Sentencing Law and Policy

Can the laboratory of the states help solve prison-crowding problems?

The question in the title of this post is inspired by this local article from Florida, which is headlined "Florida's prison problem could find a solution in Texas."  Here is how the piece starts:

If only Florida's economy could grow like its prisons.  The state has more than 100,000 prisoners for the first time in its history. It's expected to add 14,000 in the next five years, according to the Department of Corrections.  Every 1,500 new inmates need a new prison.  It costs $100 million to build one and $20 million a year to run.  How can a state in a perpetual budget crisis pay for all that?

"It's currently unsustainable given our fiscal situation," said Florida Tax Watch general counsel Robert Weissert. Florida is staring at a Texas-sized problem. Fortunately, Texas might also have the solution.

Two years ago that state faced its own prison crisis: house 17,000 new inmates by 2012 at a cost of half a billion dollars.  But Texas never built any new prisons. Instead, for half that amount, it revamped its criminal justice system, reduced its prison population and became a national model for reform.

"We hit the perfect storm at the right time," Texas legislator Jerry Madden said at the Collins Center for Public Policy's Justice Summit this week in Tampa.  "We were able to say we can do this for less and, oh, by the way, our results will be better."

California submits new plan for complying with federal prison-population order

As detailed in this Los Angeles Times article, which is headlined "Governor submits plan to cut prison population: But he also disavows the proposed solutions as being illegal," California's "Gov Arnold Schwarzenegger on Thursday gave federal judges a road map to reducing state prison overcrowding by waiving some state laws to allow sentences to be reduced and new private prisons to be built." Here are more of the particulars:

An initial plan that Schwarzenegger submitted in September was rejected three weeks ago by the three judges, who threatened him with contempt of court for failing to meet their demand for a proposal to reduce the inmate population by 40,000 prisoners over two years.

With his new proposal, the governor appeared to be trying to avoid open defiance of the judges without giving the impression that he is contradicting his opposition to their efforts in an appeal now pending before the U.S. Supreme Court. The state is arguing that it is improper for the federal courts to intrude into the state's affairs. "We're saying the court . . . doesn't have the authority to do any of this, but the court obviously disagrees with us," Matthew Cate, the governor's prisons chief, told reporters.

The governor said the new plan would open up a total of 42,000 prison beds by December 2011, some through new construction and some by sentencing changes to limit the number of inmates the state incarcerates. He heeded the judges' Oct. 21 order to identify state laws that they would need to suspend to meet their goal. But Schwarzenegger also told the judges he did not believe it would be legal for them to waive those laws....

Some of the governor's new plan echoes what he submitted previously: reduction in the inmate population through sentencing changes, which would need approval by lawmakers, and construction for which the state already has authority. But it also includes measures, accounting for more than 25,000 inmates, that the Legislature rejected during the budget fight last summer: home detention with satellite tracking devices for some inmates; permitting some felony offenders to serve time in county jails instead of state prisons; and reducing sentences for property crimes.

As I have noted before, the blog California Corrections Crisis is the must-read resource for keeping up with all the craziness in California.

Some related posts:

• Federal judicial panel orders California to drastically cut prison population
• California begins SCOTUS appeal process for federal ruling ordering prisoner release
• Updates on all the prison craziness in California
• Editorial suggests why federal judges have had to be involved in California prison reform
• California's court-ordered plan for prison population reductions to come up short
• Details on California's not-quite-complete prison population reduction plan
• "Court rejects governor's plan to solve prison overcrowding"

Documenting the health-care costs of long sentences

I often enjoy noting the fact that prisoners do get one benefit that many non-prisoners might envy: free health care.  But, as this new CNN feature highlights, the health care received free by prisoners is not free to taxpayers, and the costs of health-care for prisoners continues to rise as more and more prisoners are serving longer and longer sentences.  the CNN piece is headlined "Prison health-care costs rise as inmates grow older and sicker," and here are excerpts:

As health care sparks debate across the nation, the prison community faces its own battle against rising medical costs. The elderly constitute the fastest-growing sector of the inmate population, experts say.  It is a group that needs more frequent and costlier treatment, which states are required to provide under the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution.

An analysis of Bureau of Justice Statistics data found that the male prison population over age 55 ballooned by 82 percent in eight years, from 48,800 inmates in 1999 to 89,900 in 2007.  The definition of "elderly" varies by state.  The National Corrections Institute, a prison research organization, calls inmates over 55 elderly, and some states place inmates over 50 in that category. An inmate's body ages faster than the body of someone not in prison.

Georgia, one of the 10 largest prison systems in the country, spends about $8,500 on medical costs for inmates over 65, compared with about an average of $950 for those who are younger, corrections officials say.  Across the county, inmate medical care costs about $3 billion a year....

In the last few decades, a growing number of prisons have improved their quality of medical care, says Edward Harrison, president of the National Commission on Correctional Health Care, an accreditation organization based in Chicago, Illinois.

Elizabeth Alexander, director of the ACLU's National Prison Project, says investigations revealed that inmates were often denied access to certified doctors in the 1970s.  In some instances, inmates were providing medical and dental care to one another.  There continues to be lawsuits filed against prisons and jails for providing poor medical care, she says, but overall, the care has vastly improved.

Some states, such as Virginia and Pennsylvania, have built geriatric prison facilities that resemble mini-hospitals, equipped with medical devices and oxygen tanks.  Prisons are being licensed as acute-care settings with a crew of registered nurses, correctional health experts say.

Placing elderly prisoners into separate facilities or wings can help the state consolidate costs. Nearly 75 hospice programs exist in prisons -- up from less than 10 a decade ago, says Carol McAdoo of the National Hospice and Palliative Care Organization.  "I would argue that the health care that is rendered behind bars is better than what is received in the general population," says CEO Rich Hallworth of Prison Health Services, a private medical corrections company in Tennessee that serves 172 jails and prisons around the country.

To ease budget woes in California, one bill up for debate would allow nonviolent elderly prisoners to be released into hospice care or monitored with ankle bracelets.  In the past few years, Georgia officials say, the state has released more frail and dying inmates on medical reprieve than ever before.  Other states, including New York and Virginia, have also allowed early release of ailing elderly inmates.

But critics, including victims' advocacy groups, have scrutinized this policy.  Will Marling, executive director of the National Organization for Victims Assistance in Virginia, said most victims believe offenders will strike again after they are released.  "If a person is sentenced to life, we know they are naturally going to get old," Marling said.  "A life sentence should mean life."

Some related posts:

• Are all states going to need to create old-age prisons?
• When tough-on-crime bills come due
• The (medical) costs of long sentences
• More on the (medical) costs of long sentences
• NPR story about elderly sex offender prisoners
• Aging gracefully ... in prison?
• The high costs of an aging prison population

"America's Prison Spree Has Brutal Impact"

The title of this post is the headline of this new commentary by Stuart Taylor in The National Journal.  Here is how it begins:

The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.

But a far more important imprisonment story gets less attention because it's a running sore that rarely generates dramatic "news." That is our criminal-justice system's incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.

Forty percent of these prisoners are black, 20 percent are Hispanic, and most are poor and uneducated. This has had a devastating impact on poor black families and neighborhoods, where it has become the norm for young men -- many of them fathers -- to spend time in prison and emerge bitter, unemployable, and unmarriageable.

"In California, Some Want To Be On Death Row; Life Is Better There"

The title of this post is the headline of this new NPR entry, which is itself a follow-up to this important new Los Angeles Times article discussing life on California's death row.  The full headline for the LATimes piece captures the major themes of today's must-read article: "Death penalty is considered a boon by some California inmates: Given the state moratorium on executions and an appeals process that can last for decades, inmates can expect to live a long time, and with privileges other prisoners lack." Here are excerpts from the article:

White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.   It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all....

Though death row inmates at San Quentin State Prison are far from coddled, they live in single cells that are slightly larger than the two-bunk, maximum-security confines elsewhere, they have better access to telephones and they have "contact visits" in plexiglass booths by themselves rather than in communal halls as in other institutions.  They have about the only private accommodations in the state's 33-prison network, which is crammed with 160,000-plus convicts.

Death row prisoners are served breakfast and dinner in their cells, can usually mingle with others in the outdoor exercise yards while eating their sack lunches, and have exclusive control over the television, CD player or other diversions in their cells.   "Death row inmates probably have the most liberal telephone privileges of anyone in state custody," said Terry Thornton, spokeswoman for the California Department of Corrections and Rehabilitation, explaining that they need ready access to their attorneys and can often make calls from their cells over a phone that can be rolled along the cellblock.

The condemned wear the same jeans and chambray-shirt prison garb, eat the same food as prepared in other prisons and enjoy the same access to mail-order and canteen goods paid for by their families, as long as they maintain good behavior, Thornton said.

Those on death row are also allowed more personal property inside their cells, to accommodate their voluminous legal documents without infringing on the 6 cubic feet of snacks and entertainment devices allowed each prisoner, said Lt. Sam Robinson, spokesman for San Quentin.  "It's not that he thinks conditions will be better; they are better," Johnson's attorney, Michael Molfetta, said of his client's request for death row. Johnson, 46, figures that he will be close to 70 by the time his appeals are exhausted, Molfetta said, "and he says he doesn't care to live beyond that."

Students who take my sentencing classes have long heard me say that I would rather be sentenced to death than to life without parole were I to be convicted of a death-eligible crime.  I often make this point when talking about wrongful convictions when suggesting that a wrongfully convicted person sentenced to death likely is likely better able to get media and the public interested in his case than a wrongfully convicted person sentenced to LWOP.  (The on-going debate in Texas as to whether Cameron Todd Willingham was wrongfully convicted seems to confirm this point.)  But this LA Times piece rightly spotlights why even the guilty might prefer a death sentence to an LWOP sentence.

And there are other benefits to death row for the guilty that are not discussed in this piece.  For example, many persons on death row are uniquely able to garner pen pals and other abolitionist supporters from European countries and also are uniquely able to garner press attention (as this LA Times article itself shows).  Put another way, a murderer condemned to death is always going to be more of a celebrity and will have a higher Q-rating than a murderer given an LWOP sentence.

Of course, some guilty murderer still surely will prefer a lower-profile LWOP fate than the higher-profile experience that comes with a death sentence.  Nevertheless, the real-world punishment dynamics discussed here are among the reasons I view LWOP sentences as generally more problematic (and, in turn, generally more "cruel and unusual" for purposes of the Eighth Amendment) than death sentences.

"Why Care About Mass Incarceration?"

The title of this post is the title of this new book review available via SSRN by James Forman.  Here is the abstract:

The United States incarcerates more of its citizens than any other nation in the world.  Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result.  Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers.  His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest.  This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population.  Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

"Can Our Shameful Prisons Be Reformed?"

The title of this post is the headline of this new commentary by Professor David Cole in the newest issue of the New York Review of Books.  The review discusses three new works on American penal policies: Race, Incarceration, and American Values by Glenn Loury; Let's Get Free: A Hip-Hop Theory of Justice by Paul Butler; and Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony Thompson.  Here is a snippet from the piece:

Three recent books by scholars who happen to be black men eloquently attest to these broader effects of the racial disparities in our criminal justice system.  For Loury, "mass incarceration has now become a principal vehicle for the reproduction of racial hierarchy in our society."  For George Washington University law professor Paul Butler, author of Let's Get Free: A Hip-Hop Theory of Justice, "the two million Americans in prison represent the most urgent challenge to democratic values since the civil rights era."  And for New York University law professor Anthony Thompson, author of Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics, it is critical that we examine "the pervasive interplay of race, power, and politics that infuse and confuse our attitudes about crime."...

as citizens we all have a stake in the fairness and legitimacy of our criminal justice system for both moral and pragmatic reasons.  The character of our nation is determined in significant part by how we treat the criminally accused. It is no accident that the Bill of Rights concentrates primarily on protecting the rights of those suspected of crime.  These amendments were deemed necessary precisely because political majorities are likely to seek shortcuts on fairness when crime is alleged, even though fairness is fundamental to the integrity of the criminal justice system.

As a pragmatic matter, the legitimacy of the criminal justice system is essential because it encourages law-abiding behavior. If people believe in the basic legitimacy of a leader or regime or procedure, they are far more likely to abide by the rules.  If, on the other hand, a system is seen as corrupt, unfair, or unjust, those subjected to it will be less inclined to respect it.  A legal system that relegates the majority of our most disadvantaged populations to incarceration, and does next to nothing to help them avoid prison or to reintegrate into society upon release, invites disrespect — and crime. 

Is anyone complaining about excessive federal spending on prisons?

One need only turn on talk radio to hear lots of pundits complaining about excessive federal spending on items ranging from the arts to clunkers to health care.  But this local article, headlined "Carney gets $1B more for federal prisons," leaves me wondering if there is anyone complaining about excessive federal spending on prisons.  Here are excerpts from this local piece:

[F]unding-related problems are being seen at federal correctional institutions throughout Central Pennsylvania and across the country.

The issue hits hard in Central and Northeastern Pennsylvania, home to 20 percent of the nation’s federal correctional institutions, said U.S. Rep. Chris Carney, who has successfully petitioned the House Appropriations Committee for more than $1 billion in extra federal corrections funds in the previous and current fiscal years.

Over the past 20 years, the federal prison population has increased at twice the rate of staff levels, Carney said in a letter to key legislators seeking an increase in funding.  At the end of 2008, federal prisons were operating at 138 percent their official capacities, Carney said.

Recent numbers show the U.S. Penitentiary at Lewisburg has 1,112 inmates at its main facility, and 520 at its camp.  The official inmate capacity for the main penitentiary is 770 and 552 at the camp.  Only 88 percent of Lewisburg’s correctional positions are filled — 260 out of a possible 295. “There may be 88 percent staffing at the facility, but the inmate population is 20 percent over capacity,” said Bill Gillette, northeast regional vice president for the council of prison locals for the American Federation of Government Employees. “They are down a lot.”

Of course, I want to see all federal prisons adequately staffed and funded.  But it is the huge increase in federal prison populations that are creating these modern funding problems, and I think efforts to cut prison populations should come before any automatic decision to increase federal spending on prisons.

On this front, it would be useful if the U.S. Sentencing Commission would focus on the costs in tax dollars of the modern federal criminal justice system.  Many state sentencing commissions do cost estimates with any proposed sentencing change, and the USSC should be well-positioned to examine whether we are getting value for our tax dollar from our federal sentencing system.

A California perspective on the juve LWOP issues before the Supreme Court

Thanks to How Appealing, we can all read this interesting article by Lawrence Hurley in The Daily Journal of California, which is headlined "U.S. Supreme Court Considers Life Sentences For Juveniles." As these excerpts reveal, the piece provides a west-coast perspective in the issues that the Justices will be dealing with the in the Graham and Sullivan cases:

The future of four prison inmates in California could hang in the balance when the U.S. Supreme Court debates next month whether juveniles can be sentenced to life without parole for non-homicide offenses.

Four convicted felons in the state received such sentences.  Life without parole for crimes not involving murder is not a common punishment for juveniles in California — not to mention the nation as a whole — but on Nov. 9 the Supreme Court will take up the issue when the justices hear arguments in two cases out of Florida....

The cases have attracted considerable attention from legal groups, with experts predicting it could be the start of a concerted attack on the entire concept of life without parole. Some liberal activists and scholars view life without parole in a similar light as the death penalty.

California is one of eight states that have sentenced juveniles to life without parole for certain non-capital crimes. The four males currently serving such sentences were convicted between 1993 and 2003, according to California Department of Corrections and Rehabilitation data that was made available to the Public Interest Law Center at Florida State University.  They were aged 16 or 17 when they committed the crimes.  The prison service's data does not detail the nature of their offenses, but they are all thought to be kidnapping-related, a Corrections Department spokesman said.  The state will not release the names of the four inmates.

When murder offenses are included, there are 263 inmates in California prisons serving life without parole for offenses committed when they were juveniles. They make up a small number of the roughly 170,000 inmates in California's state prisons....

Law-and-order conservatives ... are worried that the cases could open the door to a wider challenge against all sentences of life without parole. As Kent S. Scheidegger, an attorney at the Criminal Justice Legal Foundation in Sacramento, noted, "the ink was barely dry on Roper" before lawyers started making the argument that life without parole for juveniles was also unconstitutional.

His main concern is that even a narrow Supreme Court decision to restrict life without parole for juveniles in certain circumstances could help civil rights groups in future cases. "We are more worried about a 'small step' effect," Scheidegger said.

Activists who have been leading an unsuccessful fight — at least so far — to reform California's sentencing laws are now hoping the Supreme Court will do the job for them. Legislation that would allow an individual sentenced to life without parole as a juvenile to seek re-sentencing after serving at least 10 years in prison has so far failed to pass the California Assembly.

Elizabeth Calvin, a Santa Monica-based senior advocate at Human Rights Watch, said it was gratifying that the Supreme Court had at least "recognized this is such a serious issue" by agreeing to hear the cases.  The publicity generated by the Florida cases is also helpful to her group's cause, she said, because it's contributed to "a growing awareness that the U.S. is the only country that uses this sentence."

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?
• "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

Must-read posts from Kleiman on having less crime and less punishment

I have been following with great interest a series of guest posts by Mark Kleiman at The Volokh Conspiracy, which are essentially excerpts from his important new book titled "When Brute Force Fails: How to Have Less Crime and Less Punishment."  This introductory post included this summary of the book:

We have too much crime and vastly too many people behind bars.  Is it possible to have less of both?  Yes, if the criminal justice system can learn what everyone who has ever successfully raised a child or trained a puppy knows: the right amount of punishment is the minimum that gets the message across, and that minimum effective dose is smaller if rules are clearly communicated and if punishments follow violations swiftly and predictably.

There are now working examples of successful strategies based on these principles, but the political and journalistic debate about crime has yet to catch up to progress on the ground.  Doing things we already know how to do, we could have half as much crime and half as many people in prison ten years from now as we have today.

Here are links to the posts by Kleiman so far over:

• How to Have Less Crime and Less Punishment
• Positive feedback and strategic enforcement
• Benefits and costs: crime, crime avoidance, crime control
• Crime and punishment, race and class

The comments from readers are almost as interesting as the posts themselves.

"Arizona May Put State Prisons in Private Hands"

The title of this post is the headline of this interesting New York Times article.  Here is how it starts:

One of the newest residents on Arizona’s death row, a convicted serial killer named Dale Hausner, poked his head up from his television to look at several visitors strolling by, each of whom wore face masks and vests to protect against the sharp homemade objects that often are propelled from the cells of the condemned.

It is a dangerous place to patrol, and Arizona spends $4.7 million each year to house inmates like Mr. Hausner in a super-maximum-security prison.  But in a first in the criminal justice world, the state’s death row inmates could become the responsibility of a private company.

State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row.  It is the first effort by a state to put its entire prison system under private control.

The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books.  Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.

“Let’s not kid ourselves,” said State Representative Andy Biggs, a Republican who supports private prisons.  “If we were not in this economic environment, I don’t think we’d be talking about this with the same sense of urgency.”

Private prison companies generally build facilities for a state, then charge them per prisoner to run them.  But under the Arizona legislation, a vendor would pay $100 million up front to operate one or more prison complexes.  Assuming the company could operate the prisons more cheaply or efficiently than the state, any savings would be equally divided between the state and the private firm.

The privatization move has raised questions — including among some people who work for private prison companies — about the private sector’s ability to handle the state’s most hardened criminals.  While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner.

I wonder if years from now we will be debating whether there needs to be a public option for prison care.

"Court rejects governor's plan to solve prison overcrowding"

The title of this post is the headline of this report from the San Jose Mercury News.  Here are the basics on the latest twist and turn in the on-going saga of California prison reform:

A federal court Wednesday rejected Gov. Arnold Schwarzenegger's plan to solve California's prison overcrowding crisis, giving the state three weeks to devise an alternative or risk an order that seizes control of how more than 40,000 inmates are released from the prison system over the next two years.

In a seven-page ruling, a three-judge panel found the governor's plan for reducing prison overcrowding inadequate. The judges said it failed to comply with their August order requiring the state to come up with a proposal to remove about one-quarter of the more than 150,000 inmates now crammed into California's prisons.

Schwarzenegger and chief prison officials in September responded to the August order with a plan that would reduce the inmate population by only about 20,000 inmates over the next three years, less than half of what was sought by the judges. State officials maintain their plan balanced the need to reduce prison overcrowding with public safety concerns.

But 9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt, San Francisco U.S. District Judge Thelton Henderson and Sacramento U.S. District Judge Lawrence Karlton found otherwise, and ordered the state to come back with a fresh plan in 21 days. Otherwise, the judges said they would consider alternative plans from lawyers for California's inmates and issue an order that will meet their goal of getting the inmate population down to 137 percent of the prison system's capacity.

Thanks to this post at How Appealing, one can find lots of other major media coverage of this development, as well as  this link to yesterday's order of the three-judge U.S. District Court for the Eastern and Northern Districts of California.

"Incarceration American-Style"

The title of this post is the title of this new must-read piece from Professor Sharon Dolovich that is now available via SSRN. Here is the abstract:

In the United States today, incarceration is more than just a mode of criminal punishment.  It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills.  In this essay, I argue that this emergent carceral system has become self-generating — that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand.  I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens — disproportionately poor people of color — who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control.  This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.

"The High Cost of Empty Prisons"

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

Last Wednesday, changes to New York’s notorious Rockefeller drug laws went into effect, allowing judges to shorten the prison terms of some nonviolent offenders. This measure will further reduce New York’s prison population, which has already declined, in the past 10 years, from about 71,600 in 1999 to about 59,300 today. (The state’s crime rate also dropped substantially during that time.)

Nevertheless, mainly because of opposition from the correction officers’ union and politicians from the upstate areas where most of our correctional facilities are, the state has been slow to close prisons.  It was not until earlier this year that policymakers in Albany, confronted with fiscal crisis, mustered the will to shut three prison camps and seven prison annexes — a total of about 2,250 prison beds — in a move that is expected to save $52 million over the next two years.

But the state could go further.  The prison system still has more than 5,000 empty beds in 69 prisons.  What’s more, there are other ways to lower the prison population.  For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release.  In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities.  Today, about 2,500 are enrolled.

In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew.  Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision.  Also, more prisoners with good institutional records could be given parole.  And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago....

New York can now help point criminal justice in a more sensible and constructive direction — and show other states how to save money — by downsizing its prison system.

Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer

A helpful reader forwarded to me today's Minnesota Supreme Court decision in State v. Martin, No. A07-1262 (Minn. Oct. 8, 2009) (available here).  The official syllabus in the Martin case describes one of its holdings in this way: "The punishment of life in prison without the possibility of release for a juvenile who was 17 years of age when he committed the offense was not cruel or unusual punishment in violation of the United States or Minnesota Constitutions." 

The body of the opinion details that the Minnesota Supreme Court in 1999 upheld a juve LWOP sentence against a constitutional challenge, and it also notes that the defendant in this case "was only six weeks from his eighteenth birthday when he shot" and killed a rival gang member.  After reviewing the constitutional arguments made by the defendant, the Minnesota Supreme Court concludes that "Martin has failed to carry his heavy burden of demonstrating a compelling reason to overturn [our prior ruling].  Nor did Martin make any showing that this punishment was disproportionate as applied to him. We hold that the punishment ... is not unconstitutional as applied to Martin."

Solitary confinement panel at Stanford Law School's public interest conference

I just received this e-mail from a helpful 2L student at Stanford Law School about a notable panel taking place at a notable event later this month:

I'm currently a 2L at Stanford Law School, and I'm writing because I'm organizing a panel on the topic of solitary confinement, as part of Stanford's upcoming annual public interest conference, "Shaking the Foundations." ...

The conference takes place Oct 16 to 17, and the solitary confinement panel will be on Saturday afternoon at 3:15pm.  Professor Joan Petersilia will be moderating, and panelists include J. Clark Kelso, the federal receiver in charge of medical care in California's prisons, Nick Trenticosta, who represents the "Angola 3" prisoners in their suit against the Louisiana Prison for holding them in solitary confinement for over 30 years, and Terry Kupers, a psychiatrist with extensive experience studying the psychological effects of prison conditions.  We are also working to finalize a speaker who will talk about their personal experience in solitary confinement.

The panel description, and others, can be found on our website at this link.

Keeping up with the corrections crisis news in California

At least on the surface, the prison crowding problem and the litigation it has generated has been relative calm the last few weeks.  But as highlighted by these recent posts from the California Corrections Crisis, there is still plenty going on and worth discussing:

• Another Out-Of-State Jail Plan Collapses
• CDCR's Annual Report Published
• KPBS Program on Prison Crisis

"Prison Population and Crime"

The title of this post is the title of this new criminology paper that I justice noticed via SSRN.  Here is the abstract of a paper that seems like a must-read for any and everyone who wants to make assertions about the relationship between incarceration rates and crime:

This is a critical review of the literature concerning the impact of prison populations on crime. It summarizes 44 time series studies that use prison population in the crime equation, emphasizing problems of simultaneity and disaggregation bias. It briefly reviews studies that estimate the incapacation impact of prisons by using criminals' individual crime rates, emphasizing problems caused by skewness of the crime rates and their relationship with arrest rates. Almost all the numerous problems with prior research bias results towards finding that prisons have limited impacts, and once the problems are addressed the best estimate of the elasticity of prison populations on crime is about 1.0.

"A Smarter (and Cost-Efficient) Way to Fight Crime"

The title of this post is the headline of this recent piece in the New York Times by economist Robert Frank.  Here are snippets:

Law enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs.

This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

Mark Kleiman, a professor of public policy at the University of California, Los Angeles, says there is a better way. In a new book, “When Brute Force Fails,” he argues that instead of making punishments more severe, the authorities should increase the odds that lawbreakers will be apprehended and punished quickly....

The evidence suggests that when hardened criminals are reasonably sure that they will be caught and punished swiftly, even mild sanctions deter them. But not even the prospect of severe punishment is effective if offenders think they can get away with their crimes. One way to make apprehension and punishment more likely is to spend substantially more money on law enforcement. In a time of chronic budget shortfalls, however, that won’t happen.

But Mr. Kleiman suggests that smarter enforcement strategies can make existing budgets go further. The important step, he says, is to view enforcement as a dynamic game in which strategically chosen deterrence policies become self-reinforcing. If offense rates fall enough, a tipping point is reached. And once that happens, even modest enforcement resources can hold offenders in check....

It is an ingenious idea that borrows from game theory and the economics of signaling behavior....

Considerable evidence supports Mr. Kleiman’s emphasis on the efficacy of immediate sanctions. Experimenters have found, for example, that even long-term alcoholics become much less likely to drink when they are required to receive a mild electric shock before drinking. Many of these same people were not deterred by their drinking’s devastating, but delayed, consequences for their careers and marriages....

Potential applications of dynamic deterrence extend well beyond street crime. For example, it could help rein in corporate scofflaws who now feel free to violate environmental and safety regulations because they know that regulators are stretched thin. The strategy won’t work in all situations. But when the circumstances are right, it’s a revolutionary idea.

SCOTUS opening day discussion of juve LWOP cases

Though they are not scheduled to be argued until next month, the official start of the new Supreme Court Term today prompts some additional major media attention and commentary about Graham and Sullivan, the two juve LWOP cases on the docket.  The Wall Street Journal has this new piece, headlined "Life in Prison for Minors -- Cruel and Unusual?", which rightly notes that Justice Kennedy is likely again to be a key vote in this cases:

Since the 1970s, the court has been narrowing the scope of the death penalty to those people considered most reprehensible.  When it comes to prison terms, however, the court rarely has intervened.  Justice Anthony Kennedy often has cast the deciding vote, siding with liberal justices to limit the death penalty, but joining conservatives to uphold severe prison terms.

The court ordered separate arguments in the Sullivan and Graham cases, suggesting it could be inclined to distinguish the two based on their ages.  "The difference between 13 and 16 matters," says Frank Colucci, a professor at Purdue University Calumet in Hammond, Ind., and author of "Justice Kennedy's Jurisprudence," published in September.  Prof. Colucci predicted Justice Kennedy will write an opinion in this case that will stress "the capacity of juveniles to be morally responsible for their crimes."

The Los Angeles Times has this commentaryby lawprof Bernard Harcourt, which is headlined "Sending children to prison for life: Our laws make allowances for juveniles' immaturity; judges should too." Here is a snippet:

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing.  And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities.  Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent.  States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Does Roper suggest young juve LWOP is unconstitutional?
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• Should religious doctrines influence Eighth Amendment jurisprudence?