Tuesday, June 13, 2017

"Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform"

The title of this post is the title of this paper authored by Keith Hylton recently posted to SSRN. Here is its abstract:

This essay sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform.  Specifically, what offenses should be subjected to criminal punishment, and how should we punish?  Should we use prison sentences or fines, and where should we use them?  Should some conduct be left to a form of market punishment through private lawsuits?  Should fines be used to fund the criminal justice system?

The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement.  The framework of this paper is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment. 

June 13, 2017 in Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Monday, June 12, 2017

How will (and how should) new $100 million fund be used to advance criminal justice reform and "end mass incarceration"?

12FUND2-master675The question in the title of this post is prompted by this notable New York Times article headlined "Agnes Gund Sells a Lichtenstein to Start Criminal Justice Fund." Here is the interesting art-world backstory that now prompts the question:

In January, rumors swirled that the art collector and patron Agnes Gund had sold her prized 1962 Roy Lichtenstein “Masterpiece” for a whopping $150 million, placing it among the 15 highest known prices ever paid for an artwork.  Ms. Gund is confirming that sale now, revealing that she parted with the painting (for what was actually $165 million, including fees) for a specific purpose: to create a fund that supports criminal justice reform and seeks to reduce mass incarceration in the United States.

This new Art for Justice Fund — to be announced Monday at the Museum of Modern Art, where Ms. Gund is president emerita — will start with $100 million of the proceeds from the Lichtenstein (which was sold to the collector Steven A. Cohen through Acquavella Gallery).  “This is one thing I can do before I die,” Ms. Gund, 78, said in an interview at her Upper East Side apartment, where the Lichtenstein used to hang over the mantel, along with works by Jasper Johns and Mark Rothko. “This is what I need to do.”

Ms. Gund, together with the Ford Foundation, which will administer the fund, has asked other collectors to do the same, in the hopes of raising an additional $100 million over the next five years.  The effort is noteworthy, not only for the amount of money involved — rarely do charitable undertakings start at $100 million — but because Ms. Gund is essentially challenging fellow collectors to use their artworks to champion social causes at a time when the market has made their holdings more valuable than ever.

“The larger idea is to raise awareness among a community of art collectors that they can use their influence and their collections to advance social justice,” said Darren Walker, the Ford Foundation’s president. “Art has meaning on a wall, but it also has meaning when it is monetized.”

Those who have already committed to the fund — and are being called founding donors — include Laurie M. Tisch, a chairwoman of the Whitney Museum of American Art; Kenneth I. Chenault, chief executive of American Express, and his wife, Kathryn; the philanthropist Jo Carole Lauder; the financier Daniel S. Loeb; and Brooke Neidich, a Whitney trustee. “I was moved by her passion,” Ms. Tisch said of Ms. Gund, adding that she would contribute $500,000 in proceeds from a Max Weber painting she recently sold. “It’s ambitious, but when Aggie puts in a $100 million, that’s a real signal that it’s important and I’m happy to be a part of it.”

The fund will make grants to organizations and leaders who already have a track record in criminal justice reform — like the Equal Justice Initiative in Montgomery, Ala. — that seek to safely reduce jail and prison populations across the country and to strengthen education and employment opportunities for former inmates. The fund will also support art-related programs on mass incarceration.

“There’s long been this criticism that people who have the means to acquire fine art are allowed to surround themselves with beautiful things while they are unwilling to look at the ugly realities that sometimes shape a community or a culture or a country,” said Bryan Stevenson, the founder and executive director of the Equal Justice Initiative. “Using this art to actually respond to over-incarceration or racial inequality or social injustice is a powerful idea.”

The impetus for the fund was personal. Six of Ms. Gund’s 12 grandchildren are African-American, and she has worried about their future as they’ve matured, particularly in light of shootings of black teenagers like Trayvon Martin in Florida. “I have always had an extreme sensitivity to inequality,” Ms. Gund said.

She added that she was also deeply affected by Michelle Alexander’s 2010 book, “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” and by Ava DuVernay’s 2016 documentary, “13th,” about African-Americans in the prison system. After seeing the film, Ms. Gund called Mr. Walker, long a close friend. “She said, ‘I really want to do something to help here,’” Mr. Walker recalled. “‘What if I sold one of my jewels and we used the proceeds to make grants to organizations working on mass incarceration?’” ... Participation in the fund does not require the sale of artwork, Mr. Walker said; any type of support is welcome....

Mr. Stevenson will take part in an evening event at MoMA on Monday to announce the fund that will also feature Piper Kerman, author of “Orange is the New Black: My Year in a Women’s Prison,” and Glenn E. Martin, president and founder of JustLeadershipUSA, which aims to reduce the prison population, in conversation with The New York Times Op-Ed columnist Charles Blow.

The financier and collector Donald Marron, MoMA’s president emeritus, said he would support the fund — though probably not through the sale of his art — and commended Ms. Gund’s efforts. “Aggie has been so committed to art her whole life and now she’s using the art to jump-start her efforts in criminal justice,” he said. “That’s a model I hope other people will follow.”

There is not too much information at this website for the Art for Justice Fund, but the site does say the Fund is for a "movement to end mass incarceration." It also says that the "The Fund is a five-year initiative designed to make meaningful progress on key reforms in the U.S. criminal justice system" and that it "will support innovative advocacy and interventions aimed at safely cutting the prison population in states with the highest rates of incarceration, and strengthening the education and employment options for people leaving prison."

June 12, 2017 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Sunday, June 11, 2017

"From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice"

The title of this post is the title of this notable new book, authored by William Kelly, Robert Pitman and William Streusand, that a helpful reader made sure I noticed.  Here is description via the book's Amazon page:

Over the past fifty years, American criminal justice policy has had a nearly singular focus -- the relentless pursuit of punishment.  Punishment is intuitive, proactive, logical, and simple. But the problem is that despite all of the appeal, logic, and common sense, punishment doesn't work.  The majority of crimes committed in the United States are by people who have been through the criminal justice system before, many on multiple occasions.
There are two issues that are the primary focus of this book.  The first is developing a better approach than simple punishment to actually address crime-related circumstances, deficits and disorders, in order to change offender behavior, reduce recidivism, victimization and cost.  And the second issue is how do we do a better job of determining who should be diverted and who should be criminally prosecuted.
From Retribution to Public Safety develops a strategy for informed decision making regarding criminal prosecution and diversion.  The authors develop procedures for panels of clinical experts to provide prosecutors with recommendations about diversion and intervention.  This requires a substantial shift in criminal procedure as well as major reform to the public health system, both of which are discussed in detail.
Rather than ask how much punishment is necessary the authors look at how we can best reduce recidivism. In doing so they develop a roadmap to fix a fundamentally flawed system that is wasting massive amounts of public resources to not reducing crime or recidivism.

June 11, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 08, 2017

Noticing that the Trump DOJ budget predicts a 2% growth in the federal prison population in fiscal year 2018

The Wall Street Journal has this new article noting that the Trump Administration is already making plans for an increased federal prison population.  The article is headlined "Federal Prison Population Expected to Grow Under Trump: Increase is anticipated in prosecutions of illegal immigrants, drug offenders."  Here is how it gets started:

The federal prison population is expected to grow next year by 4,171 to a total of 191,493 as the Trump administration steps up prosecutions of illegal immigrants and drug offenders, reversing the trend toward a smaller prison population under former President Barack Obama.

That estimate of 2% growth in fiscal 2018 was tucked into in a Justice Department budget proposal posted online after the Trump administration's broader spending plan was released two weeks ago.  The proposed budget also calls for 300 new federal prosecutors and 75 new immigration judges.

June 8, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

More interesting new "Quick Facts" publications from the US Sentencing Commission

The US Sentencing Commission has released two notable new Quick Facts covering "Drug Trafficking Offenses" and "Federal Offenders in Prison" as of February 2017. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the many intriguing data details from these two small data-filled publications:

June 8, 2017 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, June 06, 2017

"Kinds of Punishment"

The title of this post is the title of this essay by Douglas Husak now available via SSRN.  Here is the abstract:

Contemporary states execute, imprison, fine, place on probation, conditionally discharge, caution, and do a great deal more to the persons they convict.  What general principles govern how retributivists should choose between the foregoing responses to culpable wrongdoing — or select an altogether different type of sanction?  If my subsequent reasoning is sound, it is easy to understand why retributivists have tended to neglect this issue.  They have neglected it because they have little to contribute to its resolution.  In what follows, I will support this conclusion and discuss a few of the somewhat controversial positions on which it rests.  I hope to make some headway on this topic by defending what I call the deferential view about kinds of punishment (or deferential view for short).

June 6, 2017 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Thursday, June 01, 2017

“Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism”

Prison-Report_Website-BannerThe title of this post is the title of this notable new report from the folks at Families Against Mandatory Minimums. This FAMM press release provides this overview of the report and its key findings:

Families Against Mandatory Minimums (FAMM) today released the findings of the first-ever independent survey of federal prisoners, which focused on the type and quality of educational and vocational training programs, as well as substance abuse and mental health treatment, currently available in America’s federal prisons. “Using Time to Reduce Crime: Federal Prisoner Survey Results Show Ways to Reduce Recidivism” offers unique insights from inside federal prisons and includes 13 recommendations for reform.

“Roughly 94 percent of federal prisoners are going to go home one day.  If they leave smarter, sober, and job-ready, they will be much more likely to thrive — and our country will be safer and more prosperous,” said FAMM President Kevin Ring.  “Unfortunately, our survey found that the federal government is failing to make recidivism-reducing programming available to all prisoners who need it.  President Trump’s new budget proposal, which slashes the Bureau of Prisons’ staff and corrections officers, will only make the problem worse.”

FAMM regularly corresponds with more than 39,000 prisoners via email, and more than 2,000 inmates responded to the survey.  This report quantifies, analyzes, and confirms the numerous stories we have heard from prisoners over the years.  FAMM found that too many prisoners are not getting access to the programs that have been proven to reduce recidivism....

Key findings from the report include:

  • Access to quality education is scarce.  Most classes lack rigor and substance and are taught by other prisoners. Inmates reported taking classes such as crocheting and one based on the TV show Jeopardy.  Attaining a college degree is difficult, if not impossible, for most prisoners.

  • Most jobs afforded to inmates are “make work” jobs to service the prisons, such as cleaning bathrooms and living spaces or dining hall services.  Vocational training is popular and coveted, but is limited and only offered to prisoners who are close to their release dates.

  • Not all inmates who need substance abuse or mental health services are getting help.  Two-thirds of respondents said they entered prison with a drug or alcohol addiction.  In addition, more than two-thirds said they had not received mental or behavioral health treatment in prison.  These types of programs should be expanded to help all prisoners in need of treatment, no matter the length or duration of their sentence.

  • Most prisoners are housed too far away from their families to maintain connections.  Family connections have been proven to reduce recidivism, yet most prisoners are housed more than 500 air miles away from home.

June 1, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, May 31, 2017

Diving into the Pfaffian perspective on modern mass incarceration

Regular readers have seen me regularly highlight in this space the work of Professor John Pfaff and his important accounting of what accounts for modern mass incarceration (e.g., in this post a few years ago, I flagged prior posts chronicling nearly a decade of Pfaff's empirical insights and analysis).  These days Pfaff's recently published book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform," is helping to give his perspectives a wider airing.  And just today I noticed that two notable media sources are talking up and talking with Pfaff about his work:

From The Crime Report, a two-part Q&A:

From Vox: "Why you can’t blame mass incarceration on the war on drugs: The standard liberal narrative about mass incarceration gets a lot wrong. A new book breaks through the myths."

May 31, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

"Era of Mass Expansion: Why State Officials Should Fight Jail Growth"

Era_MassIncarceration_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This PPI press release provide context and summary for the report's coverage:

State capitols share responsibility for growing jail populations, charges a new report by the Prison Policy Initiative. “Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often, state policymakers ignore jails,” argues the new report, Era of Mass Expansion: Why State Officials Should Fight Jail Growth.

The fact that jails are smaller than state prison systems and under local control has allowed state officials to avoid addressing the problems arising from jail policies and practices. “Reducing the number of people jailed has obvious benefits for individuals, but also helps states curb prison growth down the line,” says Joshua Aiken, report author and Policy Fellow at the Prison Policy Initiative.

Every year, 11 million people churn through local jail systems, mostly for minor violations of state law. Of the 720,000 people in jails on a given day, most have not been convicted of a crime and have either just been arrested or are too poor to make bail. And since the 1980s, crime has fallen but the number of people jailed has more than tripled.

The new report finds that the key driver of jail growth is not what one might expect – courtroom judges finding more people guilty and sentencing them to jail. In fact, the number of people serving jail sentences has actually fallen over the last 20 years. Instead, the report finds two troubling explanations for jail growth:

  • An increasing number of people held pre-trial.

  • Growing demand from federal and state agencies to rent cell space from local jails.

Recognizing the importance of state-specific data for policymakers and advocates, the report offers more than a hundred graphs that make possible state comparisons of jail trends. The report uncovers unique state problems that drive mass incarceration:

  • In some states, state officials have not utilized their ability to regulate the commercial bail industry, which has profited from the increased reliance on money bail and increased bail amounts. These trends have expanded the pre-trial population dramatically over time.

  • In other states, state lawmakers have expanded criminal codes, enabled overzealous prosecutors, and allowed police practices to play a paramount role in driving up jail populations, while underfunding pre-trial programs and alternatives to incarceration.

  • In 25 states, 10% or more of the people confined in local jails are being held for state or federal agencies, with some counties even adding capacity to meet the demand. This report is the first to be able to address the local jail population separately from the troubling issue of renting jail space.

Era of Mass Expansion draws particular attention to the states where the dubious practice of renting jail space to other authorities contributes most to jail growth. “Local sheriffs, especially in states like Louisiana and Kentucky, end up running a side business of incarcerating people for the state prison system or immigration authorities,” explains Aiken. “Renting out jail space often creates a financial incentive to expand jail facilities and keep more people behind bars.” The report finds that renting jail space for profit has contributed more to national jail growth since the 1980s than people who are being held by local authorities and who have actually been convicted of crimes.

For state policymakers, the report offers 10 specific recommendations to change how offenses are classified and treated by law enforcement, eliminate policies that criminalize poverty or create financial incentives for unnecessarily punitive practices, and monitor the upstream effects of local discretion. “There are plenty of things local officials can do to lower the jail population,” says Aiken. “With this report, I wanted to bring in state-level actors by showing how much of the solution is in their hands.”

May 31, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Monday, May 29, 2017

The Economist urges "Rethinking Prison"

20170527_cna400The current print edition of The Economist has a series of article on prison policies and practices. Here are links to the article in the series and their extended headlines:

"America’s prisons are failing. Here’s how to make them work: A lot is known about how to reform prisoners. Far too little is done."

"More women are being put behind bars. Fewer should be: Female convicts are less violent and more likely to have stolen to support children

"Too many prisons make bad people worse. There is a better way: The world can learn from how Norway treats its offenders"

Here is an excerpt from the last of these articles:

Reserving prison for the worst offenders has hefty benefits.  First, it saves money.  In America, for example, incarcerating a federal convict costs eight times as much as putting the same convict on probation.  Second, it avoids mixing minor offenders with more hardened criminals, who will teach them bad habits.  “The low-level guys don’t tend to rub off on the higher-level prisoners. It goes the other way,” says Ron Gordon of the Utah Commission on Criminal and Juvenile Justice, a state body.

Modern electronic tags are cheap and effective. In a recent study Rafael Di Tella of Harvard University and Ernesto Schargrodsky of Torcuato Di Tella University compared the effects of electronic tagging versus prison for alleged offenders in Buenos Aires.  Earlier research had failed to deal with the fact that criminals who are tagged are less likely to reoffend than the more dangerous ones who are locked up.  The authors found a way round this.  Alleged criminals in Argentina are assigned randomly to judges for pre-trial hearings. Liberal judges are reluctant to hold them in the country’s awful jails, so they often order them to be tagged.  So-called mano dura (tough hand) judges prefer to lock them up.  The researchers observed what happened to similar offenders under different regimes.  Only 13% of those who were tagged were later rearrested; for those sent to prison the figure was 22%.

May 29, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Friday, May 26, 2017

"U.S. Prison Population Trends 1999-2015: Modest Reductions with Significant Variation"

The title of this post is the title of this brief "Fact Sheet" from The Sentencing Project, which gets started this way:

While states and the federal government have modestly reduced their prison populations in recent years, incarceration trends continue to vary significantly across jurisdictions. Overall, the number of people held in state and federal prisons has declined by 4.9% since reaching its peak in 2009.  Sixteen states have achieved double-digit rates of decline and the federal system has downsized at almost twice the national rate.  But while 38 states have reduced their prison populations, in most states this change has been relatively modest.  In addition, 12 states have continued to expand their prison populations even though most have shared in the nationwide crime drop.

Six states have reduced their prison populations by over 20% since reaching their peak levels:

• New Jersey (35% decline since 1999)

• New York (29% decline since 1999)

• Alaska (27% decline since 2006)

• California (26% decline since 2006, though partly offset by increasing jail use)

• Vermont (25% decline since 2009)

• Connecticut (22% decline since 2007)

Southern states including Mississippi, South Carolina, and Louisiana, which have exceptionally high rates of incarceration, have also begun to significantly downsize their prison populations.  These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay.  Moreover, the states with the most substantial prison population reductions have often outpaced the nationwide crime drop.

The pace of decarceration has been very modest in most states, especially given that nationwide violent and property crime rates have fallen by half since 1991.  Despite often sharing in these crime trends, 15 states had less than a 5% prison population decline since their peak year.  Moreover, 12 states have continued to expand their prison populations, with four producing doubledigit increases since 2010: North Dakota, Wyoming, Oklahoma, and Minnesota.

May 26, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, May 24, 2017

"The Price of Prisons: Examining State Spending Trends, 2010 - 2015"

Images (2)The title of this post is the title of this notable new Vera Institute of Justice report. Here is its introduction:

After decades of a stable rate of incarceration, the U.S. prison population experienced unprecedented growth from the early 1970s into the new millennium — with the number of people confined to state prisons increasing by more than 600 percent, reaching just over 1.4 million people by the end of 2009.The engine driving this growth was the enactment and implementation over time of a broad array of tough-on-crime policies, including the rapid and continuous expansion of the criminal code; the adoption of zero-tolerance policing tactics, particularly around minor street-level drug and quality-of-life offenses; and the proliferation of harsh sentencing and release policies aimed at keeping people in prison for longer periods of time (such as mandatory minimum sentences, truth-in-sentencing statutes, and habitual offender laws).

Unsurprisingly, this explosion in the use of incarceration had a direct financial influence on state budgets.  Creating and sustaining such a sprawling penal system has been expensive.  With more people under their care, state prison systems were compelled to build new prison facilities and expand existing ones.  To staff these new and expanded facilities, they also had to hire, train, and retain ever more employees.  In addition to expanding the state-operated prison system, some states also began to board out increasing numbers of people to county jails, privately-run facilities, and other states’ prison systems.

After hitting a high of 1.4 million people in 2009, however, the overall state prison population has since declined by 5 percent, or 77,000 people.  Lawmakers in nearly every state and from across the political spectrum — some prompted by the 2008 recession — have enacted new laws to reduce prison populations and spending, often guided by a now-large body of research supporting alternative, more effective responses to crime.7 In addition to fiscal pressures, the push for reform has been further bolstered by other factors, including low crime rates; shifting public opinion that now favors less incarceration and more rehabilitation; and dissatisfaction with past punitive policies that have failed to moderate persistently high recidivism rates among those sent to prison.

With these various political, institutional, and economic forces at play, most states have adopted a variety of different policies, including those that increase opportunities to divert people away from the traditional criminal justice process; expand the use of community-based sanctions; reduce the length and severity of prison sentences for certain offenses, including the rollback of mandatory penalties; increase opportunities for people to gain early release; and better provide enhanced reentry support for those leaving prison or jail.

In light of nearly a decade of broad-based criminal justice reform, this report seeks to determine where state prison spending stands today and how it has changed in recent years.  In particular, if a goal of recent reforms has been to make deep and lasting cuts to prison spending by reducing the prison population, have states who have witnessed the desired downward shift in prison size also witnessed it in spending?  To answer this question, researchers at the Vera Institute of Justice (Vera) developed a survey to measure changes in state prison population and expenditures between 2010 and 2015, and conducted follow-up interviews with state prison budget officials to better understand spending and population trends.

Vera’s study confirms that prisons remain an expensive enterprise, despite the success of many states — including Michigan, New Jersey, New York, and South Carolina —in simultaneously reducing their prison populations while achieving budget savings.  The first part of this report describes 2015 prison expenditures, identifying the main driver of corrections spending across responding states.  The second half of the report then discusses how changes in prison populations during the study period, and other trends largely outside the control of departments of corrections have affected prison spending. What is clear is that increased spending is not inevitable, since nearly half of states have cut their spending on prisons between 2010 and 2015.  But while one might expect that states with shrinking prison populations are uniformly spending less on prisons, or conversely that states with growing populations are spending more, Vera’s findings paint a more complicated picture.  Indeed, often there is no single reason that explains a rise or fall in spending, but a multitude of factors that push and pull expenditures in different directions.

May 24, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

"Deterrence and the Optimal Use of Prison, Parole, and Probation"

The title of this post is the title of this new paper by A. Mitchell Polinsky and Paul Riskind now available via SSRN. Here is the abstract:

In this article we derive the sentence — choosing among the sanctions of prison, parole, and probation — that achieves a target level of deterrence at least cost.  Potential offenders discount the future disutility of sanctions and the state discounts the future costs of sanctions.  Prison has higher disutility and higher cost per unit time than parole and probation, but the cost of prison per unit of disutility can be lower or higher than the cost of parole and probation per unit of disutility.  The optimal order of sanctions depends on the relative discount rates of potential offenders and the state, and the optimal duration of sanctions depends on the relative costs per unit of disutility among the sanctions and on the target level of deterrence.

We focus on the case in which potential offenders discount the disutility of sanctions at a higher rate than the state discounts the costs of sanctions.  In this case, if prison is more cost-effective than parole and probation — that is, has a lower cost per unit of disutility — prison should be used exclusively.  If prison is less cost-effective than parole and probation, probation should be used if the deterrence target is low enough, and prison followed by parole should be used if the deterrence target is relatively high.  Notably, it may be optimal to employ a prison term even if prison is less cost-effective than parole and probation and even if prison is not needed to achieve the target level of deterrence, because of what we refer to as the front-loading advantage of imprisonment.

May 18, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, May 16, 2017

Brennan Center releases "A Federal Agenda to Reduce Mass Incarceration"

Justice agendaYesterday the Brennan Center released this notable new report which feels like it was first conceived back when everyone thought Hillary Clinton was poised to be President. Nevertheless, the report, headlined "A Federal Agenda to Reduce Mass Incarceration" speaks to current political realities in its executive summary with this paragraph:

Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.

Here are some other parts of the report's executive summary:

This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going. The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.

Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.

In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison....

To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.

Legislation

End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.

End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation.  Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes.  In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.

Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing.  Some believe that overly-zealous enforcement has reached a breaking point.  Others believe police are not adequately funded or supported. All can agree that something needs to change.  To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.

Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015.  This proposal would cautiously reduce prison sentences for some nonviolent crimes.  A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.

Executive Action

Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration. Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.

Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.

May 16, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Wednesday, May 10, 2017

"Life Without Redemption: When 1 in 7 U.S. inmates is serving a life term, it's time to rethink our failed crime policies"

The title of this post is the headline of this notable new commentary authored by Ashley Nellis and Marc Mauer of The Sentencing Project which serves as a kind of follow-up to its recent report on life sentencing (discussed here). Here are excerpts:

A new report from our organization, The Sentencing Project, finds that an astounding 206,000 people — 1 in 7 people in prison — is serving a life term, including with or without the possibility of parole, and so-called "virtual" life sentences, where the offender faces 50 years or more. Overall, the per capita rate at which the U.S. uses life imprisonment nearly equals the entire prison population of several industrialized nations.

The number of "lifers" in prison — nearly 5 times the figure in 1984 — is an outgrowth of the movement to "get tough" that characterized sentencing policies in the 1980s and 1990s.  Along with the spread of mandatory sentencing, "three strikes" and other harsh policies, states and the federal government have increasingly sentenced individuals to life in prison.

These figures come at a moment when calls to end mass incarceration abound throughout the nation.  Despite the new punitive policy shift at the federal level led by Attorney General Jeff Sessions, many lawmakers, practitioners and civil rights organizations are advocating for a sizable reduction in what is now seen as a bloated and ineffective prison complex.  Yet the increasing use of life imprisonment suggests that substantial reductions in incarceration will be limited unless policymakers address the punishments at the deep end of the system for crimes that include violence, along with the more politically salable offenses involving drugs.

Most people serving life have been convicted of serious crimes, but among the population are over 17,000 persons convicted of nonviolent offenses and another 12,000 who were under 18 at the time of their crime. In three states, California, Utah and Louisiana, 1 in 3 prisoners is serving a life or virtual life sentence....

As is true of the justice system generally, racial and ethnic disparities are also profound among the lifer population. Today, two-thirds of those serving life are people of color.  While these individuals have generally been convicted of serious crimes, they are frequently sentenced to life imprisonment due to a prior criminal record through mechanisms such as habitual offender laws, more likely to be imposed on minorities.  Life in prison after a "third strike" might seem reasonable, but it fails to incorporate an understanding of the role of concentrated poverty, aggressive law enforcement and implicit bias that contribute to these criminal histories.

Prior recent related post:

May 10, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (35)

Sunday, May 07, 2017

Reflecting on decreasing death sentences and increasing life sentences

The Washington Post has this "trendy" article headlined "The steady decline of America’s death rows," which reviews some of the latest notable numbers about death sentences and executions and also throws in a paragraph about life sentences based on this week's new Sentencing Project report on the topic (discussed here).  Here are excerpts:

Capital punishment in the United States is slowly and steadily declining, a fact most visible in the plummeting number of death penalties carried out each year.  In 1999, the country executed 98 inmates, a modern record for a single year.  In 2016, there were 20 executions nationwide, the lowest annual total in a quarter-century.

Death sentences also sharply declined. Fewer states that have the death penalty as a sentencing option are carrying out executions, a trend that has continued despite two U.S. Supreme Court rulings in the past decade upholding lethal injection practices. States that would otherwise carry out executions have found themselves stymied by court orders, other legal uncertainty, logistical issues or an ongoing shortage of deadly drugs. Fewer states have it on the books than did a decade ago, and some that do retain the practice have declared moratoriums or otherwise stopped executions without formally declaring an outright ban....

Another way to see the changing nature of the American death penalty: The gradual decline of death row populations. At the death penalty’s modern peak around the turn of the century, death rows housed more than 3,500 inmates. That number is falling, and it has been falling for some time. New Justice Department data show that death-row populations shrank in 2015, marking the 15th consecutive year with a decline.

There were 2,881 inmates on state and federal death rows in 2015, the last year for which the Justice Department has nationwide data available. That was down 61 from the year before.  States carried out 28 death penalties in 2015, but nearly three times as many inmates — 82 — were removed from death rows “by means other than execution,” the Justice Department’s report states. (Another 49 inmates arrived on death row in 2015.)

In some cases, inmates left death row after being cleared of the crimes for which they were sentenced. Five people sentenced to death were exonerated in 2015, according to the National Registry of Exonerations, a project of the University of Michigan Law School and the Northwestern University School of Law. Other inmates died of other causes before their executions could occur. In Alabama, three inmates died of natural causes in 2015 and a fourth hanged himself that year inside a prison infirmary, according to corrections officials and local media reports. North Carolina officials say one death-row inmate died of natural causes that year, another was resentenced to life without parole and a third had his death sentence vacated and a new trial ordered. Death sentences were thrown out in some cases. Four death-row inmates in Maryland had their sentences commuted to life in prison without parole in 2015, a decision made by then-Gov. Martin O’Malley after that state formally abolished the death penalty....

Another shift also has occurred: The number of people sentenced to life in prison has ballooned, reaching an all-time high last year, according to a report released this week from the Sentencing Project. The report states that more than 161,000 people were serving life sentences last year, with another 44,000 people serving what are called “virtual life sentences,” defined as long-term imprisonment effectively extending through the end of a person’s life. Similar to overall prison populations, people of color are disproportionately represented; black people account for nearly half of the life or virtual-life sentences tallied in the report.

Long-time readers likely know that these numbers provide one of the primary reasons why I have long worried that some criminal justice reforms advocates worry far too much about capital punishment and worry far too little about extreme prison sentences.  The fact that there are seven times as many persons serving life sentence as are on death row leads me to believe that nearly any and every concern raised about death sentencing may well be a problem of far greater magnitude with respect to lifers.

Most critically for those concerned about proportionate sentencing, every one of the almost 3000 persons on death row is an adult who was convicted of some form of aggravated murder and had a chance to argue to a jury for a lesser sentence.  But, according to the Sentencing Project data, nearly "12,000 people have been sentenced to life or virtual life for crimes committed as juveniles" and over "17,000 individuals with [some kind of life sentence] have been convicted of nonviolent crimes" and a significant percentage of lifers were subject to a mandatory sentencing scheme that required imposition of a severe prison sentence without any input by a jury or a judge.  

Though I fully understand why the death penalty has so much salience for both advocates and the general public, I still wish some portion of the extraordinary attention and energy always given to capital punishment might be redirected toward lifer laws, policies and practices.  

May 7, 2017 in Data on sentencing, Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5)

Notable new Atlantic series "on efforts across the United States to move beyond the age of mass incarceration"

JusticeBUG_1As announced via this article a few day ago, headlined "Imagining the Presence of Justice," there is a notable new project from The Atlantic which aspires "to cover the evolution of criminal justice in America with a heightened focus on the different systems and approaches developing all over the nation." Here is more on how The Atlantic sets ups its plans followed by links to three early notable pieces in the series:

Over the past several decades, America has seen a startling divergence between crime and punishment.  While crime rates dropped steadily from the dramatic peaks of the 1990s, the nation’s incarceration rates continued just as steadily to grow.  And so, despite containing only 5 percent of the world’s population, the United States came to hold a quarter of the world’s prisoners.

We’ve covered this divergence extensively in the print and digital pages of The Atlantic, from Ta-Nehisi Coates’s landmark story on the rise of the carceral state and the devastation it wreaked on black families to Inimai Chettiar’s exploration of the many causes of the decline in crime.  Among the findings that emerge most clearly from this robust, sad literature is that the factors driving both aspects of the divergence — the fall in crime, the increasing spread of punishment — are highly complex.  Despite dawning awareness of the deep social and economic costs of mass incarceration, no one-size-fits-all solution exists to change this picture.  Rolling back mass incarceration while protecting public safety will require a legion of efforts in thousands of prosecutors’ offices, police departments, parole boards, and legislative chambers.  "What we have is not a system at all,” as Fordham University’s John Pfaff told The Atlantic's Matt Ford, "but a patchwork of competing bureaucracies with different constituencies, different incentives, who oftentimes might have similar political ideologies, but very different goals and very different pressures on them.”...

In collaboration with reporters across the country, we’ll highlight local initiatives that merit national attention, and talk with experts about where and how lessons from states and municipalities can be applied more broadly.  We’ll look at where the carceral state has spread beyond merely responding to crime, examine the time people spend behind bars without having been convicted, and explore how cities can depend on police to collect fines and fees from their poorest residents to make up for too little tax revenue.

The title of the project comes from Martin Luther King Jr., who included the phrase in his famous letter from Birmingham jail.  That context is worth understanding for the challenge the letter poses to us today, as America struggles to reconcile the need for public safety with the moral imperative of justice....  From his cell, King wrote the famous letter that would cleave the nation’s understanding of “law and order” right in half, arguing that the observance of an unjust law violates the moral order.  "An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law,” he wrote.  He castigated "the white moderate, who is more devoted to ‘order' than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice."

Three (somewhat sentencing-related) piece from the series:

May 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Friday, May 05, 2017

Stories of severe federal sentences and the judges forced to impose them

Two different news sources this morning have these two equally interesting pieces about federal sentencing practices and federal judges struggling with their sentencing responsibilities:

May 5, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, May 04, 2017

The Sentencing Project reports on "America’s Increasing Use of Life and Long-Term Sentences"

The Sentencing Project yesterday released this significant new report titled "Still Life: America’s Increasing Use of Life and Long-Term Sentences." Here is its introduction:

The number of people serving life sentences in U.S. prisons is at an all-time high. Nearly 162,000 people are serving a life sentence -- one of every nine people in prison.  An additional 44,311 individuals are serving “virtual life” sentences of 50 years or more. Incorporating this category of life sentence, the total population serving a life or virtual life sentence reached 206,268 in 2016.  This represents 13.9 percent of the prison population, or one of every seven people behind bars. A mix of factors has led to the broad use of life sentences in the United States, placing it in stark contrast to practices in other nations.

Every state and the federal government allow prison sentences that are so long that death in prison is presumed.  This report provides a comprehensive profile of those living in this deep end of the justice system. Our analysis provides current figures on people serving life with parole (LWP) and life without parole (LWOP) as well as a category of long-term prisoner that has not previously been quantified: those serving “virtual” or de facto life sentences.  Even though virtual life sentences can extend beyond the typical lifespan, because the sentences are not legally considered life sentences, traditional counts of life-sentenced prisoners have excluded them until now.

KEY FINDINGS

• As of 2016, there were 161,957 people serving life sentences, or one of every nine people in prison.

• An additional 44,311 individuals are serving “virtual life” sentences, yielding a total population of life and virtual life sentences at 206,268 – or one of every seven people in prison.

• The pool of people serving life sentences has more than quadrupled since 1984.The increase in the LWOP population has far outpaced the changes in the LWP population.

• There are 44,311 people serving prison sentences that are 50 years or longer. In Indiana, Louisiana, and Montana, more than 11 percent of the prison population is serving a de facto life sentence.

• Nearly half (48.3%) of life and virtual life-sentenced individuals are African American, equal to one in five black prisoners overall.

• Nearly 12,000 people have been sentenced to life or virtual life for crimes committed as juveniles; of these over 2,300 were sentenced to life without parole.

• More than 17,000 individuals with an LWP, LWOP, or virtual life sentence have been convicted of nonviolent crimes.

• The United States incarcerates people for life at a rate of 50 per 100,000, roughly equivalent to the entire incarceration rates of the Scandinavian nations of Denmark, Finland, and Sweden.

May 4, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Tuesday, May 02, 2017

"Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration"

The title of this post is the title of this new paper by Susan Sturm and Haran Tae now available via SSRN. Here is the abstract:

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months.  These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities.  Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus of mass incarceration will be tested.

Our analysis of these interviews indicates that a particular set of qualities equips this group of formerly incarcerated leaders to serve as organizational catalysts.  Organizational catalysts are individuals with knowledge, influence, and credibility who are in a position to mobilize change.  They operate at the intersection of communities and systems that do not usually interact, and bring a track record of commitment and an ability to communicate across different backgrounds and cultures.  They can transform organizations and networks by (1) mobilizing varied forms of knowledge to promote change, (2) developing collaborations in strategic locations, (3) cultivating new organizational catalysts, and (4) maintaining pressure and support for action.

The leaders share three important characteristics contributing to their evolution into organizational catalysts: (1) first-hand experience with the criminal legal system, (2) education that legitimizes and enhances their knowledge and leadership capacity, and (3) jobs and activist positions placing them at the intersection of different communities and systems.  This combination affords them multifaceted insight into the needs, barriers, and opportunities for transformation, as well as the legitimacy and influence needed to mobilize change based on that knowledge.

These leaders with conviction have developed the capacity to mobilize unusually diverse forms of social capital. As such, formerly incarcerated leaders are bonders (maintaining ties and sharing resources among those with a common identity linked to experiencing and seeking to transform the criminal justice system), bridgers (connecting individuals who would not ordinarily come in contact), and linkers (linking those with direct experience and knowledge of criminal justice to people in positions to influence public policy and change the public narrative).

The leaders use their social capital both as an engine of mobility for those affected by mass incarceration and as a vehicle for catalyzing change.  Their varied knowledge and experience equip them to speak the language of many different communities, and thus to communicate effectively with different audiences.  They build trust with people who have experienced consistent stigmatization and dispel myths among people who hold stereotypes that have prevented them from learning the realities of the criminal justice system.

Three structural supports emerged from this study as crucial building blocks of leaders with conviction: (1) relationships with people who believe in them and support their development, including when they struggle, (2) education and training that cultivates their identity and capacity as leaders, and (3) institutional and policy design that makes them full participants in the decision-making process.

May 2, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Sunday, April 30, 2017

"Purpose-Focused Sentencing: How Reforming Punishment Can Transform Policing"

The title of this post is the title of this essay authored by Jelani Jefferson Exum recently posted on SSRN. Here is the abstract:

Today’s discussions about police reform have focused on changing police training and procedures.  As accounts of deaths of African-Americans at the hands of police officers have played out in the news and social media, demands for racial justice in policing have become more prevalent.  To end what I have coined as “the Death Penalty on the Street,” there have been calls for diversity training, training on non-lethal force, and, of course, community policing.  While it is perfectly rational for the response to excessive police force to be a focus on changing policing methods, such reforms will only have limited success as long as attitudes about black criminality remain the same.  Though we would like to hold them to a higher standard, police officers are merely human, so they carry with them the same biases and prejudices that any of us can hold.  Studies have shown that, in general, Americans are -- regardless of our race -- biased against blacks, especially young black men.  African Americans are more likely seen as criminals, and most of us overestimate the amount of crime attributable to the black population.  Therefore, in order to truly address the problem of racial injustice in policing, we must address the racial biases held by our society that play out in our criminal justice system.  Though perhaps not the obvious place for this revolution to start, sentencing reform has the potential to change the face of the punishment in our country, thus transforming the (usually black) face of whom we see as deserving of punishment by the police and the courts.

This Essay proposes “purpose-focused sentencing” as a means of remedying the over-incarceration of blacks, thereby combatting attitudes about crime and black criminality, and in turn, affecting how police see and treat blacks.  The goal is to reduce the racial disparity in incarceration, not solely through an overall lessened reliance on prisons and jails, but also by assessing and identifying appropriate sentences to fulfill criminal justice purposes.  Once those purposes -- deterrence, rehabilitation, incapacitation, and retribution -- are identified and assessed, there will not be room to justify disparities in sentencing attributable only to the race of the defendant.  All sentences, regardless of the peculiarities of an individual defendant, must be tailored to a specific result, rather than imposed at the whim of a particular judge or in accordance with legislation that has no basis in an identified sentencing goal.  As a result, we will see prisons and jails being used much more exclusively (to the extent that incarceration is used at all) for violent, repeat felons, which statistics tell us are not where our racial disparities lie today.  When punishment is more closely aligned with what the offender has done, and what our goals of punishments are given that behavior, we can begin to combat the stereotype that the dangerous criminal is most likely black.

Once sentencing no longer feeds into the heightened public view of blacks as criminals, the spillover effect will be that the new wave of police officers will not see blacks this way either.  And if they do, society certainly will not view this biased police violence against blacks as reasonable.  This Essay offers a solution that will take years, if not generations, to implement; and it will perhaps take even longer for it to completely transform the face of policing.  However, the proposal is a long-term approach that will immediately begin to move criminal justice in the right direction and encourage honest conversations about what we are trying to do in our system and how our current methods of punishment are only perpetuating racial injustice.

April 30, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, April 26, 2017

Noting reasons for the recent drop in the federal prison population mitigating overcrowding at BOP facilities

The US Courts yesterday posted this notable short piece under the heading "Policy Shifts Reduce Federal Prison Population." The piece details the significant decline in the federal prison population in the last few years and also highlights reasons for it:

A decline in the number of federal prosecutions and in the severity of sentences for drug-related crime in recent years has resulted in a significant drop in the federal prison population, according to statistics from the Judiciary, the U.S. Sentencing Commission (USSC), and the Bureau of Prisons (BOP).

The federal prison population fell from a peak of nearly 219,300 inmates in 2013 to 188,800 in April 2017, a nearly 14 percent reduction, according to BOP statistics.  The decrease reflects a dramatic shift in federal policies away from stiff penalties for drug trafficking and other drug-related offenses in recent years.  It also has mitigated overcrowding at BOP facilities -- the inmate population, once at 37 percent overcapacity, is now at 13 percent overcapacity.

Changes in sentencing guidelines are a major contributor to the inmate population decline.  In 2011, the USSC implemented lower crack cocaine penalties in line with the Fair Sentencing Act passed by Congress the year before.  The new guidelines were made retroactive, which resulted in the release of prisoners who had already served their time under the new guidelines.  Because drug crimes account for nearly a third of all criminal filings in federal courts, changes in drug sentences have a big impact on the federal prison population....  In 2014, the commission took the step of cutting the length of sentences for all drug trafficking offenses, not just crack cocaine.  Sentences were reduced by about 25 percent, and the changes were also made retroactive....

Other factors contributing to the decreasing prisoner population:

• Federal prosecutions for all crimes have declined over the past five years.  Criminal cases were brought against 77,357 defendants in fiscal year 2016, the lowest total since fiscal 1998, according to the Administrative Office of the U.S. Courts.  Last year, 67,742 defendants were convicted and sentenced, compared to 86,201 in 2011, the USSC reports.  However, the trend could slow or reverse in the coming months as new Attorney General Jeff Sessions and the Trump administration step up prosecutions of drug-related crime and immigration offenses.

• Two Supreme Court rulings since 2015 resulted in sentence reductions for about 1,200 inmates.  The court in Johnson v. United States found that one of the definitions of a violent felony under the Armed Career Criminal Act was unconstitutionally vague.  A subsequent high court decision made the Johnson ruling retroactive, which prompted thousands of prisoners to petition for review of their cases.  Many of those cases are still under review by the lower courts.

April 26, 2017 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

"Penal Incapacitation: A Situationist Critique"

The title of this post is the title of this recent paper authored by Guyora Binder. The piece appears to have come out on SSRN earlier this year, but I just now came across it. Here is its abstract:

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence.

This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.

April 26, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Monday, April 24, 2017

Marshall Project highlights tens of thousands imprisoned for minor parole violations

The Marshall Project has this interesting new report on technical parole violations and their consequences headlined "At Least 61,000 Nationwide Are in Prison for Minor Parole Violations." Here is how it starts:

Among the millions of people incarcerated in the United States, a significant portion have long been thought to be parole violators, those who were returned to prison not for committing a crime but for failing to follow rules: missing an appointment with a parole officer, failing a urine test, or staying out past curfew.

But their actual number has been elusive, in part because they are held for relatively short stints, from a few months to a year, not long enough for record keepers to get a good count.   To help fill the statistical gap, The Marshall Project conducted a three-month survey of state corrections departments, finding more than 61,250 technical parole violators in 42 state prison systems as of early 2017.

These are the inmates who are currently locked up for breaking a rule of parole, rather than parolees who have been convicted of a new crime; the number does not include those in county and local jails, where thousands more are likely held. (The eight remaining states — Alabama, Connecticut, Louisiana, North Carolina, Oklahoma, South Carolina, Tennessee, and Virginia — said either they did not keep current state-level data or it would be too costly to generate.)

The total, 61,250, seems small, given the 2.3 million people behind bars in this country. Imprisoning fewer technical violators would make only a dent in the effort to reduce mass incarceration. “But still,” said Marc Mauer, executive director of The Sentencing Project, “the numbers aren’t trivial.”

To Mauer and other experts on what drives prison and jail populations, the fact that tens of thousands of people are incarcerated for infractions such as traveling without permission or frequenting a bar that serves alcohol is significant in itself.  That may be all the more true in seven states — Arkansas, Georgia, Illinois, Kentucky, Missouri, New York, and Pennsylvania — which, according to the Marshall Project data, have more technical parole violators in their prisons than the other 35 states combined.

April 24, 2017 in Data on sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Sunday, April 23, 2017

Making the case that older punishments may not be so much crueler than current ones

Columnist Ross Douthat has this notable new New York Times commentary headlined "Crime and Different Punishments." Here are excerpts:

The tendency in modern criminal justice has been to remove two specific elements from the state’s justice: spectacle and pain.  During the 19th and early 20th centuries, pillories and stocks and whipping posts became museum pieces, the hangman and the firing squad were supplanted by more technical methods, and punishment became something that happened elsewhere — in distant prisons and execution chambers, under professional supervision, far from the baying crowd.

All of this made a certain moral sense.  But the civilizing process did not do away with cruelty and in some ways it could exacerbate it.  With executions, the science was often inexact and the application difficult, and when it went wrong the electric chair or the gas chamber could easily become a distinctive kind of torture.  During the last century lethal injection, now the execution method of choice, had a higher “botch rate” by far than every other means of killing the condemned. Meanwhile, the lowest rate of failure (albeit out of a small sample size) belonged to that old standby: the firing squad.

Few prisoners face execution, and anti-death penalty activists may yet reduce that number to zero.  But botched injections are not the only ways in which we pile cruelties on the condemned.  Our prison system, which officially only punishes by restraint, actually subjects millions of Americans to waves of informal physical abuse — mistreatment by guards, violence from inmates, the tortures of solitary confinement, the trauma of rape — on top of their formal years-long sentences.

It is not clear that this method of dealing with crime succeeds at avoiding cruel and unusual punishment so much as it avoids making anyone outside the prison system see it.  Nor is it clear that a different system, with a sometimes more old-fashioned set of penalties, would necessarily be more inhumane....

I would rather face the firing squad than be strapped down and injected into eternity, and I would choose a strong dose of pain and shame over years under the thumb of guards and inmates and the state.

We tell ourselves that we have prisoners’ good in mind, and the higher standards of our civilization, because we do not offer them this choice.  But those standards may be less about preventing ourselves from becoming like our sinful ancestors, and more about maintaining the illusion of clean hands — while harsh punishment is still imposed, but out of sight, on souls and bodies not our own.

April 23, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Notable recent work from the Prison Policy Initiative on prison wages and medical co-pays in prisons

LOGO_OnBlack_260s_400x400A helpful reader made sure I did not miss some recent pieces from the Prison Policy Initiative on prison wages and medical co-pays in prisons that ought to be of interest to readers.

The piece on wages, "How much do incarcerated people earn in each state?," provides a 50-state survey of wages paid to incarcerated people. Here is a snippet:

One major surprise: prisons appear to be paying incarcerated people less today than they were in 2001.  The average of the minimum daily wages paid to incarcerated workers for non-industry prison jobs is now 87 cents, down from 93 cents reported in 2001.  The average maximum daily wage for the same prison jobs has declined more significantly, from $4.73 in 2001 to $3.39 today.  What changed?  At least seven states appear to have lowered their maximum wages, and South Carolina no longer pays wages for most regular prison jobs -- assignments that paid up to $4.80 per day in 2001.  With a few rare exceptions, regular prison jobs are still unpaid in Alabama, Arkansas, Florida, Georgia, and Texas.

The piece on medical co-pays, "The steep cost of medical co-pays in prison puts health at risk," highlights the hours it would take a low-paid incarcerated worker to earn enough for one co-pay. Here is an excerpt:

The excessive burden of medical fees and co-pays is most obvious in states where many or all incarcerated people are paid nothing for their work: Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas.  Texas is the most extreme example, with a flat $100 yearly health services fee, which some officials are actually trying to double to $200.  People incarcerated in these states must rely on deposits into their personal accounts -- typically from family -- to pay medical fees. In most places, funds are automatically withdrawn from these accounts until the balance is paid, creating a debt that can follow them even after release.

Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.  Co-pays in the hundreds of dollars would be unthinkable for non-incarcerated minimum wage earners.  So why do states think it’s acceptable to charge people making pennies per hour such a large portion of their earnings?  Some might argue that incarcerated people have nothing better to spend wages on than medical care.  But wages allow incarcerated people to buy things they need that the prison does not provide: toiletries, over-the-counter medicine, additional clothes and shoes, as well as phone cards, stamps, and paper to help them maintain contact with loved ones.  Co-pays that take a large portion of prison wages make seeking medical attention a costly choice.

April 23, 2017 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, April 19, 2017

Highlighting books that suggest how the "age of mass incarceration may actually be abating"

The quoted portion of the title of this post from the headline of this new piece by Chuck Lane in the Washington Post.  The piece serves as a kind of mini-review of the two most important recent books on mass incarceration, John Pfaff's "Locked In" and James Forman's "Locking Up Our Own".  Here are excerpts: 

“Locking Up Our Own,” a remarkable new book by Yale Law School professor and former D.C. public defender James Forman Jr., tells the poignant but neglected story of how newly enfranchised black communities coped with this dilemma as a crime wave swept through urban America in the 1980s and 1990s, driving the murder victimization rate among blacks to an astonishing high of 39.4 per 100,000 population in 1991.

African American mayors, police and prosecutors responded to the pleas of beleaguered constituents with rhetoric, and policy, that were no less “tough on crime” than that of their white counterparts.  Black leaders often framed crime-fighting as an issue of salvaging the civil rights revolution.  “What would Dr. King say?” about the violence plaguing predominantly black cities, they would ask rhetorically — and then crack down on mostly youthful offenders, which inevitably involved “locking up our own.”...

This was an era, Forman reminds us, during which activist-attorney Johnnie Cochran regularly attended rallies against drug dealing in Los Angeles, calling for PCP dealers to be punished “harshly,” and Eric Holder, then the District’s top prosecutor, supported aggressive, often pretextual police stops and searches of cars in predominantly black sections of the city, in a desperate effort to get guns off the street....

He adds historical nuance to the story of “mass incarceration” told in Ohio State University law professor Michelle Alexander’s influential 2010 book “The New Jim Crow.”  This makes Forman’s book the second important corrective this year to Alexander’s.  The first, “Locked In” by Fordham University law professor John Pfaff, deployed statistical evidence to show that the United States’ highest-in-the-industrialized world incarceration rate did not result from the war on drugs, contrary to a theme of Alexander’s book that has been repeated so often Pfaff dubs it “the Standard Story.”

Even if everyone in state and federal prison on a drug conviction were released tomorrow, the U.S. incarceration rate would still be about quadruple what it was in 1970.  That is because, Pfaff demonstrates, most people in prison are there for violent crimes such as homicide or aggravated assault.

Punishment for these offenses drove incarceration rates higher, Pfaff shows, but not, as is often supposed, because of laws imposing harsh mandatory- minimum sentences.  The key factor was discretionary prosecutorial decisions; at least from the early 1990s on, prosecutors in the nation’s 3,000-plus counties charged arrestees with felonies at a higher rate even as the crime rate itself declined.  Ultimately, more punitive exercise of prosecutorial discretion fed a steady net influx of convicts to state prisons....

The most recent evidence indicates that the age of mass incarceration is abating; it has been, oddly enough, since just prior to the publication of “The New Jim Crow.”

The Pew Charitable Trusts has reported, based on Justice Department data, that the U.S. incarceration rate declined from a peak of 1 in 100 adults in 2007 to 1 in 115 in 2015. Keith Humphreys, of Stanford University, has shown that racial disparities, though still large, may be diminishing.  The incarceration rate for blacks fell steadily between 2000 and 2014, while that of whites rose slightly.

The challenge now is to accelerate the de-incarceration trend while sustaining low levels of crime.  A troubling uptick in urban homicide last year may have helped elect President Donald “American Carnage” Trump.  Certainly his harshest, most racially tinged anti-crime rhetoric both stimulated fear and exploited it. His attorney general, Jeff Sessions, has called emphasized punishing crime rather than consent decrees against allegedly abusive local police.

Under the circumstances, Forman and Pfaff’s emphasis on local politics, and county- and state-level prosecutorial discretion, is paradoxically hopeful.  Federal policy makes headlines, but in the vast majority of cases, criminal justice takes place at the grass roots.  And in recent years, that is the level at which the most promising reform efforts have occurred.  Those efforts can and should continue, whatever might happen next in Washington.

I really like this commentary's use of the term "abating" to describe what the current decade has wrought with respect to incarceration levels. The Merriam-Webster dictionary defines abate as "to decrease in force or intensity," and that is what we are experiencing with incarceration in modern years in the United States. Incarceration continues on a mass scale in the US, but the force and intensity of our commitment to using ever more incarceration in response to social disorder has decreased.

April 19, 2017 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

A little video on prison population flow dynamics

A helpful reader alerted me to this newly-posted video produced by SPAC, the Illinois Sentencing Policy Advisory Council.  This short animation is intended to help viewers understand how admissions and length of stay "interact and impact prison capacity flows."  As explained to me via email, the video covers a relatively simple point in a relatively simple way, but should still helps explain important prison population concepts that many people struggle to fully appreciate.

April 19, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, April 18, 2017

US Sentencing Commission conducting public hearing with testimony on alternatives to incarceration and synthetic drugs

As detailed on this USSC webpage, the United States Sentencing Commission in now conducting a public hearing through early this afternoon. As the page details, "the purpose of the public hearing is for the Commission to receive testimony on alternatives to incarceration programs in the federal court system. The Commission will also receive testimony from experts on synthetic drugs, including their chemical structure, pharmacological effects, trafficking patterns, and community impact."  The hearing is being streamed live here.

This webpage with the USSC hearing agenda has links to written testimony from all the scheduled witnesses, and this testimony provide a wealth of information and research about alternatives to incarceration and synthetic drugs.

April 18, 2017 in Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Thursday, April 13, 2017

Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence

This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:

A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.

Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.

His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.

Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”

The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.

Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.

“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.

Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...

Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...

Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.

Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.

I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal.  Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here.  Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.

It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do.  And it will be interesting to see how the Florida courts engage with these matters on appeal. 

April 13, 2017 in Examples of "over-punishment", Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (23)

Wednesday, April 12, 2017

Effective coverage of the considerable challenges of sentencing reform in Louisiana

Over the last month, The Advocate has done a fine job covering debates over sentencing reforms in Louisiana, and the most recent of the article (listed last below) prompted me to collect come of this reporting in this space:

April 12, 2017 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Tuesday, April 11, 2017

Looking at the latest data on private prison populations in the US

FT_17.04.11_PrivatePrisons_1The Pew Research Center has this new "Fact Tank" post titled "U.S. private prison population has declined in recent years."  The piece effectively reviews a lot of private prison data, and here are excerpts:

After a period of steady growth, the number of inmates held in private prisons in the United States has declined modestly in recent years and continues to represent a small share of the nation’s total prison population.

In 2015, the most recent year for which data are available, about 126,000 prisoners were held in privately operated facilities under the jurisdiction of 29 states and the federal Bureau of Prisons.  That’s an 83% increase since 1999, the first year with comparable data, according to the Bureau of Justice Statistics (BJS).  By comparison, the total U.S. prison population increased 12% during that span.

In more recent years, however, both the private and overall U.S. prison populations have declined at modest rates.  The private prison population has shrunk by 8% since its peak in 2012, while the overall prison population has fallen by 5% since its peak in 2009.  (The state private prison population peaked in 2012 with 96,774 prisoners, while the federal private prison population reached its peak a year later in 2013, with 41,159 prisoners.)...

Since 1999 — the first year BJS began collecting data on private prisons — inmates in privately run facilities have made up a small share of all U.S. prisoners. In 2015, just 8% of the nearly 1.53 million state and federal prisoners in the U.S. were in private facilities, up slightly from 5% in 1999.

State inmates make up the majority of the U.S. private prison population, as well as the overall U.S. prison population. In 2015, state prisoners made up 72% of the U.S. private prison population and 87% of the overall U.S. prison population.

In 2015, nearly three-quarters (73%) of all state prisoners in private facilities were held in the Sun Belt region of the U.S., including Texas, which has the largest private state prison population in the country. (Texas also has the second-largest state population overall.) The Lone Star State’s private prison population peaked at 20,041 in 2008, or 21% of all state inmates in privately run prisons at the time. By 2015, Texas’ private prison population had dropped to 14,293.

Florida had the second-largest private prison population (12,487) in 2015, while Georgia and Oklahoma had the third- and fourth-largest with 7,953 and 7,446, respectively. Arizona had the fifth-largest state private prison population (6,471) in 2015, a drop since the state’s peak of 8,971 in 2009.

The number and share of private prisoners under federal jurisdiction have grown since 1999. That year, 3,828 federal prisoners were being held in private prisons, comprising just 6% of the total private prison population. By 2015, the number of federal prisoners in private facilities had jumped to 34,934, accounting for 28% of the U.S. private prison population. At the same time, the share of prisoners in private facilities under state jurisdiction shrunk from 94% in 1999 to 72% in 2015.

In 2015, nearly 18% of all federal prisoners were being held in private prisons, a jump from 3% in 1999. By comparison, prisoners held in private prisons have made up less than 10% of the state prison population since 1999....

In February, Attorney General Jeff Sessions reversed a directive from the Obama administration to phase out work with private prisons at the federal level. The original Obama directive was motivated by a 2016 audit, which found that federal “contract” prisons had more safety and security incidents than comparable government-run prisons.

April 11, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Sunday, April 09, 2017

"Mass incarceration, public health, and widening inequality in the USA"

The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang.  Here is the summary:

In this Series paper, we examine how mass incarceration shapes inequality in health.  The USA is the world leader in incarceration, which disproportionately affects black populations.  Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear.  Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries.  Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.

The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:

For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.

When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study.  Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”

But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail.  The reason?  The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise.  What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care.  Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not.  Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.

The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me.  (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)

April 9, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Sunday, March 26, 2017

Notable perspectives on state and direction of modern criminal justice reform efforts

James Forman has this lengthy new commentary in the New York Times under the headlined "Justice Springs Eternal." I recommend the full piece to anyone and everyone seeking to take stock and reflect upon the current moment in the modern criminal justice reform movement.  Here are some extended excerpts:

After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.

In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978.  By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001.  Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.

And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)

Such dangerous, ill-informed pronouncements naturally induce weariness and dread.  Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever....

The most unexpected victories came in local races for prosecutor.  For decades, district attorney candidates competed to prove they were tougher on crime than their opponents.  That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla....

These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates.  While mass incarceration is a national crisis, it was built locally.  Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.

Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill).  But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards.  During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.

Now, the reverse could also prove to be true.  If multiple individuals across multiple systems were to become less punitive, the prison population would fall.  This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.

The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level?  The answer lies with a new breed of activism that has emerged in response to mass incarceration.  Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not....

[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services.  Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense.  Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.

President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”

But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda.  We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win.  And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.

This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors.  I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.

I still believe this is true for most prosecutors’ offices.  But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind.  Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.

Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention.  But their agenda faces a rising countermovement across the country.  If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.

March 26, 2017 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Friday, March 24, 2017

Thanks to voter approval of Prop 57, "California prisons to free 9,500 inmates in 4 years" based on new early-release credit rules

The middle title of this post quotes the title of this new AP article and provides a bit of context.  For more explanation, here is more from the AP article:

Corrections officials adopted new criminal sentencing rules on Friday that aim to trim California’s prison population by 9,500 inmates after four years.

They include steps like reducing inmates’ sentences up to six months for earning a college degree and by up to a month each year for participating in self-help programs such as alcohol and substance abuse support groups and counseling, anger management, life skills, victim awareness, restorative justice, and parenting classes. Virtually any inmate except those on death row or those serving life-without-parole sentences is eligible to earn the credits and lower the sentence.

It’s the latest step in a years-long drive to dramatically lower the state’s prison population in response to federal court orders stemming from lawsuits by prison advocates and pressure to turn away from mass incarceration.

The changes follow voters’ approval of Proposition 57 in November. The initiative lets certain felons seek parole more quickly and gave corrections officials broad discretion to grant early release credits. “I think that it’s a monumental change for the organization and I think across the state, across the nation, I don’t think that anybody has altered how they are incarcerating offenders as much as what Prop 57 does,” Corrections Secretary Scott Kernan told The Associated Press.  The goal, he said, is to encourage inmates to start “doing something with their incarceration and not just sitting on their bunks.”

The changes in parole eligibility will take effect April 12 if they win initial approval from state regulators, with final approval by October after a public comment period. The earlier release credits and earlier parole consideration will be phased in starting May 1 while the public review is underway.

Police and particularly prosecutors fought the ballot initiative, arguing that it will release dangerous offenders sometimes years earlier than called for in their sentences. It also will put convicts more quickly into county probation systems that already are stretched. Kernan said he took some of their objections into account, for instance by barring sex offenders and third-strike career criminals from seeking earlier parole.

The changes are projected to eventually lower California’s prison population by about 7 percent and keep the state below the federal court-ordered population of about 116,000 inmates in the 34 adult prisons. The changes also will let the state phase out a long-running program that currently keeps nearly 4,300 inmates in private prisons in other states.

[T]he bulk of the reductions would come from steps like doubling the credits inmates receive for completing education and training programs, to a maximum of three months in any 12-month period, and expanding them to include violent offenders. Inmates would also start getting expanded credits for not violating prison rules starting May 1. That would typically reduce a violent offender’s sentence by 19 days each year, Kernan said, calling the reduction “relatively modest.”

March 24, 2017 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Thursday, March 23, 2017

"How long should Louisiana keep old, ill criminals in prison?"

The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:

Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.

What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.

Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.

The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.

These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.

The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.

These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.

Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.

In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....

Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....

One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....

Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....

While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.

Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.

March 23, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

Sunday, March 19, 2017

Remarkable accounting of hundreds of Arizona offenders believing they were getting life with parole after parole abolished in state

The Arizona Republic has fascinating reporting here and here on the significant number of offenders in the Grand Canyon State who were seemingly given life with parole sentences after such sentences had been legislatively abolished. This lengthy main article is headlined "Hundreds of people were sentenced to life with chance of parole. Just one problem: It doesn't exist." Here are excerpts: 

Murder is ugly, and murderers are not sympathetic characters. But justice is justice, and a deal is a deal.

We expect the men and women who administer the criminal justice system — prosecutors, defense attorneys, and especially judges — to know the law and to apply it fairly. Yet, for more than 20 years they have been cutting plea deals and meting out a sentence that was abolished in 1993: Life with a chance of parole after 25 or 35 years....

Danny Valdez, for example, was part of a 1995 drug deal that went bad in Glendale. One person was killed, and no one was sure who fired the shot. Valdez took a plea deal to avoid death row, and following the terms of the agreement, the judge sentenced him to life in prison with a chance of parole after 25 years.

The only problem: Parole was abolished in Arizona in 1993. As of January 1994, it was replaced by a sentence that sounds similar, but in fact nearly eliminates the possibility of ever leaving prison alive.

Valdez should have been sentenced to “life with chance of release after 25 years.” “Parole” was something that could be granted by judgment of a parole board, based on the prisoner's behavior and rehabilitation, without the approval of a politician.  But release is a long shot, because it requires the prisoner to petition the Arizona Board of Executive Clemency, which can only recommend a pardon or commutation of sentence by the governor. Parole hasn't existed in Arizona since 1994.  Even if a judge's sentence includes parole, it still won't happen.  Yet since then, hundreds of defendants have been sentenced to life with chance of parole.

No one — not Valdez’s attorney, not the prosecutor, not the judge — ever told Valdez that he was not legally entitled to parole or a parole hearing.  He found out when he received a letter last December from The Republic.  He didn’t want to believe it. "Why would they sentence me with parole if it was abolished?" he asked in a return letter. “I was sentenced in 1995 and will be eligible for parole in 2020,” he wrote. “If I would of (sic) known that I would have to go through the process of pardons and commutations, I would of (sic) went to trial.”...

Between January 1994 and January 2016, a study by The Republic found, half of Arizona murder defendants sentenced to less than natural life sentences — at least 248 current prisoners in the Arizona Department of Corrections — were given sentences of life in prison with a chance of parole after 25 or 35 years.  The sentence has not existed since the law was changed in 1993.  But judges, prosecutors and defense attorneys continued to crank defendants through the system, seemingly unaware of the mistake.

Duane Belcher, a former head of the state clemency board, started gathering examples early in this decade, but he was fired by former Gov. Jan Brewer before he could do anything about it.  He took the issue to the Arizona Supreme Court, which oversees all state courts.

Belcher, appointed to the Arizona Board of Pardons and Paroles in 1992, remained in the office long after it became the Arizona Board of Executive Clemency under the new law. He served many years as its chairman. “I started asking the question in 1994 when the law changed,” Belcher said. “What’s going to happen when 25 years comes? Nobody seemed to have the answer.”

Belcher was only talking about how the state was going to handle those prisoners sentenced to life with a chance of release. Then he noticed that some defendants were still being sentenced to life with chance of parole. He started to collect examples, concerned about the inaccurate sentences. Belcher, a former parole officer and former supervisor at the Department of Corrections, looked at it from both sides.  “People are going into an agreement with the understanding that they will be eligible for parole, and it’s not the case,” he said. But he also worried about whether it could be grounds for reversing a sentence.  “We don’t want to go back to the public and say we paved the way to letting go a murderer.”...

Several prisoners contacted by The Republic were unaware they were not really eligible for parole.  “When they sentenced me, they did not say that parole didn’t exist,” Juvenal Arellano said in a letter to The Republic.  Arellano killed a man while stealing his car in 2004, and he, too, pleaded to life with chance of parole. “The reason why I signed the contract was for the chance to get out after 25 years, and that was in the plea I signed. … I am prepared to pay for my error, but neither should they hide something so important from me.”...

Among the components of Arizona’s Truth in Sentencing bill to make life harsher for bad guys was language to abolish parole and disband the parole board. It established the Arizona Board of Executive Clemency in its place. The sentence of “life with chance of parole after 25 years,” the third-harshest sentence possible in Arizona, was eliminated. It was replaced by “life with chance of release after 25 years,” 35 years if the murder victim was a child. The other sentence options for first-degree murderers were death or natural life, which means no possibility of parole or release, ever.

Life with chance of release, in effect, is a mitigated sentence, meaning it is imposed when there are circumstances that render the crime less horrible than a murder that calls for natural life or death.  Life sentences also may be imposed for conspiracy to commit first-degree murder, sexual conduct with a child, and in certain cases where a repeat offender is deemed incorrigible.

The two sentences sound very similar.  And this has become a problem, because judges and lawyers tend to conflate the two and use the shorthand phrase “25 to life” to describe either, without defining the end result.  But they are substantially different.  Those eligible for parole could get a guaranteed hearing before the parole board, a state-appointed panel that had the authority to release the prisoner.  It was not a guaranteed release, but instead depended on the prisoner’s behavior and rehabilitation while in prison.  And if denied, the prisoner could re-apply after six months to a year.

But under the new system, there is no automatic hearing. Instead, the prisoner has to petition the Board of Executive Clemency, which would likely require a lawyer. The board can then choose to hold hearings on the prisoner’s likelihood to stay out of trouble and make a recommendation to the governor. Rather than parole, the prisoner needs a pardon or a sentence commutation. Only the governor can provide those.   In essence, the process ceased to be a rehabilitation matter and became a political decision. The earliest “life with chance of release” cases will reach the 25-year mark in 2019.  But there is no mechanism set up to handle the cases yet, and most of the prisoners are indigent and unlikely to be able to hire attorneys to start the process.

March 19, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Thursday, March 16, 2017

"Technological Incarceration and the End of the Prison Crisis"

The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf.  Here is the abstract:

The United States imprisons more of its people than any nation on Earth, and by a considerable margin.  Criminals attract little empathy and have no political capital.  Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens.  No principled, wide-ranging solution has yet been advanced, however.  To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems.  First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined.  Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers.  Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States.  We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons.  As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly.  If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

March 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (2)

Tuesday, March 14, 2017

Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"

Pie2017The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.

All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.

And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

March 14, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Monday, March 13, 2017

A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"

The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:

The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women.  The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.

Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.

Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....

Women in the federal system are more likely to be incarcerated for a nonviolent offense.  Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons.  Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society.  We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....

While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever.  As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.

We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison.  As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters.  For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.

Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform.  This latest commentary suggests that inkling is proving accurate.

March 13, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Sunday, March 12, 2017

"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"

The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:

Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform."  The book concludes that police, legislators, and judges are not to blame for Mass Incarceration.  Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”

Locked In’s data-driven thesis aligns neatly with the academic consensus.  If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration.  The only problem is that it probably isn’t right.  While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data.  With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators.  This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration.  It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny.  When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

March 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Wednesday, March 08, 2017

Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:

Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....

As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.

“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.

The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.

Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.

Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:

Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....

Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.

If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

March 8, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (16)

Sunday, March 05, 2017

"Women in Prison: Should they be treated differently from men?"

The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:

The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men.  Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say.  But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women.  They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.

Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system.  For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse.  The justice system, women's advocates say, needs to think creatively about how to help female prisoners.  Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.

March 5, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Friday, March 03, 2017

Making the case for fixing private prisons in the Trump era

Lauren-Brooke Eisen has this notable new commentary in Fortune headlined "How President Trump and Jeff Sessions Can Fix America’s Private Prisons." Here are excerpts:

Last week, Attorney General Jeff Sessions ... issued a memo reversing the Obama administration’s decision to phase out its use of private prisons at the federal level.  This memo followed the release of a U.S. Justice Department report in August concluding that privately-operated prisons experienced more safety and security incidents than facilities operated by the Federal Bureau of Prisons did.

Since Sessions appears determined to move forward regardless, now is the right time to evaluate how to improve upon how the Justice Department contracts with private corporations to run some of its prisons.  With a businessman in charge of the White House, this provides an opportunity to change private prisons for the better.  A good first step would be to restructure contracts to make private facilities more accountable, effective, and strategic in their use of resources....

Although the new attorney general’s shift in policy only affects a little more than 21,000 inmates out of 126,300 inmates housed in state and federally contracted private prison facilities across the country, it points to the Trump administration’s likely reliance on the private prison industry over the next few years.  Currently, the federal government primarily uses private prisons to house non-citizens convicted of crimes, and most face deportation upon release. The president’s recent executive actions cracking down on unauthorized immigration will likely swell the private prison rolls even more, further expanding the industry....

With an expansion of for-profit prisons on the horizon, it is more important than ever that the government restructure contracts with the private prison industry to boost performance and change incentives.  Conducting field research for my upcoming book, I found that it is rare for contracts with private prison companies to demand fresh thinking, recidivism reduction, and outcomes that outperform the public sector.  Most contracts require the private operator to simply replicate the government prison system’s procedures.

Rather than repeat this approach, both the federal government and state governments should write contracts to ensure that economic incentives focus on reducing recidivism and improving outcomes for the nation’s inmates, not just warehousing as many people as possible....

In 2013, former Republican Gov. Tom Corbett’s administration announced it would cancel all the state’s Department of Corrections contracts with private community corrections companies and rebid them on a performance basis. Providers were then evaluated on and paid according to their success at reducing the recidivism levels of those who had just been released from prison.  The state could cancel a contract if the recidivism rate increased over two consecutive year-long periods.  After these contracts were implemented, the recidivism rate for private facilities fell 11.3 percent in just the first year.

Restructuring contracts around the nation’s public policy goals would ensure that private operators provide more educational programming, job training classes, and work with their inmates to ensure they are set up for optimal success once they are eventually released.  Providing incentives to private firms to exceed baselines — such as improved recidivism rates — is an effective carrot, versus creating penalties for basic contract breaches like failing to receive basic accreditation or meet minimum standards.

Reimagining how private prisons operate and are held accountable does not need to be an academic exercise.  Building the proper incentives into their contracts has the power to move the for-profit prison industry away from focusing on cost-cutting and filling its beds to make an extra dollar.  Imagine a world where private prison operators earned bonuses if their inmates received top-tier educational programming and vocational skills classes instead of guaranteed bed occupancies.  It’s possible that private prisons could begin marketing themselves to directors of corrections as leaders in recidivism reduction and reentry preparation.

Private prisons are here to stay under the new administration.  Let’s at least make them work better.

March 3, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Thursday, March 02, 2017

"The externalities problem is acute in criminal justice for two reasons."

The title of this post is a line from this interesting new essay by Richard Bierschbach, over at online publication Regblog produced by the University of Pennsylvania Law School.  This essay is actually part of a fifteen(!)-part series on "Regulating Police Use of Force," but Richard makes some sentencing-specific points in his essay.  Here are excerpts, with links from the original:

The externalities problem is acute in criminal justice for two reasons. First, we think of criminal justice as individual justice.  Actors thus tend to view each case as an isolated transaction to the exclusion of broader, long-term, and aggregate effects. Second, criminal justice, especially American criminal justice, is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. No one player has the responsibility, incentives, or information to take systemic harms into account. And given the politics of criminal justice, democratic processes do little to correct this dynamic.

Police and other law enforcement systematically overuse force in part because few mechanisms require them to consider the full social costs of doing so. The costs of arrests, for instance, are substantial: arrests are frightening and humiliating, use valuable resources, and burden arrestees with lost income, arrest records, and other harms. Yet few of these costs fall on the police.  So, too, for other coercive measures. Prosecutors and judges do not shoulder the full costs of pretrial detention, such as overcrowded jails, difficulties in mounting a defense, and personal and family trauma. Similarly, states pay for prisons, but local prosecutors’ decisions fill them. That “correctional free lunch” gives prosecutors little incentive to use prison judiciously, which helps explain why some counties dramatically overconsume it....

Cost-benefit analysis for sentencing and arrests. The U.S. Environmental Protection Agency, U.S. Securities and Exchange Commission, and other agencies have long had to defend their regulations in cost-justified terms. Why not hold sentencing and arrest guidelines to the same standard? The great virtue of cost-benefit analysis is that, if done rigorously, honestly, and transparently, it can surface and force consideration of all harms and gains—short- and long-term, concentrated and diffuse, and monetary and non-monetary (such as dignitary and distributive harms)—that a given policy option implicates. It is not hard to imagine how some draconian provisions of the federal sentencing guidelines or New York City’s stop-and-frisk policies might have come out differently, and wrought less social damage, if policymakers had subjected them to methodical cost-benefit testing that was open to robust public scrutiny and debate.

Such procedures help policymakers confront tough tradeoffs and encourage them to make more welfare enhancing decisions. As experience in states like Washington and Minnesota has shown, cost-benefit and other impact assessment procedures also provide politicians with a degree of political cover when making criminal justice policies. The broad consideration of costs also acts as a proxy for values and voices that get little traction in state legislative halls, helping to make criminal justice policies more representative of the entire population they serve....

Capping (and trading?) prison beds. Related to pricing are caps, which can also bring incentives back in line. In a number of contexts, such as arrests, caps might not be appropriate. But in other contexts, like prison, they could make sense. Just as a capping scheme limits the amount of clean air a coal plant can use in generating profits, so too could it limit the number of prison beds that local prosecutors can use in generating personal, political, and social gains.

A trio of criminal justice professors, Cheryl Jonson, John Eck, and Francis Cullen, have proposed how it might work.  States could set a cap on the number of people who could be sentenced to prison each year. They could then allocate prison beds to each county or locality based on some metric — population size, violent crime rates, or something else.  Localities could use those beds however they pleased, but once they hit their cap, they would have to pay the state for further imprisonments. The cap could be hard-and-fast, or it could be coupled with a trading system under which counties that do not use all of their beds could sell them to other counties, sell them back to the state, or roll them over for later use. Either way, the system would enhance accountability for criminal justice dollars and encourage cautious use of prison in ways the “correctional free lunch” does not.

Now, these sketches are just that. As University of Pennsylvania Law School Professor Stephanos Bibas and I discuss in a forthcoming article, serious issues would exist with each of these and related strategies. Even so, in states and localities across the country, variations on these themes — like cost-benefit analysis of sanctions in Washington, California’s Public Safety Realignment, or sentencing cost disclosures in Missouri — are increasingly appearing as policymakers confront the enormous toll of the carceral state. In this era of unprecedented openness to criminal justice experimentation, the time is ripe to move beyond our old transactional, fragmented, business-as-usual approach to criminal justice, and to see it for what it largely is: a morally laden and complex regulatory system, subject to many of the same failures and limitations that afflict other areas of regulation. That means we must think hard not only about how to do justice, but also about how to structure justice to administer it in the most socially-regarding way possible.

March 2, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Tuesday, February 28, 2017

"Unusual Deference"

The title of this post is the title of this notable new paper about the Supreme Court's Eighth Amendment jurisprudence authored by William Berry III and now available via SSRN.  Here is the abstract:

Three Eighth Amendment decisions — Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp — have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States.  What links these cases is the same fundamental analytical misstep — the decision to ignore core constitutional principles and instead defer to state punishment practices.  The confusion arises from the text of the Eighth Amendment where the Court has read the “cruel and unusual” punishment proscription to rest in part on majoritarian practices.  This is a classical analytical mistake — while the Amendment might prohibit rare punishments, it does not make the corollary true — that all commonly used punishments must be constitutional.

This “unusual deference” to state punishment practices in light of this misconstruction of the text has opened the door to a proliferation of punishments that are disproportionate, arbitrary, and discriminatory.  As such, this article argues for a restoration of the Eighth Amendment from its present impotence by reframing the concept of unusualness in terms of the Court’s stated Eighth Amendment values and unlinking it from its deferential subservience to state legislative schemes.

Part I of the article explains the genesis of the Court’s unusual deference.  Part II of the article explores the manifestations of unusual deference, examining the flaws in the evolving standards of decency, differentness deference, and three most far-reaching examples of unusual deference — Harmelin, Pulley, and McCleskey.  Finally, the article concludes in Part III by reimagining an Eighth Amendment free from the error of unusual deference and demonstrating how such an approach could begin to remedy the problem of mass incarceration.

February 28, 2017 in Examples of "over-punishment", Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Thursday, February 23, 2017

AG Sessions, reversing recent decision made during Obama Administration, signals DOJ return to reliance on private prisons

As reported in this Bloomberg News piece, "U.S. Attorney General Jeff Sessions ordered the Federal Bureau of Prisons to continue using private prisons, rescinding an order by former President Barack Obama’s administration." Here is more context:

Sessions signed the order on Feb. 21, according to a Justice Department statement. The Justice Department last year halted a decade-long experiment of hiring private companies to help manage the soaring prison population.  "The memorandum changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system," Sessions wrote in a new memo released Thursday but dated Feb. 21.  "I direct the Bureau to return to its previous approach."

The move comes as President Donald Trump’s administration has pledged to crack down on illegal immigration and crime.  The majority of inmates held at private facilities used by the Justice Department are sentenced “criminal aliens,” according to the Bureau of Prisons. That largely encompasses undocumented immigrants convicted of drug offenses or entering the U.S. without proper documentation.

For a variety of reasons, I do not find this development all that surprising or really all that big of a deal. But I know a lot of reform advocates on the left are especially troubled by the private prison industry, and thus I suspect this move will be another talking point for those concerned about the direction of the federal criminal justice system under the new Administration.

February 23, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (12)

Wednesday, February 22, 2017

"The Constitutional Law of Incarceration, Reconfigured"

The title of this post is the title of this notable new paper authored by Margo Schlanger now available via SSRN.  Here is the abstract:

As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank.  This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention.  The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability.  And lower courts compounded the error by importing that reading into Due Process doctrine as well.

In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern.  The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw.  The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases.

But commentary and developing caselaw since Kingsley has not fully recognized its implications.  I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers.  The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force.  In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

February 22, 2017 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Thursday, February 16, 2017

"Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration"

The title of this post is the title of this notable new report from the Vera Institute of Justice authored by Danielle Sered. Here is an overview of the report from Vera:

In the United States, violence and mass incarceration are deeply entwined, though evidence shows that both can decrease at the same time.  A new vision is needed to meaningfully address violence and reduce the use of incarceration — and to promote healing among crime survivors and improve public safety.  This report describes four principles to guide policies and practices that aim to reduce violence: They should be survivor-centered, based on accountability, safety-driven, and racially equitable.

This two-page fact sheet sets out the "four principles" referenced above:

Principle 1: Responses to violence should be survivor-centered.

Principle 2: Responses to violence should be based on accountability.

Principle 3: Responses to violence should be safety‑driven.

Principle 4: Responses to violence should be racially equitable.

February 16, 2017 in Offense Characteristics, Scope of Imprisonment | Permalink | Comments (16)