, they’ve ended up in prison because of behavior resulting from injuries and trauma sustained during service.  Many are serving absurdly long sentences for low-level drug offenses, having turned to drugs as a way of coping with PTSD and adjusting to life after tours of duty.  And almost always, they are forgotten on this solemn day.

Our message today is simple:

  • Judges need discretion at sentencing to consider the reasons our country’s veterans ended up on the wrong side of the law.
  • The evidence of America’s failed war on drugs is in heartbreaking relief when you consider the lives of veterans— who put their lives on the line for our country — now serving inhumane mandatory minimum sentences.
  • The service to our country of incarcerated veterans is no less appreciated because of your incarceration. You are not forgotten. Thank you for your service.

Some sobering facts to think about today:

  • More than 75 percent of incarcerated veterans received honorable discharges from the military.
  • An estimated two thirds of those serving prison sentences discharged from service between 1974 and 2000, a period spanning several wars including Vietnam, the Gulf War, Iraq, and Afghanistan.
  • Of the total number of persons incarcerated, about half were diagnosed with a mental disorder, frequently Post Traumatic Stress Disorder (PTSD).
  • Sixty-four percent of incarcerated veterans have been sentenced for violent offenses, as opposed to only 48 percent of other prisoners. (That single fact has resulted in both longer and harsher sentences for veterans.)

Some good news:

  • Overall, the veteran prison population has shrunk.
  • As both the Veterans Administration and the courts have begun to understand this particular issue, the situation for veterans has improved. The veteran prison population has dropped as the Veterans Administration works to provide outreach and support to returning vets, including the provision of Veterans Justice Outreach Specialist.
  • Probation officers and corrections staff are being trained to immediately identify veterans upon sentencing, and then to connect the veteran with a Veterans Justice Outreach Specialist who can advise and support the veteran.

November 11, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, November 08, 2017

House members reintroduce the Safe, Accountable, Fair, and Effective (SAFE) Justice Act

As reported in this press release, yesterday "Representatives Bobby Scott (D-VA) and Jason Lewis (R-MN) introduced bipartisan legislation aimed at safely reining in the size and associated costs of the federal criminal code and prison system."  Here is more from the press release about the reintroduction of one of the most progressive federal statutory sentencing reform proposals to make the rounds recently:

H.R. 4261, the Safe, Accountable, Fair, and Effective (SAFE) Justice Act takes a broad-based approach to improving the federal sentencing and corrections system, spanning from sentencing reform to release policies.  The legislation, which is inspired by the successes of states across the country, will break the cycle of recidivism, concentrate prison space on violent and career criminals, increase the use of evidence-based alternatives to incarceration, curtail over-criminalization, reduce crime, and save money....

Similar to the successful reform packages enacted in many states, the SAFE Justice Act aligns the federal prison system with the science about what works to reform criminal behavior.  It reflects the growing consensus among researchers that, for many offenders, adding more months and years onto long prison terms is a high-cost, low-return approach to public safety.  It also looks to the growing number of practices in correctional supervision that are shown to reduce recidivism. 

The SAFE Justice Act will:

  • Reduce recidivism by –
    • incentivizing completion of evidence-based prison programming and activities through expanded earned time credits;
    • implementing swift, certain, and proportionate sanctions for violations of supervision; and
    • offering credits for compliance with the conditions of supervision.
  • Concentrate prison space on violent and career criminals by  –
    • focusing mandatory minimum sentences on leaders and supervisors of drug trafficking organizations;
    • safely expanding the drug trafficking safety valve (an exception to mandatory minimums) for qualified offenders; and
    • creating release valves for lower-risk geriatric and terminally-ill offenders.
  • Increase use of evidence-based sentencing alternatives by  –
    • encouraging greater use of probation and problem-solving courts for appropriate offenders; and
    • creating a performance-incentive funding program to better align the interests of the Bureau of Prisons and U.S. Probation Offices. 
  • Curtail overcriminalization by –
    • requiring regulatory criminal offenses to be compiled and published for the public;
    • ensuring fiscal impact statements are attached to all future sentencing and corrections proposals; and
    • charging the Department of Justice, the Bureau of Prisons, and the Administrative Office of the Courts with collecting key outcome performance measures.
  • Reduce crime by –
    • investing in evidence-based crime prevention initiatives; and
    • increasing funding for community based policing and public safety initiatives.

Original cosponsors of the SAFE Justice Act: Reps. John Conyers, Jr. (D-MI), Mia Love (R-UT), Sheila Jackson Lee (D-TX), Carlos Curbelo (R-FL), Eleanor Holmes Norton (D-DC), Brian Fitzpatrick (R-PA).

Additional information about the SAFE Justice Act:

Prior related post from June 2015:

November 8, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, November 06, 2017

NAAUSA and six other law enforcement groups write to Sentencing Reform and Corrections Act, per the attached letter.

Last week I blogged here about a letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws.  Today I received a copy of a quite different letter also sent to the leaders of the Senate Judiciary Committee this time coming from the National Association of Assistant U.S. Attorneys and six other law enforcement groups.  Here is how the letter, which can be downloaded below, gets started:

We write to express the opposition of the undersigned organizations to the recently-introduced Sentencing Reform and Corrections Act of 2017 (S. 1917).  We represent federal, state and local law enforcement officers, agents and prosecutors responsible for the investigation and prosecution of drug traffickers and other violent offenders involved in the distribution and sale of dangerous drugs.

The public safety of our communities across the nation would be negatively impacted by this legislation.  The legislation undermines mandatory minimum penalties for drug trafficking and weakens the tools that law enforcement authorities need to enforce the law, prosecute criminals and dismantle domestic and international drug trafficking organizations.  The legislation authorizes the early release of thousands of previously convicted armed career criminals, serial violent criminals, and repeat drug traffickers. And it will make it more difficult for law enforcement to pursue the most culpable drug dealers and secure their cooperation to pursue others in drug distribution rings and networks, domestic and international.

The bill would undermine law enforcement investigatory efforts by giving serious criminals the best of both worlds: less sentencing exposure and the choice to not cooperate with law enforcement in further investigatory efforts.

This is not the time for the Congress to consider changes like these that will impair the ability of law enforcement to take serious drug traffickers off the street.  Violent crime across America continues to grow, and a raging heroin and opioid abuse epidemic shows no sign of ebbing. For the second year in a row, violent crime increased across the United States, according to FBI annual crime data.  Homicides increased by 8.6%, with cities like Baltimore, Chicago, and Kansas City, Missouri witnessing massive increases in their homicide rates.  Meanwhile, a national epidemic of overdose deaths, caused largely by heroin and opioid drug abuse, ravages the country.  No state is immune from the deadly consequences.  Over 47,000 Americans died from drug overdoses in 2014, an all-time high. In 2015 that number rose to 50,000; last year it continued to skyrocket to 64,000 people.  Daily drug overdose deaths, including those from heroin use, exceed those caused by auto accidents.

Download LE Groups Ltr re S 1917 Nov02-2017

November 6, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, November 02, 2017

Lots more impressive work in Teen Vogue's "Kids Incarcerated" series

In this post a few weeks ago I noted that Teen Vogue has been giving sustained attention to the issues of juvenile incarceration in this "Kids Incarcerated" series of articles.  This series now has dozens of articles that are work checking out, and these recent articles especially caught my attention and seemed worthy of additional promotion (though every article in the series looks great):

November 2, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, November 01, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Wednesday, October 25, 2017

US Sentencing Commission releases new report on "Mandatory Minimum Penalties for Drug Offenses in the Federal System"

Cover_drug-mand-minVia email, I just learned that the US Sentencing Commission has this morning released another big notable data report on mandatory minimum sentences in the federal system.  This latest report it titled "Mandatory Minimum Penalties for Drug Offenses in the Federal System," and this USSC webpage provides links to the full report and particular chapters. That same pages also provides this summary and overview of the report's key findings:

Summary

Using fiscal year 2016 data, this publication includes analysis similar to that in the 2017 Overview Publication, providing sentencing data on offenses carrying drug mandatory minimums, the impact on the Federal Bureau of Prisons (BOP) population, and differences observed when analyzing each of five main drug types.  Where appropriate, the publication highlights changes and trends since the Commission’s 2011 Mandatory Minimum Report.  Because drug offenses are the most common offenses carrying mandatory minimum penalties, many of the trends in this publication mirror the trends seen in the 2017 Overview Publication.

Key Findings

Building directly on previous reports and the analyses set forth in the 2017 Overview Publication, this publication examines the use and impact of mandatory minimum penalties for drug offenses.  As part of this analysis, the Commission makes the 10 key findings:

1. Drug mandatory minimum penalties continued to result in long sentences in the federal system.  

2. Mandatory minimum penalties continued to have a significant impact on the size and composition of the federal prison population.  

3. Offenses carrying a drug mandatory minimum penalty were used less often, as the number and percentage of offenders convicted of an offense carrying a mandatory minimum penalty has decreased since fiscal year 2010.  

4. While fewer offenders were convicted of an offense carrying a mandatory minimum penalty in recent years, those who were tended to be more serious.  

5. Drug mandatory minimum penalties applied more broadly than Congress may have anticipated.  

6. Statutory relief plays a significant role in the application and impact of drug mandatory minimum penalties and results in significantly reduced sentences when applied.  

7. Additionally, drug mandatory minimum penalties appear to provide a significant incentive to provide substantial assistance to the government pursuant to 18 U.S.C. § 3553(e) and the related guideline provision at USSG §5K1.1.  

8. However, neither the statutory safety valve provision at 18 U.S.C. § 3553(f) nor the substantial assistance provision at 18 U.S.C. § 3553(e) fully ameliorate the impact of drug mandatory minimum penalties on relatively low-level offenders.  

9. There were significant demographic shifts in the data relating to mandatory minimum penalties.  

10. Although likely due in part to an older age at release, drug trafficking offenders convicted of an offense carrying a drug mandatory minimum penalty had a lower recidivism rate than those drug trafficking offenders not convicted of such an offense.

Kudos to the USSC for continuing to release timely and informative reports as debates over federal sentencing policies and practices continue.  I hope in coming days to find time to mine some more findings from this report that I would consider "key," and I welcome comments that flag any and all elements of this latest report that folks consider especially interesting or important.

October 25, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, October 23, 2017

"Is There a ‘Rational’ Punishment for My Rapist?"

The title of this post is the title of this powerful personal article authored by Amber Rose Carlson.  I recommend the piece in full, and I hesitate to reprint excerpts for fear of diluting the potency of the entire piece.  But this excerpt perhaps will help prompt folks to click through to read the full piece:

“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” This was the question asked to me in January 2016 by my therapist during a session of eye movement desensitization and reprocessing therapy (E.M.D.R.) — a treatment that researchers tout as one of the best remedies for severe trauma and post-traumatic stress disorder.

I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time. I’ve since undergone years of traditional talk and group therapy with trauma specialists, and I am more healed today than I ever thought possible.  Still, recovering from trauma is a serious endeavor, and I hoped for more healing....

I’m not a proponent of the death penalty primarily because the flaws in our criminal justice system are egregious and increasingly well-documented. The thought experiment’s framing, however, circumvented my usual concerns about unjust sanctions. I know what my rapist did to me, so I know he is guilty. Worries about the inhumanity of capital punishment were also blunted in part because this was purely hypothetical and in part because of the inhumanity he exhibited those long years with his penchant for violence.

Although the death sentence seemed wholly appropriate, I still considered how I would feel if a judge gave my rapist a less severe punishment: a natural life sentence — a life sentence with no chance for parole without a successful appeal.  In this scenario, my feelings were just as clear: I would be slightly disappointed, but I would still feel mostly satisfied.  Anything less than a death or natural life sentence, I knew, would seem inadequate....

IN FEBRUARY 2016 — only weeks after the thought experiments with my therapist — the philosopher Jennifer Lackey published an opinion piece in The Stone. In the article, she uses her experience teaching philosophy to inmates to argue for the irrationality of natural life sentences.  Lackey bases her argument against natural life sentences on two reasonable claims: (1) people (criminals, specifically) can and do change in profoundly transformative ways, and (2) we cannot know the future.

For Lackey, the fact that we have good statistical evidence that criminals can and do change is especially problematic given our vast epistemic limitations regarding the future. “Natural life sentences,” she wrote, “say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.” Citing the possibility of prisoner transformation, Lackey then puts her question about rationality directly: “How is it rational,” she asks, “to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?”...

I read Lackey’s article very soon after the thought experiments with my therapist. I noticed that Lackey’s argument easily applied to the death penalty, and I realized that the sentences I desired for my rapist were precisely the ones Lackey condemns as irrational.  Since nothing in her argument prevented me from applying her logic to my own desires, I had to wonder if her argument also concluded that I was irrational for desiring permanent punishments.  If it is irrational for the state to prescribe a permanent punishment given our epistemic limitations and prisoners’ likelihood for change, wouldn’t it be similarly irrational for victims to ignore these considerations?

There are, of course, crucial differences between victim’s desires and punishments carried out by the state. While sometimes the criminal justice system considers the wishes of victims and their families, the criminal justice system’s central aim is to protect the interests of the state and the community.  This aim does not always coincide with the interests or wishes of the victim.  Admittedly, there are often very good reasons for the state to ignore the wishes of victims.  But my concern is less about what the state should do in practice and more about what arguments that prioritize transformation say about victims who desire permanent punishments.

Here I will be blunt: it matters very little to me whether my rapist is transformed at some point in his life. It matters to me only to the extent that I will readily agree that it would be better if he became the sort of person who did not inflict violence upon others.  I would be very happy hearing that no other women would be harmed by him. But in terms of the punishment that he deserves?  Transformation does not matter to me.  And this is not irrational: There are many carefully considered reasons one might want a natural life sentence for perpetrators of egregious and irrevocable harm.

Desiring death or a natural life sentence for those who inflict traumatic violence is a rational response because whether or not my particular rapist transforms is irrelevant to whether or not I will ever have the chance to be the sort of person I might have been.  His transformation is irrelevant to whether or not I will be able to live the sort of life I could have were it not for the injustice done to me. I desire a death or natural life sentence for my rapist because that is what seems appropriate given the amount of damage he wrought in my life....

Although my attitude is in no way representative of all victims, epistemic arguments that prioritize criminal transformation must contend with the implication that they can be used to paint trauma victims irrational when they desire retribution.  It’s certainly important to advocate for prisoners who are wrongly incarcerated and for those who were victims of the overzealous war on crime era.  The injustices in our criminal justice system are too numerous and too serious to ignore. But criminal justice reform should not be so myopic that it compounds trauma survivors’ victimization.  Those who manage to survive traumatic crimes have enough to battle without arguments that undermine their rational considerations. Advocates for criminal justice reform can, and should, do better.

October 23, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (18)

Sunday, October 22, 2017

Notable defense of prison labor from a former prisoner

Chandra Bozelko, a former prisoner and author of the blog Prison Diaries, has this interesting Los Angeles Times commentary headlined "Think prison labor is a form of slavery? Think again."  I recommend the piece in full, and here are excerpts:

When a prison inmate prays for release from her cell, prison industries can be her first salvation. I couldn’t wait to head to work in the kitchen of the maximum-security women’s prison in Connecticut where I did six years for identity theft and related crimes. I was paid 75 cents to $1.75 a day to make and serve a lot of casserole.  Yet I consider most of the criticism lobbed at prison labor — that it’s a form of slavery, a capitalist horror show — unfair, and even counterproductive in the effort to reform the justice system.

Among the firefighters on California’s fire lines this fall, 30% to 40% are inmates, paid $1 an hour to work side by side with crews making a lot more money. Some inmate firefighters have gone on the record saying they feel the same way I do about prison jobs.  It’s people on the outside who rail against prison work assignments, particularly hiring prisoners to fight fires.

“We don’t want prison policy driven by a desire for cheap labor,” says David Fathi, director of the ACLU’s National Prison Project. He worries that a captive labor force incentivizes mass incarceration. Fathi can point to some unfortunate remarks made by prison administrators.  Last month, the sheriff of Caddo Parish, La., lamented the loss of the “good” prisoners who washed prison cars.  In 2014, the office of the attorney general of California balked at reducing prison overcrowding because it would deplete the prison workforce.

Still, less than half of America’s prison population works.  The most recent available Bureau of Justice statistics come from 2005, when 800,000 to 900,000 inmates, out of a population of about 2.3 million, had jobs within their facilities.  That left at least 1.3 million prisoners for the government to house, clothe and feed without getting anything in return.  It doesn’t seem likely that captive labor is the reason our prisons are overcrowded.

Most labor in prison is menial work for the state. Inmates sew hems on jackets for municipal employees; they do laundry duty or janitorial work.  These are also normal, outside-world activities and jobs. When a prisoner is cooking, mopping floors or folding clothes, she knows somewhere, an unincarcerated person is doing the same thing.  When a prisoner is working, she is the closest to free she can be, until she gets out.

My prison job made me feel like I was fulfilling my existential duty to society: I was contributing. It doesn’t surprise me that prison work assignments are credited with reducing recidivism. Any change for good that happened within me while I was incarcerated grew out of my job. If I feel that way about my time making chicken a la king, an inmate who’s saving lives fighting fires must feel it 10 times over.

Some call prison labor the new Jim Crow because of the outsized number of black and brown inmates in U.S. prisons.  It’s a facile charge, and worse, it may be keeping progressive companies away from prison projects.  Socially conscious businesses and agencies are likely to pay inmates higher wages, train them for better jobs and do more to prepare them for life after prison — if those companies aren’t scared away by vociferous critics of prison labor.

Whole Foods used to sell goat cheese made from milk produced on a prison farm in Colorado. “We felt supporting suppliers who found a way to be part of paid, rehabilitative work being done by inmates would help people get back on their feet and eventually become contributing members of society,” a company spokesman said. Whole Foods ended the program in 2015, after consumer protests I can only assume came from people who’ve never been incarcerated. Anyone who’s done time wouldn’t deny a fellow prisoner that kind of lifeline....

Don’t get me wrong, prison labor is by no means problem-free. Two inmate firefighters died in work-related accidents in California this year. It’s unclear whether a lack of training or the inherent danger of firefighting contributed to those deaths. We may never know because there is too little investigation of worker safety in all prisoner occupations. If safety and worker empowerment were the focus of prison labor reform, rather than dismantling the system, the movement would get my support.

The way to protect workers is the same inside and outside: unionization. It’s a misconception that inmate unions are against the law. The Supreme Court held 40 years ago that wardens don’t violate prisoners’ 1st Amendment rights when they bust inmate unions, but at the same time, nothing prohibits prison administrators from allowing unions to form. That’s where the pushback against prison labor should be aimed, toward persuading wardens to allow physical and organizational safeguards for inmate workers, protections they can negotiate for themselves.

October 22, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, October 19, 2017

"Women’s Mass Incarceration: The Whole Pie 2017"

Women_pie_2017The title of this post is the title of this great new report authored by Aleks Kajstura and released by the Prison Policy Initiative jointly with the ACLU’s Campaign for Smart Justice. In the tradition of other great "whole pie" efforts (see, e.g., here), this latest report details the number of women who are locked up by various correctional systems and why.  Here is part of the text of the report:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a first-of-its-kind detailed view of the 219,000 women incarcerated in the United States, and how they fit into the even larger picture of correctional control.  Since 2014, the Prison Policy Initiative has quantified the number of people incarcerated in the United States, and calculated the breakdown of people held by each correctional system by offense in an annual Whole Pie: Mass Incarceration report.  This report, done in collaboration with the ACLU’s Campaign for Smart Justice, finally provides similar data on women incarcerated in the Unites States....

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, incarcerated women are nearly evenly split between state prisons and local jails.

The explanation for exactly what happened, when, and why does not yet exist because the data on women has long been obscured by the larger picture of men’s incarceration. The disaggregated numbers presented here are an important first step to ensuring that women are not left behind in the effort to end mass incarceration.

A staggering number of women who are incarcerated are not even convicted: more than a quarter of women who are behind bars have not yet had a trial.  Moreover, 60% of women in jail have not been convicted of a crime and are awaiting trial.

Avoiding pre-trial incarceration is uniquely challenging for women.  The number of unconvicted women stuck in jail is surely not because courts are considering women, who are generally the primary caregivers of children, to be a flight risk.  The far more likely answer is that incarcerated women, who have lower incomes than incarcerated men, have an even harder time affording cash bail.  A previous study found that women who could not make bail had an annual median income of just $11,071.  And among those women, Black women had a median annual income of only $9,083 (just 20% that of a white non-incarcerated man). When the typical $10,000 bail amounts to a full year’s income, it’s no wonder that women are stuck in jail awaiting trial.

Even once convicted, the system funnels women into jails: About a quarter of convicted incarcerated women are held in jails, compared to about 10% of all people incarcerated with a conviction.

So what does it mean that large numbers of women are held in jail - for them, and for their families? While stays in jail are generally shorter than in stays in prison, jails make it harder to stay in touch with family than prisons do.  Phone calls are more expensive, up to $1.50 per minute, and other forms of communication are more restricted - some jails don’t even allow real letters, limiting mail to postcards.  This is especially troubling given that 80% of women in jails are mothers, and most of them are primary caretakers of their children.  Thus children are particularly susceptible to the domino effect of burdens placed on incarcerated women.  Women in jails are also more likely to suffer from mental health problems and experience serious psychological distress than either women in prisons or men in either correctional setting.

The numbers revealed by this report enable a national conversation about the policies that impact incarcerated women held in various facilities, and also serve as the foundation for discussions to change the policies that lead to incarcerating women in the first place.  All too often, the conversation about criminal justice reform starts and stops with the question of non-violent drug and property offenses.  While drug and property offenses make up more than half of the offenses for which women are incarcerated, the chart reveals that all offenses, including violent offenses that account for roughly a quarter of all incarcerated women, must be considered in the effort to reduce the number of incarcerated women in this country.  This new data on women underlines the need for reform discussions to focus not just on the easier choices but on choices that can lead to impactful policy changes.

October 19, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

What may be the future of federal halfway houses in the Trump Administration?

The question in the title of this post is prompted by this Reuters article from last week that a helpful reader made sure I did not miss.  The article is headlined "Trump administration reduces support for prisoner halfway houses," and here are excerpts:

The administration of President Donald Trump has been quietly cutting support for halfway houses for federal prisoners, severing contracts with as many

The Federal Bureau of Prisons spokesman Justin Long confirmed the cuts in response to an email inquiry from Reuters, and said they only affect areas with small populations or underutilized centers. “The Bureau remains firmly committed to these practices, but has had to make some modifications to our programs due to our fiscal environment,” Long said.

Halfway houses have been a part of the justice system since the 1960s, with thousands of people moving through them each year. For-profit prison companies such as Geo Group Inc have moved into the halfway house market, though many houses are run directly by government agencies or non-profit organizations. A Geo spokeswoman declined to comment for this article.

The bureau, which falls under the U.S. Department of Justice, last year had about 180 competitive contracts with “residential reentry centers” run by non-profit and for-profit companies, such as Geo. The International Community Corrections Association says on its website there were about 249 separate halfway houses in communities nationwide that are covered by the 180 contracts.

Federal judges who spoke to Reuters said the cuts are having an impact in their districts, particularly in states with fewer facilities or larger geographic areas where the nearest center might be several hundred miles away. Judge Edmund Sargus of the Southern District of Ohio said it was a real “stumper” when in July the government ended its contract with the Alvis facility serving the Dayton area.

Long said that the cuts have not reduced referral rates or placements, and only impact “about 1% of the total number of beds under contract.”...

In 2016, of the 43,000 inmates released from federal prison, 79 percent were released into a halfway house or home confinement, according to the trade association.

“We need to improve re-entry services ... This move flies in the face of that consensus,” said Kevin Ring, whose non-profit Families Against Mandatory Minimums has recently launched a Twitter campaign to raise awareness of the problem....

For Kymjetta Carr, the cuts have had a personal impact. The 30-year-old from Cincinnati said she had expected her fiance Anthony Lamar to get out of prison and go to a halfway house in November, after serving seven years on a drug charge. But she now has to tell their 10-year-old son his father won’t be out for Christmas or his birthday because Lamar’s release to a halfway house will not come until late July. “It seems like the rug has been pulled out from under us,” she said, in an interview arranged through Families Against Mandatory Minimums, a nonprofit advocacy group.

Halfway houses are low-security residences for thousands of convicted prisoners serving alternative sentences or on release from prison into partial freedom programs on the outside. The facilities are meant to help prisoners reenter their communities, find a job and get their lives back on track. A study commissioned last year by the Justice Department found that centers have come under greater strain in recent years, as more people have been released from prison.

Blair Campmier, executive director of Reality House in Columbia, Missouri, said he was notified in early June that the center’s eight-year-old contract would be terminated. Some of his clients were sent to halfway houses in Kansas City and Springfield, more than two hours away. “They were not happy, and their families were not happy,” said Campmier.

Ricardo Martinez, the Chief U.S. District Judge in the Western District of Washington and Chairman of the Committee on Criminal Law of the Judicial Conference of the United States, told Reuters he has sent a letter to the Bureau of Prisons’ new Director Mark Inch requesting discussions. “From our perspective, these facilities are not only useful - they are essential,” Martinez said.

October 19, 2017 in Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Monday, October 16, 2017

"Racial Disparity in U.S. Imprisonment Across States and over Time"

The title of this post is the title of this new empirical article now available via SSRN authored by Walter Enders, Paul Pecorino and Anne-Charlotte Souto.  Here is the abstract:

The overall incarceration rate in the United States is extremely high by international standards. Moreover, there are large racial disparities, with the black male rate of imprisonment being 5.5 times the white male rate in 2014.  This paper focus on how this black-white imprisonment ratio has behaved over time within and across states. We show that the large increase in black imprisonment between 1978 and 1999 was driven by increases in the overall rate of imprisonment, while the smaller decrease which occurred between 1999 and 2014 was driven by reductions in the black-white ratio.

For many states, the black-white ratio turned upward in the mid-1980s, where this upturn may have been linked to the crack epidemic.  Many states experienced a downturn in the black-white ratio starting in the 1990s.  Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment. California’s experience has been strongly counter to national trends with a large increase in the racial disparity beginning in the early 1990s and continuing until near the end of our sample.

October 16, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Sunday, October 15, 2017

"Attorney hopes to import the best practices of European prisons to the United States"

The title of this post is the headline of this lengthy ABA Journal article from the October 2017 issue. Here is how it starts:

Attorney Donald Specter spent more than three decades working to protect the rights of incarcerated people before he finally saw a prison he believed in.

He was in Europe, having just won perhaps the biggest ruling of his career — a 2011 U.S. Supreme Court decision in Brown v. Plata that required California to reduce its inmate population by more than 40,000. But Specter, executive director of the Berkeley-based Prison Law Office, wasn’t there to celebrate.  He was a co-instructor on a study-abroad trip about correctional practices with University of Maryland students.

This trip included visits to prisons in Denmark, Germany and the Netherlands. Specter says he was blown away. The prisons were nothing like those he had spent his career trying to change in the United States.  For starters, they were physically different — built to resemble life on the outside. Inmates had their own rooms and, in some cases, were allowed to cook in communal kitchens.  But what struck Specter most was that the prisoners were treated differently, too.  “They still regarded the people in prison as members of the community who were going to return to the community,” he says. “That has a whole bunch of implications.”

Specter, who began his legal career as a volunteer at the Prison Law Office, had long been frustrated by the limits of litigation to bring about meaningful change.  In Europe, he began to wonder whether there might be a different way to approach his life’s work.  “By the end of the trip, [the students’] basic question was: Why do we have such lousy prisons when they can be so much better?” he says.  “I started thinking about whether the same kind of transformation could happen with people who were a little older and more experienced — hardened correctional officers and the like.”

In 2013, Specter launched the U.S.-European Criminal Justice Innovation Program, sponsoring weeklong tours of European prisons for U.S. corrections officials, judges and lawmakers. He funds the trips using fees from his lawsuits, including some of the $2.2 million his office was awarded after the high court’s ruling in Brown.  In that case, Specter represented prisoners who challenged the delivery of health care in the California prison system.  The high court affirmed an earlier appeals court ruling that overcrowding was the primary cause of the deficient system and ordered the state to reduce its inmate population.

Specter’s first overseas trip was with representatives from Colorado, Georgia and Pennsylvania and included stops in Germany and the Netherlands. Subsequent tours, including one this fall with officials from Alaska, have focused on Norway, which is known for the freedoms it grants eligible inmates.  So far, officials from eight states have participated, including the executive director, president and vice president of the Association of State Correctional Administrators, which has members who oversee 400,000 correctional personnel and 8 million inmates or former inmates.

Although the United States has the highest incarceration rate in the world — 676 inmates per 100,000 people, according to the United Nations Office on Drugs and Crime — Specter thinks Americans still have a lot to learn about how to prepare prisoners for life on the outside.  (Norway’s incarceration rate is 80 inmates per 100,000 people.)

October 15, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (4)

LWOP+ sentence imposed for impaired driver who killed two in Florida

Long-time readers know I am sometimes inclined to complain about repeat drunk drivers getting lenient sentences unless and until they hurt someone.  But once an impaired driver starts hurting or killing, sentences then can often get quite severe.  A helpful reader alerted me to this notable local story from Florida reporting on the severest possible sentence imposed on an impaired driver in Texas headlined "Trucker gets life in prison on DUI charges from crash that killed two Naples women." Here are excerpts with emphasis on the sentencing particulars:

It was an impact statement about a moment of impact. “In one single second, my best friend, my wife .. my entire world came crashing down,” Dan Jenkins said, describing the horror as he watched a Kenworth tractor slam into a car driven by his wife on a rural Central Florida road in 2011. And it had the desired impact.

Circuit Court Judge Marcus Ezelle sentenced Michael John Phillips, 52, to life in prison plus 15 years for DUI manslaughter in the deaths of Jennifer Jenkins, 35, and Kathleen O’Callaghan, 34.

The two friends from their days as schoolgirls in Naples were killed as they drove toward Orlando for the birthday party of another friend. Dan Jenkins was following in a second vehicle, the couple’s 2-month-old daughter with him.

Phillips, found guilty by a Hardee County jury in August, could have been sentenced to as little as 25 years, according to state sentencing guidelines. But eight family members and friends gave victim impact statements at Friday’s sentencing, each asking Ezelle to impose the maximum penalty of life in prison. Ezelle went symbolically further, pronouncing a life sentence for one count of DUI manslaughter and an additional 15 years for the second....

In Florida, judges must sentence defendants based on a score tabulated in a pre-sentence investigation. Phillips’ score was 364.4. Had it been 363 or lower, a life sentence would not have been an option. Factors that boosted his score included drug arrests dating 30 years, a refused drug test while free on bond in this case and then absconding on that bond, which delayed the case for several months while authorities searched for him.

Defense attorney Kelley Collier asked Ezelle for a sentence of less than life in prison, in part because Phillips was just over the points threshold. He said Phillips, who tested positive for methamphetamine in his system, basically fell asleep at the wheel of the truck. “He does not have a conscious recollection of the accident,” he told Ezelle.

Falling asleep at the wheel is not a reaction one would expect from using methamphetamine, Collier said. “I would argue that the facts are not the kind of facts that would warrant that kind of (life) sentence,” Collier said.

Ezelle said the fact that Phillips didn’t intend to cause the crash wasn’t relevant. The manslaughter conviction, by its nature, presumes the guilty party didn’t premeditate the crime. Instead, the case was about creating risk that endangered others. “Mr. Phillips, by his decisions, weaponized a commercial vehicle,” Ezelle said.

Collier said he plans to file an appeal of Phillips' conviction, based in part on expert testimony he said should have been disallowed at trial. Family members had been frustrated by the slow pace of the case. It took investigators almost a year to charge Phillips. Friday’s sentencing occurred just two days shy of the fifth anniversary of those charges being formally filed in court....

Dan Jenkins said the life sentence will make it easier to explain the tragedy to his daughter, Ashley, now almost 6, when she asks about her “Momma Jen.” “Now I can tell her the man is in jail for the rest of his life. I can look at her and say that man will never hurt anybody again.”

I am pretty sure that Florida has no parole mechanism for these kinds of cases, so this life+ sentence is truly an LWOP+ sentence.  I am not so sure, but now wondering about, whether this defendant could have and would have received a much lower sentence had he been willing to plead guilty.  Relatedly, it is unclear what particular facts and factors were critical at trial for his convictions and how much "expert testimony" may have made a difference.  Whatever the plea/trial backstory, I now have another example for my students of how relatively common risky behavior can be punished severely when it results in particularly tragic harms.

October 15, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Thursday, October 12, 2017

New Sentencing Project fact sheets on disparities in youth incarceration and comments to USSC on incarceration alternatives

Via email I learned of these two new fact sheets from The Sentencing Project highlighting incarceration disparities among youth of color:

In addition, the folks at the Sentencing Project have recently posted here public comment submitted to the US Sentencing Commission on the USSC's "First Offenders/Alternatives to Incarceration" proposed amendment.  The comments to the USSC starts this way:

The undersigned applaud the Sentencing Commission’s consideration of an amendment to increase the availability of sentences of alternatives to incarceration within the federal sentencing guidelines.  The Sentencing Reform Act of 1984 which created the guideline system wisely recognized the appropriateness of non-incarceration sentences in certain cases.  Since that time criminological research has underscored Congress’s assumptions, and evidence suggests that a broader cohort of people than at present could be sentenced within the federal system more efficiently without incarceration. Doing so would not compromise public safety, but would save tax dollars, preserve families and enhance rehabilitation.

October 12, 2017 in Data on sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, October 10, 2017

"Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration"

9780231179706The title of this post is the title of this notable new book about to be published and authored by Lauren-Brooke Eisen.  Here is the book description from the press's webpage:

When the tough-on-crime politics of the 1980s overcrowded state prisons, private companies saw potential profit in building and operating correctional facilities.  Today more than a hundred thousand of the 1.5 million incarcerated Americans are held in private prisons in twenty-nine states and federal corrections.  Private prisons are criticized for making money off mass incarceration — to the tune of $5 billion in annual revenue.  Based on Lauren-Brooke Eisen’s work as a prosecutor, journalist, and attorney at policy think tanks, Inside Private Prisons blends investigative reportage and quantitative and historical research to analyze privatized corrections in America.

From divestment campaigns to boardrooms to private immigration-detention centers across the Southwest, Eisen examines private prisons through the eyes of inmates, their families, correctional staff, policymakers, activists, Immigration and Customs Enforcement employees, undocumented immigrants, and the executives of America’s largest private prison corporations. Private prisons have become ground zero in the anti-mass-incarceration movement.  Universities have divested from these companies, political candidates hesitate to accept their campaign donations, and the Department of Justice tried to phase out its contracts with them.  On the other side, impoverished rural towns often try to lure the for-profit prison industry to build facilities and create new jobs. 

Neither an endorsement or a demonization, Inside Private Prisons details the complicated and perverse incentives rooted in the industry, from mandatory bed occupancy to vested interests in mass incarceration. If private prisons are here to stay, how can we fix them?  This book is a blueprint for policymakers to reform practices and for concerned citizens to understand our changing carceral landscape.

October 10, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, October 04, 2017

Terrific series of postings looking at empirics of the drug war and mass incarceration

Over at Medium, Xenocrypt is working on "five-part series on the effects of 'The War On Drugs' on 'mass incarceration'." Two posts into this series makes it clear that serious folks should spend some serious time looking at this analysis. Here are links to the first two lengthy postings:

Why The War On Drugs Matters In Mass Incarceration, Part 1: Who Goes To Prison.

Why The War On Drugs Matters In Mass Incarceration, Part 2: The Two Dimensions Of Prison Populations.

Here is part of the conclusion of this second post:

Why do different offenses seem important when looking at “prison sentences” as when looking at “prison populations”? To try to understand that, visualize “prison populations” as two-dimensional figures. Different parts of the figure might grow in different ways — and looking at height might tell you something different than looking at area.

According to these visualizations, the 2011 state prison system had more prison terms for drugs, “public order/other”, and lower-level violent and property offenses than the 1980 state prison system, but these were mostly short. Some prison terms did grow longer, but on average mostly for murder/non-negligent manslaughter, rape/sexual assault, robbery, and burglary....

Decomposing prison population growth into admissions and time served isn’t just an intellectual or visualization exercise. As I keep saying in this series, focusing on one statistic glosses over real human consequences. Violent offenders serving longer prison terms, along with additional prison terms for “rape/sexual assault” and “other violent” offenses, really did contribute more to “the incarceration rate” per se than the War on Drugs did.

That doesn’t mean the War on Drugs didn’t happen, or that all those extra prison terms for drugs and other lower-level offenses had no effects.  By placing admissions and time served in different dimensions, we might make that distinction clearer, and more fully understand what mass incarceration has really meant.

October 4, 2017 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, October 03, 2017

"What’s Behind the Decline in the Death Penalty?"

The title of this post is the headline of this new Marshall Project Q&A with Prof Brandon Garrett inspired by his new book, "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice."  Here is how the Q&A gets set up, along with the concluding Qs and As:

There are four men left on death row in Virginia, and only 31 people were sentenced to death in the entire U.S. last year, compared with more than 300 per year in the mid-1990s. The numbers are stark, but if you ask the experts — lawyers, scholars, activists, judges — why the death penalty has begun to fade in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few states abolished the punishment outright. The cost of death penalty cases went up, and prosecutors grew worried about their budgets. States passed laws making life without parole an option for certain aggravated murders, meaning there was a sufficiently harsh alternative to the death penalty. All those DNA exonerations raised the specter of an innocent person being killed. In elections for district attorney, voters in Houston and Philadelphia replaced death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett’s new book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice,” represents a major new effort to untangle these factors. He also analyzes the decline for lessons that might be applied to the criminal justice system as a whole. We discussed his findings by email....

If the crime rate goes back up, do you think there will be more death sentences, or have these standards of better lawyering changed the game enough to survive big political shifts?  What happens if there is a return to the murder rates of the 1980s?

The American death penalty has always been more about political posturing than a genuine attempt to make the punishment fit the crime. Meanwhile, crime continues to decline.  If murder rate trends do completely reverse, then there could be pressure to take more tough-on-crime approaches.  But I think people have learned the lesson the hard way that you can’t death-sentence or imprison your way out of crime.  We now know when jurors hear the whole story, even in death penalty cases, they are reluctant to impose death sentences.  Even if more prosecutors suddenly started seeking the death penalty, the results would likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline of death sentences has shown how “mercy” among jurors can triumph given the right conditions; on the other hand, the decline has led to a massive expansion of life-without-parole sentences, which Pope Francis has called "hidden death sentences."  How do you resolve that tension?  What do you think opponents of long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners are serving life without parole, and about 200,000 prisoners have life sentences, according to a Sentencing Project report.  I tell the story in my book of Joseph Sledge, who received two life sentences, and since he did not get a death sentence, he was not entitled to receive lawyers from the state once his appeals ran out.  For decades, he filed habeas petitions himself and wrote letters.  After almost 40 years in prison in North Carolina, a letter to an innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America.  We have replaced the death penalty with the “other death penalty.”  Even juveniles can still get life-without-parole sentences, although the Supreme Court has said it cannot be mandatory.  To imprison people, sometimes very young people, with no hope of release or redemption is inhumane.

October 3, 2017 in Death Penalty Reforms, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, October 02, 2017

"Plea Bargains Are a Travesty. There's Another Way."

I just noticed this recent Megan McArdle commentary at Bloomberg View which is summarized by its subheadline: "Better to apply fewer laws more consistently than to continue the U.S.’s current 'randomized draconianism'." Here are excerpts:

The justice system is no longer set up to provide an innocent man his day in court. It is a machine for producing plea bargains in industrial quantities.

It can operate no other way, because the volume of cases is far larger than the court system can actually handle.  So instead of trials that take a long time and cost a lot of money but ideally separate the guilty from the innocent, we have become dependent on an assembly line where the accused go in at one end and come out the other a (relatively) short time later -- as convicted criminals, regardless of their guilt or innocence, but with shorter sentences than they would have faced if convicted at trial and with smaller lawyers’ bills than they would have faced if they had gone to trial....

The most obvious way to begin repairing this broken system is to spend more money building courtrooms and hiring judges, so that defendants actually do have a chance at their constitutionally guaranteed right to a speedy trial.  We should also take a long, hard look at the number of things that are crimes, and the sentencing laws that require many crimes be requited with very harsh penalties.

Most our mass incarceration problem is a sentencing problem, driven by both mandatory minimums and prosecutors who are rewarded for being “tough on crime.” These factors aggravate the flaws of the plea-bargaining system.  Prosecutors can threaten to prosecute on draconian charges, which carry draconian sentences -- and all but force a defendant, even an innocent one, to take a plea bargain, with a lesser charge and a lesser sentence.  Defendants (guilty and innocent alike) usually conclude that the risk of going to trial is simply too great.  And the plea bargains, in turn, keep the machine from choking on the volume of cases being run through it. Instead it grinds out a very poor substitute for justice.

Reducing the number of laws and reducing the ability (or requirement) for prosecutors to secure serious jail time for so many offenses would reduce mass incarceration and start to unclog our court system.  We should do these things.  Unfortunately, they won’t be enough.

While the popular picture among de-incarceration advocates is of prisons and courtrooms is of a system choked with nonviolent drug offenders, in fact, the system handles an immense amount of real, harmful crime.  We’re not going to decriminalize theft or assault or robbery, nor should we.  If we really want a justice system that is not too overwhelmed to provide justice, we are going to have to focus on reducing crime....

Mark Kleiman of NYU, who has taught me most of what I know about crime policy, wrote a brilliant book called “When Brute Force Fails,” on the ways we can retool the justice system to actually reduce crime, rather than simply punishing it more harshly.  Kleiman is liberal, but conservatives should have no fear: This is not a book about how we need loads more social spending and liberal policies to address the “root causes.”  This is a book about how we can police and punish more effectively.  The sort of proposals that should be welcomed by left and right alike.

Kleiman’s ideas and insights are too many to sum up in a column, so I’ll focus on a core observation: Bad policing, and bad prison policy, can create more crime. Our current justice system provides what Kleiman calls “randomized draconianism”: Your odds of getting caught and punished are not very high, but if you are caught, you’ll get treated very harshly.  The likelihood of punishment is so low that there is no deterrent effect to prevent crime, and the severity of punishment is so harsh that it may simply make those who are caught more likely to commit further crimes....

What’s the alternative?  Raise the odds of punishment, and lower the severity.  That means more police on the streets, focused on steadily reducing crime hot-spots and making it unattractive to take up a life of crime in the first place. It means probation and parole systems that provide much more intensive monitoring, but use lighter sanctions like a night or two in jail, rather than revoking someone’s parole and sending them back to prison for five years.  It means exploring new technologies that allow us to put people under “house arrest” of varying intensity.  In the short term, this will mean spending more money and effort on the system.  But there’s good news: Prison is so expensive that even many expensive programs can save money on net if they keep people out of long prison terms.

October 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, September 29, 2017

Another look at the realities of more offenders aging and dying in prison

Long-time readers surely recall a number of articles in this space about the aging US prison population. Here is another via the Philadelphia Inquirer under the headline "More people than ever are dying in prison. Their caregivers? Other inmates."  Here is how it gets started:

“The death squad.” Or, “the executioners.” That’s what many inmates used to call the inmate-volunteers who work the Graterford state prison hospice unit, a bleak row of isolation rooms — each one-part hospital room, one-part jail cell— where inmates with terminal illnesses are placed to die.

Then, they saw how the inmates cared for dying men in shifts, undertaking the intimate tasks of feeding, cleaning and comforting them. For many, it is a calling. Over time, attitudes changed, said James, a 51-year-old inmate who volunteers to do this work. “There’s a lot of progress in this place. There is more humanity here now.”

It’s needed, given that far more people are dying in prison than ever before. In Pennsylvania, 483 state inmates have died since January 2015. That’s about 180 deaths in prison each year. From 2005 to 2014, the average was 150 deaths per year.

That increase is a byproduct, officials say, of the extraordinarily fast-growing elderly population in prison. In 2001, there were 1,892 geriatric inmates in Pennsylvania (ages 55 or older). Today, that’s more than tripled to 6,458. The leading causes of death in the state’s prisons are heart disease, cancer and liver disease. Caring for this population is extraordinarily expensive: It’s estimated that elderly inmates cost three to nine times more than young ones. Compassionate release, meanwhile, is granted to just a few inmates each year.

But since 2004, families of dying inmates at Graterford have had the small comfort of knowing they will not die alone. There is just one nurse on staff at the 23-bed infirmary, and visitors are allowed only an hour a day, but volunteers man the hospice on 24-hour vigils, sometimes caring for two or three inmates at once.

A year ago, a statewide memo ordered that all Pennsylvania prisons establish hospice programs, but there’s no set format for those programs to follow, said Annette Kowalewski, who runs the hospice program at Laurel Highlands state prison, which contains a skilled-nursing facility. Staff at five or six institutions have contacted her for guidance.

According to Brie Williams, a professor at University of California-San Francisco who studies geriatric care in prison, some type of hospice care is offered at around 80 prisons nationwide. “Hospices in the correctional setting are a critically needed response to the extraordinarily long sentences and minimum mandatory sentences that were handed down over the past decades,” she said.

September 29, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, September 28, 2017

"When ‘Not Guilty’ Is a Life Sentence"

The title of this post is the headline of this extended New York Times Magazine article with this summary subheadline: "What happens after a defendant is found not guilty by reason of insanity? Often the answer is involuntary confinement in a state psychiatric hospital — with no end in sight." Here is an excerpt:

James’s insanity acquittal placed him in an obscure, multibillion-dollar segment of domestic detention.  According to a 2017 study conducted by the National Association of State Mental Health Program Directors, more than 10,000 mentally ill Americans who haven’t been convicted of a crime — people who have been found not guilty by reason of insanity or who have been arrested but found incompetent to stand trial — are involuntarily confined to psychiatric hospitals.  Even a contributor to the study concedes that no one knows the exact number.  While seemingly every conceivable data point in America’s prison system is meticulously compiled, not much is known about the confinement of “forensic” patients, people committed to psychiatric hospitals by the criminal-justice system. No federal agency is charged with monitoring them. No national registry or organization tracks how long they have been incarcerated or why.

In 1992, the Supreme Court ruled, in Foucha v. Louisiana, that a forensic patient must be both mentally ill and dangerous in order to be hospitalized against his will. But in practice, “states have ignored Foucha to a pretty substantial degree,” says W. Lawrence Fitch, a consultant to the National Association of State Mental Health Program Directors and former director of forensic services for Maryland’s Mental Hygiene Administration. “People are kept not because their dangerousness is because of mental illness. People stay in too long, and for the wrong reasons.”

Michael Bien, a lawyer who helped bring a successful lawsuit against the California prison system on behalf of prisoners with psychiatric illnesses, concurs. “Under constitutional law, they’re supposed to be incarcerated only if they’re getting treatment, and only if the treatment is likely to restore sanity,” he says. “You can’t just punish someone for having mental illness. But that’s happening.”...

[D]espite its reputation as a “get out of jail free” card, the insanity defense has never been an easy way out — or easy to get. After a defendant is charged, the defendant, her lawyer or a judge can request evaluation by a psychiatrist.  A defendant may be found incompetent to stand trial and committed for rehabilitation if she isn’t stable enough or intellectually capable of participating in the proceedings. If she is rehabilitated, she may be tried; if she cannot be, she may languish in a psychiatric hospital for years or decades. But mental illness is not exculpatory in itself: A defendant may be found mentally ill and still competent enough to stand trial.  At that point, the district attorney may offer an insanity plea — some 90 percent of N.G.R.I. verdicts are plea deals.  If the district attorney doesn’t offer a plea, or the defendant doesn’t take it, the case goes to trial. The defendant may still choose insanity as a defense, but then her case will be decided by a jury....

And when an N.G.R.I. defense does succeed, it tends to resemble a conviction more than an acquittal.  N.G.R.I. patients can wind up with longer, not shorter, periods of incarceration, as they are pulled into a mental-health system that can be harder to leave than prison. In 1983, the Supreme Court ruled, in Jones v. the United States, that it wasn’t a violation of due process to commit N.G.R.I. defendants automatically and indefinitely, for the safety of the public.  (Michael Jones, who was a paranoid schizophrenic, had been hospitalized since 1975, after pleading N.G.R.I. to petty larceny for trying to steal a jacket.)  In almost all states, N.G.R.I. means automatic commitment to a psychiatric facility.  In most states, like New York, there is no limit to the duration of that commitment.  In the states that do have limits, like California, the limits are based on the maximum prison sentence for the offense, a model that belies the idea of hospitalization as treatment rather than punishment.  As Suzanna Gee, an attorney with Disability Rights California (a protection and advocacy agency with counterparts in every state), points out, the law allows two-year extensions as patients approach a “top date,” the limit set on their confinement.  And so, she says, “it can be extended in perpetuity.”

September 28, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, September 27, 2017

Should New Jersey be more regularly championed for its profound success in reducing prison populations and crime rates?

New-jersey-clipart-toonvectors-5159-140The question in the title of this post is prompted by this local article, headlined "Why is the N.J. prison population shrinking? (It's not just about less crime...)," which highlights how and how successful the Garden State has been in reducing its prison population.  Here are excerpts from the article:

The big house is getting smaller. Fewer people are going to prison in New Jersey these days and the numbers continue to drop, according to an analysis of state Department of Corrections data over the past five years.

Those incarcerated in New Jersey — including men and women in prison, juveniles in detention, and detainees still in halfway houses — dropped this year to 19,619, from 21,123 in 2013. That marked a decline of more than 15 percent.

In fact, the state's inmate population has fallen more from its peak in the 1990s than any other state in the country, according to The Sentencing Project, a Washington-based criminal justice reform group. Since 1999 — when more than 31,000 people were behind bars in New Jersey — the number of inmates has plunged by more than a third. "New Jersey leads the nation in prison population reduction," said Todd Clear, a prison policy expert at the Rutgers School of Criminal Justice.

Crime has been going down in New Jersey in recent years. But that doesn’t really tell the story of what's happening in the state's prisons, according to Marc Mauer, executive director of The Sentencing Project. "It's not necessarily one shift that can produce a shift of this magnitude," he said, attributing much of it to the creation of the state's drug courts that focus on diverting people from prison, as well as changes in the parole system that make it less likely someone will be put back behind bars for minor technical violations of their parole.

The corrections department data underscores the impact on how the state treats drug crime. The percentage of those serving time for drug crime is down more significantly than for inmates convicted of any other offense.... According to corrections department officials, a five-year phase-in under Gov. Chris Christie of mandatory drug courts for non-violent offenders, which was expanded to all 21 counties across the state, redirected thousands from state prison and into drug treatment programs.

At the same time, they credited the so-called "ban the box" legislation prohibiting employers from discriminating against people with expunged criminal records, as well as accelerating some expungements, increasing the type of convictions that can be expunged and reducing the waiting period to expunge an entire juvenile record, have given some inmates a better opportunity of finding a job and staying out of prison....

Department of Corrections officials said with the decline in inmate population, they have consolidated facilities and closed some units, reducing overtime costs. "This practice allowed us to undertake much-needed renovations in our facilities," said spokesman Matthew Schuman. "In fact, as part of our consolidation program, we closed Mid-State Correctional Facility in June 2014."

Mid-State reopened in April 2017 as the first licensed, clinically driven drug treatment program provided by the NJDOC. At the same time, a similar substance use disorder program for female offenders became operational at Edna Mahan Correctional Facility for Women.

Unfortunately, this new article does not address what has become of crime rates and recidivism rates during this period in which New Jersey has been shrinking its prison population, but I think the data is also encouraging.  Specifically, crime data for New Jersey here and here suggests crime has gone down as much if not more in NJ than elsewhere in the country and the state even seems to be largely avoiding the crime spikes that a number of other regions have seen in the last two years.  And this local article from last years reports that the state's corrections "Chief of Staff Judith Lang ... said New Jersey’s recidivism rate has lowered from 48 percent to 32 percent" thanks in part to state investment in reentry services.

Though outgoing New Jersey Governor Chris Christie will be leaving office with very low approval ratings, the citizens of New Jersey and all those interested in criminal justice reform should praise his efforts in this arena and the broader achievements of all New Jersey policymakers and officials in recent years.  Especially if New Jersey continues to keep crime rates and prison populations low, the state will continue to be an important success story for modern criminal justice reforms that other jurisdictions should aspire to emulate.

September 27, 2017 in National and State Crime Data, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

Grover Norquist calls criminal justice reform one of the "conservative movement’s most important recent accomplishments"

Anti-tax icon Grover Norquist has this notable Wall Street Journal commentary under the headline "Conservatives for Criminal Justice Reform: You don’t hear about it much, but 31 mostly red states have reduced both crime and imprisonment." Here is how it starts:

Every so often I’m asked to list the conservative movement’s most important recent accomplishments.  One always ranks near the top: criminal justice reform.

With leadership from Republican governors and legislators and groups such as Right on Crime, conservatives have pushed to rein in runaway prison spending and adopt cost-conscious correctional policies that improve public safety.  Starting 10 years ago in Texas, more than half of all states have now shifted course, changing laws to ensure that violent offenders serve hard time while those who are not a danger are steered toward less expensive alternatives that can help alter the paths of their lives and make communities safer.

Taxpayers benefit.  In 2007 the Pew Charitable Trusts projected that state prisons would grow 14% over five years, costing states $27.5 billion more.  Instead, the reforms have bent the curve.  The state prison population is down 5%.  Between 2010 and 2015, 31 states reduced both crime and imprisonment, proving that fiscal discipline and safe streets can go hand in hand.

September 27, 2017 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Tuesday, September 26, 2017

Thoughtful new Vox commentaries on modern incarceration and its contexts

Regular readers likely already know that they ought to be regularly reading Vox for its sharp coverage of a number of criminal justice issues.  And this week, there have already been these two must-read pieces:

September 26, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

DOJ seeking DC Circuit en banc review of panel ruling finding 30-year mandatory minimums unconstitutionally excessive for Blackwater contractors who killed Iraqis

In this post last month, I noted the remarkable split DC Circuit panel opinion in US v. Slatten, No. 15-3078 (DC Cir. Aug. 4, 2017) (available here).  I am now not surprised to learn from this news report that the "Justice Department asked a full federal appeals court Monday to review a decision to throw out the first-degree murder conviction of one former Blackwater Worldwide security guard and the sentences of three others in shootings that killed 14 unarmed Iraqi civilians in Baghdad in 2007."  Here are the details:

Acting Solicitor General Jeffrey B. Wall approved the decision, which was expected and filed by appeals lawyers for the department’s criminal division, to seek a full court review by the U.S. Court of Appeals for the D.C. Circuit, after a three-judge panel ruled Aug. 4.

The panel said a trial court “abused its discretion” in not allowing Nicholas A. Slatten, 33, of Sparta, Tenn., to be tried separately from his three co-defendants in 2014 even though one of them said he, not Slatten, fired the first shots in the massacre.  Slatten was convicted of murder.

By a separate, 2-to-1 vote, the panel also found that the 30-year terms of the others convicted of manslaughter and attempted manslaughter — Paul A. Slough, 37, of Keller, Tex.; Evan S. Liberty, 35, of Rochester, N.H.; and Dustin L. Heard, 36, of Maryville, Tenn. — violated the constitutional prohibition against “cruel and unusual punishment.”  They received the enhanced penalty because they were also convicted of using military firearms while committing a felony, a charge that primarily has been aimed at gang members and never before been used against security contractors given military weapons by the U.S. government.

The Justice Department filing called the panel’s sentencing finding “as wrong as it is unprecedented,” saying the U.S. Supreme Court has upheld longer sentences for lesser crimes. “By its plain terms, the statute applies to defendants, who used their most fearsome weapons to open fire on defenseless men, women, and children,” the department said. “Far from being unconstitutional, these sentences befit the ‘enormity’ of defendants’ crimes.”

The government also cited “legal and factual errors” in the ruling granting Slatten a retrial, noting the “great international consequence” of his prosecution for “a humanitarian and diplomatic disaster.” A retrial in “a prosecution of this magnitude (including reassembling the many Iraqi witnesses) poses considerable and uncommon challenges,” the department wrote, urging the full court to reconsider “in a case of such exceptional importance.”

In their own filing Monday, attorneys for the four men asked the full court to toss out the case on jurisdictional grounds and so reverse the panel’s finding that civilian contractors supporting the Pentagon could be prosecuted under the Military Extraterritorial Jurisdiction Act....

A group representing family members and friends of the four tweeted a statement from Slatten last month that said, “Public outrage may be our only chance at true justice for all four of us. While it may be too early to seek pardons for my brothers from President Trump, he especially needs to hear from you.”

I have been meaning to write more about the extraordinary Eighth Amendment analysis in the Slatten decision, but I have been holding back in part due to my sense that en banc or even certiorari review may be forthcoming. The jurisprudential and political elements of this case are truly fascinating, and I really have no idea if the full DC Circuit and/or SCOTUS may want to take up this hot potato of a case. And in the wake of the Arpaio pardon, perhaps Prez Trump will be inclined to jump into the case at some point, too.

Prior related post:

September 26, 2017 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder"

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston. Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

September 26, 2017 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, September 23, 2017

"Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing"

The title of this post is the title of this new paper posted to SSRN authored by Mirko Bagaric, Gabrielle Wolf and William Rininger. Here is the abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  Financially, this is no longer readily sustainable, even for the world’s largest economy.  Further, the human suffering that prison causes is no longer tolerable from the normative perspective.  Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis.  The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment.

In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation.  A more progressive and often effective means of protecting the community is by rehabilitating offenders.  In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise.  Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders.  This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders.  This approach is flawed.  Empirical data establishes that many offenders can be rehabilitated.

In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal.  First, it is necessary to promulgate rehabilitation as a means of protecting the community.  Second, we propose that the role of rehabilitation in sentencing should be expanded.  In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses.  In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria.

To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions.  The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

September 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (6)

Monday, September 18, 2017

Noting judicial resistance (and legal questions) as Ohio law pushes judges to avoid state prison sentences for certain offenders

This fascinating article in the Columbus Dispatch, headlined "Some Ohio counties leery of Kasich program to divert low-level offenders from prison," highlights a novel and controversial new  sentencing law in Ohio that some local judges and official plainly dislike. Here are excerpts:

The 43-year-old career criminal broke into three Obetz businesses — a market and two pizza parlors — by smashing windows or door glass with rocks and concrete blocks over a four-day period last summer.  A Franklin County Common Pleas judge sent him to prison for two years, a decision that was upheld last week by the county court of appeals.  But under a program in which Franklin County will be required to participate beginning next July, the state will penalize the county for sending such an offender to prison.

The Targeted Community Alternatives to Prison program, approved by legislators in June as part of the state budget, seeks to reduce the prison population by diverting nonviolent, low-level felons to probation, local jails or community-based programs.  In return, the counties will receive grants from the state Department of Rehabilitation and Correction to offset the cost of supervising, treating or jailing those offenders in their communities.

The program, advocated by prisons Director Gary Mohr and Gov. John Kasich, has received opposition from judges and prosecutors across the state since it was proposed.  Most judges don’t like it because “it infringes on our discretion by telling us there are certain felons we can’t send to prison,” said Judge Stephen L. McIntosh, the administrative judge for Franklin County Common Pleas Court.

Some counties have decided that the grant money being offered by the state won’t be enough to cover the costs of keeping offenders in the community who otherwise would have gone to prison.  Others have offered a harsh assessment of a program that gives grants to judges in exchange for keeping certain offenders out of prison.  “Essentially what judges are being offered is a bribe,” Stark County Common Pleas Judge Kristin Farmer said in August when she and her colleagues on the bench encouraged their county commissioners not to participate in the program this year....

Franklin and Stark are among the state’s 10 largest counties, all of which are mandated under the law to participate in the program beginning July 1, 2018.  Franklin County’s Common Pleas judges will meet Tuesday to decide whether to participate in the program before the mandate kicks in, McIntosh said.  Last week, Cuyahoga County joined Stark in deciding not to implement the program until next summer. “The state’s offer of resources is completely inadequate to the demands that it will put on our local jails and our systems,” Armond Budish, the Cuyahoga County executive, said in a news release....

Under the program, offenders convicted of fifth-degree felonies, the lowest felony level, are not to be sentenced to prison unless they’ve committed a violent offense, a sex crime or a drug-trafficking offense.  The state correction department estimated that 4,000 such offenders were sent to prison last year.  If a participating county sends someone to prison in violation of the criteria, their grant money will be docked $72 a day for each day the offender is held in a state facility.

Clinton County Common Pleas Judge John W. “Tim” Rudduck has been participating since October in a pilot program to test the concept and is a vocal supporter of its benefits. “I’m looking at it from the perspective of a single judge in a semi-rural county with limited resources,” he said.  “The money we have received has been instrumental in developing resources (to support alternatives to prison) that we never had before.”  Before the program was implemented, some offenders were going to prison simply because Clinton County didn’t have the resources to treat or supervise them in the community, he said.

The program is voluntary for 78 counties. So far, 48 counties have agreed to implement the program....  A system in which some Ohio counties follow the program and other don’t is “patently unconstitutional,” said Franklin County Prosecutor Ron O’Brien.  The Ohio Constitution, he said, requires “uniform operation” of all laws.  That concept is violated when a defendant receives a prison sentence in one county for an offense for which he would be prohibited from receiving prison in another.

Those “equal protection” concerns are almost certain to lead to legal challenges for the program, said Paul Pfeifer, executive director of the Ohio Judicial Conference.  “I’d fully expect a test case to be filed on that issue,” said Pfeifer, a former state Supreme Court justice and state senator.  His organization, which represents all judges in Ohio, has expressed concerns about the program, but wants to work with judges to make its implementation as smooth as possible now that it’s the law, he said.

September 18, 2017 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Saturday, September 16, 2017

"Parental Arrest, Incarceration and the Outcomes of Their Children"

The title of this post is the title of this paper recently posted to SSRN authored by Stephen Billings. Here is the abstract:

Parental arrest and incarceration represents a profound and traumatic experience for almost 3 million children in the U.S. and scholars in sociology and criminology consistently find negative impacts of parental incarceration on children across a range of academic and behavioral outcomes.  Unfortunately, the challenge of disentangling parental incarceration from other parenting attributes has limited causal inference in this literature.

The research presented here provides compelling evidence that parental arrest coincides with negative outcomes for children, but that the incarceration of a parent may have short term benefits for the child.  Results suggest that incarceration removes negative role models and leads to changes in a child's home environment.

September 16, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, September 12, 2017

"Black Disparities in Youth Incarceration: African Americans 5X More Likely than Whites to be Held"

The title of this post is the title of this new fact sheet produced by The Sentencing Project. Here is some of the text to go along with its state-by-state charts:

Black youth were more than five times as likely to be detained or committed compared to white youth, according to data from the Department of Justice collected in October 2015 and recently released.  Racial and ethnic disparities have long-plagued juvenile justice systems nationwide, and the new data show the problem is increasing.  In 2001, black youth were four times as likely as whites to be incarcerated.

Juvenile facilities, including 1,800 residential treatment centers, detention centers, training schools, and juvenile jails and prisons held 48,043 youth as of October 2015.  Forty-four percent of these youth were African American, despite the fact that African Americans comprise only 16 percent of all youth in the United States.  African American youth are more likely to be in custody than white youth in every state but one, Hawaii.

Between 2001 and 2015, overall juvenile placements fell by 54 percent.  However, white youth placements have declined faster than black youth placements, resulting in a worsening of already significant racial disparity.

Nationally, the youth rate of incarceration was 152 per 100,000.  Black youth placement rate was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. Overall, the racial disparity between black and white youth in custody increased 22 percent since 2001.  Racial disparities grew in 37 states and decreased in 13.

In six states, African American youth are at least 10 times as likely to be held in placement as are white youth: New Jersey, Wisconsin, Montana, Delaware, Connecticut, and Massachusetts.

September 12, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Monday, September 11, 2017

"Guideposts for the Era of Smart Decarceration"

Download (5)The title of this post is the title of this notable document produced by the Smart Decarceration Initiative and authored by Carrie Pettus-Davis, Matthew Epperson and Annie Grier. (The document was released earlier this year, but was just recently brought to my attention.)  Here is part of its executive summary:

Reducing the United States’ overreliance on incarceration requires deliberate action. Proponents of smart decarceration recognize the need for clearly articulated areas of targeted intervention — or guideposts — to inform the multifaceted nature of criminal justice reform.  An important first step as we enter the era of decarceration is to merge the collective goals and strategies of diverse and highly invested stakeholders.

Despite the expansion of efforts to reduce jail and prison populations and reform criminal justice policy and practice, a comprehensive, inclusive, and actionable approach has been relatively absent from the conversation.  Such an approach is only possible if criminal justice stakeholders agree upon the foundational objectives that can generate lasting decarceration. In this report, we offer guideposts and actionable strategies for the era of smart decarceration in America.

This document was written by leaders of the Smart Decarceration Initiative (SDI). SDI is a joint initiative of Washington University in St. Louis and the University of Chicago and is located at the Center for Social Development at Washington University’s Brown School of Social Work. SDI’s mission is to build social capacity to reduce incarceration rates in ways that are effective, sustainable, and socially just.  Smart decarceration will only be achieved when three simultaneous goals are accomplished:

• Substantially reduce the incarcerated population in jails and prisons;

• Redress race, economic, and behavioral health disparities of those involved in the criminal justice system;

• Maximize public well-being and public safety.

SDI is grounded in four guiding concepts:

1. Changing the narrative on incarceration and the incarcerated. A smart decarceration approach must soberly question the utility and function of incarceration and actively welcome currently and formerly incarcerated individuals as leaders in decarceration efforts.

2. Making criminal justice systemwide innovations. Criminal justice transformation that leads to smart decarceration will require advances in all sectors of the criminal justice system, including law enforcement, court systems, jails and prisons, and probation and parole.

3. Implementing transdisciplinary policy and practice interventions. Smart decarceration will be complex and comprehensive and will require integrating perspectives from multiple disciplines to produce substantive policy reforms and practice innovations.

4. Employing evidence-driven strategies. A smart decarceration approach must both generate new evidence for optimal reforms and use existing evidence to guide decision-making and program development. Methods must be integrated to continuously examine and assess the effects of policy and practice interventions, thus developing further evidence from which to act.

This report, Guideposts for the Era of Smart Decarceration, is a result of our efforts to build consensus and articulate priorities that stakeholders have identified as feasible and likely to produce meaningful impact in the era of decarceration. Integral to ensuring that smart decarceration is achieved is that the ideas and needs of multiple stakeholders are represented.

This report contains a set of guideposts and action steps for stakeholders identified over a three-stage process of soliciting input from 307 advocates, practitioners, reformers, and researchers. Stakeholders were engaged in this process between September 2014 and September 2016. The purpose of Phase 1 was to show where to focus decarceration efforts. Phase 2 was used to reveal the prioritization of specific action steps that could be taken to promote decarceration in ways that are consistent with smart decarceration goals and guiding concepts. Phase 3 articulated universal policy strategies to facilitate decarcerative change....

Twelve priority areas for decarceration were generated during Phase 1. These priorities included: (1) sharing data and resource allocation; (2) incorporating assessments of risks and needs; (3) implementing evidence-driven innovations; (4) reorienting responses to severity of the crime; (5) resetting norms and narratives; (6) incorporating multiple and new perspectives; (7) responding to behavioral and physical health needs; (8) improving reentry; (9) reducing collateral consequences; (10) building diversionary systems; (11) curtailing sentencing; and (12) narrowing the funnel to incarceration....

September 11, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Thursday, September 07, 2017

Just how should California implement Prop 57's call for prison releases?

The question in the title of this post is prompted by this local article headlined "Prop 57: Debate rages on about which inmates should be released early." Here are excerpts:

Ten months after California voters approved a proposition allowing thousands of prison inmates to apply for early release, a debate is still raging over who ought to be freed.

Proposition 57 left it to prison officials to clearly identify which crimes deemed nonviolent would qualify and how an inmate’s criminal history would affect eligibility. The public could weigh in during a 45-day comment period this summer — and boy, did they. More than 8,500 people threw in their two cents, in writing and at a public hearing in Sacramento last week. Now, the California Department of Corrections and Rehabilitation is sorting through bulging email boxes and stacks of letters from crime victims, inmates, prosecutors and reformers.

Meanwhile, under emergency regulations, prison officials have already notified prosecutors across California of more than 1,800 inmates who have applied for early parole. No figures are available until later this month on the number of inmates whose applications have been denied, approved or have actually been released. But a snapshot of the situation in two urban counties in Northern California shows relatively few people are being granted early parole, though it is impossible to tell if the trend will continue....

Ken Scheidegger, legal director of the Sacramento-based Criminal Justice Foundation, ... opposed Proposition 57 and is concerned about the early releases. “People got the idea a few years ago that prisons were full of harmless people,” Scheidegger said. “That is a widespread popular misconception.”

But proponents note that Proposition 57 was the third time since 2012 that voters overwhelmingly opted to ease California’s tough-on-crime laws to enhance rehabilitation, stop the revolving door of crime and prevent federal courts from indiscriminately releasing inmates to reduce prison crowding. “Prop. 57 is not a ‘get out of jail free’ card,” said Benee Vejar, an organizer with the civil rights group Silicon Valley De-Bug. “It’s asking for an early parole hearing and another chance.”...

The Department of Corrections and Rehabilitation has until Sept. 20th to develop the regulations, but it can ask for a 90-day extension. The debate over the Proposition 57 regulations is being fought along similar battle lines as the fight over the initiative itself.

Advocates, including Human Rights Watch, want prison officials to consider as many people as possible for early release. Law enforcement officials want to restrict who is eligible and change how the decisions are made. Both sides are calling for more rehabilitation programs. The state recently boosted the prison system’s rehab budget by $137 million. “We cannot repair the criminal justice system on the cheap,” said Rosen, the Santa Clara County district attorney. “If we want to improve the outcomes from prison, then we will need to change the experience of being in prison.”

The ... opponents’ chief complaint is that the initiative promised voters that only nonviolent inmates would be eligible for release. But under the existing regulations, certain violent offenders are eligible once they have completed their prison term for the violent felony, but are still serving time for a nonviolent felony they were also convicted of. The Legislative Analyst’s Office also raised questions about the provision. On the other hand, Proponents want to expand the pool of inmates. Currently, about 4,000 inmates with third strikes whose last offense was nonviolent are barred from applying for early parole. Yet according to the CDCR’s own public safety risk evaluations, nonviolent third-strikers are more than three times more likely to qualify as low risk than the currently eligible prisoners.

But opponents claim crime will rise under Proposition 57, a warning they have sounded since 2011 when Gov. Jerry Brown and the Legislature began scaling back the emphasis on incarceration in response to a federal court order about prison crowding and inhumane health care. Opponents point to the fact that violent crime in 2016 rose in the state — by 4.1 percent — unlike in the country as a whole. However, proponents note California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before the reforms began....

Law enforcement officials also complain about the process. Among their concerns: Early parole applications are subject to a paper review, rather than a parole hearing; prosecutors only have 30 days to prepare a recommendation; only inmates may appeal the board’s decision; and police are cut out entirely. “My rank and file are on the front lines — they’re the ones who have to encounter these individuals once they’re on the streets,” San Jose police Chief Eddie Garcia said.

September 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Monday, August 28, 2017

Helpful new Sentencing Project fact sheet on "Private Prisons in the United States"

The fine folks at The Sentencing Project have this fine new two-page fact sheet providing state-by-state data on the use of private prisons.  Here is some of the text that accompanies the charts in the publication:

Private prisons in the United States incarcerated 126,272 people in 2015, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 45%.

States show significant variation in their use of private correctional facilities.  For example, New Mexico and Montana incarcerate over 40% of their prison populations in private facilities, while states such as Illinois and New York do not employ for-profit prisons.

Data compiled by the Bureau of Justice Statistics (BJS) show that in 2015, 28 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation.

According to BJS data, 21 of the states with private prison contracts incarcerate more than 500 people in for-profit prisons.  Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 14,293.

Since 2000, the number of people in private prisons has increased 45%, compared to an overall rise in the prison population of 10%. In five states, the private prison population has increased 100% or more during this period.  The federal prison system experienced a 125% increase in use of private prisons since 2000 reaching 34,934 people in private facilities in 2015.

Despite the significant growth in private prisons since 2000, the number of people housed in these facilities has declined 8% since reaching a national peak population of 137,220 in 2012.  Since 2000 six states — Arkansas, Kentucky, Maine, Michigan, Utah and Wisconsin — have eliminated their use of private prisons due to concerns about safety and cost-cutting.  An additional six states saw reductions of 40% or more in the use of private prisons during this period.

August 28, 2017 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, August 25, 2017

Supreme Court of Wyoming continues to interpret Graham and Miller broadly

A helpful colleague made sure I did not miss an interesting opinion handed down yesterday by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here), involving the Supreme Court's juve sentencing jurisprudence.  Here are concluding passages from the majority opinion ruling for the defendant in Sam:

Mr. Sam argues that his consecutive sentences of a minimum of 52 years, with release possible when he is 70 years old, is unconstitutional....

In Bear Cloud III, we analyzed the United States Supreme Court case law leading up to Miller and concluded that the prohibition of life without parole sentences required a “‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” 2014 WY 113, ¶ 21, 334 P.3d at 139 (quoting Graham, 560 U.S. at 75, 130 S.Ct. at 2030). And we held that “‘[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society as required by Graham . . . .’” Bear Cloud III, 2014 WY 113, ¶ 34, 334 P.3d at 142 (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (internal quotation marks omitted)).   Since then, the United States Supreme Court has confirmed that the release for juveniles contemplated by the Roper, Graham, and Miller courts should allow them “hope for some years of life outside prison walls . . . .” Montgomery, 136 S. Ct. at 736-37. We held in Mr. Bear Cloud’s case that his sentence of a minimum of 45 years, with possible release when he is 61, was the functional equivalent of life without parole. Bear Cloud III, 2014 WY 113, ¶¶ 11, 33, 334 P.3d at 136, 142. In this case, the sentencing court has made the determination that Mr. Sam is not one of the juvenile offenders whose crime reflects irreparable corruption. An aggregated minimum sentence exceeding the 45/61 standard is the functional equivalent of life without parole and violates Bear Cloud III and Miller and its progeny. The sentence imposed on Mr. Sam of a minimum 52 years with possible release at age 70 clearly exceeds that. We therefore reverse and remand with instructions to the sentencing court to sentence Mr. Sam within the confines set forth in Bear Cloud III.

A dissenting justice in Sam took a distinct view, and here are conclusing passages from the dissenting opinion:

Mr. Sam did not act from impulse, immaturity, or at the invitation or inducement of others.  He intentionally prepared for his crimes, baited the victims into an ambush, committed multiple aggravated assaults on numerous victims, and culminated the spree with an execution-style murder.  Proportionality requires that those factors be considered in his sentence, as well as the remote possibility of rehabilitation.

The U.S. Supreme Court has not defined a “meaningful opportunity to obtain release.”  Nothing in any Supreme Court decision suggests that a “meaningful opportunity to obtain release” must be the same for every defendant.  To the contrary, the proportionality required by the Eighth Amendment indicates that a more mature defendant who commits multiple crimes including murder should receive a lengthier sentence than someone who is less mature or commits only one crime.

In this case, the district court did all it was required to do in sentencing Mr. Sam.  It conducted a thorough individualized sentencing hearing and considered multiple times Mr. Sam’s youthful factors, family history, and participation in the crime as required by Miller and Bear Cloud III. It crafted a sentence it felt was appropriate based upon all of these factors, and it believed this sentence did not constitute a de facto life sentence.  It concluded that Mr. Sam deserved a longer sentence than if he had only committed the murder, or the murder and one additional aggravated assault.

The majority remands this case to the district court to impose an aggregate sentence of something less than the 45 years that was rejected in Bear Cloud III, concluding that Mr. Sam’s sentence denies him any meaningful opportunity for release before he is “geriatric.”  I disagree.  If Mr. Sam is motivated by the possibility of parole and comports himself well while in prison he will receive credit for “good time” under Wyo. Stat. Ann. § 7-13-420 (LexisNexis 2017) and Department of Corrections rules.  He will then be eligible for parole on the last of his sentences at about age 61.  I do not agree that release at that age deprives Mr. Sam of all meaningful portions of life.

August 25, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

Tuesday, August 22, 2017

Looking at US prison history while charting "How to End Mass Incarceration"

The quoted title of this post is the headline of this lengthy Jacobin commentary authored by Roger Lancaster, which starts with an extended review of prison history in the United States.  I recommend the full piece, and here is a how it gets started:

The United States has not always been the world’s leading jailer, the only affluent democracy to make “incapacitation” its criminal justice system’s goal.  Once upon a time, it fashioned itself as the very model of what Michel Foucault called “the disciplinary society.”  That is, it took an enlightened approach to punishment, progressively tethering it to rehabilitative ideals.  Today, it is a carceral state, plain and simple.  It posts the highest incarceration rate in the world — as well as the highest violent crime rate among high-income countries.

Politicians, reporters, and activists from across the political spectrum have analyzed the ongoing crisis of mass incarceration.  Their accounts sometimes depict our current plight as an expression of puritanism, as an extension of slavery or Jim Crow, or as an exigency of capitalism.  But these approaches fail to address the question that ought to be foremost in front of us: what was the nature of the punitive turn that pushed the US off the path of reform and turned its correctional system into a rogue institution?

While the state-sanctioned brutality that now marks the American criminal justice system has motivated many activists to call for the complete abolition of prisons, we must begin with a clearer understanding of the complex institutional shifts that created and reproduce the phenomenon of mass incarceration.  Only then will we be able to see a clear path out of the current impasse.

August 22, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Friday, August 18, 2017

Huge portion of Louisiana prison population could benefit from state's recent reform of nonviolent sentences

As reported in this local article, headlined "Louisiana to review 16,000 prison sentences as criminal justice reform takes effect," recent sentencing reform in the Pelican state could have a huge impact on current prisoners. Here are the details:

Louisiana's Public Safety and Corrections officials are reviewing the sentences of 16,000 inmates who could have their prison time shortened as criminal law changes take effect Nov. 1. That's around 45 percent of the 35,500 people the state has locked up now.

Gov. John Bel Edwards and the state Legislature overhauled the criminal justice system this past spring, aiming to reduce Louisiana's highest-in-the-world incarceration rate. Some law changes have already taken place, but changes that mostly retroactively affect low-level offenders in prison go into place in November -- driving the review.

The 16,000 prison terms being reconsidered are for nonviolent offenses only and many will likely remain unchanged, said Jimmy LeBlanc, secretary of the Department of Public Safety and Corrections. For example, some inmates who are serving sentences for multiple offenses won't be affected. Also, the majority of people whose sentences are affected won't necessarily be getting out anytime soon, LeBlanc said.

Still, there will be an initial surge in releases from prison right after Nov. 1. About 3,000 to 4,000 of the 16,000 sentences being reviewed could be changed to make inmates eligible for release before the end of the year. In the end, LeBlanc estimates about 1,500 to 2,000 of that cohort will actually get out in the weeks following Nov. 1. Others will probably have to wait. Some inmates may not have completed all the rehabilitation work required to get out at an earlier date.

Prior to the criminal justice changes passing, the number of inmates in the state's corrections system was expected to reach 36,300 by November, according to the prisons system's own projections. If 2,000 additional people were released in November, that would amount to a five percent decrease compared to those projections. In a normal month, the prison system releases about 1,500 people. The 1,500 to 2,000 people who get out shortly after Nov. 1 would be in addition to those normally discharged....

The bulk of Louisiana's states inmates are actually not housed in state prisons at all. About 55 percent of them -- 19,500 inmates -- are kept in local parish jails by sheriffs that get paid by the prison system to house them.

It's not clear how many inmates who will get earlier releases -- including those who will leave in November -- will come from local jails or state prisons at this point. However, local jails tend to house lower-level offenders that are less of a public safety risk. Those in state prisons are more likely to be serving longer prison sentences for violent offenses, most of which weren't changed recently.

August 18, 2017 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1)

Monday, August 14, 2017

Imaginging how the internet "could put an end to prisons as we know them"

Gosh knows the modern digital revolution and the internet has brought the demise of a number of brick-and-mortar institutions ranging from music stores to travel agencies.  But this new article from Australia makes the case that the internet could bring an end to brick-and-mortar prisons.  The intriguing piece is headlined "Internet of incarceration: How AI could put an end to prisons as we know them," and here is how it gets started:

Dan Hunter is a prison guard's worst nightmare. But he's not a hardened crim.  As dean of Swinburne University's Law School, he's working to have most wardens replaced by a system of advanced artificial intelligence connected to a network of high-tech sensors.

Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration. Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.

"If we had to use human beings, the cost of monitoring every single type of interaction would be prohibitively expensive," he says. But new technologies are now capable of providing automated surveillance at a fraction of that expense, he says, using equipment that's already in existence or under development.

Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed. That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.

His vision is futuristic, but it isn't simply technological fetishism. He's convinced such automation will make for a better society. Under his proposal, the main costs of incarceration are borne by the offender and his or her family, not by the state, while law-breakers are isolated from each other, decreasing the risk of offenders becoming hardened by the system.

While technology has transformed our society, the jails of the 21st century operate pretty much as they did 100 years ago. "We are at the point now where we can fundamentally rethink the way in which we incarcerate people," Professor Hunter says. "If what we want to do is we want to keep the community safe, if we want to have the greatest possibility of rehabilitation of the offender and if we want to save money, then there are alternatives to prison that actually make a lot of sense."

Readers may recall this prior post flagging this recent paper authored by Dean Hunter and colleagues titled "Technological Incarceration and the End of the Prison Crisis"

August 14, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (2)

Thursday, August 10, 2017

Making a pitch for the Reverse Mass Incarceration Act of 2017

The Hill has this new commentary authored by former Representative Donna Edwards under the headline "What ever happened to mass incarceration reform?". The piece makes a pitch for the Reverse Mass Incarceration Act, and here are excerpts:

Though it feels like eons ago, the summer of 2016 promised to be one of bipartisan efforts to tackle the issue of mass incarceration. Unfortunately, the summer for criminal justice reform dissolved without fanfare into the craziness of the 2016 election. And, with the confirmation of Attorney General Jeff Sessions, who ushered in a 1980’s throw-back Department of Justice directive on low-level drug offenses, it remains unclear whether there might be a return to a bipartisan approach to criminal justice reform in the 115th Congress.

Nonetheless, a promising alternative strategy to reverse mass incarceration seems to have emerged. In the lead once again is Sen. Cory Booker of New Jersey, joined by former prosecutor, Sen. Richard Blumenthal of Connecticut, both Democrats. In the Reverse Mass Incarceration Act of 2017 (RMIA), the senators apply the lessons learned from the failed approaches of the 1990’s to lower crime and lower incarceration. The bill was modeled off of a Brennan Center proposal of the same name.

When the Violent Crime Control and Law Enforcement Act of 1994 (1994 Crime Bill) passed, a prescient few predicted the extreme escalation of incarceration in the nation’s prisons, a trend that likely began in the two decades before the 1994 law.  According to a recent Brennan Center analysis, even as crime declined by 10 percent from 1991-1994, prison populations exploded pre-1994 by 400 percent and doubled in the decade following the law’s passage.  With today’s well-documented growth in state and federal prison population, most people, including President Bill Clinton, accept that the 1994 incentives he championed were a mistake, rewarding states to build and fill more prisons....

A disproportionate number of people of color fill federal and state prisons. According to The Sentencing Project, more women than ever are behind bars and 60 percent of them have children at home.  In the last three decades incarceration rates for women have outpaced men by 50 percent, a 700 percent rate of growth since 1980.  And, while incarceration rates for African-American women have declined since 2000, twice as many African-American women as white women are incarcerated.  Incarceration rates for white and Hispanic women have continued to increase over the same period, by 56 percent and 7 percent, respectively.

In recognizing the creativity and diversity of states, as well as the overwhelming number of persons incarcerated under their jurisdiction, the RMIA provides incentivizes to states to reduce their incarceration rates.  Rather than mandate states to reduce incarceration, the Reverse Mass Incarceration Act of 2017 would instead enable states that achieve a 7 percent reduction in incarceration rates over 3 years without a significant increase in crime to access a $20 billion grant program.

Unlike the so-called “tough on crime” approaches of the 1990’s, RMIA would support evidence-based programs that reduce incarceration and crime.  Perhaps one of the chief benefits of this approach is behavior changes that occur throughout the system, from the prosecutors and sentencing judges, to the social service providers, to policy makers. These positive incentives can have nationwide impact to reduce incarcerated populations, providing the moral, social and fiscal incentives to help states reverse incarceration.

States are encouraged to be creative and to find solutions that best fit their state.  Eligible states might support ideas like drug treatment, education, job training, diversion or re-entry programs. Some states are engaging in these strategies already, and they and others should be encouraged to do more. The good news is that within the last decade, 27 states have decreased both crime and imprisonment, so there is a path forward....

While Congress may be deeply engaged in the Russia election-meddling investigation, this may be just the time to revive criminal justice reform. The Reverse Mass Incarceration Act of 2017 is a simple and straightforward approach to federal lawmaking, incentivizing good behavior — helping states to do the right thing to curb incarceration and keep communities safe. It’s an approach that’s ripe for bipartisanship.

August 10, 2017 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Tuesday, August 08, 2017

Too bad AG Sessions is not trying to take prison populations back to the 1980s or even the 1950s

Fe26824f81_the-wayback-machineIt has become popular to lament the various actions of Attorney General Sessions by saying he is taking us back to the 1980s.  Here is a smattering of critical commentary in this vein, the latest of which was published a few days ago in Reason:

Today, though, this Crime Report piece details a claim that AG Sessions has his wayback machine set even longer ago.  The piece is headlined "Sessions Takes DOJ ‘Back to the Fifties,’ Says New John Jay President," and here is how it gets started:

Karol Mason, the new president of John Jay College of Criminal Justice, envisions expanding the school’s role so that it leads the national conversation on innovations in the courts, corrections and policing now that, she says, the U.S. Department of Justice has essentially bowed out, reports The Chief Leader in New York City.

Charging that U.S. Attorney General Jeff Sessions is moving the clock back on justice issues by decades — “I’d say to the fifties” — John Jay is well-positioned to step up, said Mason, who served as an Assistant Attorney General under President Obama.

Without commenting on which decade AG Sessions wants us to be living in, I just thought all this critical discussion of earlier eras provided an appropriate moment to remind everyone how much less the US relied on imprisonment in the 1950s and even the 1980s.

As detailed in this BJS document, back in 1955 the national prison population was just over 185,000, with about 20,000 in federal prison and the other 165,000 in state prisons. In 1985, the national prison population was just over 465,000, with nearly 30,000 in federal prison and the other 435,000 in state prisons.  And as this BJS report detailed, at the end of 2015, the national prison population was just over 1,525,000, with nearly 200,000 in federal prison and the other 1,325,000 in state prisons.  (There has been significant growth in the US population over the last 60 years, so the US incarceration rate has not increased quite as much as total incarceration levels.)  Of course, the Justice Department policies and practices along with changes in state policies and practices in the 1980s played a significant role in the increase in prison populations, and that is the foundation for the considerable hand-wringing about a return to 1980s-era criminal justice thinking.  

August 8, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Friday, August 04, 2017

Sizable set of Senators inquire about BOP's continued failure to use compassionate release

As reported in this article from The Hill, headlined "Senators push federal prisons to expand compassionate release," a notable group of legislators sent a notable letter yesterday concerning the work of the federal Bureau of Prisons. Here are the details:

A bipartisan group of senators are calling on federal prison officials to follow through on recommendations to expand the use of compassionate release.

In a letter Thursday, Sen. Brian Schatz (D-Hawaii) and 11 other senators asked acting Federal Bureau of Prisons (BOP) Director Thomas Kane and Deputy Attorney General Rod Rosenstein to take a serious look at a prison bureau program that allows federally incarcerated people to appeal for early release if they present certain “extraordinary and compelling” reasons.

The lawmakers, who include Sens. Mike Lee (R-Utah), Elizabeth Warren (D-Mass.), John Cornyn (R-Texas) and Cory Booker (D-N.J.), pointed to a 2013 report in which the Department of Justice inspector general recommended expanding the compassionate release program to deal with the increasingly large number of aging inmates with serious medical conditions.

Though the senators said the BOP adopted new policies following that report to expand its criteria, none of the 203 elderly inmates who applied under medical reasons in the 13 months following the report were approved.  Last year, the U.S. Sentencing Commission expanded and clarified the criteria for age and family circumstances that make an inmate eligible for compassionate release and encouraged the BOP to file a motion for release if an inmate meets the new policy.

In light of these changes, the senators asked Kane and Rosenstein how many compassionate release requests received in the last three years have been granted and denied, how many petitioners have died waiting for a response, what steps the bureau has taken to follow the commission’s directives and what action the bureau can take to increase its use of compassionate release.

Sens. Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Thom Tillis (R-N.C.), Ed Markey (D-Mass.), Kirsten Gillibrand (D-N.Y.), Dick Durbin (D-Ill.) and Tammy Duckworth (D-Ill.) also signed the letter.

A few prior related posts:

August 4, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (16)

Wednesday, August 02, 2017

Two effective new commentaries on mass incarceration, the drug war and local realities of criminal case processing

These two new commentaries provide effective and important reminders of various realities of our nation's criminal justice system(s):

I recommend both pieces in full. 

August 2, 2017 in Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Sunday, July 30, 2017

Reviewing the unique (and uniquely important?) Texas experience with criminal justice reform

This lengthy new Business Insider article, headlined "Texas is shedding its lock-'em-up image thanks to a 37-year-old tattooed lawyer and an unlikely political alliance," provides an extended account of how one significant state became a significant leader on criminal justice reform. Here is a small excerpt:

Until 2005, criminal-justice reform had been nearly impossible to pass in Texas, as was the case in many conservative states. Reformers were derided as "soft on crime" while even popular bills ran into vetoes from Republicans like Gov. Rick Perry, budget crises, and tough-on-crime district attorneys, many of whom view securing harsh sentences as a metric of success.

But with Texas's prisons bursting at the seams, legislators were faced with a choice: reduce incarceration with reforms or funnel billions into new prisons.  At the same time, a new movement emerged among conservatives, led by Marc Levin, the director of the Right on Crime campaign created by the right-leaning Texas Public Policy Foundation. Levin, an Austin-based attorney and public-policy expert, and other conservatives like him understood ideas such as addressing substance abuse with treatment rather than incarceration, and promoting parole, probation, and reentry programs, as inherent to conservative ideology, not antithetical to it.

Meanwhile, fiscal conservatives in the state had grown appalled by the taxpayer burden of funding and maintaining new prisons, while libertarians were cynical of the broad government power required to funnel vast numbers of Texans through prisons each year.  Social conservatives like Prison Fellowship, an evangelical Christian organization founded by Chuck Colson, a former Watergate-era felon, approached reform after witnessing through their prison-ministry programs how rarely inmates were given opportunities for redemption.

"You really had a point where the only thing that was standing against reform from the conservative perspective ... would just be the muscle memory of being 'tough on crime' for decades," Derek Cohen, the deputy director of Right on Crime, told Business Insider.

What propelled reform forward, however, was that those groups were able to join with liberals long clamoring for change in the Republican-controlled state.  The movement formed the Texas Smart On Crime Coalition to push their agenda in the statehouse and, while the coalition is bipartisan, that doesn't mean they agree on everything.  The movement can be thought of as a sort of Venn diagram.  Liberals, conservatives, and religious groups each have their own reform plans, and they work together on issues where there is broad agreement, while still vehemently opposing one another where values diverge.  "This shows that just because it's bipartisan doesn't mean that it's compromise," Cohen said. "We're retaining our perfect circles and just in the few places that they overlap, that’s where we're working together."

Common issues like bail reform, rehabilitation and treatment programs, and prosecuting youths through juvenile rather than adult courts are all fair game for collaboration. But issues like "mens rea reform," or requiring more proof of a defendant's culpable mental state, are more polarized. Similarly, en masse sentence reductions for drug crimes and "ban the box" initiatives — some of which impose civil or criminal penalties on employers that ask about applicants' criminal histories — remain partisan battlefields.

Cohen said the key to unlocking reforms in Texas has been that most Americans, whether conservative or liberal, just want a system that works. "They want a system that shows that that behavior is morally blameworthy ... but also that which rehabilitates," Cohen said. "There isn't this monolithic, punitive impulse in Texas or in conservatives or liberals or anywhere in the country."

July 30, 2017 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Spotlighting BOP's continued curious failure to make serious use of "compassionate release"

Mike Riggs has this notable new piece at Reason headlined "Congress Wants to Know Why the BOP Won't Let Elderly Prisoners Go Home to Die: 'Compassionate release' is an excellent tool that the BOP refuses to use." Here are excerpts:

For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called "compassionate release."... In 2013, the BOP Office of Inspector General encouraged the BOP to send these kinds of prisoners home. In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations [and now] Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

  • the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission

  • a detailed explanation as to which recommendations the BOP has not adopted, and why the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why

  • how much time elapsed between each request and a decision from the BOP

  • the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America's prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems. "In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years," BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. "One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population."...

Shelby's letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee. "Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there's no good reason they should stay locked up or die behind bars because bureaucrats can't or won't let them go home to their families," Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. "It's time for someone to get to the bottom of why the BOP's answer is always no on compassionate release."

July 30, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, July 27, 2017

Reviewing data and lessons of recent Urban Institute report on rising prison time

German Lopez has this new Vox piece that effectively reviews the data and lessons on the recent Urban Institute big new project on long prison terms titled, "A Matter of Time: The Causes and Consequences of Rising Time Served in America’s Prisons." (This prior post covered that report when it was first released a few weeks ago.)  The full title of this piece captures its primary themes: "Liberals often blame mass incarceration on the war on drugs.  That’s not quite right. A new report shows that the real increase in prison sentences has come from violent offenses, not lower-level crimes."  Here are excerpts:

“Longer sentences are stacking up,” Ryan King, the lead researcher for the Urban report, told me.  “And in many states, the data suggest that they’re stacking up at a rate significant enough that it can offset reforms for the less serious offenses.”

The report includes various other findings.  It found there are vast racial disparities in the top 10 percent of prison sentences, just as there are for lower-level offenses.  The people locked up also tend to be fairly young, which robs communities — particularly black neighborhoods — of people who could grow up to be productive citizens instead of serving out disproportionately harsh sentences. It also told the stories of a few people who suffered through some of these long sentences.  You should really read the whole thing.

But I want to home in on the big finding because it shows what the traditional story about mass incarceration has gotten wrong.  Much of the attention has gone to harsh mandatory minimum sentences for drug offenses, but they seem to have had a fairly small impact on overall incarceration rates.  What seemed to change, instead, is that the system enforced longer prison sentences for some of the worst offenses — and that led to a lot more imprisonment....

To really address the problem of mass incarceration, then, it’s not enough to just focus on drug crimes; it’s also important to focus on violent offenses. It’s also not enough to just focus on the laws guiding prison sentences; it’s also necessary to look at how those laws are enforced in the real world. And addressing all of these issues will require a truly systemic effort — from addressing what the local prosecutor is doing to what laws state policymakers pass to what the president and his attorney general are asking the US Department of Justice to do.

It will be a long, arduous effort.  After years of lawmakers building up incarceration at every level of government, it will likely take years of more policymaking at every level of government to unwind what previous generations of leaders have done.  “This is a long-term project,” King of Urban said. “But we do see it as one that’s ringing a bell saying, look, we’re going to have to deal with this.”

July 27, 2017 in Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)