Sentencing Law and Policy

"Passive Pedophiles: Are child porn viewers less dangerous than we thought?"

The title of this post is the headline of this notable recent commentary by Emily Bazelon at Slate. Here are excerpts:

Making child pornography is abuse.  What about possessing it? As a group, these offenders — the ones who look but don’t abuse children to create new images — are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years.  Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”

It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young.  Their crimes aren’t “victimless,” as defense lawyers sometimes argue.  These men create the market for new images.  They are the demand behind the supply.  I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering — and about the victims’ efforts to win restitution from these men.

But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves.  Is that true? I’ve heard it so many times it’s hard to think otherwise.  Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law).  The commission did its own research.  It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”...

This isn’t an easy subject.  Punishments for sex offenders move only in one direction in this country — they get harsher.  But the Sentencing Commission’s critique should get a serious hearing.  Prison comes with a cost for taxpayers as well as the people it incarcerates.  And if there’s increasing hope for effective treatment, as the commission suggests, investing in it could save kids....

Maybe men convicted of possessing child pornography probably reoffend more than the researchers can measure because they don’t tell.  Surely they commit more new crimes than the number they get arrested for, as the commission is careful to say.  The question is how many more.  Do they really pose a different risk in this regard than other criminals do?  The Justice Department “takes issue” with the commission’s conclusions about recidivism and the link between viewing pornography of children and molesting them. These questions won’t be resolved any time soon.  In the meantime, Congress could fix the aspects of child pornography sentencing that both DOJ and the Sentencing Commission see as broken.

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

A data-based exploration of prison growth and the drug war

I am very pleased to see that John Pfaff is guest-blogging over at PrawfsBlawg about the modern growth in US prison populations and the role that the drug war may or may not have played in this story.  Here are his first three posts in a series that is a must-read for a number of reasons:

• Hunting Zombies: The War on Drugs and Prison Growth
• Setting the Stage: The Explosion in Prison Populations
• Some More Evidence Against the War on Drugs Hypothesis

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

"Four female prison guards impregnated by same inmate"

The headline of this post is arguably the most sensational facet of a huge federal corruption prosecution this week emerging from the jail system in Baltimore, Maryland.  The basics are reported in this story:

Four female prison guards in Baltimore fell pregnant to the same inmate, according to authorities who have busted a major smuggling gang inside the jail system. Two of the women tattooed the inmate's name on their bodies and he showered three of

The four women are among 25 people who face federal charges, including 13 female prison guards, CBS Baltimore reports. The scheme involved smuggling drugs and cell phones into Baltimore City Detention Center.

U.S. Attorney Rod Rosenstein said the 25 defendants participated in running the activities of the Black Guerilla Family - a prison and street gang - from behind bars in Baltimore City. Thirteen female corrections officers, seven inmates and five alleged co-conspirators are charged with racketeering, money laundering and possession with the intent to distribute....

The affidavit says the corrections officers helped members of the notorious Black Guerilla Family gang smuggle cell phones, marijuana, prescription pills and cigarettes into the jail to sell to other inmates and make thousands of dollars. "This situation enabled BGF members to continue to run their criminal enterprise within the jail and the streets of Baltimore," said Steve Vogt, FBI....

The indictment says the ringleader, inmate Tavon White, reportedly made $16,000 in one month from the smuggled contraband.

Four corrections officers-Jennifer Owens, Katera Stevenson, Chania Brooks and Tiffany Linder, who are also facing charges -- allegedly fell pregnant to White while he was behind bars. Charging documents reveal Owens had "Tavon" tattooed on her neck and Stevenson had "Tavon" tattooed on her wrist....

Secretary of Public Safety & Correctional Services Gary Maynard said he was taking full responsibility. "It becomes embarrassing for me when we expose ourselves and we participate in an investigation that's going to show what's going on in our jails that I am not proud of," he said.

This press release from the Maryland U.S. Attorney's office concerning the indictments has a little extra fun with the most prurient aspects of this sordid story in its heading: "Correctional Officers Smuggled in Cell Phones and Drugs and Were 'in Bed' with BGF Inmates."  And though this story is hardly a laughing matter, I hope readers will forgive me after a few weeks of very serious news if I encourage commentors to perhaps add some additional levity by suggesting alternative headlines for this notable new federal corruption case.

"You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy"

The title of this post is the title of this notable new piece by Elizabeth Rapaport now available via SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth.  Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase.  By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. 

High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs.  This impression does not withstand scrutiny. Two thirds of elderly prisoners have been convicted of violent crimes; one quarter has been convicted of sexual offenses.  Programs to reduce prison costs have indeed gained ground but they are designed for a very different population.  The offender who is well positioned to avoid or leave prison as a result of cost savings policies is a young nonviolent offender; The majority of states have succeeded in reducing prison admissions by diverting nonviolent offenders to drug and other treatment programs and reducing prison terms for low level offenders. A threshold condition for diversion or release is low risk of violent offending. Implicitly these low risk nonviolent offenders are also promoted as criminals who can rehabilitate and reintegrate into the community.  The majority of compassionate release programs either exclude prisoners who were convicted of violent crimes or require that the prisoner be incapacitated to the extent that he or she poses no threat to public safety.  Yet even prisoners who meet these standards are rarely released.

Arguing for cost cutting release of the fast growing legion of elderly prisoners is much less easily buttressed with soothing claims about the happy coincidence of lower costs and public safety.  Even if, and it is big if, exaggerated fear of further predations were successfully addressed, the advocate of cost cutting reform cannot answer demands for retribution without venturing beyond the discourse of the “tough on crime” era.  For thirty years the political class has shunned the previously commonly invoked criminal justice values of second chances -- the redemptive values of rehabilitation, reintegration, and mercy.  The sickest and oldest prisoners are largely beyond second chances for productive citizenship. Whether released or incarcerated their care will be borne by the public purse. Elder care is not free.

This Article focuses on the subclass of old prisoners who are beyond any prospect for productive citizenship because of age and ill health and are in need of elder care.  The argument of this Article is that in order to capture the savings that release (and efficient carceral care) of elderly prisoners would bring, politicians and policy advocates will have to relearn to speak the language of humane criminal justice values, prominently mercy.

Do recent California prison reforms demonstrate Plata ruling was a success or a failure?

There was lots of debate, both within the Justices' opinions and in the outside punditry, about whether and why the Supreme Court was wise or foolish to uphold in its 2011 Plata ruling a federal judicial panel's "prisoner release order" based on California's dismal record in running its overcrowded prisons.   Now, nearly two years later, this article from today's New York Times prompts the question in the title of this post.  The article is headlined "California Tries to Regain Fuller Control of Prisons," and here are excerpts:

On the sprawling grounds of the state prison, built here in 1955, a new three-story, $24 million treatment center for mentally ill inmates stands out because of its freshly painted walls and rooftop solar panels.  Inside, on a recent morning, psychologists and social workers were leading group therapy sessions for inmates in large, brightly lighted rooms while individual meetings were being held in smaller offices.

By all accounts, the opening of the new wing in January, as well as that of a crisis center and a housing unit for more troubled inmates in recent years, has improved the quality of mental health care in this prison, known formally as the California Medical Facility.  In the past, the group sessions were held in a housing unit’s common room and left those not participating locked in their cells, unable to socialize or watch television....

California is arguing that the building here, just west of Sacramento, part of the $1.2 billion spent on improving mental health care in the last three years, is an example of why the state should be allowed to regain fuller control over its prisons, the nation’s largest correctional system.  But federal judges recently issued stinging criticisms of the state, denying its bid for greater authority in two related cases and affirming the continuing need for federal overseers to achieve a level of care required by the United States Constitution.

Gov. Jerry Brown, who has been pressing strongly for the end of federal oversight since the beginning of the year, has said that the state will appeal the two decisions. Meanwhile, Mr. Brown and other state officials have been given until early May to submit a plan to further reduce overcrowding in the state prisons or be held in contempt of court....

The judges and lawyers representing inmates said that the improvements had been made only because of federal oversight. “We know they’ve needed treatment space for 20 years,” Michael Bien, a lawyer who has long represented inmates, said of the new building here. “It’s just an example of yes, they did it — great. They did it only under compulsion of the law. It wasn’t voluntary.”

Mr. Bien was involved in a class-action lawsuit regarding mental health care filed by inmates against the state more than two decades ago. In 1995, a federal court appointed a special master to carry out reforms in mental health care, which it found inadequate at the time and in violation of the Constitution. The court ruled this month that the federal overseer was necessary to remedy continuing constitutional violations behind problems like the high suicide rate.

The state is arguing that mental health care meets or exceeds constitutional standards. It is spending $400 million a year on mental health care in its prisons, and a dozen new facilities valued at a total of $1.2 billion have been built in the past three years or are under construction....

A special three-judge federal court also denied the state’s motion to overturn an order to reduce prison overcrowding from its current level of 150 percent of capacity to 137.5 percent by the end of this year.

In 2009, the court found that adequate mental and medical health care could not be delivered because of overcrowding — which reached more than 200 percent in 2006 — and ordered the state to reduce the prison population gradually. The Supreme Court upheld the order in 2011 after the state appealed.

California has already cut its prison population by 25,000 inmates to about 120,000 by sending low-level offenders to county jails in a policy known as realignment. Mr. Beard said that sending 10,000 more inmates to county jails — the number required to reach the court-mandated goal of 137.5 percent of capacity — would overwhelm the counties. Some county officials, forced to release inmates early from increasingly packed jails, have blamed realignment for a rise in break-ins and auto thefts.

Barry Krisberg, a law professor at the University of California, Berkeley, and an expert on California’s prisons who testified in the 2011 Supreme Court case, said it was unlikely the state would succeed in its appeals because of that 2011 ruling. “He can’t win these cases,” Mr. Krisberg said, referring to the governor. “In my view, it’s nearly impossible to go to the same Supreme Court and within a year ask them the same question.”

Instead of looking only to realignment, Mr. Krisberg said, the state must consider the politically difficult option of shortening sentences for good behavior, a policy that previous governors have carried out without an increase in crime. “If they were to restore good-time credits for the people who are doing everything we’re asking of them in prison, they could get these numbers,” he said, referring to the 137.5 percent goal.

"What if NY invested more in dairy farms and less in prisons?"

The question in the title of this post is the headline on this story from a public radio station in upstate New York, which is part of "a series on current issues and the future of dairy in the North Country." (In addition to liking the milky pictures that go with this story, I like having new proof that even the price of ice cream and cow-tipping have a link to sentencing law and policy.) Here is how the text with the piece starts:

There are more than a dozen state and Federal prisons in the [North Country] region, along with eleven county jails. That makes corrections work one of our top employers.

One activist group based in Brooklyn thinks these two issues -- prison jobs and the dairy industry -- should be linked in people's minds, as we think about ways to grow the rural economy.  That group's called "Milk Not Jails."...

This whole project, Milk Not Jails, is the brainchild of Lauren Melodia, who lives in Brooklyn and has spent the better part of a decade trying to connect upstate and downstate communities around the question of how their economies interact.  She says she was working in an urban neighborhood trying to raise awareness about food issues, and prisons just kept coming up.

"The community that I was trying to bring fresh food into had very little access to fresh produce," Melodia says.  "And oftentimes we would take bus trips up to the farm where we received our produce from.  And a lot of the people on the bus would say that they'd never been upstate except to visit someone in prison."

Melodia also spent a year in Ogdensburg and Canton, trying to make connections in the North Country that would begin to open a new conversation about how prisons shape lives. "I was in Ogdensburg at the same time that Governor David Paterson was considering closing Ogdensburg Correctional Facility.  And people refer to the Ogdensburg and Riverview correctional facilities as the last factories in town.  That's absolutely real for people."

Lauren Melodia ... thinks New York state should invest more money in dairy farms and agriculture -- and less money locking up prison inmates, especially low-level and non-violent offenders.  "There's all this spin-off economic activity that goes hand-in-hand with agriculture.  You have processing, you have distribution, you have tourism.  We can't say the same thing for prisons.  They don't have that kind of economic growth opportunity."...

"The guards' union and the politicans who represent them oppose major reforms that could make the system work better and prevent people from going to prison in the first place. Why? They're worried that it could create job loss in their community."  That message is a tough sell in communities, like Ogendsburg, that rely on corrections jobs. 

Melodia says Milk Not Jails met yesterday in Albany with the staff of North Country Senator Patty Ritchie.  Melodia says lawmakers are open to the discussion of boosting dairy and agriculture. But talk of closing more prisons? That doesn't go over so well.

"I understand that the crisis at this point is that these are the last factories in town and we can't get rid of them," she says. "What we're trying to do is build some kind of long-term planning in the communities where these prisons are housed so there's not that dependency."

"Justice Reinvestment in Action: The Delaware Model"

The title of this post is the title of this recently released policy brief from the Vera Institute of Justice.  This posting by Alison Shames of Vera provides a preview of the context and content of this report, and here are excerpts:

To date, more than a dozen states have participated in the Justice Reinvestment Initiative and worked with the Vera Institute of Justice, the Council of State Governments, or The Pew Charitable Trusts to analyze their state-specific data, identify the drivers of their corrections populations, and develop policies that aim to reduce spending and generate savings.  Once the policies are passed into law, these jurisdictions continue to receive technical assistance to help with implementation and ensure that the changes and investments achieve their projected outcomes.

What this means in practice is described in Vera’s new report, Justice Reinvestment in Action: The Delaware Model.  In 2012, after a year of analysis and consensus-building, Delaware Governor Jack Markell signed SB 226, introducing a sea change to the way the state justice agencies conduct business.  At every step in the process — pretrial, sentencing, prison, and supervision — SB 226 requires enhanced decision making based not only on professional judgment but also data analysis and empirically based risk and needs assessment instruments.  If implemented correctly, up to $27.3 million could be available for reinvestment over the next five years.

Continued and increased support for the Justice Reinvestment Initiative — in the form of technical assistance and seed funding — is critical to making these methods available to additional jurisdictions and ensuring that the states realize their projected savings and enhance public safety.  The future of the Justice Reinvestment Initiative looks bright, with President Obama including $85 million for this effort in his proposed 2014 budget, an increase of $79 million over last year's appropriation.

Implementing evidence-based practices and enabling justice agencies to integrate data analysis into their operations in an ongoing and sustainable way is hard work that takes time, patience, up-front investment, and strong leadership.  The Justice Reinvestment Initiative builds and develops the leadership and contributes to the initial investment. Delaware is just one of a dozen success stories.  The hard work continues.

Some older and more recent related posts:

• Important new Vera report on "Reconsidering Incarceration"
• New Vera Institute report looks at performance funding for criminal justice reform
• Potent prison projections from Pew
• New proposals from CSG's Justice Center for how Michigan can cut correction costs
• "Justice Reinvestment" in Texas
• "Reallocating Justice Resources: a Review of 2011 State Sentencing Trends"
• "Ending Mass Incarceration: Charting a New Justice Reinvestment"

"Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"

The title if this post is the title of this paper by Patrice Fulcher recently posted on SSRN.  Here is the abstract:

The Prison Industrial Complex (“PIC”) is a profiteering system fueled by the economic interests of private corporations, federal and state correctional institutions, and politicians.  The PIC grew from ground fertilized by an increase in the U.S. prison population united with an economically depressed market, stretched budgets, and the ineffective allocation of government resources.  The role of the federal, state, and local governments in the PIC has been to allocate resources.  This is the first of a series of articles exploring issues surrounding the PIC, including (1) prison privatization, (2) outsourcing the labor of prisoners for profit, and (3) constitutional misinterpretations.

The U.S. prison population increased in the 1980s, in part, because of harsh drug and sentencing laws and the racial profiling of Blacks.  When faced with the problem of managing additional inmates, U.S. correctional institutions looked to the promise of private prison companies to house and control inmates at reduced costs.  The result was the privatization of prisons, private companies handling the management of federal and state inmates.

This Article addresses how the privatization of prisons helped to grow the PIC and the two ways in which governments’ expenditure of funds to private prison companies amount to an inefficient allocation of resources: (1) it creates an incentive to increase the prison population, which led to a monopoly and manipulation of the market by Correction Corporation of America (“CCA”) and The GEO Group, Inc. (“GEO”), the top two private prison companies, and (2) it supports the use of Blacks as property, which in turn prevents Blacks from participating in future economic activities because they are labeled as felons.

This Article first discusses how the increased prison population led to the allocation of government resources to prison privatization. Second, it establishes how funding private prison companies helped to develop the PIC into an economic, for-profit “hustle” for the involved partners and stakeholders, herein after referred to as players.  Third, it makes it easy to see the “flow” of inequities stemming from the “hustle” and how they are the result of inefficient allocation of government resources.  Finally, in order to stop the “hustle” and change the “flow” of inequities, this Article calls for a moratorium on the privatization of U.S. prisons, the end of private prison companies, and a change in drug sentencing laws in order to reduce the prison population.

Some related posts about private prisons: 

• "Billions Behind Bars: Inside America's Prison Industry"
• ACLU of Ohio releases new report assailing Governor's plan to sell state prisons
• Might private prisons actually cost taxpayers more than public prisons?
• "Who Benefits When A Private Prison Comes To Town?"
• New ACLU report critical of private prisons 
• "Too Good to be True: Private Prisons in America"
• Private prison fares poorly in audit by Ohio officials

"Ending Mass Incarceration: Charting a New Justice Reinvestment"

The title of this post is the title of a notable new "paper co-authored by a group of researchers, analysts, and advocates dedicated to ending mass incarceration in the U.S."  The full 36-page report is available at this link, and this webpage provides an overview of the contents.  Here are some of the basics:

Justice Strategies Director, Judith Greene, has co-authored Ending Mass Incarceration: Charting A New Justice Reinvestment, with Vanita Gupta and Kara Dansky of the American Civil Liberties Union, Malcolm Young of Northwestern University Law School's Bluhm Legal Clinic, James Austin of the JFA Institute, Eric Cadora of the Justice Mapping Center, Todd Clear of Rutgers University, Marc Mauer and Nicole Porter of The Sentencing Project, and Susan Tucker, the former Director of The After Prison Initiative at the Open Society Foundations.

The paper traces the history and examines the impact of Justice Reinvestment (JR) since its inception a decade ago to its current incarnation as a national initiative.

The primary conclusion is that while JR has served to soften the ground for criminal justice reform, it has not achieved significant reductions in the correctional populations or costs in most of the states in which it has been conducted. This is in contrast to its original intent: to reduce corrections populations and budgets and reinvest in high incarceration communities to make them safer, stronger, and more equitable.

As originally conceived, Justice Reinvestment called for the reduction of corrections populations and budgets to generate savings that would be reinvested in high incarceration communities to improve public safety, and reverse the destructive effects of mass incarceration and harsh punishment visited disproportionately upon individuals and communities of color.

As implemented through legislation in 18 states, the Justice Reinvestment Initiative has helped stabilize corrections populations and budgets, educate state legislators and public officials about the expense of correctional system, and persuade them to undertake reforms, but it runs the risk of institutionalizing mass incarceration at current levels.

Interesting coverage of media coverage of crime and prison punishments

Thanks to this post at How Appealing, I discovered that the the March / April 2013 issue of Columbia Journalism Review has a set of articles concerning the ways in which the media covers (and has trouble covering) some modern crime and punishment stories.  I am very pleased to see the Columbia Journalism Review provide this significant coverage of aspects and limits of modern media coverage, not only because I sorta/kinda play the role of a new media journalist on-line through this blog, but also because these articles are part of a broader issue devoted to the modern media's less-than-inspiring "coverage of race, class, and social mobility." 

As regular readers will not be surprised to hear from me, I think issues of crime and punishment are among the most central and least examined aspects of our enduring struggles with the array of dynamic issues relating to race, class, and social mobility in the United States.  Thus, I am not only generally happy to see coverage of media coverage of crime and prison punishments, but I am particularly pleased that this issue of the Columbia Journalism Review links its article to the broader concerns of "coverage of race, class, and social mobility."

With that wordy preview, here are links to the set of pieces appearing in the the March / April 2013 issue of Columbia Journalism Review that all look like must-reads:

• "Dark shadows: In Washington, murder turns out to be color-coded" by Clay Shirky

• "Nearly 1 in 100 Americans is incarcerated; But how well can journalists cover prisons if they can't get past the gates?" by Beth Schwartzapfel

• "Fortresses of solitude -- Even more rare: journalist access to prison isolation units" by James Ridgeway

Weekend crime and punishment headlines from California

California has a large enough population to be a large nation all its own, and some crime and punishment stories that swirl around the state these days reveals just some of the ways that the Golden State is truly a unique jurisdiction.  Here are just some of the headline from the state which caught my eye this weekend:

• "California's dormant death penalty system faces another legal test"

• "Number of fugitive sex offenders spikes since California 'realignment'"

• "California Lt. Gov. Gavin Newsom calls for legalizing pot"

• "Gov. Jerry Brown vows fight with judges over prisons"

• "California's Prison Crisis is Now a Constitutional Crisis"

"How to Awaken the Pardon Power"

The title of this post is the headline of this notable new commentary by Mark Osler now up at The Huffington Post.  Here is how it starts and ends:

In recent months, a striking array of people -- from the Kardashians to those within the Heritage Foundation -- have called attention to the often-forgotten ability of the president to shorten sentences and pardon convictions. It's no wonder: There is a crisis of over-incarceration in this country, and the pardon power is an obvious way to address it.

Inaction has exacerbated the problem, as the federal pardon power has nearly faded away. President Obama's recent grant of 17 pardons in minor, old cases does little to refute this. Even after these pardons, this president remains the stingiest user of executive clemency in recent history. In addition to a handful of pardons through the course of his presidency, President Obama has granted only a single commutation petition (which merely reduces a sentence), while denying over 3,000. Meanwhile, over 5,000 federal prisoners continue to serve sentences under an old mandatory minimum sentencing statute for crack cocaine sentences that has been reformed but not made retroactive.

No one seems happy with this abandonment of an important Constitutional power. Reports critical of Obama's performance have recently been issued by experts at both the conservative Heritage Foundation and the liberal American Constitution Society, and Supreme Court Justice Anthony Kennedy has condemned the dissolution of the pardon power both while on and off the bench. Such rare consensus among the right, the left, and the middle must mean that something is very wrong.

The process for considering clemency petitions is a part of the problem, according to the critics. The United States Pardon Attorney and his small staff are a part of the Department of Justice, and several levels of review stand between that office and the president. Those tasked with evaluating the apportionment of mercy are embedded deep within the agency charged with prosecution. The stingy results are predictable.

Three simple steps would cure this systemic problem. First, the consideration of clemency needs to be taken out of the Department of Justice. Second, clemency petitions should be evaluated by a diverse, bi-partisan board rather than a single official. Finally, clemency considerations should be routinized, with that board presenting its recommendations to the president at regular intervals....

The president of the United States is a Constitutional scholar, and it is the Constitution itself which creates the odd but important pardon power of the executive. It is nothing less than a charge to do justice while embracing mercy, a job made possible by the humble acknowledgment that our laws at times are not perfectly fit to the changing shapes of human frailties. We can only hope that the president possesses the strength to embrace that humility.

New Brennan Center report on Gideon and indigent defense

Via e-mail, I received news of this new report on the right to counsel titled "Gideon at 50: Three Reforms to Revive the Right to Counsel."  Here is how the e-mail described its context and contents:

The Brennan Center for Justice at New York University School of Law releases a new report examining the numerous challenges public defenders face in providing legal representation to poor clients.  Fifty years after the U.S. Supreme Court recognized the constitutional right to an attorney for criminal defendants in Gideon v. Wainwright, many public defenders are so underfunded and overworked that clients are not getting the legal defense they were guaranteed, further feeding our nation’s mass incarceration problem.  In this report, Thomas Giovanni and Roopal Patel identify impediments to effective counsel and propose three common sense reforms.

“The underfunding of legal defense for poor people increases the risk that innocent people will be convicted,” said Giovanni.  “The overcriminalization of petty, non-violent activity diverts scarce resources from real public safety priorities.  Until legislators commit the necessary resources to public defenders and rethink the classification of low-level offenses, the cycle of mass incarceration will continue at great societal, political, and fiscal costs.”

"The most interesting part of [Rand Paul's] speech was his widely anticipated defense of drug law reform."

The title of this post is drawn from this early report via Jennifer Rubin of the Washington Post concerning Senator Rand Paul's notable policy speech today at Howard University. Here is some context and more content from Rubin's strong first-cut analysis of Senator Rand's efforts (with one particular line emphasized by me):

Sen. Rand Paul (R-Ky.) delivered an important and intriguing speech at Howard University as part of his determined effort to expand the reach of the GOP and take his message everywhere.

His remarks, as prepared for delivery, highlighted the best and the worst aspects of his thinking, and they left some question marks....

The most interesting part of the speech was his widely anticipated defense of drug law reform.  “I am working with Democratic senators to make sure that kids who make bad decisions, such as non-violent possession of drugs, are not imprisoned for lengthy sentences.  I am working to make sure that first-time offenders are put into counseling and not imprisoned with hardened criminals.  We should not take away anyone’s future over one mistake.”  He described two young men, one white and privileged and the other mixed race and modest in income, who could have had their lives ruined by a drug arrest. He concluded with a kicker: “Instead, they both went on to become presidents of the United States. But for the grace of God, it could have turned out much differently.”

He then explained his opposition to mandatory minimum sentences:

"Our federal mandatory minimum sentences are simply heavy-handed and arbitrary. They can affect anyone at any time, though they disproportionately affect those without the means to fight them.  We should stand and loudly proclaim enough is enough. We should not have laws that ruin the lives of young men and women who have committed no violence.  That’s why I have introduced a bill to repeal federal mandatory minimum sentences.  We should not have drug laws or a court system that disproportionately punishes the black community."...

It was a nervy effort on his part, and a sincere one, I think, to explain his views to an audience not enamored of his party or philosophy. He should do more of it, and in more concrete terms, to persuade and explain how his philosophy works and why liberalism doesn’t.

He is a force to be reckoned with; liberals and conservatives ignore him at their own risk. If nothing else, he demonstrated that a forceful reiteration of history can illuminate the Republican Party and that conservatism deserves a fair hearing. That’s more than 90 percent of Republicans have done.

Regular readers (and certainly my dad and close friends) know that my political commitments lean toward the libertarian, and thus I was inclined to be a fan of Senator Rand Paul from the get-go. More broadly, as regular readers and others surely know, I strongly believe our modern federal criminal justice system ought not be so committed to costly big national government one-size-fits-all solutions for what seem, at least to me, to often be local small community diverse problems. Thus, I am especially excited that Senator Paul is apparently committed to bringing his libertarian perspective to the arena of federal criminal justice reform.

But the single sentence I have highlighted above reflect a different theme and one that strikes a different chord with my own philosophical commitments. Saying that "We should not take away anyone’s future over one mistake," reflects not a unique political philosophy but rather suggests a kind of personal moral philosophy grounded in a deep commitment to (1) recognizing the reality of human fallibility, and (2) embracing the potential for human improvement and achievement even after a human mistake is made.

Of course, if one really accepts this kind of deep moral commitment and wants criminal laws to reflect this commitment, there are a whole lot of important sentencing implications beyond reform of federal drugs and mandatory minimum sentencing terms. Such a personal moral philosophy, at least in my view, would necessarily call for eliminating the death penalty and LWOP for any and all first offenders, and it might even call for eliminating any imprisonment any and all first offenders. But I do not want to, at least right now, start setting out a script for just how Senator Rand Paul should seek to operationalize his political and personal philosophies. For now I just want to (a) celebrate the fact that he is really starting to talk the talk on long-needed federal criminal justice reforms, and (b) continue to get excited about how he will be soon walking the walk on long-needed federal criminal justice reforms.

Some recent and older related posts:

• "Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"
• Could Romney appeal to independents and minorities with bold crime and punishment vision?
• "Right on Crime: The Conservative Case for Reform" officially launches
• "NAACP, right-wing foes get friendly" when it comes to prison costs
• "Conservatives latch onto prison reform"
• NAACP head recognizes Tea Party favors some progressive criminal justice reforms (and sometimes more than Democrats)
• Rand Paul begins forceful pitch in campaign against federal mandatory minimums

Guest post on federal sentencing data and costs of incarceration for child porn offenses

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me this "accounting" of the latest year-end federal sentencing data:

"Yesterday, the U.S. Sentencing Commission published its Annual Report to Congress, and Sourcebook of Federal Sentencing Statistics for fiscal year 2012.  Increasingly, this part of the Commission’s work is becoming of central importance to its mission.  Indeed, the stats reveal something rather startling, if not outright shocking, about the cost of incarceration. 

"Since United States v. Booker, the federal government has spent nearly $30 BILLION on incarceration, which exceeds the GDP of many countries including North Korea.  Of this, over $2 BILLION was spent on incarcerating child pornography offenders; 12,115 have been sentenced (not all to imprisonment, but most) under the guidelines since 2006.  What makes this rather startling is looking at other major offense categories.  For example, in the same period of time, over four times as many people have been sentenced for fraud offenses (54,813), however, the total cost of incarcerating those individuals was almost a billion dollars LESS!  ($2.1 billion for child pornography; $1.3 billion for fraud).  In other words, incarcerating 12,115 child pornography offenders cost the public fisc $2.1 billion, while incarcerating nearly 55,000 fraud offenders cost (only) $1.3 billion.

"So, why the big difference in cost?  Easy.  The increasingly longer sentences imposed on child pornography offender than for any other major offense category.  What that translates into is that the actual annual cost per offender is far higher for child pornography offenders than for any other major offense category.  We spend nearly $25,000 incarcerating child pornography offenders than fraud offenders, who cost only $3,500 per year.  Fraud is comparatively cheap because a substantial number do not receive any term of incarceration, and those that do often serve less than a year.  Here is a chart showing the AVERAGE sentences over the past 6 years for all major offense categories.  A quick glance shows how out of the ordinary child pornography offenses are, or more accurately, how obscenely out of whack they are.

"After spending $2 Billion over the last six years, it’s far past time to rein in this madness.  The Commission’s recent report on Federal Child Pornography Offenses effectively disavowing the sentencing guideline for non-production offenses is an enormous leap in the right direction.  We simply cannot afford to continue being fiscally foolish on child pornography sentencing; these data put the magnitude of the madness in sharp relief.  Hopefully Congress acts quickly to grant the Commission’s wish to have 'enact legislation providing the Commission with express authority to amend the current guideline provisions that were promulgated pursuant to specific congressional directives or legislation directly amending the guidelines.'

"[NOTE ON CALCULATION METHODS: the statistics were derived from table 13 and the BOP’s recent cost of incarceration estimate from FY 2012.  I simply took the total number sentenced each year (06-12), multiplied that by the MEDIAN sentence in months from each (to be conservative in my estimate; the mean or average would have resulted in much higher figures) and divided that by 12 to get the number of “Inmate Years” for a category.  I then multiplied the Inmate Years by $26,359, which is the average annual cost of incarceration per BOP.  This gives you the Total Cost FY06-12 for a category, e.g. $2,118,989,027 for Child Porn.  The Total Sentenced FY 06-12 is just exactly what it says.  Per Inmate, Per Year Cost is just the total cost divided by the total sentenced, then that number divided by 7 (7 years inclusive of FY2006-2012).]"

Potent new quote from AG Eric Holder: "Too many people go to too many prisons for far too long for no good law enforcement reason"

I am very pleased to have seen from this new Politico article that Attorney General Eric Holder last night stressed the need for national criminal justice reform at the end of a major speech delivered at the 15th Annual National Action Network Convention. The full text of the lengthy speech is available at this link, and here is some of the context for the potent quotable stressed above:

[W]e must also move to improve our nation’s criminal justice system — and to promote public safety, deterrence, efficiency, and fairness at every level. We’re providing increased support for programs offering quality legal representation to those who cannot afford it, in accordance with the Supreme Court’s decision in Gideon v. Wainwright — a landmark ruling, handed down 50 years ago last month, which held that every defendant charged with a serious crime has the right to an attorney.

We’re also asking larger questions about the mechanisms of our criminal justice system as a whole – and, where appropriate, exploring ways to recalibrate this system and ensure that it’s as fair and effective as possible.

Already, this urgent need has driven the Administration to advocate — successfully — for the elimination of the unjust 100-to-1 sentencing disparity between crack and powder cocaine.  As we speak, it is propelling us to become both smarter and tougher on crime by facilitating more effective policing at the state and local levels; broadening the impact of innovative prevention, intervention, enforcement, and reentry programs; using intelligence-based strategies to target federal law enforcement resources and assistance to the areas where they’re most needed; and seeking new ways to help crime victims — especially victims of sexual assault — to make their lives whole again.

Our reform efforts are also driving us to engage allies like the Department of Education — and others — to confront the “school-to-prison pipeline” that transforms too many educational institutions from doorways of opportunity into gateways to the criminal justice system.  They are informing essential programs like the Department’s Defending Childhood Initiative and the National Forum on Youth Violence Prevention — which are helping to rally federal leaders, state officials, private organizations, and community groups to examine how we can better understand, address, and prevent youth exposure to violence — as victims or as witnesses.  And these efforts are inspiring us to forge new partnerships like the Federal Interagency Reentry Council — a group I first convened in 2011, which brings together leaders from 20 federal agencies to address barriers that formerly incarcerated individuals face in rejoining their communities, to promote best practices, and to confront these and related issues as more than just criminal justice problems.

The sheer number of Americans contending with these challenges is staggering. Well over two million people are currently behind bars in this country.  As a nation we are coldly efficient in our incarceration efforts. One in 28 children has a parent in prison.  For African American children, this ratio is roughly 1 in 9.  In total, approximately 700,000 people are released from state and federal prisons every year.  Nine to 10 million more cycle through local jails.  And 40 percent of former federal prisoners — along with more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release.

Now, there’s no question that incarceration has a role to play in our criminal justice system.  But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes a significant economic burden — totaling nearly $83 billion in 2009 alone — along with human and moral costs that are impossible to calculate.  As a nation — and as a people — we pay a high price whenever our criminal justice policies fall short of fairly delivering outcomes that deter and punish crime, keep the American people safe, and ensure that those who pay their debts to society have the chance to become productive, law-abiding citizens.

This is why — as we look toward the future — we must promote public safety and deterrence while at the same time ensuring efficiency and fairness. I am concerned by a troubling report released by the United States Sentencing Commission in February, which indicates that — in recent years — black male offenders have received sentences that are nearly 20 percent longer than those imposed on white males convicted of similar crimes. The Department of Justice is determined to continue working alongside Congressional leaders, judges, law enforcement officials, and independent groups — like the American Bar Association — to study the unintended collateral consequences of certain convictions; to address unwarranted sentencing disparities; and — where appropriate — to explore ways to give judges more flexibility in determining certain sentences.  Too many people go to too many prisons for far too long for no good law enforcement reason.  It is time to ask ourselves some fundamental questions about our criminal justice system.  Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive. It is time to examine our systems and determine what truly works.  We need to ensure that incarceration is used to punish, to rehabilitate, and to deter — and not simply to warehouse and forget.

I am so excited to now see that our nation's top law enforcement officer is now expressly saying, without reservation and in no uncertaint terms, what I have long believed about the big government waste in our massive modern criminal justice systems: "Too many people go to too many prisons for far too long for no good law enforcement reason."  I hope that, in addition encouraging that "ask ourselves some fundamental questions about our criminal justice system," that he will actively take the many possible steps within his power to get some of the people in prison for too long to ensure those who are now being just warehoused are no longer forgotten.

New ACLU of Ohio report documents "contemporary debtors’ prisons"

As reported in this local article, headlined "Poor unfairly jailed for failing to pay fines, report says," a new report by the ACLU of Ohio makes a set of provocative assertions about crime, punishment and modern economic realities. Here are the basics:

Courts in at least seven counties routinely jail Ohioans for owing court fines and fees, in violation of the state constitution and laws and against a 1983 U.S. Supreme Court ruling, according to a new study released by the American Civil Liberties Union of Ohio.

Ohio Supreme Court Chief Justice Maureen O’Connor says the report raises issues that “can and must receive further attention.”

While many defendants can pay their fines and walk away, for Ohio’s poor a fine “is just the beginning of a process that may involve contempt charges, mounting fees, arrest warrants, and even jail time,” the report says.

The ACLU documented debtors prison practices in Springboro mayor’s court and municipal courts in Hamilton County, Sandusky, Norwalk, Parma, Mansfield and Bryan....

Other courts, including Moraine mayor’s court, employ policies such as arresting defendants for not showing up for hearings where they’re supposed to explain why they haven’t paid their fines, said Mike Brickner, ACLU of Ohio communications director. The hearings are sometimes scheduled weekly, increasing the chances that the defendant will eventually miss one and face a bench warrant, he said....

The ACLU calls on the Ohio Supreme Court to issue administrative rules to require courts to hold hearings to determine whether a defendant is unable to pay fines owed or if they’re just unwilling.  Even if a defendant is just refusing to pay, he or she is supposed to be credited $50 per day spent in jail against the debt.

Jailing people costs between $58 and $65 per night, plus the time spent by officers and clerks to track the person down, arrest them, book them into the jail and file paperwork. Often the costs exceed the debts owed.  “It is not a good deal for the taxpayers.  (The defendants) aren’t not paying because they don’t feel like it.  They’re not paying because the literally have no money,” Brickner said.   Brickner said it creates a two-tier justice system for those who are able to pay fines and those who can’t.

The ACLU of Ohio's report is titled "The Outskirts of Hope" and is available at this link.  Here are a few paragraphs from the report's introduction:

The resurgence of contemporary debtors’ prisons sits squarely at this intersection of poverty and criminal justice. While this term conjures up images of Victorian England, the research and personal stories in this report illustrate that debtors’ prisons remain all too common in 21st century Ohio. In towns across the state, thousands of people face the looming specter of incarceration every day, simply because they are poor.

Taking care of a fine is straightforward for some Ohioans — having been convicted of a criminal or traffic offense and sentenced to pay a fine, an affluent defendant may simply pay it and go on with his or her life.  For Ohio’s poor and working poor, by contrast, an unaffordable fine is just the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time.  The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines. The U.S. Constitution, the Ohio Constitution, and Ohio Revised Code all prohibit debtors’ prisons. The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay.  Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors’ courts across the state continue this draconian practice. Moreover, debtors’ prisons actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them.

The Outskirts of Hope documents how contemporary debtors’ prisons work in Ohio and profiles some of the real people who have been impacted by this system.  The constant threat of incarceration has left an imprint on each of these individuals’ lives, interfering with their families, health, employment, and housing.  By shining a light on this dark practice in Ohio, this report hopes to move our state towards the promise of greater justice and fairness for those with the fewest resources.

Protests scuttle private prison group's plans to get name on university stadium

As reported in this prior post a few weeks back, the private prison corporation GEO Group Inc. had a deal in the works to give a huge check to a university in Florida and to get a stadium named after it in return.  But, as highlighted in this new Huffington Post piece, the deal is off:

It was a move that baffled sports marketing experts: Florida Atlantic University struck a deal in February to name its football stadium after a private prison company.

But after more than a month of backlash from students, faculty and human rights groups, the GEO Group Inc. pulled out of the $6 million deal with Florida Atlantic on Monday, citing the "distraction" it had caused for the company and the university.

"What was originally intended as a gesture of GEO's goodwill to financially assist the University's athletic scholarship program has surprisingly evolved into an ongoing distraction to both of our organizations," GEO Group chairman and chief executive George Zoley said in a statement released by the university on Monday.

Soon after the deal was announced in mid-February, it got attention in national news outlets and garnered a segment on the Colbert Report. Citing lawsuits against the company and federal reports detailing horrible conditions at a GEO-operated youth prison in Mississippi, host Stephen Colbert quipped: "This criticism is just one of the downsides of paying millions of dollars to have people pay attention to your company …. People start paying attention to your company."

The GEO Group is based in Boca Raton, Fla., just a few miles from Florida Atlantic University. Zoley, the company's chairman and chief executive, received bachelor's and master's degrees from the university and was a former chairman of the board of trustees. The university had been seeking a corporate sponsor for two years to pay down the debt on its newly built stadium, and the GEO Group pledged to pay $6 million over 10 years in exchange for the naming rights.

Student groups at Florida Atlantic quickly coalesced against the GEO Group Stadium deal, dubbing the facility "Owlcatraz" -- a play on the university's mascot, an owl. They staged a sit-in outside the university president's office in February and demanded that university leadership organize forums and discussions about GEO's human rights record.

The school's faculty senate overwhelmingly passed a resolution against the stadium name last month, noting that GEO Group's business practices "do not align with the missions of the university."...

The GEO Group's revenue has nearly tripled over the last decade, as the private prison company has captured greater shares of state and federal prison populations, including facilities that hold undocumented immigrants. GEO has also donated more than $1.2 million to the Florida Republican Party over the last three election cycles. Republicans in the state legislature last year came close to approving a massive expansion of private prisons in south Florida, an opportunity that the GEO Group mentioned frequently in calls with investors....

In a statement, Florida Atlantic President Mary Jane Saunders said Zoley and the company "have been loyal supporters of this university" and that she was thankful for all organizations that give to support "our mission, our pursuit of academic excellence and valuable contributions to this community."...

It is unclear where the university will get the money needed to pay off debt for its stadium. FAU had been searching for more than two years for a corporate sponsor before GEO Group agreed to pay $6 million over 10 years. The university built the $70 million football stadium in 2011, borrowing more than $45 million.

Some recent and older related posts: 

• "A Company That Runs Prisons Will Have Its Name on a Stadium"
• "Billions Behind Bars: Inside America's Prison Industry"
• Might private prisons actually cost taxpayers more than public prisons?
• "Who Benefits When A Private Prison Comes To Town?"
• New ACLU report critical of private prisons 
• "Too Good to be True: Private Prisons in America"