Tuesday, February 25, 2014
Notable emphasis on CJ reform in AG Holder speech to National Association of Attorneys' General
In Washington DC this morning, Attorney General Eric Holder delivered these remarks at the National Association of Attorneys General Winter Meeting. Here are sections that should be of distinct interest to sentencing fans:
In recent years, no fewer than 17 states — supported by the Department’s Justice Reinvestment Initiative, and led by state officials from both parties — have directed significant funding away from prison construction and toward evidence-based programs and services, like supervision and drug treatment, that are proven to reduce recidivism while improving public safety. Rather than increasing costs, a new report — funded by the Bureau of Justice Assistance — projects that these 17 states will save $4.6 billion over a 10-year period. And although the full impact of our justice reinvestment policies remains to be seen, it’s clear that these efforts are bearing fruit — and showing significant promise across the country.
From Georgia, North Carolina, Texas, and Ohio — to Kentucky, Arkansas, Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. And I believe that the changes that have led to these remarkable results should be carefully studied — and emulated.
That’s why, last August — in a speech before the American Bar Association in San Francisco — I announced a new “Smart on Crime” initiative that’s allowing the Justice Department to expand on the innovations that so many states have led; to become both smarter and more efficient when battling crime, and the conditions and choices that breed it; and to develop and implement commonsense reforms to the federal criminal justice system.
Under this initiative, we’re ensuring that stringent mandatory minimum sentences for certain federal, drug-related crimes will now be reserved for the most serious criminals. We’re taking steps to advance proven reentry policies and diversion programs that can serve as alternatives to incarceration in some cases. And as we look toward the future of this work, we’ll continue to rely on your leadership — and close engagement — to keep advancing the kinds of data-driven public safety solutions that many of you have championed for decades.
This also means making good on our commitment to provide formerly incarcerated people with fair opportunities to rejoin their communities — and become productive, law-abiding citizens — once their involvement with the criminal justice system is at an end. With the Justice Department’s strong support, the ABA has done important work in this regard, cataloguing tens of thousands of statutes and regulations that impose unwise collateral consequences — related to housing, employment, and voting — that prevent individuals with past convictions from fully reintegrating into society. As you know, in April 2011, I asked state attorneys general to undertake similar reviews in your own jurisdictions, and — wherever possible — to mitigate or eliminate unnecessary collateral consequences without decreasing public safety. I’ve made the same request of high-ranking officials across the federal government. And moving forward, I’ve directed every component of the Justice Department to lead by example on this issue — by considering whether any proposed rule, regulation, or guidance may present unnecessary barriers to successful reentry.
Two weeks ago, at Georgetown University Law Center, I called upon state leaders and other elected officials to take these efforts even further — by passing clear and consistent reforms to restore voting rights to those who have served their terms in prison or jail, completed their parole or probation, and paid their fines. I renew this call today — because, like so many other collateral consequences, we’ve seen that the permanent disenfranchisement of those who have paid their debts to society serves no legitimate public safety purpose. It is purely punitive in nature. It is counterproductive to our efforts to improve reentry and reduce recidivism. And it’s well past time that we affirm — as a nation — that the free exercise of our citizens’ most fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.
I applaud those — like Senator Rand Paul, of Kentucky — who have already shown leadership in helping to address this issue. And I encourage each of you to consider and take up this fight in your home states.
Monday, February 24, 2014
NY Times debates "Visiting Prisoners, Without Visiting Prison"
The Room for Debate section of the New York Times has has this new set of notable commentaries discussing the virtues and possible vices of using video feeds for prison visition. Here is the section's set up:
The attorney general, Eric Holder, recently instructed federal prisons to treat same-sex marriages the same as opposite-sex marriages, including visitation rights for spouses. But at many prisons, family visitation is increasingly difficult and even phone calls are exorbitantly expensive.
Some prisons have instituted “video visitation” as a solution. Does that help or create new problems?
Here are the contributions, with links via the commentary titles:
"A Service to Families and Children" by Doug Phillips, Sheriff's Office, Polk County, Iowa
"Symptoms of a Broken Prison System" by Glenn E. Martin, JustLeadershipUSA
"More Video Visits, and More In-Person Time" by Margaret diZerega, Vera Institute of Justice
"Potential for Exploitation, or Innovation" by Peter Wagner, Prison Policy Initiative
"Lessons From Military Families" by Barbara Van Dahlen, licensed clinical psychologist
Monday, February 17, 2014
"Follow the Money: How California Counties Are Spending Their Public Safety Realignment Funds"
The title of this post is the title of this intriguing paper available via SSRN authored by Jeffrey Lin and Joan Petersilia. Here is the abstract:
The California correctional system is undergoing a dramatic transformation under Assembly Bill 109 (“Realignment”), a law that shifted responsibility from the state to the counties for tens of thousands of offenders. To help manage this change, the state will distribute $4.4 billion to the counties by 2016-2017. While the legislation directs counties to use these funds for community-based programs, counties retain a substantial amount of spending discretion. Some are expanding offender treatment capacities, while others are shoring up enforcement and control apparatuses.
In this report we examine counties’ AB 109 spending reports and budgets to determine which counties emphasize enforcement and which emphasize treatment. We also identify counties that continue to emphasize prior orientations toward punishment and counties that have shifted their priorities in response to Realignment. We then apply quantitative and comparative methods to county budget data to identify political, economic, and criminal justice-related factors that may explain higher AB 109 spending on enforcement or higher spending on treatment, relative to other counties.
In short, our analysis shows that counties that elect to allocate more AB 109 funds to enforcement and control generally appear to be responding to local criminal justice needs, including high crime rates, a shortage of law enforcement personnel, and a historic preference for using prison to punish drug offenders. Counties that favor a greater investment in offender treatment and services, meanwhile, are typified by strong electoral support for the Sheriff and relatively under-funded district attorneys and probation departments.
Noticing racial disproportion in who ends up serving time in private prisons
This new Mother Jones piece, headlined "Why There's an Even Larger Racial Disparity in Private Prisons Than in Public Ones," highlights a new study concerning the racial composition of private prison populations. Here is how the piece begins, with all the notable links (including a link to the discussed study) included:
It's well known that people of color are vastly overrepresented in US prisons. African Americans and Latinos constitute 30 percent of the US population and 60 percent of its prisoners. But a new study by University of California-Berkeley researcher Christopher Petrella addresses a fact of equal concern. Once sentenced, people of color are more likely than their white counterparts to serve time in private prisons, which have higher levels of violence and recidivism (PDF) and provide less sufficient health care and educational programming than equivalent public facilities.
The study compares the percentage of inmates identifying as black or Hispanic in public prisons and private prisons in nine states. It finds that there are higher rates of people of color in private facilities than public facilities in all nine states studied, ranging from 3 percent in Arizona and Georgia to 13 percent in California and Oklahoma. According to Petrella, this disparity casts doubt on cost-efficiency claims made by the private prison industry and demonstrates how ostensibly "colorblind" policies can have a very real effect on people of color.
The study points out an important link between inmate age and race. Not only do private prisons house high rates of people of color, they also house low rates of individuals over the age of 50 — a subset that is more likely to be white than the general prison population. According to the study, "the states in which the private versus public racial disparities are the most pronounced also happen to be the states in which the private versus public age disparities are most salient." (California, Mississippi, and Tennessee did not report data on inmate age.)
Private prisons have consistently lower rates of older inmates because they often contractually exempt themselves from housing medically expensive—which often means older—individuals (see excerpts from such exemptions in California, Oklahoma, and Vermont), which helps them keep costs low and profits high. This is just another example of the growing private prison industry's prioritization of profit over rehabilitation, which activists say leads to inferior prison conditions and quotas requiring high levels of incarceration even as crime levels drop. The number of state and federal prisoners housed in private prisons grew by 37 percent from 2002 to 2009, reaching 8 percent of all inmates in 2010.
The high rate of incarceration among young people of color is partly due to the war on drugs, which introduced strict sentencing policies and mandatory minimums that have disproportionately affected non-white communities for the past 40 years. As a result, Bureau of Justice Statistics data shows that in 2009, only 33.2 percent of prisoners under 50 reported as white, as opposed to 44.2 percent of prisoners aged 50 and older.
So when private prisons avoid housing older inmates, they indirectly avoid housing white inmates as well. This may explain how private facilities end up with "a prisoner profile that is far younger and far 'darker'... than in select counterpart public facilities."
Private prisons claim to have more efficient practices, and thus lower operating costs, than public facilities. But the data suggest that private prisons don't save money through efficiency, but by cherry-picking healthy inmates. According to a 2012 ACLU report, it costs $34,135 to house an "average" inmate and $68,270 to house an individual 50 or older. In Oklahoma, for example, the percentage of individuals over 50 in minimum and medium security public prisons is 3.3 times that of equivalent private facilities.
"Given the data, it's difficult for private prisons to make the claim that they can incarcerate individuals more efficiently than their public counterparts," Petrella tells Mother Jones. "We need to be comparing apples to apples. If we're looking at different prisoner profiles, there is no basis to make the claim that private prisons are more efficient than publics."
Friday, February 14, 2014
Series of thoughtful posts on faith-based prisons
Sasha Volokh this week has done an effective series of informative posts on what we know and do not know about faith-based prisons. The final one is available at this link, and it starts and ends this way:
This is the final post in a series on the effectiveness of faith-based prison programs, based on my recent Alabama Law Review article, Do Faith-Based Prisons Work? (Short answer: no.) Monday’s post introduced the issue, Tuesday’s post surveyed some of the least valid studies, Wednesday’s post critiqued the studies that used propensity score matching and discussed other possible empirical strategies, and Thursday’s post talked about the most valid studies–those that used rejected volunteers as a control group.
Throughout, I’ve been putting the faith-based prison research side-by-side with the private schools research, because evaluations of each raise similar methodological problems. The fact that both are voluntary means that they can attract fundamentally different sorts of people, so their good results might be attributable to the higher-quality participants they attract. Today’s post ties the ends together and asks whether there’s any way forward for faith-based prisons....
Let’s take the broad view and come back to the education studies that I’ve been using as a point of comparison throughout this Article. Finally, after decades of research, we have some credible studies estimating the effect of private schools. The best evidence, taken from studies comparing accepted and rejected applicants, indicates that private schools do have a positive effect on the students who attend them, at least for black students and at least for math scores.
On the one hand, one can observe that, next to these results (modest as they are), it’s all the more disappointing that faith-based prisons haven’t shown much in the way of significant positive effects. But on the other hand, it took decades of research and debate by different groups, each using a slightly different empirical approach — and many finding little to no effect — before we got even the mild results we have on private education. This suggests that we should encourage more research on the matter, in different contexts, using a variety of different empirical techniques.
The result is that, if there’s no strong reason to believe that faith-based prisons work at all, and even less reason to believe that they work better than comparably funded secular programs, there’s also little reason to believe that they don’t work, and in many cases they may be the only available alternative. It’s probably sensible to allow such programs to operate and to allow the process of experimentation to work its course, provided that all this can be done constitutionally.
Tuesday, February 11, 2014
Federal judges give California two additional years to deal with prison population problems
As reported in this AP article, "federal judges on Monday gave California two more years to meet a court-ordered prison population cap, the latest step in a long-running lawsuit aimed at improving inmate medical care." Here is more about the latest chapter in the long-running federal litigation that made it to the Supreme Court a few years ago and that continues to impact California's criminal justice system in profound ways:
The order from the three-judge panel delayed an April deadline to reduce the prison population to about 112,000 inmates. California remains more than 5,000 inmates over a limit set by the courts, even though the state has built more prison space and used some private cells.
"It is even more important now for defendants to take effective action that will provide a long-term solution to prison overcrowding, as, without further action, the prison population is projected to continue to increase and health conditions are likely to continue to worsen," the judges said in a five-page opinion scolding the state for more than four years of delay.
California has reduced its prison population by about 25,000 inmates during the past two years, primarily through a law that sends lower-level offenders to county jails instead of state prisons. It also has spent billions of dollars on new medical facilities and staff, including opening an $839 million prison medical facility in Stockton last fall.
Yet in its latest ruling, the special panel of judges tasked with considering the legal battle involving overcrowding said the state has continually failed to implement any of the other measures approved by the panel and the Supreme Court that would have safely reduced the prison population and alleviated unconstitutional conditions involving medical and mental health care. The judges said the delays have cost taxpayers money while causing inmates to needlessly suffer.
However, immediately enforcing the population cap would simply prompt the state to move thousands more inmates to private prisons in other states without solving the long-term crowding problem, the judges said. Given that choice, they adopted a proposal outlined by Gov. Jerry Brown's administration that it can reach the population cap by the end of February 2016 through steps that include expanding a Stockton medical facility to house about 1,100 mentally ill inmates and freeing more than 2,000 inmates who are elderly, medically incapacitated, or who become eligible for parole because of accelerated good-time credits.
The judges said the state also has agreed to consider more population-reduction reforms in the next two years, including the possible establishment of a commission to recommend reforms of penal and sentencing laws.
Brown said the ruling was encouraging. "The state now has the time and resources necessary to help inmates become productive members of society and make our communities safer," he said in a statement.
Brown's administration said the alternative would have been to spend up to $20 million during the fiscal year that ends June 30 and up to $50 million next fiscal year to lease enough additional cells to meet the court order. With the delay, Brown said the state can spend $81 million next fiscal year for rehabilitation programs that would otherwise be spent to house inmates.
Inmates' attorneys had wanted the judges to require the state to meet the population cap by May. "We're very disappointed," said Don Specter, director of the nonprofit Prison Law Office that represented inmates in the crowding lawsuit. "We believe that there are substantial constitutional violations continuing right now, which result in prisoners suffering and dying because of prison overcrowding."...
Republican state Sen. Jim Nielsen, who once headed the state parole board, called the court order "tragic" and said it would endanger public safety. He blamed Brown, a Democrat expected to seek re-election this year, and the court for what he called a "disastrous new system that will result in the early release of many serious and violent inmates." The state should instead increase capacity in prisons and jails while investing in rehabilitation and early intervention programs, Nielsen said in a statement.
UPDATE: This Los Angeles Times article suggests that this latest federal court order might grease the path toward California finally creating a sentencing commission. Here is how the article begins:
Talk of a sentencing commission to review whom California sends to prison and for how long helped Gov. Jerry Brown win a two-year grace period from federal judges who want crowding reduced to a safe level. But there is no official move by the governor's office or Legislature to create one.
Brown's office was quick to point out Monday's federal court order giving the state until early 2016 to reduce crowding notes that the state only "will consider the establishment of a commission to recommend reforms of state penal and sentencing laws." Spokesman Jim Evans noted that was not a "promise" to create such a commission.
The proposal for a sentencing reform came from Senate leader Darrell Steinberg(D-Sacramento), who included it in a September 2013 letter to the federal judges supporting Brown's request for more time to deal with crowding.
Monday, February 10, 2014
"Fewer prisons — and yet, less crime"
The title of this post is the headline of this lengthy new piece by Detroit Free Press columnist Brian Dickerson. The piece highlights the work of one GOP state legislator and details that Michigan's recent reductions in its prison populations has not been followed by a significant crime increase. Here are excerpts:
Americans are weary of paying for prisons. After stuffing more and more people behind bars for more than two decades, the vast majority of states, including Michigan, have taken steps in recent years to reduce both the number of people they imprison and the length of time offenders remain incarcerated.
As prison populations fall, moreover, crime rates are following suit. Nobody has proved a causal relationship between the two trends, but the fact that some of the biggest reductions in crime have occurred in states that slashed their inmate populations most dramatically has debunked the presumption that public safety depends on lengthy sentences and stingy parole policies.
States that spent the 1980s and ’90s building more and bigger penitentiaries have found a better return in programs designed to divert offenders from prison, and smooth re-entry for those who’ve served their time. Politicians on the front lines say the accompanying shift in voter attitudes has been nearly as startling as the thaw in public sentiment toward same-sex marriage.
State Rep. Joe Haveman, a Holland Republican who chairs the House Appropriations Committee and has made sentencing reform a quietly messianic crusade, tells fellow lawmakers worried about looking soft on crime that voters understand that locking up more offenders is a dead end. “This movement wouldn’t be taking place if the people of this country didn’t realize we’ve made some mistakes,” Haveman says. “I come from the second-most conservative district in the state and the third most conservative county in the country,” Haveman says, “and nobody’s saying I’m wrong about reducing our prison population.
“This isn’t just good policy,” he adds, “this is where the public wants us to go.”...
In a study released last year, the Pew Center for the States reported that Michigan’s rate of incarceration plummeted 12% between 2007 and 2012, to 441 prisoners per 100,000 residents. During the same five-year interval, reported crime dropped 17%, mirroring a national decline.
It’s hard to pin either trend to a single factor, but corrections experts point to Michigan’s relaxation of its notorious “650-lifer law,” which for two decades mandated a life prison sentence for anyone convicted of possessing more than 650 grams of cocaine or heroin. In 1998, then-Gov. John Engler signed bills permitting lesser sentences for future drug offenders and allowing those already serving life terms for drug offenses to seek parole.
Michigan’s change — the amended law allowed 650-lifers to seek parole after 20 years — was a modest one. But it anticipated a nationwide retreat from the draconian drug penalties that many states put in place during the 1970s and ’80s, setting off a slow but steady decline in the percentage of state prisoners incarcerated for possessing or selling drugs.
Michigan corrections officials also credit a decrease in the number of offenders sentenced to prison for all crimes, a slight increase in paroles, and changes in parole supervision that resulted in fewer parolees being returned to prison for minor parole violations....
Haveman, who spearheaded the passage of a 2012 bill that allows more juvenile offenders to expunge their criminal records if they stay out of legal trouble [is] working to revive a state sentencing commission that would be empowered to propose a new, data-driven scheme of criminal penalties modeled on best practices nationwide. But Haveman’s fellow Republicans remain fearful of going too fast, especially in an election year.
Last year, after the U.S. Supreme Court ruled that mandatory life sentences for juvenile offenders violated the constitutional ban on cruel and unusual punishment, Haveman introduced legislation that would allow Michigan inmates already serving life sentences for crimes that they committed as teens to seek new sentences consistent with the court’s decision.
But state Attorney General Bill Schuette insists that only juveniles sentenced since the high court’s ruling in Miller v. Alabama are entitled to the relief provided by the justices. Last week, Haveman’s Republican colleagues in the House agreed, adopting his bill only after the provision authorizing parole hearings for current juvenile lifers had been stripped out....
Haveman, whose western Michigan district is ground zero for the region’s Dutch Christian Reformed conservatives, is an unlikely champion for corrections reform. A former executive director of the Holland Home Builders Association, he credits the late state Sen. William Van Regenmorter, an Ottawa County conservative who earned national recognition for his advocacy on behalf of crime victims, with sparking his interest in criminal justice and prisons.
But Haveman says he’s been equally influenced by relationships that he and his wife have formed in the course of mentoring paroled inmates in a re-entry program sponsored by their church. That experience, supplemented by Haveman’s visits with corrections workers and inmates at 31 of Michigan’s 32 correctional facilities, convinced Haveman that he had a lot in common with many of those behind bars.
“I certainly was a dumb teenager, and I made mistakes,” Haveman said. “But if I’d grown up with the policing and enforcement policies that are in place today ... well, I’m not sure I’d be in the state Legislature.”
Saturday, February 08, 2014
Is anyone making a broadside constitutional attack against private prisons?
The question in the title of this post is prompted by this notable new blog post by Professor Michael Tigar over at his blog TigarBytes. The post is titled "Private Prisons Are Unconstitutional," and here is an excerpt:
In Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court invalidated a system whereby the mayor who presided as a judge of minor offenses received a percentage of fines and fees that he levied on defendants. In Ward v. Monroeville, 409 U.S. 57 (1972), the fines assessed in the "mayor's court" provided a significant share of the town's financial resources. The mayor had a major role in the administration of town finances. The Court held this arrangement violated due process.
The due process evil of occupancy guarantees [in private prison contracts] works on two branches of government. The judge who sentences a defendant is an agent of the state, and awareness of the contractual obligation inevitably skews her judgment. It is but a small step from Tumey and Monroeville to such a conclusion.
However, there is an additional evil here. The prosecutors who choose whom to prosecute and for what offenses, and to advocate for particular sentences, have the most direct influence on incarceration, given that 90% or more criminal cases are resolved with guilty pleas. One must assess the influence -- direct and indirect -- on prosecutors to make sure that those prison beds are filled....
A case more directly on point is Young v. U.S. ex rel. Vuitton et fils, S.A., 481 U.S. 787 (1987). In New York, there was a federal injunction against sellers of fake Vuitton merchandise. Courts would allow Vuitton to select and pay special prosecutors, who would conduct contempt cases against violators. There are several opinions in the case, but the upshot is that without strict judicial supervision, the "Vuitton system" posed too great a danger that the special prosecutors would pay more attention to Vuitton's interests than to their ethical obligation to prosecute fairly.
Young is one case among many that result from the movement away from private prosecution to the system that prevails today in the United States. Prosecutors are public officials, and while their choices of defendants and charges are entitled to considerable deference, influences other than the impartial public interest in punishing and deterring crime are suspect.
I do not pretend, in this post, to explore all the relevant case-law. I simply express a hope that somebody will start to litigate these issues.
Wednesday, February 05, 2014
Michigan legislature nearing enactment of Miller fix without retroactivity
As reported in this AP article, headlined "Mich. House OKs Sentencing Rules For Young Killers," a state that has imposed LWOP on a very large number of juvenile murderers is getting close to revising its laws in response to the Supreme Court's constitutional concerns with mandating this punishment. Here are the details:
Young killers could no longer be sentenced to mandatory life without parole under legislation nearing final approval in Michigan, but those now incarcerated for crimes committed under age 18 would stay locked up despite pleas for a second look.
The Republican-controlled state House voted 62-48 Tuesday, mostly along party lines, to approve the new sentencing rules, 19 months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles. The Senate is expected to send the bill to Gov. Rick Snyder; it approved an earlier version in the fall.
The Supreme Court’s June 2012 decision – based on the constitutional prohibition against cruel and unusual punishment – is silent on retroactivity, and courts across the country have been divided ever since on the issue. It is especially relevant in Michigan, home to around 360 juvenile lifers, the second-highest number in the U.S.
House Criminal Justice Committee Chairman Kurt Heise said he wishes the high court had settled the retroactivity question, but lawmakers put guidelines in place in case it does in the future. The bill includes a “trigger” so prisoners now behind bars would be resentenced if the U.S. Supreme Court or Michigan Supreme Court determines the 2012 ruling should apply retroactively....
Juveniles can still be sentenced to life without parole after the high court’s decision. The sentence just cannot be mandatory on judges, who also must consider factors such as defendants’ immaturity, rehabilitation chances, family and home environment, peer pressures and inability as youths to navigate possible plea deals.
If Michigan juveniles charged as adults commit first-degree murder or other serious crimes causing death and do not receive life without parole, judges would have to sentence them to a minimum of at least 25 years and a maximum of at least 60 years under the bill....
It is estimated that 150 prisoners serving life without parole for crimes committed as juveniles were accomplices, not the actual killers.
Over objections from Michigan Attorney General Bill Schuette, U.S. District Judge John Corbett O’Meara in November directed the state to give juvenile lifers an opportunity to apply for release or face the appointment of a special master to oversee the process. His ruling was appealed.
Jody Robinson’s brother was killed by a 16-year-old and 20-year-old in Pontiac in 1990, and she later co-founded the National Organization of Victims of Juvenile Lifers. “This legislation will not only put Michigan laws in compliance with the U.S. Supreme Court, but it also gives victims’ families the hope that legal finality is a possibility and the nightmare of repeatedly reliving their loved one’s murder may soon come to an end,” Robinson said in a statement released by Schuette’s office.
Saturday, February 01, 2014
Two notable new Sentencing Project reports on sentencing reform and prison closings
This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings. Both reports are linked from this webpage, where the reports are noted and summarized in this way:
The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.
On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:
- A declining prison population in many states
- State fiscal constraints
- Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison
The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:
- Expanding alternatives to incarceration for drug offenses
- Policies to reduce returns to prison for supervision violators
- Comprehensive juvenile justice measures that emphasize prevention and diversion
Thursday, January 30, 2014
Deputy AG Cole's remarkable remarks to the NYSBA
Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting. But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text. Here are just a few sections that really caught my attention as a sentencing geek:
I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....
Over half of the federal prison population is there for drug offenses. Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time. But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.
In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few. In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.
Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....
All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice. We believe these efforts enhance our ability to protect our communities and maximize public safety. These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.
And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.
This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence. Commutation of sentence is an extraordinary remedy that is rarely used. But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.
As I said earlier, our prisons include many low-level drug offenders. Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior. Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....
[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....
But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.
To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.
This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start. We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.
Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
I just received a notable news release from Families Against Mandatory Minimums concerning a notable vote today by the US Senate Judiciary Committee. Here are the basic via the FAMM report:
Today, the U.S. Senate Judiciary Committee passed the first major reconsideration of federal mandatory minimum drug sentencing laws since the Nixon Administration. The Committee voted, 13-5, in support of S. 1410, the Smarter Sentencing Act, a bipartisan bill sponsored by Senators Mike Lee (R-UT) and Richard Durbin (D-IL).
The Smarter Sentencing Act:
- Reduces mandatory minimum sentences for federal drug offenders by half
- Narrowly increases the scope of an existing “safety valve” exception to federal drug offenses
- Allows 8,800 federal prisoners imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act of 2010, a unanimously-passed measure to reduce the racially discriminatory disparity between crack and powder cocaine offenses
- Requires the U.S. Department of Justice and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations carrying criminal penalties. This part of the bill addresses growing bipartisan concerns about the issue of “over-criminalization” – that there are too many federal crimes and that people can and do unknowingly and unintentionally break laws and regulations and serve jail or prison time for violations that could be better addressed with fines.
- Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses
This new piece up at Huffington Post, headlined "Biggest Overhaul in Federal Drug Sentencing in Decades Clears Major Hurdle, Despite Opposition From Heartless Prosecutors," provides more information about who is for and who is against this important legislative development:
Today the U.S. Senate Judiciary Committee passed bipartisan sentencing reform legislation that reduces the federal prison population, decreases racial disparities, saves taxpayer money, and reunites nonviolent drug law offenders with their families sooner. The reforms are supported by a strange bedfellows group of senators, including Senators Mike Lee (R-Utah), Rand Paul (R-Kentucky), Jeff Flake (R-Arizona), Ted Cruz (R-TX), Patrick Leahy (D-VT), Dick Durbin (D-IL), Carl Levin (D-MI) and Sheldon Whitehouse (D-RI). The legislation is opposed by some U.S. prosecutors who continue to defend a harsh, racially unjust system that has led to a greater percentage of black men being locked up in the U.S. than in South Africa at the height of Apartheid.
The bill, the Smarter Sentencing Act, is the biggest overhaul in federal drug sentencing in decades. It would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their own discretion when sentencing defendants, so that judges can consider the unique facts of each case and each individual before them. It would also make the reform to the crack/powder cocaine sentencing disparity that Congress passed in 2010 retroactive, so that thousands of people sentenced under the old draconian and racially unjust disparity can leave prison early.
Even though U.S. Attorney General Eric Holder urged the committee to reform mandatory minimum sentencing yesterday, the National Association of Assistant U.S. Attorneys took the somewhat rare step of opposing the Attorney General by releasing a letter in opposition to reform. "We do not join with those who regard our federal system of justice as 'broken' or in need of major reconstruction," the organization said. "Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving."
Tuesday, January 28, 2014
You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
The question in the title of this post is based on this notable Reuters story, headlined "Activists face sentencing for Tennessee nuclear facility break-in." Here are the interesting details, with emphasis added concerning the recommendations of the federal sentencing guidelines:
An elderly nun and two other peace activists are set to be sentenced on Tuesday on their federal convictions for damage they caused breaking into a Tennessee defense facility where enriched uranium for nuclear bombs is stored.
Sister Megan Rice, Michael Walli, and Greg Boertje-Obed admitted cutting fences and making their way across the Y-12 National Security Complex in Oak Ridge, Tennessee, in July 2012, embarrassing U.S. officials and prompting security changes.
The three were convicted by a federal jury last May of damaging a national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.
Federal sentencing guidelines call for Rice, 83, to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years. The defendants have been in custody since their conviction. Prosecutors have asked that the defendants receive sentences in line with federal guidelines. The defendants have asked for lesser sentences.
Bill Quigley, one of the attorneys of the defendants, said that all three are in good health, but that Rice, who turns 84 January 31, is "freezing cold in jail."
"They're all in great spirits and they're very much at peace about being sentenced," Quigley said. "We're hoping for significantly less time. People are even praying and hoping they'll be released."
Defense attorneys argued in court documents that the three were "completely nonviolent" when they were arrested. "They used the occasion to present symbolically their passion for nuclear disarmament," defense lawyers wrote. The three activists have received more than 2,000 cards and letters of support from around the world.
Prosecutors contended the break-in at Y-12, the primary U.S. site for processing and storage of enriched uranium, disrupted operations, endangered U.S. national security, and caused physical damage that cost more than $8,500 to repair. "The United States believes that the defendants should be held accountable for their deliberate choices and accept the appropriate consequences for their actions," prosecutors said in court documents.
The activists admitted cutting several fences, walking through the complex for hours, spray-painting slogans and hammering on the walls of the facility. When a guard confronted them, they offered him food and began singing.
I wonder how most Americans would react (especially the folks at FoxNews) if Sister Megan Rice had been caught and convicted of breaking into an uranium-enrichment facility somewhere near Tehran, and Iranian prosecutors were advocating that, at age 84, Sister Rice should be held accountable by having to spend another six years in an Iranian prison. Of course, that is not what Sister Megan Rice did: she broke into a uranium-enrichment facility in Tennessee, and it is American prosecutors who are advocating that she should be held accountable by having to spend another six years in an American prison. That obviously makes all the difference in the (western) world.
This recent article from Mother Jones, headlined "Nun Faces up to 30 Years for Breaking Into Weapons Complex, Embarrassing the Feds," provides a lot more background on this case. It concludes with this explanation of the religious background for the criminal actions by these activists:
The three imprisoned activists are members of the Plowshares Movement, a Christian peace initiative founded in 1980 when the brothers Daniel and Philip Berrigan and six others trespassed onto the General Electric nuclear missile facility in King of Prussia, Pennsylvania, and hammered on the nose cones of missiles. The movement takes inspiration from Isaiah 2:4: "And they will hammer their swords into plowshares" — the part of the plow that tills the soil. Plowshares actions typically involve the pouring of blood and the symbolic gesture of hammering weapons — in this case, the walls of the Y-12 uranium warehouse.
"They feel that nuclear weapons are the single greatest threat to God's creation that exists in the world today," [fellow activist Ralph] Hutchison says. "They think that there is a faith imperative. Nuclear weapons represent the ultimate anti-God. Anything that God is for — compassion, hope, promise of a future, health, security — they think are completely contradictory to the idea of nuclear weapons."
UPDATE: This Knoxville News Sentinel article reports on the now-interrupted sentencing today:
With snow coming down and federal officials closing the courthouse early, Judge Amul Thapar, prosecutors and attorneys agreed Tuesday to delay the sentencing of three protesters who broke into the Y-12 nuclear weapons plant. They determined there wasn’t enough time to complete the sentencing before the doors closed at 2:30 p.m. on the Howard H. Baker Jr. U.S. Courthouse.
The sentencing has been rescheduled to 9 a.m. on Feb. 18. Sister Megan Rice, an 83-year-old Catholic nun, Rice, who’ll turn 84 in two days, Michael R. Walli, 64, both from Washington, D.C., and Greg Boertje-Obed, 58, from Duluth, Minn., were convicted in May on federal charges of attempting to injure the national defense and depredation of government property.
Earlier Tuesday, the judge ordered the three to pay $52,953 in restitution, waiving interest and allowing payments to be made quarterly. The costs include repairs to fences, spray washing and cleaning the exterior of the plant’s storehouse for bomb-making uranium and additional security expenses.
January 28, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22) | TrackBack
Tuesday, January 21, 2014
Florida prisons struggling with extra costs of a hearty appetite for religion
This new New York Times article, headlined "You Don’t Have to Be Jewish to Love a Kosher," highlights the extra costs of respecting religious freedoms for the incarcerated. Here are excerpts:
Florida is now under a court order to begin serving kosher food to eligible inmates, a routine and court-tested practice in most states. But state prison officials expressed alarm recently over the surge in prisoners, many of them gentiles, who have stated an interest in going kosher.
Their concern: The cost of religious meals is four times as much as the standard fare, said Michael D. Crews, who is expected to be confirmed as secretary of the Department of Corrections in March. “The last number I saw Monday was 4,417,” Mr. Crews said of inmate requests at his recent confirmation hearing before a State Senate committee. “Once they start having the meals, we could see the number balloon.”...
Kosher food in prisons has long served as fodder for lawsuits around the country, with most courts coming down firmly on the side of inmates. As long as inmates say they hold a sincere belief in Judaism — a deeply forgiving standard — they are entitled to kosher meals, even if takes a little chutzpah to make the request.
“Florida is an outlier,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which has represented inmates around the country. “It’s a holdout. I don’t know why it’s being a holdout. It is strange that Florida, of all places, is placing a special burden on Jewish inmates. It’s just stubbornness.”
In Florida’s prison system. which faces a $58 million deficit, money is the easy answer for the battle against kosher food. The cost of three kosher meals in Florida is $7 a day, a big jump from the $1.54 for standard meals, Mr. Crews said. In New York State, where 1,500 inmates out of about 56,000 keep kosher, the cost of a kosher meal is $5 a person. In California, where some prisons have kosher kitchens, the price tag is $8, and the meals are served to 0.7 percent of about 120,000 inmates.
Last April, facing an inmate lawsuit, Florida began a pilot program for the religious diet at Union Correctional Facility near Jacksonville. Initially, some 250 inmates signed up, Mr. Crews said. But once other inmates spied the individually boxed lunches, 863 expressed a sudden interest in keeping kosher....
But the question of who gets a kosher meal is tricky. In all, less than 1.5 percent of the country’s 1.9 million inmates are Jewish, according to the Aleph Institute, a social services organization, and many do not even request kosher meals. “Who is a Jew?” Mr. Rassbach said. “People disagree about who is a Jew.”
The courts steer clear of that perilous debate. Instead, inmates need only say they have a “sincerely held” religious belief. Attempts by prison officials and rabbis to quiz prisoners about the Torah and the rules of keeping kosher were ruled not kosher. Tracing maternal lineage was similarly viewed unfavorably.... Some states, like New York, do nothing to try to discern who is feigning Jewishness. In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest.
But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle. “There should be away to ascertain who really does require a kosher meal for their religious belief,” said Rabbi Menachem M. Katz, director of prison and military outreach for the Aleph Institute in South Florida, “and who is just gaming the system.”
Sunday, January 19, 2014
Your tax dollars at work in incarceration nation
Two very different recent stories about two very different prisoners have the unifying theme of taxpayers footing the bill. Here are the headlines and the starts of the stories:
A federal appeals court in Boston today upheld a judge’s ruling that a transsexual inmate convicted of murder is entitled to a taxpayer-funded sex change operation as treatment for her severe gender identity disorder. In a ruling that was a first of its kind, a three-judge panel of the US Court of Appeals for the First Circuit said courts must not shy away from enforcing the rights of all people, including prisoners. “And receiving medically necessary treatment is one of those rights, even if that treatment strikes some as odd or unorthodox,” the court said.
“Having carefully considered the relevant law and the extensive factual record, we affirm the judgment of the district court,” the court said in a 2-1 ruling, which could still be appealed to the full appeals court or to the US Supreme Court.
Former Michigan Supreme Court Justice Diane Hathaway, who is serving a one-year sentence for bank fraud, wants out of prison and says her unique status is keeping her confined longer than what’s normal.
Hathaway, in a self-drafted motion filed today, asks U.S. District Judge John Corbett O’Meara to let her out early or allow her to serve the rest of her sentence at home. O’Meara sentenced Hathaway on May 28 to 12 months and one day in prison, plus two years’ probation, after she pleaded guilty to one count of bank fraud in connection with the short sale of her Grosse Pointe Park home. She reported to prison in August.
She is serving her time in Alderson, W.Va., at a federal facility sometimes referred to as Camp Cupcake because of its relatively comfortable conditions, compared with some federal prisons. Former Detroit City Council President Monica Conyers also served time there.
In her motion, Hathaway says she would normally be eligible for a move to a halfway house at this point in her sentence, but the Bureau of Prisons won’t consider such a move because of security and safety concerns because she is a former sentencing judge. Instead, she is only eligible to serve the last 10% of her sentence at home, Hathaway said in the motion. “Defendant is being denied equal protection of the law,” Hathaway told the judge.
Lest I be misunderstood, I am not saying that the incarceration costs for these two very different offenders are not worthwhile. Rather, I am just highlighting the (annoying?) reality that just about every interesting prison story in incarceration nation is being funded and fueled by state and federal tax dollars.
Friday, January 17, 2014
"Political odd couples push sentencing reform" ... and have little to show so far
The title of this post is drawn from the headline of this Washington Post entry, with a dash of my cynicism added and explained after an excerpt:
At a time when partisans in Congress don't agree on anything, they have found one area where they can: Reforming America's sprawling and costly prison system. Nearly 30 years after creating mandatory sentences for drug offenses, an unlikely band of lawmakers is moving forward with their plans to fix what they say is a broken criminal justice system....
The Senate Judiciary Committee is working through several reform bills crafted by lawmakers from the liberal and conservative wings of the two parties to put together a plan, which, they say, will help alleviate the financial and humanitarian costs of the spending guidelines.
So who are these unlikely co-sponsors? Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) have joined forces and put together a bill that would give judges flexibility when they hand down sentences for nonviolent drug offenders. A House counterpart to the Durbin- Lee bill is co-sponsored by the unlikely duo of Reps. Raul Labrador (R-Idaho) and Bobby Scott (D-Va.). Another bill, sponsored by Sens. Patrick Leahy (D-Vt.) and Rand Paul (R-Ky.) would expand that judicial leeway to some non-drug related crimes.
"I think money is driving this debate to some extent but also honesty," Durbin said in an interview. "After 30 years we ought to take a look at these laws. These aren't the 10 Commandments."
Overcrowded prisons have been increasingly a strain on federal budgets, costing an estimated $60 billion per year. Since the mandatory minimum law was implemented in 1986, the prison population has exploded -- from around 58,000 in the late 1980s to more than 217,000 in 2012, according to the Department of Justice and the Bureau of Prisons.
“People are starting to see the unfairness, people who have been kept in jail, sometimes 10, 20, 30, even 50 years for a non-violent crime,” Paul said in an interview. “I personally think if you made a mistake, a youthful mistake, that when you serve your time, and the time should be a reasonable time, that you should be able to get back into society.”
The timing of a reform bill is still uncertain, but Leahy, who chairs the Senate Judiciary Committee, indicated in a statement that a mark-up was in the near future. "Doing nothing means cutting funding from law enforcement, victim services and crime prevention efforts -- doing nothing makes us less safe," he said. "We will soon be marking up legislation to address this important issue." Labrador said House Judiciary Chairman Bob Goodlatte (R-Va.) has agreed to have a hearing in the House on the issue this year....
It's not the first time this issue has brought the two sides together. The Fair Sentencing Act of 2010, that eliminated the sentencing disparity between crack and powder cocaine, was put together by Durbin and Alabama Republican Jeff Sessions as they worked out next to each other in the Senate gym. The bill eventually passed by unanimous consent.
I have grown more cynical and pessimistic about statutory sentencing reforms coming from Congress now that it has been almost a full year since Senators Leahy and Paul started pushing for mandatory minimum reform. It would seem all political, social and economic forces are in line for major statutory sentencing reform, and yet we continue to hear lots of talk about reform and little tangible action in Congress. Especially given that it took decades for crack reform talk to become the FSA, and given that the FSA was itself a pretty tepid and incomplete reform, I hope all this talk from Congress is not generating false optimism about significant statutory sentencing reforms coming from Congress.
That all said, I am much more optimistic that other federal sentencing players, especially the US Sentencing Commission and lower court judges, can and will be inspired by all the reform talk in Congress to take tangible action in courtrooms. Indeed, I think the very important new proposal to cut federal drug sentences across the board (basics here, commentary here) only came to happen because that politically cautious body sensed members of Congress would not be likely to vocally resist a reduction of drug sentencing guidelines.
Monday, January 13, 2014
Could new, creative prison architecture be a key to unlocking incarceration nation?
The question in the title of this post is prompted by this very interesting article forwarded to me by a helpful reader headlined "This Radical New Prison Design Could Prevent Prisoners From Coming Back." Here are the highlights (though I recommend that readers click through to see lots of pictures and useful links):
A recent topic that has been receiving attention among architects is the issue of designing prisons. The increased awareness of the problem has been spearheaded by Raphael Sperry, founder of Architects/Designers/Planners for Social Responsibility, who has been campaigning to have the AIA forbid members from designing execution chambers or solitary confinement units. At the other end of the scale, Deanna VanBuren, a principle of FOURM Design Studio and a member of ADPSR herself, has championed ‘restorative justice’, an approach to the justice system which emphasizes rehabilitation and reconciliation in order to prevent people from re-offending.
Now Glen Santayana, a student at Harvard’s Graduate School of Design, has used his thesis project to add to this debate, designing PriSchool — a prison which both integrates with a school of criminology and is embedded within the community. Could this radical approach to prison design really be an answer to the stretched prison system in the US (and elsewhere)?...
PriSchool is designed precisely for those non-violent offenders who struggle to stay on the right side of the law when released. Situated in a Brooklyn neighborhood surrounded by “million-dollar blocks” — city blocks with such high crime that the state is spending over a million dollars a year to incarcerate their residents — the prison/school hybrid rethinks what a prison can achieve, positing it as a place where prisoners and students can learn from each other, and where criminals can be rehabilitated in preparation for their return to society.
The complex is split into four buildings, consisting of (from West to East) the school of criminology, the prison itself, a ‘pre-release’ building and a community center. The form of these buildings is warped to show where the functions of each building intertwine, with bridges between them. Prisoners and students get the opportunity to take part in lessons together, giving students the chance to get a sense of the real-life situations which they study, and offering the prisoners intellectual stimulation and a deeper understanding of the legal structure in which they are entangled. This promotes a sense of dignity and empowerment which can reduce their chances of re-offending.
In the pre-release building, inmates whose sentences are nearing an end get the opportunity to learn new skills, gaining access to metal and wood workshops, computer labs and a range of other environments where they can learn hands-on, employable skills. Finally, the community center is posited as a peace offering to those members of the wider community who are skeptical about being in a neighborhood arranged around a prison; it is hoped that the benefits to the community will be greater than the stigma of the prison, and that this stigma will also eventually recede over time.
Saturday, January 11, 2014
A few notable headlines concerning notable state prison realities
My review of sentencing law and policy stories this morning revealed this array of noteworthy reports and commentary pieces concerning a number of state prison systems across the US. I have reprinted the headlines and subheading, which serve as a kind of summary of the issues covered:
From Arizona here, "Private prisons really are cheaper for taxpayers; Lawmaker: Column, editorial are just plain wrong"
From California here, "California prison population expected to grow over next 5 years: Ten thousand more inmates are expected, complicating Gov. Brown's effort to abide by a court order to reduce the prison population."
From Ohio here, "Ohio's prison population nears record high, raising the prospect of inmates being released early"
From Oklahoma here, "Oklahoma Board of Corrections looks at expanding use of private prison beds: The Oklahoma Board of Corrections is looking at three options to deal with overcrowding at the state's prison facilities: expanding public prisons, contracting for more private-prison beds, and buying or leasing one of the state's two empty private prisons."
From South Carolina here, "When Good People Do Nothing: The Appalling Story of South Carolina's Prisons: A judge's order in an inmate abuse case highlights the role played, or not played, by the state's political and legal infrastructure."
Friday, January 10, 2014
Mass incarceration, marijuana and deeper dives into national employment data
The title and topic of this post is driven by the curious news today, reported here by the AP, that US employers "added a scant 74,000 jobs in December after averaging 214,000 in the previous four months," but that also "the unemployment rate fell from 7 percent in November to 6.7 percent, its lowest level since October 2008." The standard "official reason" for low job growth but a big dip in the unemployment rate is "because many Americans stopped looking for jobs." But I started then thinking about whether and how the thousands of people now employed in state-legal (but federally-prohibited) marijuana businesses are counted in this national data. Could it be that a significant number of people working in the state-legal marijuana industry are now counted as unemployed and/or not looking for work (just as I assume all illegal cocaine dealers are counted)?
These thoughts are based in part on this one notable Montana study, which students in my marijuana seminar found when they assembled information about job creation in marijuana industry. Though the data in this 2011 study may be hinky because it was produced by the Montana Medical Growers Association, the study estimated that 1,400 new jobs had been created in the sparcely populated state of Montana alone and that "approximately 70% of employees [in the Montana marijuana industry] were previously unemployed." Extrapolating from these numbers, it seems plausible that there may already be 50,000 or more Americans already working in state-legalized medical marijuana businesses, and these employment numbers are certain to grow in states like Colorado and Washington now with a huge new recreational marijuana market.
But do all Americans now working in the (cash only) state-legal marijuana industry count as employed in the federal data? I would suspect not given that the federal law still regards all these folks as illegal drug dealers on par with a guy on a street-corner trying to peddle crack. Perhaps more worrisome for those concerned about the abuse of federal benefits, how many Americans have acquired jobs in the state-legal marijuana industry but remain happy and eager to report they are "still looking for (fully legal) work," and thus are collecting federal unemployment insurance while actually working in the marijuana industry? Or instead, once formerly unemployed folks get a job within a state-legal (but federally-prohibited) marijuana business, do they tend then to just report that they have given up looking for work?
As the title of this post suggests, I am asking these questions about the mariujuana industry and employment data in part because shrewd labor-force data-crunchers have long known that the massive increase in incarceration during the 1990s played a huge role in making national unemployment data look better than the reality. During from 1985 to about 2005, hundreds of thousands of unemployed (and mostly low-skilled) Americans were added to our prison population, taking them out of the labor force entirely and thus (artificially) driving down the unemployment rate statistic. (In addition, the need to build and staff ever more prisons was a terrific government stimulus program for low-skilled labor.) But in the last decade or so, the national prison population has been relatively stable: each year roughly 700,000 new persons get admitted to prison and another 700,000 get released. However, the reality of prison life and the challenges of a criminal record mean that every person newly released from prison each year is all but certain to have a harder time finding legal employment than every person newly admitted to prison that year.
Put differently, growing the prison-industrial complex often makes for better superficial national job numbers, while keep America's prison population stable (or getting it to decline) can end up hurting simplistic national job numbers. (That reality is one of many reasons it is often so much easier to get politicians to support laws that fuel prison growth rather than laws that fuel prison reduction.)
With these statistical realities in mind, I am now wondering and worrying in light of the latest national employment data whether a reverse data-collection problem could be at work with the marijuana-industrial complex as long as pot prohibition is still the law at the federal level. Could significant growth of a state-legal "marijuana-industrial complex" actualy produce federal data that makes national employment data look worse than it really is?
Obviously, I am not a labor economist, and I could be waaaaaay off base here. But I suspect and fear few serious US labor economists are even considering these realities much, if at all, as they think about the modern American labor force and its needs in the years ahead. More broadly, the only key takeaway from this post should be that just as mass incarceration is a labor issue as well as a criminal justice issue, so too do I think marijuana law and policy is a labor issue as well as a criminal justice issue.
Tuesday, January 07, 2014
"Should We Let Prisoners Upgrade Their Prison Cells?"
The title of this post is the headline of this interesting report from the OZY media resource. Here are excerpts:
Would prison be so bad if your cell was spacious and included a private bathroom, kitchen and cable TV? These are the accommodations for some prisoners at San Pedro prison in La Paz, Bolivia. But luxury isn’t free: For about $1,000-1,500, an inmate can purchase a high-class cell for the duration of his or her sentence.
San Pedro is divided into eight sections ranging from shared small cells with risks of stabbings at night to the opulent cells that have access to billiard tables and fresh juice stands. Every person must buy or rent a cell, no matter the quality, and many inmates have jobs as hairdressers, laundry staff, food stall operators or TV repairmen.
Does the idea of paying for better prison accommodations sound ludicrous? Would you bet this could never happen in the U.S.? Think again.
In California there are multiple jails with “pay-to-stay” programs where inmates can pay from $75-155 a day for a private cell in quiet areas away from violent offenders, and they are occasionally allowed to bring in an iPod or computer for entertainment. They must be approved for the program and their crimes are usually minor offenses. The ACLU is not a fan, calling the program a “jail for the rich.”
Supporters of pay-to-stay say they benefit the cities where they are located by providing revenue. For example, if the Fremont jail — which spends $8.35 a day on each inmate — houses 16 inmates for two nights per week a year, the city would net a profit of about $244,000. One immediate question is whether cities should make a profit off of prisoners. Another question has to do with equality.
Two people who commit the same crime but end up in different facilities depending on their ability to pay isn’t exactly equitable, but the American incarceration system doesn’t have the best record when it comes to treating the poor and rich equally....
But what if you weren’t allowed to use Daddy’s dollars to secure better living conditions while serving time for a DUI? What if, instead, you started out the same as every other inmate, regardless of personal wealth or outside resources?
Could a fairer option be that you start your sentence with a financial blank slate, earn money by taking jobs inside the prison or jail and then apply your self-earned dollars to book a nicer and more comfortable living situation? Should prisoners be allowed to pay to upgrade the quality of their cells, or should the nature of their crime be the sole factor in how they live out their prison terms?
January 7, 2014 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack