Thursday, March 12, 2015
"Prisons Are Making America's Drug Problem Worse"
The title of this post is the headline of this notable new Politico piece. Here are excerpts that reinforce my fear that one of the biggest problems with the modern drug war is that we are fighting it so very poorly:
After two decades of rapidly rising incarceration rates — rates that continued to rise even as crime sat at record historic lows — America today has nearly 2.2 million adult inmates in local, state and federal jails and prisons, including about 300,000 who have a history of heroin addiction. The BOP spends $110 million annually on drug treatment programs for approximately 80,000 inmates identified as dependent on narcotics. But for the 10,000 or so federal inmates dependent on heroin or other opioids, millions of those dollars are currently spent on outdated, ineffective approaches that wrongly prohibit medication-assisted therapies — approaches that, in other words, fail to help prisoners addicted to opioids during their sentence and ultimately return them afterwards to society as addicted as they were when they went into jail.
It doesn’t have to be that way. A recent study of opioid-dependent inmates leaving Rikers Island jail in New York City showed that nearly nine out of ten inmates who were not medicated relapsed within a month, as opposed to just 2 out of 5 inmates who were on medication-assisted treatment. The difference to society between those two numbers — in terms of health outcomes, reduced crime, and improved employment stability — is huge.
Science notwithstanding, the U.S. criminal justice system has resisted medication-assisted therapy, with only a few large urban jails (e.g. New York City, San Francisco, Albuquerque) and a handful of state prisons such as those in Rhode Island and Vermont opting to use it. Yet most major correctional experts, including the U.S. Bureau of Justice Assistance (BJA), the National Re-Entry Resource Center and the National Commission on Correctional Health Care, all recommend increasing the availability of medication-assisted therapy for opioid dependence in the country’s jails and prisons. The U.S. Bureau of Justice Assistance (BJA) recently concluded that the effects of MAT are “many times greater” than behavioral therapies without medications.
Beyond the correctional world, the World Health Organization, UNAIDS, the United Nations Office on Drug Policy, and the National Institute on Drug Abuse (NIDA) all agree that people dependent on heroin and other opioids should have access to medication-assisted therapy. In a recent publication, NIDA stated, “Taking these medications as prescribed allows patients to hold jobs, avoid street crime and violence, and reduce exposure to HIV.” The White House Office of Drug Control Policy calls MAT combined with behavioral therapy the “standard of care” for opioid dependence and recently announced that drug courts, which offer treatment as an alternative to prison for some criminal offenders, will be required to offer MAT in order to continue to receive federal dollars.
Nevertheless, despite the evidence to the contrary, the Federal Bureau of Prisons prohibits such treatments entirely for “routine” (non-detox) purposes. Corrections officials frequently cite security concerns to justify denying buprenorphine and methadone therapy to inmates, fearing the medicine will be diverted to other prisoners — despite the fact that these issues can be resolved with tighter security measures and closer staff supervision (the prison systems of Western Europe, Scotland, Canada and even Iran can attest to that).
Wednesday, March 11, 2015
"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"
The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:
The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”
The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.
These guidelines are premised on the following foundational principles:
children are constitutionally and developmentally different from adults;
children, by reason of their physical and mental immaturity, need special safeguards and care;
children must not be defined by a single act;
juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;
juvenile life defense requires a qualified team trained in adolescent development;
juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;
juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;
juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;
juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;
juvenile life defense counsel must litigate for a presumption against life sentences for children; and
juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.
Colson Task Force highlights " biggest driver of growth in the prison population is in federally sentenced drug offenders"
As reported in this Crime Report piece, the Charles Colson Federal Corrections Task Force has just released this notable new research brief titled "Drivers of Growth in the Federal Prison Population." Here are excerpts from the document (with emphasis in original):
The federal prison population has grown by 750 percent since 1980, resulting in rapidly increasing expenditures for incarceration and dangerous overcrowding. In response, Congress created the Charles Colson Task Force on Federal Corrections to examine trends in correctional growth and develop practical, data-driven policy responses. Following the example of many states that have recently engaged in criminal justice reform, the first step for the Task Force is to understand the underlying drivers of growth in the prison population.
The biggest driver of growth in the prison population is in federally sentenced drug offenders, almost all of whom were convicted of drug trafficking. In fiscal year (FY) 2013, there were almost 50,000 more drug offenders in federal prisons than there were in FY 1994. Incarceration for drug offenses disproportionately affects nonwhite offenders: in FY 2013, over 75 percent of all drug offenders in federal prison were black or Hispanic....
The population growth is driven by both the number of people who are admitted to prison for drug crimes every year and the length of their sentences. In FY 2013, more people were admitted to federal prison for drug crimes than any other crime type, and the average sentence for those entering prison was almost six years. Every year, about 95 percent of federally sentenced drug offenders receive a term of incarceration as part of their sentence, up from about 76 percent in the year before the passage of the Anti-Drug Abuse Act in 1986, which established mandatory minimum penalties for certain drug offenses.
In particular, length of stay for drug offenders, often dictated by statutory mandatory minimum penalties, has driven most of the recent growth. Though the number of admissions has remained largely constant over time, the number of drug offenders in federal prison has increased because of people serving longer sentences.
Tuesday, March 10, 2015
Depressing news that sentencing toughness is doing little to deter child porn offenses
Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography. The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines). In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop. And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).
I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children. Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts:
Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."
On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.
Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.
With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....
Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."
On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.
Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.
On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.
Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.
Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.
Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.
However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.
This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.
I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.
Monday, March 09, 2015
Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"
Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:
What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street? To my knowledge, this question has never been polled by any respected organization.
I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:
A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas. The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....
The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:
• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.
• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....
“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin. “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”
March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Saturday, March 07, 2015
California voters through Prop 47 help fix prison crowding problems plaguing state for decades
Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s. Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues. But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.
I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way. The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:
California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.
The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday. Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.
But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47. “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview. “The thing we are grappling with is the tremendous rise in property crime.”
Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....
Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....
In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014. Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.
Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said. “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”
Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less. Prior to the measure, the threshold for misdemeanor property crimes was $450. Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.
Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”
Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure. Most of that money is slated for mental health and substance abuse programs.
I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.
Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).
Some prior related posts on California's Prop 47 and its early impact:
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Notable pitch for California Prop 47 based in mental health concerns
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
- Intriguing review of early impact of California's Prop 47 reducing offense seriousness
- Early report on the early impact of Proposition 47 in California
March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Friday, March 06, 2015
Highlighting that mass incarceration is "Not Just the Drug War"
For lots of good reasons, the modern war on drugs is the focal point for lots of criticisms of criminal justice systems in the United States. But this effective Jacobin Magazine Q&A with Marie Gottschalk, author of the book "Caught: The Prison State and the Lockdown of American Politics," spotlights that the US affinity for record-levels of incarceration is about a lot more than the drug war. The full piece is today's must-read, and here are excerpts from its start:
[The] new book by University of Pennsylvania political scientist Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics, makes it clear that the problem is far worse than commonly suspected, and that the reforms on the table are unlikely to even make a dent in the forces that keep millions behind bars.
Contrary to what many progressives believe, Gottschalk argues it’s not primarily the War on Drugs that’s driving this beast. Instead, it’s an all-out assault that “extends a brute egalitarianism across the board.” Jacobin editor Connor Kilpatrick recently got a chance to interview Gottschalk.
Q: One of the most shocking stats in your book is that simply rolling back punishments for violent offenses to their 1984 levels in 2004 would have done more to lower the incarceration rate — a cut in state prison rates of 30 percent — than simply ending the drug war.
A: The intense focus in criminal justice reform today on the non-serious, non-violent, non-sexual offenders — the so-called non, non, nons — is troubling. Many contend that we should lighten up on the sanctions for the non, non, nons so that we can throw the book at the really bad guys. But the fact is that we’ve been throwing the book at the really bad guys for a really long time.
Legislators are making troubling compromises in which they are decreasing penalties in one area — such as drug crimes — in order to increase them in another area — such as expanding the use of life sentences. In doing so, they’re also fostering the mistaken idea that it is easy to distinguish the non, non, nons from the really bad guys.
Thursday, March 05, 2015
Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?
The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers. This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:
In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.
But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.
Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.
But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....
And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....
Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.
Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.
Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release. And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.
Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75. But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail." Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.
March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack
"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"
The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:
This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control. This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.
The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement. Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment. It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures. The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations. This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency. The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.
Monday, March 02, 2015
AG Holder provides Congress a sentencing reform to-do list
This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms. Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":
Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws. This presents a historic opportunity to improve the fairness of our criminal justice system. But unless we act quickly, we risk letting the moment pass.
The Justice Department has sought to be an early innovator on this front. A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice.... Preliminary results from this effort are extremely encouraging....
Last year also witnessed the first overall reduction in the federal prison population in 32 years. Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.
But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own. Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.
First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair. Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.
Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.
Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions. These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.
Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses. These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.
While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause. And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.
In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress. As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen." Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong."
I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act. Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front. In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).
Sunday, March 01, 2015
Must one study lynchings past to understand US punishments present?
The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist. The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:
Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....
During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism. "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.
She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."
Friday, February 27, 2015
"A Second Chance: Education's Role in Reversing Mass Incarceration"
The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby. Here is how it starts:
The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society. The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men? What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program? The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value. At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.
Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars. Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records. Another day of Black History month has borne witness to our persistent troubles.
According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails. And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested. The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population. But even more troubling is the fact that, on any given day, one in 15 black men are in prison. And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine. "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports. These shameful statistics suggest that creating channels of reentry are imperative.
February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack
Thursday, February 26, 2015
Encouraging recidivism realities after three-strikes reform in California
This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast. Here are excerpts:
Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....
Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.
“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...
In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”
Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.
After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.
February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
US Sentencing Commission releases report on LWOP sentences in federal system
I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:
Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.
There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.
February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?
The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber. Here are excerpts:
What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?
Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia. During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”
These potential jurors may have a point. Tsarnaev, 21, has been in solitary confinement for a year and a half. Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....
According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.
Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...
The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.
Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....
On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.
Some prior related posts:
- "Balancing the State and Federal Roles in Boston Bomber Case"
- Does Boston bombing provide still more support for my federal-only death penalty perspective?
- How can/will Boston bombings victims reasonably "confer" with prosecutors and be "reasonably heard" in proceedings?
- "Boston Bombing Suspect Is Indicted on 30 Counts"
- Will a jury get a chance to embrace or reject death penalty in Boston bombing case?
- "Death penalty for Boston bomber a complicated question"
- Gearing up (finally) for start of capital trial of Boston Marathon bomber
Wednesday, February 25, 2015
"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"
The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.
February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, February 23, 2015
Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US
I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control. I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.
I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech. This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:
The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma." In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.
It's true. There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.
In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).
In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.
SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells
I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer." I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.
I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms. In my amicus brief, I had these concluding sentiments about the Young case and its implications:
The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage. Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.” Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....
[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).
Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel). Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities. I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front. Grrr.
Prior related posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
- Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
- Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells
- Briefs seeking SCOTUS review of 15-year mandatory federal sentence for possessing shotgun shells
February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Urging more media coverage of the "truly guilty and violent"
The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.
The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts. Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.
When we do write about the guilty, we prefer they be nonviolent offenders. We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.
We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.
But this means we neglect much that is immensely significant. There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections. That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.
Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.
Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.
There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.
Sunday, February 22, 2015
Early report on the early impact of Proposition 47 in California
This new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November. The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:
In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.
On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.
Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.
Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.
Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.
"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."
The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.
Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.
Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.
Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.
Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."
The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.