Saturday, March 28, 2015

"The activist nun reforming profit-prisons"

Download (8)The title of this post is the headline of this intriguing new article via CNNMoney.  Here are excerpts:

Some of America's most controversial companies -- for profit prisons -- have unlikely owners: nuns. Mercy Investment Services Inc. is the investment fund for the Institute of Sisters of Mercy of the Americas, an international religious order.

The fund is managed by Sister Valerie Heinonen, a soft-spoken nun who's been buying shares in for-profit prison companies since early 2000.  She's not doing it in the hopes of making big bucks.  Rather, she tries to use her leverage as an owner to reform the industry.

"What we want is the establishment of a human rights policy at these companies," Heinonen told CNNMoney.  Even more importantly, she wants the policy to be thoughtfully implemented, monitored and transparently disclosed to shareholders....

For decades, investors have put billions of dollars into the two largest such companies, Geo Group (GEO) and Corrections Corporation of America (CXW).  Many investors saw dollar signs as prison populations swelled.  The stock of Geo Group has risen 130% in the past three years.

While profits have been huge, some money managers feel it is unfair for Wall Street to profit from what they see as the inhumane warehousing of human beings.  This issue is back in the forefront given the surge of immigrant detainees following the mass deportation effort of the Obama administration....

GEO Group and CCA say they are committed to protecting the human rights of prisoners and detainees.  "Our company adopted a Global Human Rights policy two years ago, which we believe was a first for any private correctional organization in the United States," Geo Group told CNNMoney in a statement.

CCA said its human rights policy is publicly available on its website and is incorporated into the ethics and professionalism course that every new employee receives.  "It has been shared across our organization in communications from our CEO and others in leadership," a CCA spokesman said.

Mercy has raised questions about food, housing and education for the detained children and adults.  "We've also been concerned about legal access for people," Heinonen said. Implementation and monitoring of human rights policies and transparency in communicating progress to investors is a work in progress.

"How often do the guards get a refresher course and what kind of oversight is there," Heinonen asked.  Mercy and the prison companies say they continue to meet regularly in order to address these issues. Mercy's relationship with prisons started out pretty warm and fuzzy.

"A number of orders have members who are chaplains in prisons and perhaps this conversation came from what these people saw," she said. Mercy initially focused on executive compensation. It introduced an investor resolution onto the ballot of both Geo Group and CCA, tying compensation to social as well as financial criteria.

"By the time we got started with the human rights policy, we had had had some success with other shareholder initiatives," Heinonen said. "For example, with the environmental initiative, everyone was recycling their waste."

March 28, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, March 27, 2015

NY Times Magazine covers modern prisons at home and abroad

I am pleased to see that this week's New York Times Magazine has three significant pieces about prisons. Here are the headlines and teasers from this webpage:

The Radical Humaneness of Norway’s Halden Prison: The goal of the Norwegian penal system is to get inmates out of it.

Prison Planet: Different nations take very different approaches to the convicts they deem the most dangerous.

Inside America’s Toughest Federal Prison: For years, conditions inside the United States’ only federal supermax facility were largely a mystery. But a landmark lawsuit is finally revealing the harsh world within.

March 27, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0) | TrackBack

Thursday, March 26, 2015

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

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

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

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

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

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

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

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

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

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

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

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

March 26, 2015 in Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 24, 2015

Justices Kennedy and Breyer urge Congress to reform "broken" federal criminal justice system

BreyerKennedyHearing-638x362This new ThinkProgress piece, headlined "Supreme Court Justices Implore Congress To Reform The Criminal Justice System — ‘It’s Not Humane’," effectively reports on the notable comments made about criminal justice reform by two Justices who were testifying before Congress on budget issues yesterday. Here are some of the details:

The prisons are one of the most misunderstood institutions of government. Solitary confinement drives individuals insane. And mandatory minimum sentences are a bad idea. These were the assertions of U.S. Supreme Court Justices Anthony Kennedy and Stephen Breyer in testimony before a House Appropriations subcommittee Monday afternoon.

Asked by Rep. Steve Womack (R-AR) about United States “capacity to deal with people with our current prison and jail overcrowding,” each justice gave an impassioned response in turn, calling on Congress to make things better. “In many respects, I think it’s broken,” Kennedy said of the corrections system. He lamented lawyer ignorance on this phase of the justice system:

I think, Mr. Chairman, that the corrections system is one of the most overlooked, misunderstood institutions we have in our entire government. In law school, I never heard about corrections. Lawyers are fascinated with the guilt/innocence adjudication process. Once the adjudication process is over, we have no interest in corrections. doctors know more about the corrections system and psychiatrists than we do. Nobody looks at it. California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner. compare the amount they gave to school children, it was about $3,500 a year. Now, this is 24-hour care and so this is apples and oranges in a way. And this idea of total incarceration just isn’t working. and it’s not humane.

Kennedy, traditionally considered the swing vote among the current set of justices, recalled a recent case before the U.S. Supreme Court in which the defendant had been in solitary confinement for 25 years, and “lost his mind.”

“Solitary confinement literally drives men mad,” he said. He pointed out that European countries group difficult prisoners in cells of three or four where they have human contact, which “seems to work much better.” He added that “we haven’t given nearly the study, nearly enough thought, nearly enough investigative resources to looking at our correction system.”

Kennedy’s comments come just weeks after a federal review of U.S. solitary confinement policy also found that the United States holds more inmates in solitary confinement than any other developed nation. Confinement typically involves isolation in an often windowless cell with a steel door for 23 hours a day, with almost no human contact. The treatment has been found to have a psychological impact in as many as a few days, though, as Justice Kennedy pointed out, many are held for decades. In the wake of the new report, Sen. Dick Durbin (D-IL) called upon the Federal Bureau of Prisons to alter its practices.

In his response, Breyer honed in on Womack’s use of the word “priorities” to suggest that prioritizing long prison sentences was not the best use of resources. “Do you want to have mandatory minimums? I’ve said publicly many times that i think that’s a terrible idea,” Breyer said. “And I’ve given reasons, which I’ll spare you.”

“Is it worth your time on earth, or mine, to try to work out ways of prioritizing? I think it is,” Breyer said. “I think it is a big problem for the country. and so I can’t do anything more in the next minute or 30 seconds other than say I like the word prioritize. I hope you follow it up. And I hope do you examine the variety of ways that there of trying to prioritize and then work out one that’s pretty good.”

As far back as 1998, Breyer has called for the abolition of mandatory minimum sentences, which mandate minimum prison terms by law according to the crime, amount of drugs, or other factors, and give judges no discretion to lower those sentences. He has said they “set back the cause of justice” because they don’t allow for exceptions depending on the circumstances of a given case. Particularly for drug crimes, they have sent low-level drug offenders to prison for sentences that start at 5 or 10 years and quickly ratchet up from there.

This Wall Street Journal article, headlined "Two Supreme Court Justices Say Criminal-Justice System Isn’t Working: Justice Breyer says mandatory minimum sentences are 'a terrible idea'," provides some more notable quotes from the Justices.

March 24, 2015 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Should prison terms end once criminals seem "too old" to recidivate?

The question in the title of this post is prompted by this intriguing recent New York Times piece headlined "Too Old to Commit Crime?".  Here are excerpts:

Dzhokar TsarnaevV is facing the death penalty or life in prison for the Boston Marathon bombing.  But what if, instead, the maximum prison sentence were just 21 years? That was the sentence that Anders Behring Breivik received in 2012 after killing 77 people, most of them teenagers attending a summer program, in Norway in 2011.  It was the harshest sentence available.  That doesn’t mean Mr. Breivik will ever walk free. Judges will be able to sentence him to an unlimited number of five­year extensions if he is still deemed a risk to the public in 2033, when he is 53.

The idea of a 21-­year sentence for mass murder and terrorism may seem radically lenient in the United States, where life without parole is often presented as a humane alternative to the death penalty.  Yet in testimony last week to a congressional task force on reforming the federal prison system, Marc Mauer, the director of the Sentencing Project, an advocacy group, suggested exactly that approach.  He made the case for a 20­-year cap on federal prison terms with an option for parole boards or judges to add more time if necessary to protect the public.  Such a policy would “control costs” in a system that is now 40 percent over capacity, Mr. Mauer told the task force, and would “bring the United States more in line with other industrialized nations.”

This proposal has little chance of becoming law. But a compelling case can be made for it nonetheless. Research by American social scientists shows that all but the most exceptional criminals, even violent ones, mature out of lawbreaking before middle age, meaning that long sentences do little to prevent crime....

Some crimes are simply too physically taxing for an older person to commit. Regardless of why offenders age out of trouble, American sentencing practices are out of whack with the research on criminal careers. Between 1981 and 2010, the average time served for homicide and nonnegligent manslaughter increased threefold, to almost 17 years from five years. Over 10 percent of federal and state inmates, nearly 160,000 people, are serving a life sentence, 10,000 of them convicted of nonviolent offenses. Since 1990, the prison population over the age of 55 has increased by 550 percent, to 144,500 inmates. In part because of this aging population, the state and federal prison systems now spend some $4 billion annually on health care.... [A] sentence that outlasts an offender’s desire or ability to break the law is a drain on taxpayers, with little upside in protecting public safety or improving an inmate’s chances for success after release. Mr. Mauer’s proposal for a 20­-year sentence cap, applied retroactively, would free 15 percent of federal prisoners — some 30,000, except for those few whom judges or parole boards might deem unfit to re-­enter society.

This is much more aggressive than the Smarter Sentencing Act, a bipartisan proposal in Congress which would lower mandatory minimum sentences only for nonviolent drug crimes. Both the House and Senate versions of the bill keep mandatory minimum sentences of 20 or 25 years for third­-time drug offenders, and most of the bill’s provisions would not benefit current inmates. Of course, for many Americans the prison system is not only about preventing crime by getting criminals off the street, but also about punishment. Long sentences send a clear message that certain acts are unacceptable. Some conservatives who support sentencing reform say that Mr. Mauer’s proposal goes too far, offering a one­-size-­fits-­all leniency to even violent offenders.

Mr. Mauer responds that given the immense scale and cost of incarceration, “modest reforms” would be insufficient. “How much punishment is enough?” he asked. “What are we trying to accomplish, and where does redemption come into the picture?”

March 24, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Friday, March 20, 2015

Should SCOTUS Justices (and lots of other federal and state judges) regularly visit prisons?

The question of the title of this post is prompted by this interesting local article from Michigan, headlined "Justice goes to prison to weigh Mich. sentencing system."  Here are excerpts from this lengthy story:

On an early March tour of Michigan's prison intake center, new Supreme Court Justice Richard Bernstein learned that corrections officials want more guidance from judges about their expectations for the lawbreakers sent here.

New prisoners and rearrested parole absconders are processed at the three-building complex before being assigned to correctional facilities around the state. Inmates arrive with sentencing orders and other paperwork but nothing to indicate why a judge prescribed a certain prison term or what the goal of it is, Michigan Corrections Director Dan Heyns said.

"It would be helpful for judges to tell us the intent of their sentences," Heyns told Bernstein, the nation's first blind state Supreme Court justice. "If it's strictly to provide public safety, we know how to do that. But if the intent is to get at the root cause of their criminality, tell us that."

Bernstein's unusual visit — prison officials couldn't recall a previous visit from a sitting Supreme Court justice — came as lawmakers attempt to revive failed 2014 legislation calling for reforms of 1998 sentencing guidelines and parole policies. The changes were recommended last May by the Council of State Governments Justice Center, which noted 1 in 5 state dollars is spent on corrections....

Bernstein's visit lasted four hours. He was keen to get a feel for what prison is like and learn how he and the state's highest court might improve coordination between judges who dispense justice and incarceration officials who administer it. Corrections chief Heyns provided examples of the way judges' decisions and state sentencing policies impact costs. For the crime of burglary, for example, the recidivism rate — chance of a repeat offense — is no lower after a five-year sentence than a three-year sentence, Heyns said. "There's no return on our investment for the other two years," he added.

The 41-year-old justice was elected last year to an eight-year term after working at his family's well-known Farmington Hills law firm, which specializes in personal injury litigation, not criminal law.  He handled a number of disability rights cases the firm litigated. "They said I have no experience with the criminal justice system," he said referring to critics of his November campaign for the Supreme Court. "That's a legitimate criticism."

Bernstein said the legal briefs for criminal cases that come before the Supreme Court are "academic" in nature and don't convey the harsh realities of prison life and rehabilitation. At the Charles Egeler Reception and Guidance Center, Bernstein encountered stark facilities where 9,000 men are processed annually. They live for two weeks to a month in barred cells stacked in tiers with yellow-railed gangways....

"I wanted to know what it feels like to come here, I want to know the consequences of our decisions," Bernstein said in the midst of it.  "You learn about how every facet of your life is controlled.  A free person does not think about that."...

At the end, the justice pressed for feedback about how to make the system work better. Half of the job of Supreme Court justices, he said, is to administer Michigan's court system through rules governing their proceedings.  Heyns suggested perhaps something as simple as a statement outlining the expectations in each judge's sentencing order would be a great help to prison officials. Bernstein said he wants to work at it but said any change "won't happen overnight."

Nearly two-thirds of the inmates now feeding into the system through Egeler are first-timers and half of them will be released within two years, according to Heyns.  "We don't have a whole lot of time to do a lot of correction," Heyns told Bernstein. "It calls into question, what are we really accomplishing with these people? It's a huge cost."

I think it is fantastic that this new Michigan Supreme Court Justice took the time to check out one part of his state's prison system. I think all judges with a significant part of their dockets comprised of criminal justice cases ought to consider doing the same. (I would guess that only a very small percentage of federal or state appellate judges have spent any real time inside a prison facility.)

March 20, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, March 19, 2015

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

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

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

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

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

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

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

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

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

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

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

Saturday, March 14, 2015

Oklahoma House passes safety valve to give judges more sentencing discretion

In the course of this lengthy discussion in the comments at Crime & Consequences, Bill Otis labelled the the federal bill known as the Justice Safety Valve Act as "radically pro-criminal" because it would give federal judges some limited authority to sentence defendants below statutory mandatory minimums.  Though I disputed this label, I suspect Bill might be inclined to call most members of the Oklahoma House "radically pro-criminal" based on this recent news, headlined "Oklahoma House passes bills to give judges more discretion in sentencing."  Here are the details:

The Oklahoma House on Wednesday approved a key piece of justice reform legislation intended to help reduce the state’s growing population of prison inmates.

Rep. Pam Peterson’s House Bill 1518 would give judges the authority to hand down shorter sentences for some crimes that now require mandatory minimum prison time. The judge would be allowed to do this if the longer sentence would be unjust or if the offender does not present a risk to public safety. There are more than 100 crimes in Oklahoma that carry requirements for incarceration for specified minimum durations.

Called the Justice Safety Valve Act, the Tulsa Republican’s measure was passed 76-16 and was sent to the Senate. It is modeled after similar legislation that has been approved in 17 other states. The bill would not allow judges to consider lesser sentences for violent or sexual offenses....

Rep. Scott Biggs, R-Chickasha, argued against the measure, saying it would minimize the role of district attorneys in the sentencing process and isn’t tough enough on repeat offenders.

“I’ve said I’m for reform, just not when it comes to violent offenders. Here we have repeat offenders,” he said. “This is a bad bill.”

Peterson said it’s time to reform the state’s justice system, noting Oklahoma’s prisons are overflowing due to the highest incarceration rate in the nation for women and one of the highest for men. The state’s prison population has doubled since 1990, but the crime rate has not declined as fast as that of other states, she said. “The definition of insanity is to do the same thing over and over again and expect a different result,” she said.

Gov. Mary Fallin has urged the Legislature to embrace justice reform efforts this session, including finding ways to offer more prison diversion programs that would provide treatment rather than incarceration for nonviolent offenders with drug and mental health problems.

March 14, 2015 in Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 12, 2015

"Prisons Are Making America's Drug Problem Worse"

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

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

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

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

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

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

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

Wednesday, March 11, 2015

"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"

The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:

The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense.  These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.

These guidelines are premised on the following foundational principles: 

  • children are constitutionally and developmentally different from adults;

  • children, by reason of their physical and mental immaturity, need special safeguards and care;

  • children must not be defined by a single act; 

  • juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation; 

  • juvenile life defense requires a qualified team trained in adolescent development; 

  • juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner; 

  • juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;

  • juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;

  • juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;

  • juvenile life defense counsel must litigate for a presumption against life sentences for children; and

  • juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.

March 11, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"

Images (2)As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):

The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding.  In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses.  Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.

The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking.  In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994.  Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....

The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences.   In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years.  Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.

In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth.  Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.

March 11, 2015 in Death Penalty Reforms, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, March 10, 2015

Depressing news that sentencing toughness is doing little to deter child porn offenses

Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography.  The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines).  In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop.  And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).

I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children.  Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts: 

Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."

On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.

Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.

With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....

Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."

On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.

Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.

On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.

Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.

Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.

Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.

However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.

This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.

I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.

March 10, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (19) | TrackBack

Monday, March 09, 2015

Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"

Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:

What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:

A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas.  The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....

The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:

• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.

• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....

“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin.  “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”

March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, March 07, 2015

California voters through Prop 47 help fix prison crowding problems plaguing state for decades

Images (5)Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s.  Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues.  But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.

I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way.  The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:

California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.

The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday.  Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.

But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47.  “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview.  “The thing we are grappling with is the tremendous rise in property crime.”

Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....

Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....

In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014.  Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.

Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said.  “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”

Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less.  Prior to the measure, the threshold for misdemeanor property crimes was $450.  Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.

Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”

Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure.  Most of that money is slated for mental health and substance abuse programs.

I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.

Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).

Some prior related posts on California's Prop 47 and its early impact:

March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 06, 2015

Highlighting that mass incarceration is "Not Just the Drug War"

For lots of good reasons, the modern war on drugs is the focal point for lots of criticisms of criminal justice systems in the United States.  But this effective Jacobin Magazine Q&A with Marie Gottschalk, author of the book "Caught: The Prison State and the Lockdown of American Politics," spotlights that the US affinity for record-levels of incarceration is about a lot more than the drug war. The full piece is today's must-read, and here are excerpts from its start:

[The] new book by University of Pennsylvania political scientist Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics, makes it clear that the problem is far worse than commonly suspected, and that the reforms on the table are unlikely to even make a dent in the forces that keep millions behind bars.

Contrary to what many progressives believe, Gottschalk argues it’s not primarily the War on Drugs that’s driving this beast.  Instead, it’s an all-out assault that “extends a brute egalitarianism across the board.”  Jacobin editor Connor Kilpatrick recently got a chance to interview Gottschalk.

Q:  One of the most shocking stats in your book is that simply rolling back punishments for violent offenses to their 1984 levels in 2004 would have done more to lower the incarceration rate — a cut in state prison rates of 30 percent — than simply ending the drug war.

A: The intense focus in criminal justice reform today on the non-serious, non-violent, non-sexual offenders — the so-called non, non, nons — is troubling.  Many contend that we should lighten up on the sanctions for the non, non, nons so that we can throw the book at the really bad guys.  But the fact is that we’ve been throwing the book at the really bad guys for a really long time.

Legislators are making troubling compromises in which they are decreasing penalties in one area — such as drug crimes — in order to increase them in another area — such as expanding the use of life sentences.  In doing so, they’re also fostering the mistaken idea that it is easy to distinguish the non, non, nons from the really bad guys.

March 6, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Thursday, March 05, 2015

Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?

The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers.  This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:  

In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.

But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.

Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.

But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....

And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....

Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.

Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.

Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release.  And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.

Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75.  But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail."   Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.

March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"

The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress.  Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society.  Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control.  This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.

The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement.  Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment.  It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures.  The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations.  This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency.  The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.

March 5, 2015 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, March 02, 2015

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, March 01, 2015

Must one study lynchings past to understand US punishments present?

The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist.  The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:

Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....

During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism.  "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.

She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."

March 1, 2015 in Death Penalty Reforms, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Friday, February 27, 2015

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

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

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

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

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

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