Friday, June 27, 2014

"Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population"

The title of this post is the title of this timely and valuable new article available via SSRN authored by Paul J. Larkin Jr. of The Heritage Foundation. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release.

Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles.

The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

I have been hopeful (but not confident) that the distinct efforts at federal sentencing and corrections reform found in the PSEA and the RRPSA would not get lost in the discussion and debate over the Smarter Sentencing Act. But I keep fearing that controversy over the type of front-end reform involved in the SSA has tended to eclipse the (arguably more pressing and consequential) back-end reforms developed in the PSEA and the RRPSA. I hope this piece help folks continue to appreciate the need and value of both types of reform in the federal system.

June 27, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, June 21, 2014

Two more prominent conservative prosecutors call for less incarceration

Ken Cuccinelli, a former Virginia AG, and Deborah Daniels, a former DOJ official in the Bush Administration, have this notable new opinion piece in the Washington Post headlined "Less incarceration could lead to less crime." In part because this piece reflects a lot of my own views on the modern need for modern reforms, I will quote it at length:

When crime rates began rising in the 1960s and too many Americans felt unsafe walking in their neighborhoods, the idea of putting more people in prison — and keeping them there longer — made sense.

For the next three decades, our nation did just that, as public unease propelled lawmakers to promote longer sentences, curbs on parole and other measures making our correctional system ever tougher.

Now more than 2 million American adults are behind bars and nearly one of every 33 is under some form of correctional control — either incarcerated or supervised in the community. During Ronald Reagan’s presidency, the rate was one in 77.

As conservatives with backgrounds in law enforcement, we embraced the orthodoxy that more incarceration invariably meant less crime, no matter the offense or the danger posed by its perpetrator. But crime rates have been falling since the early 1990s, and a growing body of research combined with the compelling results of reforms in many states prove it is time to adjust our approach.

In short, we must reserve our harshest and most expensive sanction — prison — for violent and career criminals while strengthening cost-effective alternatives for lower-level, nonviolent offenders. The latter lawbreakers must be held accountable for their crimes, but they pose less risk and hold greater potential for redemption.

With today’s sophisticated assessment tools, we can better sort offenders and match them with the levels of treatment and community supervision that offer the best chance for them to stay crime free. Specialty courts that use swift and certain sanctions to promote compliance with drug tests and other conditions of probation are another key plank in this approach.

Let us be clear: Society’s treatment of dangerous, violent felons should remain as punitive as ever. Communities need protection from such predatory criminals, and incapacitation — for a long time, no matter the cost — remains the proper response. Widespread incarceration has played a role in making our streets safer. Estimates vary, but many social scientists believe that expanding imprisonment can be credited for up to a third of the crime reduction of recent years, with demographics, advances in policing and a hotly debated mix of other dynamics accounting for the rest.

However, when it comes to the public safety benefits of incarceration, at least for some offenders, it is clear that we are well past the point of diminishing returns. And given that recidivism levels remained disappointingly high as incarceration rates rose, we would be foolish to ignore the need for a course correction.

The Pew Charitable Trusts recently reported that states that have cut their imprisonment rates (coupled with other reforms) have experienced a greater crime drop than those that increased incarceration. Between 2007 and 2012, the 10 states with the largest decreases in imprisonment rates had a 12 percent average reduction in crime, while the 10 states with the largest imprisonment rate increases saw crime fall 10 percent....

When you see, as we have, what reduces criminal behavior, it’s easier to accept the notion that for many offenders, prison is not the best answer. That conclusion is part of what led us to join Right on Crime, a national movement of conservatives who support a criminal justice system reflecting fiscal discipline, a belief in redemption, the empowerment of victims and reliance on solid evidence to determine the most cost-effective use of taxpayer funds to reduce recidivism and improve public safety.

Much of the talk about such reforms highlights their fiscal payoff, and we’re all for saving taxpayer dollars. But as conservatives, we also applaud such efforts because they reflect an evidence-driven approach that values results, not imprisonment for imprisonment’s sake.

Let’s resist our old incarceration reflex and support a rational system anchored in the knowledge, experience and values of today. Let’s preserve families, restore victims, help willing offenders turn their lives around and keep the public safe.

Some older and recent posts on the "new politics" of sentencing reform:

June 21, 2014 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Wednesday, June 18, 2014

Fascinating accounting of state incarceration rates in a global perspective

I just came across this interesting chart and discussion headlined "States of Incarceration: The Global Context," which reviews world incarceration rates if every U.S. state were a country. The chart and related discussion is both enlightening and depressing, and here is an excerpt:

Around the globe, governments respond to illegal activity and social unrest in many ways. Here in the United States, policymakers in the 1970s made the decision to start incarcerating Americans at globally unprecedented rates.... While there are certainly important differences between how U.S. states handle incarceration, placing each state in a global context reveals that incarceration policy in every region of this country is out of step with the rest of the world....

If we compare the incarceration rates of individual U.S. states and territories with that of other nations, for example, we see that 36 states and the District of Columbia have incarceration rates higher than that of Cuba, which is the nation with the second highest incarceration rate in the world.  New Jersey and New York follow just after Cuba.  Although New York has been actively working on reducing its prison population, it’s still tied with Rwanda, which has the third highest national incarceration rate. Rwanda incarcerates so many people (492 per 100,000) because thousands are sentenced or awaiting trial in connection with the 1994 genocide that killed an estimated 800,000 people.

Next comes the state of Washington, which claims the same incarceration rate as the Russian Federation. (In the wake of collapse of the Soviet Union, Russia used to rival the United States for the highest incarceration rate in the world.  An epidemic of tuberculosis in the overcrowded prisons, however, encouraged the Russian government to launch a major amnesty in 1999 that significantly lowered that country’s incarceration rate.)

Utah, Nebraska and Iowa all lock up a greater portion of their populations than El Salvador, a country with a recent civil war and one of the highest homicide rates in the world.8 Five of the U.S. states with the lowest incarceration rates — Minnesota, Massachusetts, North Dakota, New Hampshire, and Rhode Island — have higher incarceration rates than countries that have experienced major 20th century social traumas, including several former Soviet republics and South Africa.

The two U.S. states that incarcerate the least are Maine and Vermont, but even those two states incarcerate far more than the United State’s closest allies. The other NATO nations, for example, are concentrated in the lower half of this list.  These nations incarcerate their own citizens at a rate five to ten times lower than the United States does.

June 18, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 15, 2014

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 14, 2014

Notable indication that "smart on crime" sentencing reform in West Virginia is paying dividends

StsealAs highlighted by this local article, headlined "Governor: Justice Reinvestment Act drops W.Va. jail population by 5%," it appears that another state is having significant success with data-driven "smart-on-crime" sentencing and corrections reforms. Here are the encouraging details:

Although in effect for slightly more than a year, legislation to reduce prison overcrowding by reducing recidivism and substance abuse is having a positive impact, Gov. Earl Ray Tomblin said during an event Thursday in Washington, D.C.

“Since I signed West Virginia’s Justice Reinvestment Act, we have had a 5 percent reduction in our prison population,” Tomblin said. “In April 2013, we had nearly 7,100 prisoners in our state. Last Thursday, that figure was down to 6,743. We have reduced overcrowding at our regional jail facilities by nearly 50 percent.”

The legislation was enacted in May 2013, after a yearlong study coordinated by the Council of State Governments’ Justice Center, which recommended reducing prison overcrowding with accelerated probation and parole for nonviolent offenders, and better community-based resources for parolees, including substance-abuse treatment programs.

Tomblin told the Washington CSG event that, in April 2013, West Virginia’s corrections system was 1,746 inmates over capacity, a figure that has now dropped to 885. “Today, we have more than 1,000 fewer people in our prisons than what was projected just a few years ago,” Tomblin said. “Without these changes, we expected to have more than 7,800 inmates in West Virginia prisons, compared to today’s total of 6,743.”

Since the passage of the legislation, Tomblin said, the state has continued efforts to reduce re-offense rates with new workforce training programs, assistance in helping parolees find appropriate housing and efforts to ensure access to community-based substance-abuse treatment for those released from prison, funded through Medicaid expansion....

The West Virginia Democrat was joined at the event by Republican Pennsylvania Gov. Tom Corbett, who has overseen similar successes with prison-reform programs in the Keystone State. Corbett noted that, in the 1990s, Pennsylvania was building a new prison nearly every year, as mandatory sentencing laws were causing the state’s inmate population to soar.

Michael Thompson, director of the CSG Justice Center, noted that the national dialogue has changed from a partisan debate over which party could be tougher on crime to a bipartisan effort to be smart on crime, a theme echoed by Tomblin. “I hope other states will consider the justice reinvestment model to take a “smart on crime” approach to prison overcrowding and public safety,” he said.

June 14, 2014 in Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 12, 2014

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

Some recent related posts:

June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, June 11, 2014

Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform

Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events.  Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:

The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics.  Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues.  Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment."  In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.

June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack

Tuesday, June 10, 2014

DOJ advocates for "limited retroactivity of the pending drug guideline amendment"

As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board.  And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.  

As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines.  Here are the basics of the compromise advocated by DOJ via its submitted testimony:

After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....

Assessing whether the amendment should be applied retroactively requires balancing several factors.  The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders.  While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public’s confidence in the criminal justice system and our prison resources....

Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....

Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the “circumstances” under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.

With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission’s own research, and identifying them will not require new hearings.

Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.

Some recent related posts:

June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

New ACLU report assails private prison industry involved in federal immigration detention

As detailed in this press release, this week "the American Civil Liberties Union and the ACLU of Texas released the report Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, [which examines] the secretive 'Criminal Alien Requirement' or 'CAR' prisons for immigrants."  Here is more about the report from the ACLU press release:

 In a four-year investigation of five CAR prisons in Texas, our researchers found pervasive and disturbing patterns of neglect and abuse of the prisoners–all non-citizens, most of whom have been convicted only of immigration offenses (such as unlawfully reentering the country).

"At the CAR prisons we investigated, the prisoners lived day to day not knowing if their basic human needs would be met, whether they would get medical attention if they were hurt or ill," said Carl Takei, Staff Attorney at the ACLU’s National Prison Project.  "The Bureau of Prisons creates perverse incentives for the for-profit prison companies to endanger human health and lives."

In total, the 13 CAR prisons across the country hold more than 25,000 immigrants....  The report details the relationship between each of the three companies that run them–CCA, GEO Group, and MTC–and the federal Bureau of Prisons, including the ways that the Bureau and the companies work together to cover up the prisons’ conditions....

In Warehoused and Forgotten: Immigrants Trapped in Our Shadow Private Prison Industry, the ACLU and the ACLU of Texas tell the stories of prisoners who have been torn from their families by the extreme distances (often 1,000 miles or more) between a CAR prison and a prisoner’s hometown and by the high phone rates the private prison companies charge for phone calls.

Among its recommendations to the federal government, the report calls on the Bureau of Prisons to strengthen oversight of CAR prisons, end the use of contractually binding occupancy quotas for CAR prisons, and stop spending taxpayer money to shield basic information about private prisons from public disclosure.  It also urges the Departments of Homeland Security and Justice to return immigration enforcement to civil immigration authorities.

The full report is available at this link.

June 10, 2014 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, June 09, 2014

Two years after Miller, Iowa still muddling through juve sentencing

As highlighted by this local article, headlined "Iowa juvenile sentencing rules in legal limbo," the Hawkeye state is still struggling with how to revamp its juvenile sentencing rules to comply with modern Eighth Amendment restrictions. Here are the details:

Iowa prosecutors want clarification on the state’s sentencing laws for juveniles convicted of murder. The U.S. Supreme Court in 2012 struck down the use of mandatory life terms in prison for defendants who committed murder when they were under 18. The court ruled that judges have to take a person's age and the severity of crime into consideration.

Iowa legislators have been working since then to determine whether to change state sentencing rules. Rep. Chip Baltimore, R-Boone, chairman of the House Judiciary Committee, said lawmakers are struggling to decide the best approach given the “hodgepodge of judicial rulings” that have left in question what is the minimum number of years a juvenile who commits first-degree murder should be required to serve in prison before being eligible for parole.

“It’s a situation that we’re trying to deal with the amorphous concept of cruel and unusual punishment not only as it’s interpreted through the federal constitution but the Iowa Supreme Court has decided that the cruel and unusual punishment provision in the Iowa Constitution means something different that what it means at the federal level,” he said.

Iowa Assistant Attorney General Kevin Cmelik said prosecutors want clear guidelines. “There is no clear answer as to what is required by the law right now because we don’t have a statute that’s applicable anymore," he said.

Prosecutors like Black Hawk County Attorney Tom Ferguson tried to get lawmakers to set a mandatory minimum of at least 35 years for juveniles convicted of first-degree murder, but it failed to gain traction last legislative session....

Prosecutors say judges should have discretion to re-impose a life sentence with or without parole but they worry that lesser penalties potentially could create a situation where someone sentenced for second-degree murder could be facing more prison time that an offender found guilty of a Class A crime.

Forty-eight youth in Iowa who have been sentenced to life in prison without the possibility of parole since 1964, state data shows.

June 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 07, 2014

Detailing how many more women have come to discover "Orange is the New Black"

WomenstateTo really appreciate the popular NetFlix show "Orange is the New Black," everyone should read and reflect on the data on modern female incarceration usefully assembled in this recent Fusion piece headlined "The Real Life Stats Behind Women in Prison and ‘Orange is the New Black’." Here are the data (with sources, emphasis and links included):

The series "Orange is the New Black" is based on a true experience that follows women in prison, which is one of the fastest growing prison populations.  So, it’s only appropriate [with] the premiere of the second season of "Orange is the New Black" we look at some of the numbers of women in prison.

The number of women in prison increased by 646 percent between 1980 and 2010, rising from 15,118 to 112,797. If we include local jails, more than 205,000 women are now incarcerated. The female prison population is increasing at nearly double the rate for men. (The Sentencing Project-PDF)

Two thirds of women in prison are there for non-violent offenses, many for drug related crimes. (Women’s Prison Association - PDF)

Oklahoma is the greatest incarcerator of women. Oklahoma incarcerates more women per capita than any other state with 130 out of every 100,000 women in prison. Massachusetts has the lowest rate of female imprisonment at 13 per 100,000 women. (Women’s Prison Association - PDF)

1 in 25 women in state prisons and 1 in 33 in federal prisons are pregnant when admitted to prison. Women can be shackled during labor in at least 32 states. The majority of children born to incarcerated mothers are immediately separated from their mothers. (The Sentencing Project-PDF)

Women in prison are more likely than are men to be victims of staff sexual misconduct. More than three-quarters of all reported staff sexual misconduct involves women who were victimized by male correctional staff.(The Sentencing Project-PDF)

Black women represent 30 percent of all incarcerated women in the U.S, although they represent 13 percent of the female population generally.

Latinas represent 16 percent of incarcerated women, although they make up only 11 percent of all women in the U.S. (ACLU)

Transgender inmates are almost always housed according to their birth gender. The two most common responses are housing transgender prisoners on the basis of their birth gender or placing them in isolation. (American Academy of Psychiatry and the Law)

June 7, 2014 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Friday, June 06, 2014

More critical analysis of NRC mass incarceration analysis from John Pfaff

As I highlighted in this post late last week, through a series of astute posts at PrawfBlawg, Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the National Research Council's analysis of mass incarceration.  John's first five posts in that series are linked here, and now below I have linked his latest in this important series:

June 6, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, June 05, 2014

"Strict Liability Offenses, Incarceration, and the Cruel and Unusual Punishments Clause"

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

The Supreme Court long ago rejected due process challenges to the government’s use of strict liability offenses, but the Court has never considered the issue of whether imprisonment for such crimes violates the Cruel and Unusual Punishments Clause.  Being unable to persuade the Court to forbid strict liability crimes altogether, defendants incarcerated for those crimes are likely to argue that their punishment is cruel and unusual.  It therefore may not be long before the courts, including the Supreme Court, must finally address the issue.  When that day arrives, the Court should limit the penalties that can be imposed for strict liability crimes by forbidding any period of incarceration altogether or, at least, by outlawing imprisonment.  The Constitution should not allow a person to be imprisoned for committing a strict liability offense.

June 5, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, June 04, 2014

Constitutional challenge to California's solitary confinement practices to proceed as class action

As reported in this Los Angeles Times article, headlined "Judge grants class action status to inmates' solitary confinement case," a notable procedural ruling in a notable prisoner suit was handed down earlier this week. here are the basics:

A federal judge in Oakland has granted inmates in solitary confinement at Pelican Bay State Prison class action status in their claims of unconstitutional treatment. The inmates allege physical and psychological abuse when California puts inmates in Pelican Bay's windowless isolation cells. The prisoners are confined 22 hours a day and, in some cases, have been in solitary for years and decades at a time....

The Pelican Bay inmates, in their federal lawsuit, also challenged the administrative process California uses to determine who to send to the super-maximum security cells for an indefinite stay....

In courtroom proceedings, lawyers for the state have argued that isolation is necessary to keep the peace within prisons, and to hinder gang activity inside and outside prison walls. They said that by creating a so-called "step-down" program last year that allows some prisoners to eventually earn their way out of isolation, the state had made sufficient improvements.

In her ruling Monday, U.S. District Judge Claudia Wilken narrowed the class action case to just those Pelican Bay inmates who have not been accepted into the state's step-down program. Civil rights lawyers litigating the case say they hope a victory will set a national precedent on the use of extended isolation in prisons across the United States....

The class action motion was filed by 10 Pelican Bay inmates in solitary confinement, but California has since moved five of them to other quarters. Wilken's order allows the remaining five prisoners to represent the larger class of some 500 Pelican Bay prisoners who have spent more than a decade in isolation, and some 1,100 put into solitary because of alleged gang associations....

Wilken refused to allow the state prison guard union to intervene in the lawsuit. The California Correctional Peace Officers Assn. had argued that it had an interest in protecting the safety of its members by preventing prisoners from leaving solitary confinement.

June 4, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, June 03, 2014

Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"

This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:

In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent.  As of now, the change will apply only to defendants who are sentenced after November 1, 2014.  But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.

Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences.  That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes.  But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels.  We incarcerated approximately 25,000 people in federal prisons in 1980.  By 2013, that number had risen to over 219,000.  As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....

Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation.  Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....

Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years.  In the universe of criminal justice, 38 is old.  Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..."  These older offenders should have a low risk of recidivism generally.  And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.

Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas.  True, Texas is big and populous, but it's also punitive.  The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent.  Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.

The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction.  But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.

I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.

That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.

My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors.  Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined.  These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war.  Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.

Some various somewhat recent related posts:

June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Friday, May 30, 2014

The Good, the Bad and the Ugly of mass incarceration analysis: John Pfaff tears apart NRC report

DownloadAstute readers who also follow closely a lot of broader media and political discussions of mass incarceration might have noticed that I have given relatively little attention on this blog to the massive report released late last month by the National Research Council (NRC) titled "The Growth of Incarceration in the United States: Exploring Causes and Consequences."   To date, I only noted the report and some early reactions to it in this post.

One reason for my limited blog coverage is a result of the NRC report running more than 450 pages (accessible at this link); I am always disinclined to do in-depth analysis or commentary on a significant report unless and until I have had adequate time to read most of it.  But the primary reasons I have not blogged much about the NRC report is because, as I found time to start reading key parts of the NRC effort, I found myself underwhelmed by the originality and sophistication of the report.  I had hoped, for example, that the NRC report would take a close look at the relationship between lead exposure and crime rates and/or would systematically look at critical state and regional differences in US crime and imprisonment rates.  Instead, rather than break any new ground, much of the NRC report reads like an effective and lengthy summary of a lot of conventional wisdom. 

Fortunately, a leading legal academic and empiricist with a critical eye has started to bring a (very) critical perspective to the NRC report. Through a series of astute posts at PrawfBlawg (all so far linked below), Professor John Pfaff has started to pick apart a number of notable flaws and omissions in the NRC analysis.  John's first post, titled "The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts," previews his series this way:

The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth.  Sadly, it appears to be a deeply, profoundly flawed report.  It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.

Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions.  The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.

So in the posts ahead, I want to dig into the report more deeply.  I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors.

From the start, here are John's posts to date highlighting some of the NRC errors he sees:

May 30, 2014 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force

Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements: 

A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.

UPDATE:  TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions.  I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.

May 30, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 25, 2014

Detailing the high costs of an aging prison population

AgingThis lengthy story in the Omaha World-Herald, headlined "Prisons: pricey nursing homes for Nebraska's aging inmates," highlights the expensive realities of an aging prison population. Here are excerpts:

At age 84, Larry Ortiz is like many senior citizens, dealing with the aches and pains of old age. He uses a cane to steady his slow, shuffling gait. He battles arthritis in his bony fingers, bronchitis and dry eyes. He takes four medications and has trouble remembering names. He has had prostate surgery, been fitted for dentures and had cataracts removed. He has two artificial knees.

But Ortiz is different. He’s spending his twilight years behind bars, serving a life sentence for beating a 29-year-old woman to death in 1970, then cutting off her hands to mask her identity before dumping her body. And the cost of his old-age maladies is being picked up by taxpayers.

Ortiz is part of an ever-rising number of aging inmates who occupy prison cells in Nebraska and other states — nationwide, they are the fastest-growing segment of the prison population. In Nebraska, the graying of prisons has contributed to chronic overcrowding and has been a major factor in rapidly rising health-care costs.

Dealing with older inmates is not cheap. Nationally, they are twice as expensive to house on average as younger prisoners because of their increased medical needs — such as Ortiz’s titanium knees, which together cost upward of $90,000.

Prisons have become de facto nursing homes for more and more inmates. Unit 1 at the Nebraska State Penitentiary in Lincoln, where Ortiz lives, houses many senior citizen inmates. It’s designed to accommodate wheelchairs and has wider doors and handrails. The state corrections system also has 31 skilled nursing beds, like those found in a nursing home. The state is looking at building a 240-bed prison to consolidate housing for inmates who are older, as well as those with mental illnesses.

Prison administrators say that by law they must provide the “community standard of medical care” or risk federal intervention. In California, for example, the U.S. Supreme Court cited substandard medical care and overcrowding in ordering the release of thousands of inmates. “It may frustrate taxpayers,” Nebraska prison Director Mike Kenney said of the medical care, “but constitutionally, ethically and morally, we cannot cut corners with inmates.”

The ACLU and other groups recommend increased use of “medical” or “geriatric” parole for medically incapacitated inmates and “conditional releases” for inmates over age 50, if they have served a certain number of years and no longer are threats to society. “Geriatric” or “medical” parole can save states money, said Marc Levin, a corrections authority with the Texas Public Policy Foundation, which has studied Nebraska’s prison system. At least 36 states, including South Dakota, have such laws, Levin said. California granted medical parole to 47 inmates from 2010 to October 2012 and reduced its health care expenses more than $20 million.....

The increase in older inmates was a key driver in a request to the Nebraska Legislature

last fall for $9 million to cover additional medical expenses this year and next....Generally, criminal offenders show signs of aging earlier than the typical person, in part because of their riskier lifestyles, which can lead to higher rates of hypertension, arthritis, sexually transmitted diseases, hepatitis and diabetes. About 1 in 3 inmates in Nebraska’s state prisons — about 1,600 — receives “chronic care,” which involves regular medication and follow-up checks for conditions such as hypertension and asthma.

A report by the ACLU projects that by 2030, 1 in 3 prisoners in the nation will be 55 or older. As of October of last year, nearly 18 percent of the inmates in Nebraska prisons were 50 or older. In Iowa, about 12 percent of the state’s 8,215 prison inmates are over 50. Nationally, get-tough-on-crime policies and the general aging of the U.S. population have been blamed for the explosion of silver hairs behind bars.

In Nebraska, there is an additional factor: Fewer inmates serving life sentences are being given a chance at release. Three decades ago the State Board of Pardons was more likely to commute a life sentence for murder to a specific number of years once an inmate had served 20 or 30 years. That provided a chance to gain a release on parole. But such commutations have occurred only four times in the past 23 years, so more lifers are spending the rest of their days in prison, racking up medical and prescription expenses.

The National Institute of Corrections estimates that it costs $60,000 to $70,000 a year to house an elderly inmate, compared with $27,000 to $34,000 for the average prisoner....

During the 2012-13 fiscal year, 16 inmates died in state prisons; 12 were over age 50. Releasing elderly, infirm inmates would present some problems. Win Barber, a penitentiary spokesman, said many would have to go to nursing homes — which may not want to house someone like a convicted murderer.

Gov. Dave Heineman, who sits on the State Pardons Board, said he would be cautious about releasing elderly inmates, though it’s probably something worth studying as part of the overall study of the state prison system’s spending and policies. “They’re in prison for a reason,” he said.

May 25, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

Friday, May 23, 2014

"Treating Prisoners With Dignity Can Reduce Crime"

The title of this post is the headline of this notable new National Journal commentary authored by Nicholas Turner and John Wetzel. The piece's subheadline is "In Europe, prisoners work for real wages and even cook for themselves. And when they leave prison, they don't come back." And here are excerpts:

It sounds like the first line of a joke: "Three state corrections teams and some experts who are old hands at visiting prisons go to meet their warden counterparts in Germany and the Netherlands in mid-January to see what they could learn."

But it's a true story — and what high-level delegations from Colorado, Georgia, and Pennsylvania learned through the Vera Institute of Justice's European-American Prison Project is no laughing matter. What we learned, in fact, has serious and timely boots-on-the-ground implications....

For those of us who visited Germany and The Netherlands, the approach to sentencing and the prison philosophy we saw astonished and inspired us.  Not only are far fewer people imprisoned, but even those who have committed serious violent crimes serve far shorter sentences.

In these European countries, prisons are organized around the belief that, since virtually all prisoners will return to their communities, it is better to approach their incarceration with conditions as close to "normal" as possible — with the addition of treatment, behavioral interventions, skills training, and needed education — and to remove them from communities for the shortest possible time so that institutional life does not become their norm.

Inmates live in rooms and sleep in beds, not on concrete or steel slabs with thin padding. Inmates have privacy — correctional officers knock before entering — they wear their own clothes, and can decorate their space as they wish.  They cook their own meals, are paid for work that they do, and have opportunities to visit family, learn skills, and gain education.  Inmates are required to save money to ensure that they are not penniless upon release.  There are different expectations for their corrections officers — who are drawn primarily from the ranks of lawyers, social workers, and mental health professionals — to be part of a "therapeutic culture" between staff and offenders, and consequently receive more training and higher pay.  There is little to no violence — including in communal kitchens where there are knives and other "dangerous" implements.  And their maximum time in any kind of punitive solitary is eight hours.

Prison policies grounded in the belief that prisoners should be treated with dignity were startlingly effective — and have eminently pragmatic implications here at home.  The adverse social and economic outcomes for former prisoners in the U.S. are severe — and they are concentrated in communities that are already struggling mightily.  With 95 percent of our nation's incarcerated individuals eventually returning home from prison — and 40 percent going right back to prison within three years — we would do well to heed the strategies used in these nations to teach prisoners how to be good and productive citizens that can rebuild their communities....

Are there challenges to wholesale reform?  Of course.  Money.  Infrastructure. Strains of racial division borne of our history and heterogeneity.  And, cultural differences especially as relates to violence may mean that some European practices may not translate smoothly to the U.S.  Yet we are at a moment of potential for significant shifts.  It will require legislation and policy change, including rethinking sentencing for lower offenses and reducing the time for those who must be in prison.  But the notion that we should strive to create an environment within our prisons conducive to our goal — to return good citizens to our communities — is a challenge we can and must meet.

May 23, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (3) | TrackBack