Tuesday, September 23, 2014

Highlights from AG Holder's big speech today at the Brennan Center for Justice

As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it.  But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....

Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well.  And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”  And this has been borne out at the national level, as well.  Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....

Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many ‎decades.  Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion.  The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.  As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....

Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance  — have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.

Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so.

September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 22, 2014

Brennan Center event on "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration"

As detailed via this webpage, the Brennan Center for Justice has assembled an impressive cast of prominent  public officials to address all day on Tuesday September 23 the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration."  Among the headliners is US Attorney General Eric Holder, who will give a keynote speech at 1pm.  Here is how the Brennen Center sets up the coming discussion:

The need to reform law enforcement practices is now at the center of American public discourse. Join the Brennan Center and the nation’s leading law enforcement and economic policy experts, including U.S. Attorney General Eric Holder, for a full-day conference focused on transforming prosecutorial practices and federal funding structures to both decrease crime and violence and reduce the nation’s incarcerated population.

Experts will discuss: What role should prosecutors and police play in reform efforts? Should their goal be simply to enforce and prosecute to their fullest authority, or should they also strive to reduce unnecessary arrests and incarceration? How can federal funding help modernize local law enforcement nationwide?

The full agenda for this event is available via this link, and I blieve the event will be live-streamed starting at 8:30am and can be accessed via this weblink.

September 22, 2014 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, September 21, 2014

Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"

Newt Gingrich and B. Wayne Hughes Jr. are the co-authors of this notable recent Los Angeles Times op-ed headlined " "What California can learn from the red states on crime and punishment." Among other points, the piece makes the case for a proposition on the ballot in California (Prop 47) that would reduce the severity of a number of California crimes. Here are excerpts:

Imagine you have the power to decide the fate of someone addicted to heroin who is convicted of petty shoplifting. How much taxpayer money would you spend to put that person in prison — and for how long? Is incarceration the right form of punishment to change this offender's behavior?

Those are questions states across the nation are increasingly asking as the costly and ineffective realities of incarceration-only policies have set in. Obviously, we need prisons for people who are dangerous, and there should be harsh punishments for those convicted of violent crimes. But California has been overusing incarceration. Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.

Reducing wasteful corrections spending and practices is long overdue in California. The state imprisons five times as many people as it did 50 years ago (when crime rates were similar). And as Californians know, the state's prison system ballooned over the last few decades and became so crowded that federal judges have mandated significant reductions.

Contributing to the growth in the number of prisoners and in prison spending has been a dramatic expansion in the number of felonies. In addition, mandatory minimum sentences have been applied to an increasing number of crimes. These policies have combined to drive up the prison population, as more prisoners serve longer sentences. On top of that, California has an alarmingly high recidivism rate: Six out of 10 people exiting California prisons return within three years.

It makes no sense to send nonserious, nonviolent offenders to a place filled with hardened criminals and a poor record of rehabilitation — and still expect them to come out better than they went in. Studies show that placing low-risk offenders in prison makes them more dangerous when they are released.

Over-incarceration makes no fiscal sense. California spends $62,396 per prisoner each year, and $10 billion overall, on its corrections system. That is larger than the entire state budget of 12 other states. This expenditure might be worth it if we were safer because of it. But with so many offenders returning to prison, we clearly aren't getting as much public safety — or rehabilitation — as we should for this large expenditure.

Meanwhile, California spends only $9,200 per K-12 student, and the average salary for a new teacher is $41,926. And as California built 22 prisons in 30 years, it built only one public university.

California is not alone in feeling the financial (and public safety) consequences of over-incarceration. Several states — politically red states, we would point out — have shown how reducing prison populations can also reduce cost and crime. Most notably, Texas in 2007 stopped prison expansion plans and instead used those funds for probation and treatment. It has reduced its prison population, closed three facilities and saved billions of dollars, putting a large part of the savings into drug treatment and mental health services. Better yet, Texas' violent crime rates are the lowest since 1977.

Another red state, South Carolina, made similar reforms for nonviolent offenses. The drop in the number of prisoners allowed South Carolina to close one prison and also lower its recidivism rate. Other states (Ohio, Georgia, Oklahoma, Kentucky, Missouri, Pennsylvania and Mississippi) have similarly shifted their approach to nonviolent convictions.

Now voters in California will have a chance to do the same, using costly prison beds for dangerous and hardened criminals. It is time to stop wasting taxpayer dollars on locking up low-level offenders. Proposition 47 on the November ballot will do this by changing six nonviolent, petty offenses from felony punishments (which now can carry prison time) to misdemeanor punishments and local accountability.

The measure is projected to save hundreds of millions of taxpayer dollars per year, and it will help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time....

If so many red states can see the importance of refocusing their criminal justice systems, California can do the same. It's not often the voters can change the course of a criminal justice system. Californians should take advantage of the opportunity and vote yes on Proposition 47.

September 21, 2014 in Elections and sentencing issues in political debates, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, September 20, 2014

Despite the threat of another Plata, a number of states' prisons remain way over capacity

I expected that one consequence of the Supreme Court's affirmance of the prisoner release order for California in Plata would be that other states would work even harder than usual to keep their prison overcrowding in check so as not to risk Plata-like litigation in their states.  But, as this new Washington Post piece highlights, there are still a significant number of states that are still dealing with significant prison overcrowding problems (though Plata still seems on their minds).  Here are excerpts from a piece headlined "Prisons in these 17 states are over capacity":

The number of Americans in state and federal prisons has exploded over the last three decades, to the point that nearly one in every 200 people is behind bars. And though the rate of growth has slowed, and even declined over the last five years, the tough-on-crime policies and longer sentences that have sent prison rates skyward present a huge problem for states: Where do they put all those people?

That problem is especially acute in 17 states where the prison population is now higher than the capacity of the facilities designed to hold them. Those states, still recovering from a recession that decimated budgets, have to decide whether to build facilities with more beds, turn to private contractors, relax release policies — or simply stuff more prisoners into smaller spaces.

At the end of 2013, Illinois was housing 48,653 prisoners, according to data published by the Bureau of Justice Statistics. The state’s prison facilities are designed to hold just 32,075 prisoners, meaning the system is operating at 151 percent of capacity. North Dakota’s 1,571 prisoners live in space meant for 1,044 people, 150 percent of capacity. Nebraska, Ohio, Delaware, Colorado, Iowa and Hawaii are all holding a prison population equal to more than 110 percent of capacity.

What scares states the most is the prospect of federal courts intervening and ordering new action. California has been under court order since 2009 to reduce its prison population, which is far beyond capacity. The state has spent billions housing inmates in county jails or sending them to facilities run by private for-profit companies.

“No state actively wants the federal courts to come in and take over operation of their state government functions,” said Adam Gelb, director of the Public Safety Performance Project at the Pew Charitable Trusts.

The possibility of federal court intervention has spurred Alabama to begin reviewing its corrections procedures. A Justice Department investigation released in January found conditions at the state’s women’s prison violate the Constitution, and DOJ said it would look into conditions at other state prison facilities.

In June, Alabama Gov. Robert Bentley (R) launched the Justice Reinvestment Initiative to study the state’s criminal justice system and make recommendations for easing overcrowding. The state’s prison facilities are designed to house 13,318 inmates, though operationally the facilities can hold 26,145 people. The current prisoner population, 26,271 inmates, is 197 percent of the lowest possible capacity and 100.5 percent of the highest number.

Court intervention “has been a powerful motivator over the last couple of years for Alabama to tackle its situation, independent of all the in-state concerns with overcrowding,” Gelb said.

September 20, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 18, 2014

"The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options"

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

Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing.  The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.

That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.  Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling.  Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data.

Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations.  So I conclude by considering some of the options available to states.  I point out that the leading contenders -- decriminalization and sentence reduction -- will likely have little effect, since few offenders are in prison on marijuana charges (the only drug for which decriminalization is currently feasible), and all drug offenders serve relatively short sentences, well below the statutory maximums.  I then consider broader options, such as proposals that target the financial incentives prosecutors have to send offenders, including drug offenders, to prison.  I also touch on the implications of adopting broader definitions of "drug offenders," such as those who commit violent or property crimes either to support drug habits or in the course of selling drugs.

September 18, 2014 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Wednesday, September 17, 2014

Finding an age-based silver lining — or lead lining — in latest BJS prison data

Regular readers know I am very intrigued by the (often overlooked) social science research that suggests lead exposure levels better account for variations in violent crime rates than any other single variable.  Consequently, I am happy an eager to note this new data and analysis sent my way by researcher Rick Nevin who has been talking up the lead-exposure-violent-crime link for many years. 

This short new piece by Nevin, titled "Prisoners in 2013: The News Media Buries the Lead," responds to yesterday's report from the Bureau of Justice Statistics that the US prison population increased in 2013 for first time since 2009. Without vouching for the data, I am eager to highlight Nevin's interesting and encouraging age-based data discussion (with bolding in original and a recommendation to click through here to see charts and all the links):

The news media is reporting on U.S. incarceration data from the Bureau of Justice Statistics (BJS), but the media and BJS have ignored the important news: From 2012 to 2013, the male incarceration rate fell 21% for men ages 18-19, 6% for ages 20-24, and 5% for ages 25-29, but increased by 5% for ages 50-54, 7% for ages 55–59, and 8% for ages 60–64.

BJS Prisoner Series data show an ongoing incarceration rate decline for younger males and an increase for older males that has been ignored by the media for more than a decade.  From 2002 to 2013, the male incarceration rate fell by 61% for men ages 18-19, 34% for ages 20-24, and 25% for ages 25-29, but increased by 30% for ages 40-44.

BJS data for older age groups, reported since 2007, show the same trend through the age of 64. From 2007 to 2013, the male incarceration rate fell 37% for ages 18-19, 28% for ages 20-24, 14% for ages 25-29, and 7% for ages 30-44, as the male incarceration rate increased 22% for ages 45-49, 50% for ages 50–54, and 57% for ages 55–64.  In 2007, men ages 18-19 were twice as likely to be incarcerated as men ages 60-64.  In 2013, men ages 60-64 were almost 20% more likely to be incarcerated than men ages 18-19.

The BJS Prisoners in 2013 report ignores the detailed data on trends in male incarceration rates by age, and highlights an increase in the total prison population of about 4,300 from 2012 to 2013, but notes that the overall incarceration rate (per 100,000 U.S. residents) did fall from 480 in 2012 to 478 in 2013....

The actual BJS data show a long-term trend of falling incarceration rates for younger men that has continued from 2002 through 2013. That decline was the inevitable result of a shift in violent crime arrest rates by age since the 1990s. From 1994 through 2011, the violent crime arrest rate fell by 64% for ages 13-14, 61% t0 52% for ages 15-18, 44% to 39% for ages 19-21, 37% for ages 22-39, and 19% for ages 40-44, as the violent crime arrest rate increased by 6% for ages 45-49, and 13% for ages 50-54.

What is the causal force behind the shift in age-specific violent crime arrest rates and incarceration rates?  The Answer is Lead Poisoning.

Some recent related posts:

September 17, 2014 in Data on sentencing, Detailed sentencing data, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, September 16, 2014

After a few modest yearly declines, state prison population ticks up in 2013 according to new BJS data

As reported in this New York Times piece, headlined "Number of Prisoners in U.S. Grew Slightly in 2013, Report Finds," a small streak of yearly declines in state prison populations came to a halt in 2013. Here are the details:

Breaking three consecutive years of decline, the number of people in state and federal prisons climbed slightly in 2013, according to a report released Tuesday, a sign that deeper changes in sentencing practices will be necessary if the country’s enormous prison population is to be significantly reduced.

The report by the Justice Department put the prison population last year at 1,574,700, an increase of 4,300 over the previous year, yet below its high of 1,615,487 in 2009. In what criminologists called an encouraging sign, the number of federal prisoners showed a modest drop for the first time in years.

But the federal decline was more than offset by a jump in the number of inmates at state prisons. The report, some experts said, suggested that policy changes adopted by many states, such as giving second chances to probationers and helping nonviolent drug offenders avoid prison, were limited in their reach....

Across the country, drug courts sending addicts to treatment programs rather than jail have proved valuable but are directed mainly at offenders who would not have served much prison time anyway, said Marc Mauer, executive director of the Sentencing Project, a private group in Washington. At the same time, Mr. Mauer said, more life sentences and other multidecade terms have been imposed than ever, offsetting modest gains in the treatment of low-level offenders.

“Just to halt the year-after-year increase in prisoners since the 1970s was an achievement,” said Richard Rosenfeld, a criminologist at the University of Missouri–St. Louis, and that shift came about because of changes in state policies and a drop in crime.

But experts say it will take more far-reaching and politically contentious measures to markedly reduce the country’s rate of incarceration, which is far above that in European nations and has imposed especially great burdens on African-Americans. Mandatory sentences and so-called truth-in-sentencing laws that limit parole have not only put more convicts in costly prison cells for longer stretches but have also reduced the discretion of officials to release them on parole....

The size of the federal prison population is closely tied to federal drug laws and penalties. A majority of the 215,866 offenders in federal prisons in 2013 were there on drug charges, often serving lengthy sentences under get-tough policies that have increasingly come under question. Recent changes in federal drug enforcement — a 2010 law to reduce disparities in sentences for crimes involving crack as opposed to powdered cocaine, and a directive from Attorney General Eric H. Holder Jr. calling for less stringent charges against nonviolent offenders — are too new to have had a large impact in 2013.

The full BJS report, titled excitingly "Prisoners in 2013," is available at this link. I need to grind over the data in the full report before commenting on what this notable new report tells us about the state and direction of modern mass incarceration.

September 16, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, September 15, 2014

Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells

I am pleased to see that by LawProf Richard M. Re  now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here).  Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells.  I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note.  As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.”  The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency.  First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about.  A robust clemency tradition would bring those factors to light.  Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Prior related posts on Young case:

September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion

As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:

Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.

On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.

“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”

This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:

CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.

With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.

September 15, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Encouragingly, private prison company CCA turning focus to reducing recidivism

NA-CC714_PRISON_D_20140912165107This recent Wall Street Journal article, headlined "Prison Firm CCA Seeks to Reduce Number of Repeat Offenders: Company Pushes to Reduce Costs Associated with Recidivism," reports on a private industry's latest encouraging response to the latest market realities in corrections. Here are the details:

The nation's largest private prison company is shifting its focus toward helping release more inmates and keep them out — a reaction, company officials say, to changing policies around the country on the severity of criminal punishment.

After three decades of surging prison populations, the number of people behind bars is starting to decline, albeit slowly. There were more than 2 million people locked up in federal and state prisons and jails in 2012, the last year for which the Justice Department has published data. That year saw prisons and jails release 27,500 more inmates than they took in, marking the fourth year of a declining prisoner population.

Yet repeat offenders remain a costly headwind. A Justice Department study of data from 2005 to 2010 in 30 states found that three out of four released prisoners will be rearrested within five years of their release. Getting a high-school equivalency degree while in prison, however, can greatly reduce the chances of being rearrested, studies show. A 2013 study by the Rand Corp. think tank concluded that spending $140,000 to $174,000 on education programs for a hypothetical group of 100 inmates would save as much as $1 million in re-incarceration costs over a three-year period.

Damon Hininger, chief executive of Nashville, Tenn.-based Corrections Corp. of America, said in an interview that government clients are increasingly concerned about the long-term costs of housing inmates and are pushing CCA and other private operators to save them money by reducing recidivism, the number of inmates who are released only to do a repeat turn in prison.

He plans to expand the company's prison rehabilitation programs, drug counseling and its prisoner re-entry work in cities around the country. It's a significant shift for CCA, which has built a profitable business from incarcerating people—nearly 70,000 inmates are currently housed in more than 60 facilities. The company is the fifth-largest correction system in the country, after only the federal government and the states of California, Florida and Texas.

"This is a watershed moment for our company and we hope it will be for our entire industry," Mr. Hininger said. "We are determined to prove that we can play a leadership role in reducing recidivism and that we have every incentive to do so. The interests of government, taxpayers, shareholders, and communities are aligned. We all just need to recognize that and commit to that."...

Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, has doubts about the company's new initiative. "It must be a challenge for CCA to implement programs that could reduce recidivism when that runs counter to the private prison model itself," she said. "We can only hope that CCA's interest in such programs indicate a shift away from its previous stance that 'reductions in crime rates' are a 'risk factor' for business and toward a completely new business model that does not rely on ever-growing mass incarceration."

Over the past two decades, government agencies have gravitated toward contracting with CCA or other private prison firms, often with a goal of saving money on the daily cost of housing inmates. In recent years, however, company officials are increasingly being asked by governments to cut down the cost of repeat offenders, Mr. Hininger said. Mr. Hininger compared the cost of recidivism on government budgets to the cost of long-term pension obligations and health-care coverage — issues that elected officials hadn't often thought of when drafting year-to-year budgets in the past but are now of increasing concern in more state capitals....

Jason Clark, a spokesman for the Texas Department of Criminal Justice, which contracts with CCA at some facilities, said the state began a push to expand rehabilitation and re-entry programs, which led to a drop in its recidivism rate from 25.3% to 22.6% over a three-year period. "Those are real numbers and real savings because less people are coming back into the prison system," Mr. Clark said. "We believe that continuing to invest in diversion and treatment initiatives is the best strategy to maintain a stable and successful criminal-justice system."

In a speech broadcast to CCA's roughly 15,000 employees, Mr. Hininger said the company plans to expand its postprison work around the country, noting that currently much re-entry work is done by small businesses and nonprofit groups that lack CCA's ability to scale up such work in larger facilities in many cities. He declined to say which cities. "What we've seen as we've looked around the U.S., it is a little fragmented, as smaller operators providing these solutions," Mr. Hininger said in the interview. "We see an opportunity to provide some consistency and expertise."

Mr. Hininger emphasized rehabilitation has always been part of CCA's work, but said that going forward it would be part of each employee's job description. He said that from the first day a prisoner arrives, that prisoner should be evaluated and steered toward effective rehabilitation programs.

Stories like this partially account for why I tend to be more hopeful than most other reform advocates concerning the role that private industry might play in improving the state of incarceration nation. Though I worry about how a profit motive can and will skew priorities and incentives in corrections, modern mass incarceration is the product of government agents playing politics much more so that the product of private actors pursuing profits. Consequently, I am eager to be open-minded about the potential for private players to improve the status quo, even while so many others claim that private prisons are sure to make bad matters worse.

September 15, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, September 12, 2014

New Urban Institute report spotlights "graying" of federal prisoners

Urbanheader09I just learned of this notable new report authored by KiDeuk Kim and Bryce Peterson at the Urban Institute titled "Aging Behind Bars: Trends and Implications of Graying Prisoners in the Federal Prison System." Here are excerpts from the the report's executive summary:

Over the past few decades, federal and state prison populations have increased dramatically.  Accompanying this growth is a demographic shift to older prison populations. Older prisoners require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age-related disabilities.  They are also more vulnerable to victimization in prison.  However, relatively little is known about the implications of aging prisoners. This report aims to address this knowledge gap by presenting an in-depth examination of the growth patterns in the largest correctional system in the United States — the US Bureau of Prisons (BOP).

The highlights of this report include the following:

  • The aging of the BOP population has accelerated since the early 2000s.
  • The growth rate of older prisoners varies across offense type, gender, and race....
  • Over the next five years, the proportion of those age 50 and older, especially those  age 65 and older, is projected to increase at a considerably fast rate.
    • There were slightly over 5,000 prisoners age 65 and older in FY 2011 (approximately 3 percent of the BOP population), and the number of those prisoners is projected to triple by FY 2019.
    • By these projections, prisoners age 50 and older could make up nearly 28 percent of the BOP population by FY 2019 — approximately a 10 percentage point increase from FY 2011....

The aging of the BOP population has already begun, driven in part by punitive sentencing practices and in part by the aging of society in general. It is complicated by other individual factors of aging prisoners such as gender and race. However, it is unclear how these demographic shifts, which could have serious fiscal and health care implications for the BOP population, are reflected in BOP’s current practice and policy regarding the treatment and management of aging prisoners. There is little empirical knowledge to inform current practice or policy regarding the growing population of aging prisoners....

Raising awareness of the needs of aging prisoners and equipping BOP with policy options to address such needs may not closely conform to some of the fundamental principles of punishment, such as retribution. However, it is important to recognize that poor management of prison systems can affect the rest of the criminal justice system, responsible for ensuring public safety, and potentially lead to a violation of prisoners’ constitutional or statutory rights. These concerns are increasingly more relevant and should be balanced with the question of how well our prison system serves the principles of punishment.

The number of older prisoners is growing fast but is still relatively small, which may create the misconception that policy options for better managing older prisoners would not alleviate the current fiscal burden of the prison system to any substantial extent. However, as presented in this report, the population of older prisoners has grown markedly in recent years and is projected to have a steeper growth curve in the near future. The cost-effective management of this aging population will be of significant consequence to the BOP budget, and our recommendations for policy and research can be a starting point for addressing the costly demographic shift in the BOP population.

September 12, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

"20 Years Later, Major Crime Bill Viewed As Terrible Mistake"

The titleof this post is the headline of this notable new NPR segment, and here are excerpts:

Twenty years ago this week, in 1994, former President Bill Clinton signed a crime bill. It was, in effect, a long-term experiment in various ways to fight crime.  The measure paid to put more cops on the beat, trained police and lawyers to investigate domestic violence, imposed tougher prison sentences, and provided money for extra prisons.

Clinton described his motivation to pass the 1994 Violent Crime Control Act in stark terms. "Gangs and drugs have taken over our streets and undermined our schools," he said.  "Every day we read about somebody else who has literally gotten away with murder."

And if Clinton and Congress reflected the punitive mindset of the American people, what they didn't know was that soaring murder rates and violent crime had already begun what would become a long downward turn, according to criminologists and policymakers....

These days, Jeremy Travis is president of the John Jay College of Criminal Justice.  But 20 years ago, he attended the signing ceremony for the crime bill — and joined the Clinton Justice Department.  "Here's the federal government coming in and saying we'll give you money if you punish people more severely, and 28 states and the District of Columbia followed the money and enacted stricter sentencing laws for violent offenses," Travis says.

But as Travis now knows all too well, there's a problem with that idea.  Researchers including a National Academy of Sciences panel he led have since found only a modest relationship between incarceration and lower crime rates.  "We now know with the fullness of time that we made some terrible mistakes," Travis said.  "And those mistakes were to ramp up the use of prison.  And that big mistake is the one that we now, 20 years later, come to grips with.  We have to look in the mirror and say, 'look what we have done.'"

September 12, 2014 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, September 11, 2014

Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells

Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective.  And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling: 

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer.  He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice.  Our precedent compels us to reject these claims and to affirm Young’s sentence.

To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.

A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty.  Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms.  Apparently not.  Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)

I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.

Prior related posts:

September 11, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, September 10, 2014

"Misdemeanor Decriminalization"

The title of this post is the title of this notable and interesting new paper by Alexandra Natapoff now available via SSRN. Here is the abstract:

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike.

But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions.

The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

September 10, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Sunday, September 07, 2014

Editorial laments how some part of Ohio are "addicted to prisons"

The Toledo Blade has this lengthy new editorial headlined "Addicted to Prisons" that discusses lots of interesting facets of Ohio's criminal justice system. Here are excerpts:

Stark differences in judges, as well as access to local treatment programs, have created appalling disparities in how justice is handed out to addicts and nonviolent drug offenders in Ohio.  Two cases involving heroin addicts, portrayed today in a front-page column by The Blade’s deputy editorial page editor, Jeff Gerritt, show what Ohio is doing right and what it continues to do wrong.

In Hardin County, Kaylee Morrison, 28, was just sentenced to four years in prison, where she will cost taxpayers $100,000 while failing to get the help she needs to manage her addiction.  In neighboring Marion County, Clayton Wood, 29, was sentenced to drug court, where he gets treated in his community while working full time and paying taxes.

Ohio’s heroin and opioid epidemic has rocked the state’s criminal justice system, flooding its crowded prisons and burdened courts with addicts and minor drug offenders who would be more effectively — and inexpensively — treated in their communities. Of the more than 20,000 people entering Ohio’s prisons each year, the share of inmates admitted for opioid- and heroin-related crimes has increased more than 400 percent in the past 13 years.

Moving Ohio to a more cost-effective, rational, and humane criminal justice system will take, among other things, more drug courts, sentencing and code reforms, and a significant shift of resources from state prisons to community-based treatment programs....

Statistical profiles of the state’s incoming inmates underscore the need for change. They show many low-level offenders with short sentences that community-based sanctions could handle more effectively at a fraction of the $25,000 a year it costs to imprison them.

More than 5,000 people a year go to prison in Ohio for drug crimes, mostly low-level offenses. Almost the same number of incoming prisoners — most of them addicts — have never been arrested for, or convicted of, a violent offense. Moreover, nearly 45 percent of those who go to prison each year in Ohio — almost 9,000 people — serve less than a year. That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.

Incarcerating minor drug offenders is costing Ohio tens, if not hundreds, of millions of dollars. Ohio taxpayers get little return on that investment, as untreated addicts return to their communities unequipped to cope with their disease.

Adult felony drug courts, which combine treatment with more-frequent but shorter sanctions, offer an excellent alternative. Residents of every Ohio county should have access to one. Still, such specialized dockets, with assigned probation officers, exist in fewer than a third of Ohio’s 88 counties....

With or without drug courts, judges need sufficient resources in their communities to treat drug addiction and serve as cost-effective alternatives to incarceration. Such programs give judges more sentencing options.

Nearly 10,000 offenders leave Ohio’s prisons each year with an intense history of addiction. As part of its re-entry efforts, DRC must ensure they are linked to treatment programs immediately after they’re released, including support groups and medication-assisted treatment.

Finally, the administration of Gov. John Kasich and the Ohio Supreme Court, through symposiums and other outreach effects, should educate all Ohio judges on how addiction works. Likewise, the General Assembly must make sure that Ohio’s legal code doesn’t mandate inappropriate or ineffective penalties and sanctions for offenses that are rooted in addiction.

The growing number of addicts and low-level drug offenders in Ohio’s costly and crowded prisons is a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its opioid and heroin epidemic. Changing course will require a far greater understanding of addiction among those who make and execute Ohio’s laws and criminal code, and a seismic shift in resources and investments from the state’s prisons to its struggling communities.

The article referenced in the first paragraph of this editorial is headlined "Criminalizing addiction: Whether drug users go to prison depends on where they live," and it is available at this link.

September 7, 2014 in Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, September 03, 2014

"Life sentence for buying marijuana?"

CA6K4VHLThe question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU.  An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront."  And this companion piece, headlined "The price of pot," provides this additional preview:

Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.

This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime?  Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.

  And now here are now excerpts from the commentary by  Vanita Gupta: 

Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.

The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....

While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.

We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.

Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.

The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.

But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.

According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.

The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.

As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.

September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Tuesday, September 02, 2014

"A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion"

The provocative title of this post is the title of this provocative new article available via SSRN and authored by (former federal prosecutor) Mark W. Osler and (current federal judge) Mark W. Bennett. Here is the abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

September 2, 2014 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

"Rethink sentencing and parole to solve aging, costly prison population"

The title of this post is the headline of this new editorial from a local South Carolina paper.  Yet, even though focused on some Palmetto State particulars, many of the points and themes in the editorial have broad applicability in many US jurisdictions.  Here are excerpts:

The term "life in prison" is easy enough to understand when it is handed down as a sentence in a courtroom.  But after the courtroom drama subsides, Corrections Department officials must face the realities of feeding, housing and caring for criminals who will spend decades in prison.

For many, the sentences are a just and fair punishment.  Often, they are also necessary to keep the public safe.  But some who will spend their lives behind bars must do so because of overly severe mandatory sentencing laws.

Regardless, any prisoner costs the state and its taxpayers a lot of money.  Prisons should serve to deter would-be criminals and separate society from its most dangerous members. Problems — and extra costs — arise when they must also serve as mental health facilities and nursing homes.

According to a recent report by The State newspaper, the number of South Carolina inmates over the age of 55 has more than doubled over the last 10 years. And that number is expected to increase without reforms to the way the state handles its sentencing and parole laws.

Many aging prisoners were sentenced long before a 2010 legislative reform reduced sentences for some non-violent crimes while strengthening punishments for violent offenders. That bill was so effective that it has reduced the prison population in the state by more than 10 percent overall and slashed the number of incarcerated non-violent offenders in the years since its passage.

South Carolina has also implemented programs, including a "smart probation" system, that have helped cut the rate of recidivism dramatically, as The Post and Courier reported on Sunday.   Even so, the state's cost per inmate continues to rise, and part of that increase is due to the expense of caring for aging prisoners with additional medical needs and accompanying logistical concerns....

The South Carolina Sentencing Reform Commission prepares an annual review of the state corrections system with a particular focus on the impact of the 2010 legislation.  That data show that sentencing reform has, by and large, been a success story. But more work remains.  South Carolina should continue its reform of sentencing laws while focusing on rehabilitation for offenders who pose a minimal threat if given probation rather than prison.

The Legislature should also consider expanding parole options for aging inmates who have served substantial portions of their sentences, have serious chronic medical conditions or are unlikely to pose a threat should they be released under supervision.  Every prisoner who can safely be released on parole represents thousands of dollars of savings for taxpayers....

Any decision must consider both what is cost effective and acceptable for public safety. If some older prisoners who have effectively paid their debt to society can be allowed to re-enter society safely and at a savings to taxpayers, then there is little reason to keep them locked away.

September 2, 2014 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (2) | TrackBack

Monday, September 01, 2014

Gendered perspective on Ohio's challenges with opioids and prison growth

As reported in this recent Toledo Blade editorial, headlined "Women in prison: A big increase in female inmates should prompt changes in how Ohio’s courts deal with addiction," Ohio has struggled of late with an increase in its prison population.  And this reality has prompted at least one prominent paper to urge reforms focused on a particular demographic:

A stunning rise in the number of women entering Ohio prisons should encourage elected officials to seek better ways of managing the state’s $1.5-billion-a-year prison system.

Driven largely by a growing number of drug-addicted offenders from rural counties, Ohio prisons now hold nearly 4,200 women. From 2012 to 2013, the number of women coming to state prisons increased by 11 percent, from 2,580 to 2,854, said JoEllen Smith, spokesman for the Ohio Department of Rehabilitation and Correction.

Ohio’s opioid and heroin epidemic is largely to blame for the increase, as more low-level female drug offenders are sent to prison. “That population is very much nonviolent and drug-addicted, often with male co-defendants leading the case,” state prisons Director Gary Mohr said recently.

At the Ohio Reformatory for Women in Marysville, which holds more than 2,600 prisoners, the top three offenses for women entering the prison are drug possession, theft, and trafficking, said public information officer Elizabeth Wright. Moreover, the statewide share of women prisoners coming from rural counties — those with fewer than 100,000 residents — has nearly doubled in the past decade. Altogether, Ohio’s 28 prisons hold more than 50,000 inmates....

Mr. Mohr has prudently called for diverting more low-level drug offenders from prison to community-based treatment programs. To do that, Ohio will need more adult drug courts. Most counties, including Lucas County, still don’t have a drug court. The state also needs more community programs to serve as effective alternatives to incarceration.

Ohio’s prosecutors and judges also must get better educated on addiction. Too many of them still don’t understand that chemical addiction is a compulsive disease, not a moral choice. “A big part of the problem is that a number of people, including judges and prosecutors, see addiction as a state in which people have more control than they actually have,” Orman Hall, the director of Gov. John Kasich’s Opiate Action Team, told The Blade’s editorial page. “Opioid and heroin addiction is a compulsive disorder. In the early stages, people have very little ability not to relapse.”

Finally, prisons must expand the amount of effective drug treatment they provide, even as Ohio courts continue to send them people who would be better served in community programs. The growing number of women entering prison in Ohio is more than a demographic shift. It’s a grim reminder that the state’s criminal justice system is failing to deal effectively, and humanely, with its heroin and opioid epidemic.

September 1, 2014 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, August 31, 2014

Shareholders of private prison corporations already profiting from border problems

Images (1)As this CNN Money article highlights, because of the "crisis on the U.S.-Mexico border, ... Wall Street is betting that it will result in a boom for private prisons."  Here is more about who can profit from a need for prison beds:

Geo Group (GEO)and Corrections Corporation of America (CXW) are two of America's largest for-profit prison operators. They have thousands of open beds, and they have deep relationships with the federal agencies charged with doling out contracts to house undocumented immigrants, including children.

"It's highly likely that the federal government will have to turn to the private sector for help with this crisis. Both companies are extremely well positioned," said Brian Ruttenbur, an analyst at CRT Capital Group who covers the stocks of Geo Group and Corrections Corporation of America (CCA).

Investors are clearly seeing dollar signs. Shares of both CCA and Geo Group have spiked since the border crisis landed on front pages this summer. CCA has climbed 8.5% since July 30, and Geo Group is up over 7%. That's a lot better than the S&P 500's 1.5% advance over that time span.

The Obama administration has already shifted over $405 million in funds to address the crisis and is urging Congress to pass a $3.7 billion emergency supplemental bill. "Investors see this as an opportunity. This is a potentially untapped market that will have very strong demand," said Alex Friedmann, an activist investor who owns shares of both CCA and Geo Group....

Ruttenbur said CCA and Geo Group have both been talking to the federal government about how they can help. "We are always in conversations with our government partners including ICE, but we don't have anything new to report," a CCA spokesman told CNNMoney. Geo Group did not respond to a request for comment.

The best outcome for these companies would be landing a contract with the government to help house some of the undocumented immigrants at existing facilities that are currently idle. That's exactly what happened last month when the U.S. border control inked a contract with Geo Group to give its adult detention center in Karnes County, Texas a makeover. Now the facility is able to house hundreds of immigrant women and children....

Wall Street also applauded when CCA and Geo Group, which went public during the 1980s and 1990s, recently converted to real estate investment trusts, or REITs. That status, which is also used by hospitals and office building operators, gives them enormous tax advantages....

[I]nvestors are attracted to prison stocks because they give generate lots of cash flow, have strong dividend yields and high occupancy rates compared to other real estate options. "The long-term trends are very much in place right now because the federal, state and local governments aren't willing to put up the capital to build new facilities. The only group building new facilities is the private sector," said Ruttenbur.

August 31, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack