Saturday, September 03, 2016
New York Times highlights modern rural incarceration realities
After various overseas internet struggles, I have been able to get on-line long enough to spotlight this great front-page article from Friday's New York Times about rural criminal justice headlined "This small Indiana county sends more people to prison than San Francisco and Durham, N.C., combined. Why?". Here is the start of a lengthy article that merits a full read:
Donnie Gaddis picked the wrong county to sell 15 oxycodone pills to an undercover officer. If Mr. Gaddis had been caught 20 miles to the east, in Cincinnati, he would have received a maximum of six months in prison, court records show. In San Francisco or Brooklyn, he would probably have received drug treatment or probation, lawyers say.
But Mr. Gaddis lived in Dearborn County, Ind., which sends more people to prison per capita than nearly any other county in the United States. After agreeing to a plea deal, he was sentenced to serve 12 years in prison. “Years? Holy Toledo — I’ve settled murders for a lot less than that,” said Philip Stephens, a public defender in Cincinnati.
Dearborn County represents the new boom in American prisons: mostly white, rural and politically conservative. A bipartisan campaign to reduce mass incarceration has led to enormous declines in new inmates from big cities, cutting America’s prison population for the first time since the 1970s. From 2006 to 2014, annual prison admissions dropped 36 percent in Indianapolis; 37 percent in Brooklyn; 69 percent in Los Angeles County; and 93 percent in San Francisco.
But large parts of rural and suburban America — overwhelmed by the heroin epidemic and concerned about the safety of diverting people from prison — have gone the opposite direction. Prison admissions in counties with fewer than 100,000 people have risen even as crime has fallen, according to a New York Times analysis, which offers a newly detailed look at the geography of American incarceration.
Just a decade ago, people in rural, suburban and urban areas were all about equally likely to go to prison. But now people in small counties are about 50 percent more likely to go to prison than people in populous counties. The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.
“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.” He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”
But many criminal justice experts say that the size of the disparities undercuts the basic promise of equal protection under the law.
“Letting local prosecutors enforce state laws differently throws all notions of equality under the law out the window,” said Peter Wagner, executive director of the Prison Policy Initiative, which advocates reducing incarceration rates. “This data puts governors and legislative leaders on notice that if they want to put criminal justice reforms into effect, they need to look at how prosecutors use and abuse their discretion.”
Wednesday, August 31, 2016
Clemency advocate explains her view on "How to inspire criminal justice reform"
The title of this post is drawn in part from the headline of this lengthy new CNN commentary authored by Brittany K. Barnett-Byrd, whom CNN describes as "an attorney and criminal justice reform advocate [who] has handled several successful clemency petitions, including the nationally reported cases of Sharanda Jones and Donel Clark." Here are excerpts from her commentary:
As the daughter of a formerly incarcerated mother, I know that when one person goes to prison, the whole family goes to prison. Mass incarceration has devastated families and communities across America. The United States makes up nearly 5% of the world's population and almost 25% of the world's prison population. Today, there are over 2.2 million people incarcerated in this country.
The dramatic growth in incarceration as a result of the failed war on drugs cannot be ignored. At the state level, the number of people in prison for drug offenses has increased tenfold since 1980. In addition, nearly half of all federal prisoners are serving time for drugs.
While the statistics are astonishing, to truly understand the issue, we must look beyond the numbers and see the human capital sacrificed in the name of misguided appeals for law and order. The human element is rarely addressed but is necessary to inspire and drive the change needed to reform our criminal justice system.
#17061-112. This number was assigned to my client Corey Jacobs 17 years ago when he began serving a life sentence in federal prison for nonviolent drug convictions. Corey had no prior felony convictions. But with no parole in the federal system, he has been fundamentally condemned to die in prison.
Over two decades ago, Corey, now 47, began dealing drugs with a small group of college friends in Virginia. Though Corey was not a kingpin, he received an essential death sentence largely because three of his co-conspirators testified against him in exchange for reduced sentences. Due to federal laws, Corey was held accountable for all "reasonably foreseeable" quantities of drugs attributed to the five other people involved in the conspiracy. Absolutely no dimension of his conduct was violent.
Despite facing the grim reality of dying in prison, Corey has worked diligently to prove that he is deserving of a second chance. He has devoted himself to extensive rehabilitative programming, completed three self-improvement residential programs and received over 100 learning certificates that have enhanced his education and personal development....
While there is little doubt that a prison sentence was warranted in Corey's case, he doesn't deserve to die in a cell because of it. Life in prison without the possibility of parole is, short of execution, the harshest punishment available in America. It screams that a person is beyond hope, beyond redemption. It suffocates mass potential as it buries people alive. And, in Corey's case, it is a punishment that does not fit the crime.
Recently, I went to visit Corey in prison to discuss his pending clemency petition. As I sat in the bleak, cold concrete interior of the attorney-client visiting room, I was struck by Corey's remorse, intelligence and dedication to bettering himself. I learned Corey is an avid meditator. He mentioned how he once read nature could enhance the meditation experience, but he had not seen a tree in years. The prison yard is surrounded by daunting, gray brick buildings. The rest of our conversation was a blur because I could not move past the fact that he had not seen a tree. A tree.
Though I never imagined that visiting a United States Penitentiary would change the trajectory of my legal career, the state of consciousness I achieved after meeting Corey empowered me. I no longer wanted to be just a lawyer. I wanted to use this platform to promote the greater good. Because of thousands of cases like Corey's, three months ago I resigned from my corporate law job to become a full-time advocate for criminal justice reform....
Last year the Sentencing Reform and Corrections Act of 2015 (S. 2123) was introduced into Congress. This crucial bill would pull back mass incarceration and save taxpayers billions of dollars by reducing mandatory minimums and making the Fair Sentencing Act of 2010 retroactive. And yet despite unprecedented bipartisan support, it still has not come to the Senate floor for a vote. We must urge Congress to pass this overdue, life-changing legislation.
But Congress is not the only branch of government beginning to address this injustice. Obama has shown he is committed to reinvigorating the clemency process through his administration's groundbreaking initiative to prioritize clemency applications for individuals like Corey....
Our criminal justice system is tangled in overcrowded prison cells, draconian sentences, shameful sentencing disparities, burdensome incarceration costs and heartbroken children and families. Reform is desperately needed. The time is now for the people who hold the levers of power to believe in humanity and to simply do the right thing. After all, there is nothing more urgent than freedom.
Monday, August 29, 2016
Does a weekend tweet from House Speaker Paul Ryan suggest that federal statutory sentencing reform still has a chance in the months ahead?
The question in the title of this post is prompted by this weekend tweet from the account of House Speaker Paul Ryan, which includes a clip of a pro-sentencing reform speech that Speaker Ryan gave earlier this year and has this notable new sentence: "There are over 2 million people in our prisons, and a lot of them are just people who made a mistake." Ever eager to hope that federal statutory sentencing reform is not completely dead for the current year, I want to consider this tweet a positive development to that end.
That said, I learned of this tweet from this Breitbart posting, and a good bit of the posting highlights why I probably should not really get too excited or hopeful in the wake of this tweet:
In July, Ryan said he believed that Congress “overcompensated” in the 1990s by imposing tough jail sentences to combating a decades-long crime wave and a drug epidemic that destroyed communities and lives across the country. He’s now backing legislation that would slash sentences for convicted drug traffickers.
“In the 1990s, to your first point, I think government, both Republicans and Democrats, overcompensated on our criminal code. And we went too far and there are disparities — crack cocaine vs. powder cocaine — there are clear disparities and more importantly, I think that we’ve learned there are better ways of dealing with some of these problems than locking up somebody for 20 or 30 years,” Ryan told NRP host Steve Inskeep. “You end up ruining their lives, ruining their families, hurting communities, and then when they try to re-enter into society, they’re destitute.”
“So I really think there are better methods of dealing with these problems and I think that is part of criminal justice reform. I think that’s something I put out in the poverty plan that I first authored three years ago. So we intend on bringing these bills up in September,” he added.
Conservative critics have labeled the so-called reform efforts as “jailbreak” bills. For example, the Sentencing Reform and Corrections Act of 2015 (SRCA) would reduce penalties for drug traffickers profiting from poisoning communities. Neither would these drug-related penalty reduction bills significantly reduce some racial disparities, law enforcement officials say. “Blacks make up 37.5 percent of the prison population at the state and federal levels. If we released those convicted on drug charges alone the percentage of Black males in prison would drop to 37 percent — a mere half of one percent,” Milwaukee County Sheriff David Clarke testified before the House Judiciary committee.
Furthermore, the rollbacks will harm the communities they’re allegedly intended to help, say critics. “People who are convicted of a crime and imprisoned are a very small minority of the U.S. population … they comprise approximately 6.6 percent of the population,” Peter Kirsanow and a member of U.S. Commission on Civil Rights wrote in a letter to Grassley. “These people have managed to be less law-abiding than the remaining 93.4 percent of the U.S. population – quite a feat,” he wrote. “It is perhaps less of a feat when one considers that many offenders have serious additional problems that likely incline them toward criminality.”...
“This bill doesn’t touch simple possession, because there’s virtually no simple possession cases in federal court,” said prominent critic Alabama Sen. Jeff Sessions. “The Senate bill would drastically reduce mandatory minimum sentences for all drug traffickers, even those who are armed and traffic in dangerous drugs like heroin, and provide for the early release of dangerous drug felons currently incarcerated in federal prison.”
Meanwhile, drug overdoses, mostly heroin and other opioids, killed over 47,000 Americans in 2014 alone and nearly half a million in the past decade. Nearly all heroin sold in the U.S. is imported illegally from Mexico. “While Colombia has historically been the biggest source of heroin sold in the United States, Mexican output has since surpassed it, DEA officials say. Together, the two countries account for more than 90 percent of the U.S. heroin supply, and nearly all of it is smuggled into this country by Mexican traffickers,” the Washington Post reports.
Yet Ryan continues to push the bipartisan elites’ sentencing reduction agenda even as Obama continues his “stigmatize-and-federalize” campaign against local and state law enforcement — and as the Obama administration is set to free 70,000 federal prisoners. But Republicans’ efforts to partner with Democrats on leniency for criminals has stalled amid public concern. Fifty-three percent of Americans, and 68 percent of nonwhites, are “worried a great deal” about rising violent crime, according to an April Gallup poll.
The Senate sentencing-rollback bill has been stopped by opposition from multiple Senators, including Sessions and Sen. Tom Cotton. Also, President Barack Obama has rejected a proposed deal from Sen. Orrin Hatch and other Republicans leaders who have offered to back the rollback bill if Democrats support a “mens rae” rollback of white-collar business prosecutions.
Friday, August 26, 2016
Some hisorical perspective on today's debates over private prisons
Over at Bloomberg View, Stephen Mihm has this intriguing new commentary running under the headline "America's Rocky Relationship With For-Profit Prisons." Here are excerpts:
Shareholders of [private prison] corporations, along with advocates of privatization, shouldn’t shrug off the federal decision so hastily. They should remember what happened the last time that prison privatization became popular, and that proponents sought to turn incarceration into a business, claiming it was cheaper, more efficient, and could even achieve better results than public control.
This belief foundered on the reality that privately-run prisons often failed to turn a profit, and when they did, those profits often came at the expense of the inmates’ well-being. These failures and abuses eventually led to a repudiation of private prisons, with the business of punishment and rehabilitation monopolized by the state. Another shift may now be at hand....
[I]n 1825, Kentucky surrendered the entire state-run prison to Joel Scott, a textile manufacturer. Scott invested money in the prison but also managed to turn a significant profit. Emboldened by this success, other states quickly followed suit, particularly in the West and the South. In some cases, the shift to private management yielded solid results; other times, though, it ended in disaster. When California hired a crooked entrepreneur named James Estell to build and maintain its new San Quentin prison, the new penitentiary soon earned a reputation for corruption, lax management and cruelty toward prisoners.
Estell, who forced prisoners to make bricks, refused to invest in necessities -- such as a wall to keep the inmates within the prison. Convicts routinely escaped, even after the state grudgingly built a wall, and while under private control, some 47 inmates escaped each year. When the state took over the prison in 1865, that number dropped to four.
Nonetheless, with rare exceptions, the contract system continued to flourish. This was particularly true in the South, which used the convict lease system to institute a de facto slavery for a prison population that was overwhelmingly black. Throughout the region, state prisons turned over their inmates for work on railroads, turpentine plantations, roads and other projects. The incompetence and brutality of these for-profit prisons was staggering. In Texas, for example, almost a fifth of the inmates escaped in 1876, and more than 6 percent died, and another 10 percent was listed as “missing,” but were not known to have escaped. Similar scandals plagued other Southern for-profit ventures.
In the end, these abuses gave ammunition to a coalition of critics. Humanitarian reformers argued that the for-profit prisons made a mockery of the idea or rehabilitation. Federal officials who studied prison businesses discovered that prison contractors kept dying industries alive through subsidies of cheap labor. Labor unions, which hated competition from prison labor, agreed.
The first major defeat for private prisons was in 1887, when Congress passed a law forbidding the contracting of any inmates in the federal prison system. With private enterprise banned from the national penitentiaries, the battle shifted to the individual states. After a pitched battle, New York curtailed then completely banned private contractors in the prison system by 1897. Massachusetts followed suit, as did Pennsylvania.
The pro-profit prison industry fought back, but eventually state after state banned for-profit arrangements with contractors, moving prisons on to the public accounts. This shift was accompanied by the return of another, older idea: that prisons could help rehabilitate inmates, not merely punish them. If reform was the primary purpose of penitentiaries, profit necessarily became a secondary concern. The decline of the private prison was gradual and halting, but it would eventually receive federal sanction with the passage of the Ashurst-Sumners Act, which made it illegal to transport prison-made goods across state lines.
Eventually, though, the tide would turn yet again. In 1979, President Carter signed the Justice System Improvement Act, which laid the foundation for the Prison Industries Enhancement Program. This lifted the ban on interstate commerce in goods made by prisoners, and helped usher a new age of prison privatization, spearheaded by corporations such as CCA.
These companies have thrived as the nation’s prison population skyrocketed, with many inmates incarcerated for non-violent drug offenses. As unease over this situation has grown, voices on both ides of the political spectrum have begun to agitate for prison reform. And that has gone hand-in-hand, much as it did over a century ago, with growing attacks on the marriage of punishment and profit. With the federal government taking the lead, much as it did back in 1887, the U.S. might be on the cusp of another revolution in thinking about the appropriate relationship between prisons and profit.
If history is any guide, it may well take decades for the states to follow, but eventually they will.
Just some (of many) recent and older posts about private prisons:
- Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
- Justice Department says it will end use of private prisons
- Notable academic pitch: "Don’t end federal private prisons"
- "Private Prisons and the Marketplace for Crime"
- "Internalizing Private Prison Externalities: Let's Start with the GED"
- Mother Jones devotes issue to reporter's four months working as a private prison guard
- "Private Prisons, Public Functions, and the Meaning of Punishment"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
Wednesday, August 24, 2016
"Defining Violence: Reducing Incarceration by Rethinking America's Approach to Violence"
The title of this post is the title of this important and timely new report by the Justice Policy Institute. Here is an extended passage from this effective JPI report's effective introduction:
Statutes abstractly categorize behavior as violent or nonviolent. How might these categorizations, along with the workings of the justice system, combine to limit reform efforts designed to reduce our reliance on incarceration? Does statistical reporting obscure critical facts that change agents, policymakers, and the public need to consider when designing policies to significantly reduce the use of incarceration?
In Defining violence: reducing incarceration by rethinking America’s approach to violence, the Justice Policy Institute (JPI) explores how something is defined as a violent or nonviolent crime, how that classification affects how the justice system treats a person, and how all that relates to the use of incarceration. The report summarizes the relationship of offenses to the use of incarceration and how that varies by:
How violent offenses are categorized from place to place: An act may be defined as a violent crime in one place and as a nonviolent crime somewhere else. The law in a particular jurisdiction may define something as a nonviolent crime, but a corrections department may define the same behavior differently. For example, although burglary rarely involves person-to-person behavior, it is defined as a violent crime in some places and can lead to a long prison sentence;
How context matters in the way a violent or nonviolent offense is treated by the justice system: Sometimes a behavior that would not normally be a defined as a “crime of violence” or result in a long prison term can mean a much longer term of imprisonment when a gun is involved; and
The disconnection between the evidence of what works to make us safer and our current policies: People convicted of some of the most serious offenses — such as homicide or sex offenses — can have the lowest recidivism rates, but still end up serving long prison terms.
These three factors overlap with each other in a way that brings into sharp relief the fact that the nation will fail to make meaningful reductions in the use of incarceration unless we revamp our approach to violent crime and how the justice system treats people convicted of a violent crime. How a behavior is treated by the courts can occur in isolation from the research that demonstrates someone’s ability to change, and brings competing values around what is proportionate and just response to behavior.
This is a complicated political and systems reform issue. When politicians support bills that focus solely on nonviolent crimes, they can point to polling and voter-enacted ballot initiatives that show that the public supports their agenda. In some places, policymakers have vocally rejected justice reform bills and ballot initiatives if there was a hint that someone convicted of a violent crime might benefit from the change.
When someone has been the victim of a violent crime, they may want to see that person locked up. Scholars have noted that if the U.S. wants to treat the root causes of violence in the communities most affected by serious crime, it will require a significant investment of public resources — more than what we could currently “reinvest” from downsizing and closing prisons and jail.
To help unpack some of the complicated issues at play, the Justice Policy Institute (JPI) analyzes how behaviors are categorized under sometimes-arbitrary offense categories, explores the larger context that exists when something is classified as a violent or nonviolent offense, and shows the consequences for the justice system and the use of incarceration. This report also looks at how the debate over justice approaches to violent crime, nonviolent crime, and incarceration is playing out in legislatures and how justice reform proposals are debated.
Tuesday, August 23, 2016
"Racial Origins of Doctrines Limiting Prisoner Protest Speech"
The title of this post is the title of this notable new paper authored by Andrea Armstrong and now available via SSRN. Here is the abstract:
This article examines the racial origins of two foundational cases governing prisoner protest speech to better understand their impact in light of the Black Lives Matter movement. Two Supreme Court cases provide the primary architecture for the regulation of prisoner or detainee speech . The first, Adderley v. Florida, is (mis)interpreted for the proposition that jails (and by analogy, prisons) are non-public spaces. Under First Amendment doctrine, non-public spaces are subject to heightened regulation and suppression of speech is authorized. The second, Jones v. North Carolina Prisoners’ Labor Union, Inc., amplifies the effect of Adderly and prohibits prisoner solicitation for union membership. Together, these two cases effectively provide broad discretion to prison administrators to punish prisoners and detainees for their protest speech.
Neither Adderley nor Jones acknowledge the racial origins of the cases. Holdings in both cases relied on race-neutral rationales and analysis and yet, the underlying concerns in each case appear tied to racial concerns and fears. Thus this Article is a continuation of a broader critical race praxis that reminds us that seemingly objective and neutral doctrines themselves may incorporate particular ideas and notions about race. Today’s protesters face a demonstrably different doctrinal landscape, should they protest within the prison or jail walls. While the content of speech by a “Black Lives Matter” activist may not change, the constitutional protection afforded to that speech will be radically different depending on where she speaks.
Monday, August 22, 2016
Noticing that the Big Apple has lately been a big nothing when it comes to major criminal justice reforms
These two new article appearing in today's New York Times provides a useful reminder that New York City and state have lately not been progressive vanguards when it comes to recent criminal justice reforms:
Here are snippets from the first article which highlight reasons why repeated and persistent criminal justice reform can often be such a significant "uphill climb" even for reform-minded political leaders:
Lawmakers across the country are experimenting with a range of criminal justice reforms, driven by protests, a reckoning with the effects of mass incarceration and anger over police killings. But this legislative momentum has mostly stalled in an unexpected place: New York, a state led by Democrats that outlawed the death penalty more than a decade ago and did away with the last of the Rockefeller Drug Laws, which mandated strict sentences for low-level drug offenses, in 2009.
There has been hardly any legislation under the rubric of criminal justice reform passed in Albany since the governor, Andrew M. Cuomo, a Democrat, came to office in 2011, or in New York City since the Democratic mayor, Bill de Blasio, and many members of the City Council came to office in 2014 promising to overhaul police-community interactions....
Their reluctance is, in some ways, tethered to an enduring unease about public safety in New York, particularly in New York City. Statistics show street crime at historic lows, but many people say in polls that crime is worsening. Any effort to place new limits on law enforcement or to reduce punishments could prove perilous for politicians should a spike in crime occur.
“We have to be fair to victims of crime,” State Senator Patrick Gallivan, a Republican who leads the Crime Victims, Crime and Correction Committee, said in defending the state’s unusually low age of criminal responsibility, 16. “And we need to hold people accountable.” Though Governor Cuomo has backed raising the age to 18, the legislation has not moved forward. New York remains the only state other than North Carolina to routinely prosecute 16-year-olds as adults.
In New York City, the Police Department has successfully opposed efforts to decriminalize certain petty offenses or put legal limits on a variety of police behaviors. The Council adopted a new system for handling some minor crimes, but left the decision of when to use that system to the police. A court-ordered body-camera program, which a federal judge mandated in 2013 after finding that the police had engaged in unconstitutional street stops of black and Hispanic residents on a vast scale, has been repeatedly delayed....
If New York’s recent interest in legislating criminal justice reform lags that of other states, it is quite likely because New York had something of a head start. It is often cited by some advocates as a model.
The state has no death penalty. The state has slashed its prison population by some 20,000 inmates from its high point in 1999, in large part because of the repeal of the Rockefeller laws. It now has an incarceration rate well below the national average. In the last five years, 13 prisons have closed. “We changed the paradigm long ago,” Alphonso David, the counsel to Mr. Cuomo, said. “The changes that other states are now making, we’ve already made.”...
Elsewhere in the country it is often Republicans, citing the need to reduce government spending, who are providing momentum for such reforms. That dynamic is particularly striking in the South, a region known for its high rates of incarceration and frequent executions. A number of the laws aimed at reducing prison rates in recent years have been passed in the South or in states elsewhere with Republican-controlled legislatures.
Sunday, August 21, 2016
Some surprising racial realities to discover when taking a deep dive into modern mass incarceration data
A couple of folks have pointed me to this recent interesting analysis at Wonkblog by Keith Humphreys under the headline "Black incarceration hasn’t been this low in a generation." Here are some of the data and discussion that explain the headline (with links from the original):
The African American imprisonment rate has been declining for many years. Indeed, the likelihood of African American men and women being in prison today is lower than it was a generation ago ... [because the] rate of black male incarceration in the U.S. has declined by 23 percent from a recent peak in 2001 [and the] rate of incarcerated black women has decreased 49 percent since the recent peak of 1999....
In the 1990s, the explosive growth in imprisonment that began in the mid-1970s was slowing but still underway, affecting people of all races but African Americans worst of all. But around the turn of the millennium, the African American imprisonment rate began declining year after year....
At the end of 2014, the African American male imprisonment rate had dropped to a level not seen since early 1993. The change for African American women is even more marked, with the 2014 imprisonment rate being the lowest point in the quarter-century of data available. It can’t be overemphasized that these are trends unique to blacks rather than being part of a broader pattern of de-incarceration: The white imprisonment rate has been rising rather than falling.
A 23 percent decline in the black male imprisonment rate and a 49 percent decline in the black female imprisonment rate would seem to warrant some serious attention. But if you point out to the average person or even a seasoned criminologist that the United States is at a more than 20-year low in the black incarceration rate, you are likely to be met with stunned silence.
These data should not be all that surprising for those who realize that the years from 1970 to 2000 marked the modern period with the most significant increase in incarceration rates for all Americans and particularly for African Americans. Since 2000, the overall US prison population has not grown much, and overall prison populations and the rate of incarceration has even turned downward in recent years. I believe that, during this more recent period of flat or declining prison growth, the emphasis in long prison terms less for drug offenders than for violent/sexual offenders has contributing to altering the racial mix of prison populations (perhaps epsecially in big states like California and Texas that have made big cuts in their prison populations).
That all said, these data should not obscure the reality that incarceration rates for black males remain extraordinarily high both in absolute and in relative terms throughout the United States. Moreover, digging into state-by-state incarceration data highlights that some perhaps unexpected states rise to the top of an accounting of the rate and relative levels of minority incarceration. A few months ago (as noted here), The Sentencing Project released this interesting report providing state-by-state analyses of the racial data for state prison populations, and here were some of the report's "Key Findings":
- African Americans are incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states (Iowa, Minnesota, New Jersey, Vermont, and Wisconsin), the disparity is more than 10 to 1.
- In twelve states, more than half of the prison population is black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia. Maryland, whose prison population is 72% African American, tops the nation.
- In eleven states, at least 1 in 20 adult black males is in prison.
- In Oklahoma, the state with the highest overall black incarceration rate, 1 in 15 black males ages 18 and older is in prison.
- States exhibit substantial variation in the range of racial disparity, from a black/white ratio of 12.2:1 in New Jersey to 2.4:1 in Hawaii.
- Latinos are imprisoned at a rate that is 1.4 times the rate of whites. Hispanic/white ethnic disparities are particularly high in states such as Massachusetts (4.3:1), Connecticut (3.9:1), Pennsylvania (3.3:1), and New York (3.1:1).
Saturday, August 20, 2016
Notable academic pitch: "Don’t end federal private prisons"
Sasha Volokh has this interesting lengthy commentary explaining his negative response to the announcement this past week (discussed here) that the Justice Department plans to end its use of private prisons. I recommend the full piece (with all its links) for anyone interested in a serious understanding of modern prison policies and practices. Here is how it gets started:
Yesterday, the DOJ announced that it would gradually end its use of private prisons. You can read the memo by Deputy AG Sally Yates here. She writes: “I am directing that, as each contract [with a private prison corporation] reaches the end of its term, the Bureau [of Prisons] should either decline to renew that contract or substantially reduce its scope in a manner consistent with the law and the overall decline of the Bureau’s inmate population.”
Why? The Yates memo says: “Private prisons . . . compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security. The rehabilitative services that the Bureau provides, such as educational programs and job training, have proved difficult to replicate and outsource — and these services are essential to reducing recidivism and improving public safety.”
This is unfortunate, for two reasons.
First, Yates seems to be exaggerating what empirical studies tell us about private vs. public prison comparisons. They do save money (though how much is a matter of dispute). And they don’t clearly provide worse quality; in fact, the best empirical studies don’t give a strong edge to either sector. The best we can say about public vs. private prison comparisons is a cautious “We don’t really know, but the quality differences are probably pretty minor and don’t strongly cut in either direction.” The Inspector General’s report doesn’t give us strong reason to question that result.
Second, even if all the bad things people say about private prisons were true, why not pursue a “Mend it, don’t end it” strategy? there’s a new trend in corrections to develop good performance measures and make payments contingent on those performance measures. If the private sector hasn’t performed spectacularly on quality dimensions to date, it’s because good correctional quality hasn’t been strongly incentivized so far. But the advent of performance-based contracting has the potential to open up new vistas of quality improvements — and the federal system, if it abandons contracting, may miss out on these quality improvements.
Just some (of many) prior posts about private prisons:
- Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
- Justice Department says it will end use of private prisons
- "Private Prisons and the Marketplace for Crime"
- "Internalizing Private Prison Externalities: Let's Start with the GED"
- Mother Jones devotes issue to reporter's four months working as a private prison guard
- "Private Prisons, Public Functions, and the Meaning Punishment"
- New ACLU report critical of private prisons
- "Too Good to be True: Private Prisons in America"
- "Hustle and Flow: Prison Privatization Fueling the Prison Industrial Complex"
- "International Trends in Prison Privatization"
- Notable review of Kentucky's (now-ending) experiences with private prisons
Thursday, August 18, 2016
"Justice Department says it will end use of private prisons"
The title of this post is the headline of this Washington Post report on some big news emerging from the US Department of Justice this afternoon. Here is how the report starts:
The Justice Department plans to end its use of private prisons after officials concluded the facilities are both less safe and less effective at providing correctional services than those run by the government.
Deputy Attorney General Sally Yates announced the decision on Thursday in a memo that instructs officials to either decline to renew the contracts for private prison operators when they expire or “substantially reduce” the contracts’ scope. The goal, Yates wrote, is “reducing — and ultimately ending — our use of privately operated prisons.” “They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department’s Office of Inspector General, they do not maintain the same level of safety and security,” Yates wrote.
In an interview, Yates said there are 13 privately run privately run facilities in the Bureau of Prisons system, and they will not close overnight. Yates said the Justice Department would not terminate existing contracts but instead review those that come up for renewal. She said all the contracts would come up for renewal over the next five years.
The Justice Department’s inspector general last week released a critical report concluding that privately operated facilities incurred more safety and security incidents than those run by the federal Bureau of Prisons. The private facilities, for example, had higher rates of assaults — both by inmates on other inmates and by inmates on staff — and had eight times as many contraband cellphones confiscated each year on average, according to the report.
Wednesday, August 17, 2016
"Overlooked: Women and Jails in an Era of Reform"
Since 1970, there has been a nearly five-fold increase in the number of people in U.S. jails — the approximately 3,000 county or municipality-run detention facilities that primarily hold people arrested but not yet convicted of a crime. Despite recent scrutiny from policymakers and the public, one aspect of this growth has received little attention: the shocking rise in the number of women in jail.
Women in jail are the fastest growing correctional population in the country — increasing 14-fold between 1970 and 2014. Yet there is surprisingly little research on why so many more women wind up in jail today. This report examines what research does exist on women in jail in order to begin to reframe the conversation to include them. It offers a portrait of women in jail, explores how jail can deepen the societal disadvantages they face, and provides insight into what drives women’s incarceration and ways to reverse the trend.
This Vera fact-sheet provides this additional information about some of the report's various findings and themes:
Available research to help explain why women are increasingly incarcerated in U.S. jails is scarce, dated, and limited in scope. Nevertheless, general data about women in the criminal justice system provides clues about who these women are, and why they end up in jail. Like men in jail, they are disproportionately people of color, overwhelmingly poor and low-income, survivors of violence and trauma, and have high rates of physical and mental illness and substance use.
The majority are charged with lower-level offenses—mostly property and drug-related—and tend to have less extensive criminal histories than their male counterparts. Unlike incarcerated men, women in jails are often primary caregivers to their young children—nearly 80 percent of women in jails are mothers, and most are single parents.
Once incarcerated, women must grapple with systems, practices, and policies that are designed for the majority of the incarcerated population: men. With limited resources, jails are often ill-equipped to address the challenges women face when they enter the justice system. As a result, many women leave jail with diminished prospects for physical and behavioral health recovery, with greater parental stress and strain, and in even more financially precarious circumstances than before becoming caught up in the justice system.
As interest in rolling back the misuse and overuse of jail increases, women frequently remain an afterthought in discussions about reform; yet the roots and trajectory of their increasing rate of jail incarceration demand further study. This report documents the existing foundation for reform that can potentially set the stage for further, well-crafted programs and practices to stem the flow of women cycling through the nation’s local jails.
Sunday, August 14, 2016
Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration
Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:
This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol. But many reformers also argue that marijuana reform is the first step in ending mass incarceration. In many respects this appears to be wishful thinking.
There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests. By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration. Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense. The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities. We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.
In other respects, though, marijuana law enforcement imposes substantial costs on the justice system. Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs. Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.
While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link. For a start, we should call attention to the parallels between marijuana and the overall drug war. In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response. This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.
The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....
There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety. The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.
For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.
One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA). I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle. With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition. If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.
In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform
August 14, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Friday, August 12, 2016
Highlighting the lowlights of the DOJ Inspector General report of federal private prisons
This Washington Post piece, headlined "Private federal prisons — less safe, less secure," provides a useful and effective summary of the findings of a significant recent Department of Justice report. Here are the basics:
Private prisons — unsafe and insecure. That’s the picture emerging from a Justice Department Office of the Inspector General’s report that adds to a growing effort to take the profit out of penitentiaries.
The report’s central conclusion: “We found that, in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP (Bureau of Prisons) institutions and that the BOP needs to improve how it monitors contract prisons in several areas.” Those key areas are contraband, incident reports, lockdowns, inmate discipline, telephone monitoring, grievances, drug testing and sexual misconduct.
“With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined,” the OIG said. “For example, the contract prisons confiscated eight times as many contraband cellphones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”
The private facilities held 12 percent of BOP’s prison population in December, almost 22,700 low-security immigrant adult males with 90 months or less on their sentences. Three companies have the contracts — Corrections Corporation of America (CCA), GEO Group, Inc. and Management and Training Corporation (MTC).
In their responses included in the report, each of the three cited their largely homogeneous inmates as a significant factor in prison misconduct. “Our experience has been that the criminal alien population housed in contract prisons has a higher rate” of inmates who pose a security threat, said CCA, the nation’s oldest and largest private prison company. GEO said the “criminal alien” population “responds as one to any issue, real or perceived.” MTC rejected the report’s findings: “Any casual reader would come to the conclusion that contract prisons are not as safe as BOP prisons. The conclusion is wrong and is not supported by the work done by the OIG.”
Like any business, private prison companies are in business to make money. That can lead to cost-cutting and under-staffing that promotes dangerous and unhealthy conditions. “In recent years, disturbances in several contract prisons resulted in extensive property damage, bodily injury, and even the death of a correctional officer,” said Inspector General Michael E. Horowitz. “Last year, we audited one of these contract prisons and found that it was regularly understaffed in crucial areas, including correctional officers and health services workers.”
Many inmates, nearly half in some places and largely Mexican, are serving time for immigration offenses. “This is due to a new trend in the past decade of criminally prosecuting people for reentering the country rather than merely processing them through the civil deportation system,” said Carl Takei, an attorney with the American Civil Liberty Union’s National Prison Project. “The result is that people serve sometimes-lengthy prison sentences in BOP custody before … going through civil deportation proceedings.”...
Like the private companies, BOP’s response to the report cautioned against comparing the private prison populations with those in federal facilities. Nonetheless, the agency agreed to the report’s four recommendations, including increased verification “that inmates receive basic medical services such as initial medical exams and immunizations” and “periodic validation of actual Correctional Officer staffing levels.”
The full DOJ Inspector General report, which runs 86 pages and is exciting titled "Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons," is available at this link.
Friday, August 05, 2016
"Behind the Olympics: Brazil's Dirty Incarceration Secret"
I thought this Ozy article, which has the headline that I am using as a post title, woud make a fiting and timely posting in light of tonight's Opening Ceremonies. Here are excerpts:
“Brazil’s prisons are illegal, and if I wanted to, I could set thousands of prisoners free,” Luis Carlos Valois declares. It is both a comment on the power of judges in Brazil to interpret the law at will, and an insight into Valois’ rebelliousness. Seated behind his huge wooden desk, with an enormous flag of Brazil posted nearby, he cuts an imposing figure. But his shaved head, muscles and tattoos make Valois resemble the Brazilian jujitsu champion he was in 1995 more than an establishment man.
OK, he concedes, he would end up behind bars himself if he really unleashed thousands of prisoners into the streets. But he’s serious about using the system to do just that. His work agitating for better prison conditions and offering lenient sentences for petty drug offenses has earned him at least one death threat and a flurry of bad press. Under Brazilian and international law, prisons in Brazil are supposed to provide inmates access to healthcare, individual cells and protection from death threats. In reality, however, prisons in Manaus are two to three times more crowded than they should be, Valois says, with scores of inmates sharing the same cell. Access to basic healthcare was described as “inadequate” in a 2014 Human Rights Watch report. Inmates sleep in hammocks or in corridors, with cockroaches and rats scuttling past. A study in Rio de Janeiro last year found 54 percent of those in pretrial detention may be innocent.
The conditions recall America’s prison system, overcrowded and rife with drug offenders. Brazil trails only the U.S., China and Russia in size of prison populations, according to Human Rights Watch. The homicide rate among the prison population — totaling half a million — reaches 150 for every 100,000, says Ilona Szabó of think tank Igarapé Institute. Additional terrifying stats: More than half of prisoners are 18 to 29 years old, many of whom are incarcerated for carrying small amounts of drugs. Those young men often remain in prison for five to 15 years. In rural locales, men and women sometimes share cells. Oh, and race: “It seems like they lock up more poor and Black people every time,” Valois says with a sigh. “Many are more afraid of someone who has stolen a cellphone than a politician who has stolen millions from the people.” (This in a nation embroiled in its own debates over the 2,000-plus people, many of them Black, killed by police in 2013, according to the Brazilian Public Security Forum.)...
Meanwhile, Brazil has increased its prison population by 74 percent between 2005 and 2012, according to the UNDP; the charitable explanation of the hard-on-crime stance is chalked up to a society fed up with violent crime and the increasing power and presence of drug gangs across Brazil. A “bullet bench” of mainly ex-military or law enforcement officers is busy whipping up popular hard-line laws lowering the age of criminal responsibility. Yet Valois drives a car that isn’t bulletproof, letting state-funded security men care for his two children instead. He is best seen as local cartoonist Jack Cartoon depicted him: with a gavel in one hand and a bunch of flowers in the other — a pacifist at heart.
Thursday, July 28, 2016
US Sentencing Commission releases big new report urging reform of career offender enhancements
As detailed in this official press release, the US Sentencing Commission today released a big new report (running over 100 pages!) under the title "Report to the Congress: Career Offender Sentencing Enhancements." Here is how the press release summarizes this important new release from the USSC:
The United States Sentencing Commission (“Commission”) issued a Report to the Congress: Career Offender Sentencing Enhancements, analyzing career offenders’ prior criminal history, incarceration terms and recidivism rates.
Chief Judge Patti B. Saris, Chair of the Commission, stated, “The Commission’s research shows that there are important differences between violent career offenders and drug trafficking career offenders. Based on these findings, Congress should amend the statutory criteria such that career offender status would not be based solely on drug trafficking offenses.”
Currently, a defendant qualifies as a career offender if he or she: 1) is convicted of an offense that is either a crime of violence or a controlled substance offense; and 2) has at least two prior felony convictions. Career offenders face longer incarceration terms, receiving an average sentence of more than 12 years (147 months). As a result of these longer sentences, career offenders now account for more than 11 percent of the total federal prison population. Yet, career offenders are increasingly receiving sentences below the federal sentencing guideline range, often at the request of the government. The research also shows that, compared to “drug trafficking only” offenders, violent career offenders generally have a more serious and extensive criminal history, recidivate at a higher rate, and are more likely to commit another violent offense in the future. In fiscal year 2014, 45% of “drug trafficking only” offenders received sentences that were reduced at the government’s request.
In fiscal year 2014, nearly three-quarters (74.1%) of career offenders were convicted of a drug trafficking offense. Drug trafficking offenders often face higher statutory maximum penalties, including life imprisonment. These offenders were also more likely to receive a sentence below the federal sentencing guideline range.
Earlier this year, the Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines, with an effective date of August 1, 2016. Chair Saris added, “Based on the report’s findings and recommendations, Congress should adopt a new, single definition of ‘crime of violence’ that is consistent with the Commission’s revised approach.”
New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers. Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state. Here are the details (and links) via the start of the blog posting:
A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment. The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.
The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”
The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.
Currently there are more than 150 individuals serving JLWOP in Wayne County. While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan. Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black. D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.
Thursday, July 21, 2016
"An Overlooked Key to Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bargaining"
The title of this post is the title of this paper recently posted to SSRN and authored by Cynthia Alkon. Here is the abstract:
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior as stand-alone issues. These reform suggestions do not consider the fact that ninety-four to ninety-seven percent of criminal cases are resolved through plea bargains and how the use of this process influences incarceration rates. Prosecutors hold extraordinary power in the criminal justice system. They not only decide what cases get filed, they also decide what charges and enhancements are added, and whether there will be a plea offer. The structure of our criminal justice system, at both the state and federal level, strengthens prosecutorial power and create a plea bargaining environment with extreme power imbalances. Prosecutors use this power to put pressure on defendants to accept plea deals, which contribute to the high incarceration rates in the United States. Therefore, any reform intended to make a meaningful reduction in incarceration rates should recognize the power that prosecutors hold and include reform aimed at changing this underlying structure.
As is well documented, the United States has high incarceration rates and imprisons more people than any nation in the world. African American and Latino communities suffer even higher incarceration rates. Our incarceration rates increased dramatically in the 1980s and into the 1990s. Some commentators identify the “war on drugs” as a major contributor to increasing incarceration rates during this period. Others suggest that the increase is due to a number of factors including changes in criminal codes that increased potential penalties for crimes across the board, not only for drug crimes. One scholar, John F. Pfaff, concludes that the single biggest reason for increased incarceration rates since 1990 is not an increase in arrests, or harsher sentencing, or the drug war, but instead is an increase in the percentage of felony filings per arrest. Pfaff concludes that the reason there are more filings is because prosecutors are filing a higher percentage of cases and therefore prosecutors are the predominate reason for mass incarceration.
This article will begin by briefly describing how plea bargaining works and the often coercive atmosphere of plea bargaining that contributes to mass incarceration. This article will then discuss Pfaff’s conclusions, based on his empirical studies, that prosecutors are the key reason for mass incarceration. Building on Pfaff’s conclusions on the key role prosecutors play in mass incarceration, this article will discuss how the current structure of both state and federal codes reinforce prosecutorial power, particularly in the plea bargaining process. This article will then discuss two proposals for legislative reform that could decrease the coercive atmosphere of plea bargaining. First, this article will recommend revising how crimes are defined, reducing the number of crimes that can be charged as both misdemeanors and felonies and reducing some felonies to misdemeanors. Second, this article will recommend reducing potential punishment ranges by eliminating mandatory minimums for most crimes and for enhancements. Legislative change alone will not reverse mass incarceration, but targeted legislative reform could help to change the overly coercive atmosphere of plea bargaining. This effort can help to change the prosecutorial culture that surrounds plea bargaining and contribute to reducing incarceration rates.
Tuesday, July 19, 2016
Nearly four years(!?!) in federal prison for MLB scout who hacked into rival team's research and notes
As reported in this local article, headlined "Former Cardinals scouting director sentenced to 46 months for hacking Astros database," a notable defendant got a significant federal prison sentence for some illegal corportate espionage. Here are some of the details:
The former St. Louis Cardinals scouting director who admitted he hacked accounts of the Houston Astros to gain insight into their operations was sentenced Monday afternoon to 46 months in prison.
Chris Correa pleaded guilty in January to five counts of unauthorized access to a protected computer. As part of his plea, Correa admitted to using the accounts of three Astros employees to view scouting reports, amateur player evaluations, notes on trade discussions and proposed bonuses for draft picks. The information he accessed was given an estimated value of $1.7 million by the U.S. Attorney’s office.
Correa, 36, also admitted taking measures to conceal his identity. The sentence includes two years of supervised release and restitution payment of $279,038.65. He will remain free until he is to report to prison, in two to six weeks....
During his guilty plea six months ago, Correa contended he hacked into the Astros accounts to see if former Cardinals employees had taken proprietary data or statistical models to use in their new positions with the Astros. Correa told prosecutors he found evidence that it did occur, U.S. Attorney Kenneth Magidson told the Post-Dispatch at that time....
Giles Kibbe, general counsel for the Astros, said after the sentencing that Correa accessed the Houston team’s database 60 times on 35 different days. “I don’t know what he saw or thought he saw,” Kibbe said, adding that what was clear from listening to U.S. District Judge Lynn N. Hughes during the sentencing is this: “The Astros were victims in this case.”...
Houston and its general manager, Jeff Luhnow, who began his baseball career with the Cardinals more than a decade ago, have repeatedly denied that Luhnow or any other former Cardinals employees brought information to the Astros. “The Astros refute Mr. Correa’s statement that our database contained any information that was proprietary to the St. Louis Cardinals,” the team said in a statement in January. Along with the U.S. attorney’s investigation, in which no other member of the Cardinals’ organizations was charged, the team completed an internal investigation; its outcome was Correa’s dismissal a year ago....
Correa read a four-minute statement to the judge before Hughes handed down his sentence. “I behaved shamefully,” Correa said, in apologizing to the Astros. “The whole episode represents the worst thing I’ve ever done by far.”
As he continued reading, offering an apology to his family with the promise to “regain your trust,” Hughes stopped Correa, asking him to turn around and speak directly to family members attending the hearing. Correa did so, his voice breaking as he repeated his apology. Correa said that because of his actions, he lost his career and his house, and he will work with his wife to rebuild “a quiet life of integrity.”
Hughes chastised Correa several times for his actions, comparing them to middle-school behavior. The judge used as an example a teacher asking Correa if he threw the eraser to which Correa would justify the action by saying: “Bobby did, too!”
“I hope it didn’t work then. It’s not going to work now,” Hughes said. The judge likened Correa’s hacking actions to altering a check by adding extra zeroes “and wiping out someone’s bank account.” Hughes also disclosed in court that Correa had been using prescription drugs without a prescription since the hacking charges, and that he could also have been prosecuted for that crime.
Hughes noted that Correa had taken college classes in ethics, asking: “At any time did you think hacking the Astros’ computers and using other people’s passwords was ethical?”
“No, your honor,” Correa said. Correa left the courthouse without comment, climbing into the passenger seat of a white SUV that was quickly driven away....
As part of his plea in January, Correa admitted to illicitly accessing Houston’s database through three accounts from at least March 2013 to the end of June 2014. He began by accessing the email account of one Astros employee who used to work for the Cardinals, referred to in the documents as “Victim A.” Although never mentioned by name in the documents, two of the former employees being described are believed to be Luhnow and Sig Mejdal. Both were key architects in the early days of the Cardinals’ analytic departments, and both are now baseball operations execs in Houston.
Correa took advantage of the fact that “Victim A” had used a password for his Astros email that was similar to the one he used with the Cardinals. He had gained the password when “Victim A” turned in his Cardinals laptop before leaving the team. Correa was able to access the accounts of two other Houston employees and through them see information in a database nicknamed “Ground Control.” On March 24, 2013, Correa viewed an Excel file of every amateur player eligible for the draft as well as the Astros’ internal evaluations and the scouts’ proposed bonuses to offer the players. He also looked at the Astros’ evaluations of Cardinals’ prospects.
That June, during the draft, Correa entered Ground Control and filtered the Astros’ information on players not yet drafted. He also looked at specific pages for two players, neither of whom the Cardinals drafted.
During that visit he looked at Houston’s scouting information for three of the eight players the Cardinals’ selected the previous day in rounds three through 10. At baseball’s trade deadline, July 31, Correa peered into Houston’s notes on trade discussions. In March 2014, he again entered the database and looked at 118 pages of what court documents called “confidential information.”
Cardinals general manager John Mozeliak and other team officials have stated they did not know about the breaches until investigators alerted them in early 2015.
I have reprinted the details of this "hacker's crime" because I am struggling to see what aggravating factors justified a nearly four-year prison sentence for a white-collar offenders who would appear to present no obvious risk to public safety and who has admitted his misdeeds and seems to show genuine remorse for his computer crimes. I sumrise from the press description here that the the defendant's federal sentencing guidelines range was driven up significantly by the U.S. Attorney's determination that the "estimated value" of corporate information accessed here was $1.7 million. But the fact that the defendant was ordered to pay less than $300K in restitution suggest that the actual harm to the Cardinals was far less than the economic number that appears to have driven the defendant's sentence up so much under the applicable sentencing guidelines.
Because I have not done a careful study of lots of recent computer crime cases, I am not sufficiently informed about whether this particular defendant's crime was distinctly bad or whether his sentence is distinctly severe. But I do know that modern problems in the US with mass incarceration is aggravated when we now have persons who pose no threat to public safety and who commit crimes that seem to have a relatively small impact on a huge rich company getting sent away to federal prison for a really long period of time.
July 19, 2016 in Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (30)
Monday, July 18, 2016
"Disabled Behind Bars: The Mass Incarceration of People With Disabilities in America’s Jails and Prisons"
The title of this post is the title of this notable new report from the Center for American Progress. Here is an excerpt from the report's introduction:
America’s four-decade-long experiment with mass incarceration and overcriminalization is widely recognized as a failure. We lock up a greater share of our citizens than any other developed nation, destroying lives and separating families at an annual cost of more than $80 billion. In addition, we do little to prepare individuals behind bars for their eventual release, yet are surprised when some two-thirds return to our jails and prisons.
The crushing impact of the criminal justice system’s failure is felt acutely in communities across the United States. Significant and growing research shows how certain populations — including communities of color; residents of high-poverty neighborhoods; and lesbian, gay, bisexual, and transgender, or LGBT, individuals — have been particularly hard hit. But rarely discussed is the impact of the criminal justice system on Americans with disabilities.
The past six decades have seen widespread closure of state mental hospitals and other institutional facilities that serve people with disabilities — a shift often referred to as deinstitutionalization. The number of Americans residing in such institutions dropped sharply from nearly 560,000 in 1955 to only about 70,000 in 1994. While widely regarded as a positive development, deinstitutionalization was not accompanied by the public investment necessary to ensure that community-based alternatives were made available. As a result, while people with disabilities — and particularly those with mental health conditions — were no longer living in large numbers in institutions, many began to be swept up into the criminal justice system, often due to minor infractions such as sleeping on the sidewalk. Indeed, federal and state jails and prisons are now home to three times as many people with mental health conditions as state mental hospitals.
People with disabilities are thus dramatically overrepresented in the nation’s prisons and jails today. According to the Bureau of Justice Statistics, people behind bars in state and federal prisons are nearly three times as likely to report having a disability as the nonincarcerated population, those in jails are more than four times as likely. Cognitive disabilities — such as Down syndrome, autism, dementia, intellectual disabilities, and learning disorders — are among the most commonly reported: Prison inmates are four times as likely and jail inmates more than six times as likely to report a cognitive disability than the general population. People with mental health conditions comprise a large proportion of those behind bars, as well. The Bureau of Justice Statistics reports that fully 1 in 5 prison inmates have a serious mental illness.
Mass incarceration of people with disabilities is unjust, unethical, and cruel. But it is also penny-wise and pound-foolish, as community-based treatment and prevention services cost far less than housing an individual behind bars. According to a 2014 study of Los Angeles County, the average cost of jailing an individual with serious mental illness exceeds $48,500 per year. By comparison, the price tag for providing Assertive Community Treatment, or ACT, and supportive housing — one of the most intensive, comprehensive, and successful intervention models in use today — amounts to less than $20,500 annually, just two-fifths the cost of jail.
Thursday, July 14, 2016
Alaska joins ever-growing list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Alaska gov. signs bill to cut down on incarceration using data analytics," earlier this week the largest US state by land mass became the latest "red state" to enact significant data-driven sentencing reforms intended to reduce prison populations. Governor Bill Walker penned this op-ed in conjunction with his bill signing, which includes these notable passages highlighting the successes of reforms in other "red states":
The criminal justice reform bill makes a number of very positive changes. A 13-member criminal justice commission — comprised of judges, prosecutors and members of the law enforcement community — spent seven months participating in a rigorous, data-driven process that led to 21 recommendations.
Each recommendation was rooted in research, and most were modeled after successful policies in other states. Those recommendations became SB 91. The bill was vetted through more than 50 hearings in five legislative committees. It passed with two-thirds majorities in both the House and the Senate.
For the past decade, criminal justice policy has been developed without data or research. That needed to be changed. Senate Bill 91 is a reform effort aimed at maximizing the public safety return for each dollar spent.
Alaska has the highest per-capita rate of violent crime and one of the highest recidivism rates in the country. Rather than continue to spend more money on longer sentences that did not change criminal behavior or reduce crime, the Justice Reinvestment Initiative redirects some of those resources into proven strategies.
Senate Bill 91 reinvests $99 million over six years into crime-reduction programs, such as substance abuse treatment, re-entry services, pretrial supervision, violence prevention and victims’ services. Senate Bill 91 is expected to produce significant savings to the state by averting projected growth in the prison population and reducing the current prison population by 13 percent over the next decade. The reforms are estimated to save a total of $380 million ($211 million in direct net savings; $169 in savings from averted growth).
These reforms are working in other states:
• South Carolina has seen a 12 percent reduction in crime since reform was adopted in 2010.
• Kentucky has seen a 17 percent reduction in crime since adopting reform in 2011.
• South Dakota has seen an 8 percent reduction in crime since adopting reform in 2013.
• Texas stopped building more prisons and invested instead on programs proven to reduce recidivism. The state has now averted $3 billion in prison costs, and crime has declined 26 percent — the lowest since 1968.
All of these states reduced their prison populations and reinvested in crime-reduction strategies.
The current approach in Alaska is not working. It can be likened to taking a broken car to a mechanic who only has a wrench and a screwdriver. More time in the shop with the same limited tools won’t fix the car. Senate Bill 91 provides more tools.
About 9 in 10 of our prisoners will eventually return to our communities. Our task is to ensure proper supervision and treatment to change criminal behavior. Lower recidivism rates mean fewer prisoners and fewer victims, and a healthier, safer Alaska for all of us.
Law Enforcement Leaders write letter to Prez candidates Trump and Clinton to urge sentencing reform
As reported via this press release from Law Enforcement Leaders to Reduce Crime & Incarceration, in a letter addressed "to Republican Donald J. Trump and Democrat Hillary Clinton, leading groups representing more than 30,000 current and former police chiefs, sheriffs, prosecutors, district attorneys, attorneys’ general and U.S. Attorneys from all 50 states call for sensible steps to address burgeoning prison populations." According to the press release, this letter "marks the first time the law enforcement community has united with one voice to ask major party candidates to support reducing imprisonment" and thus represents "a powerful reversal from law enforcement’s past support of rigid sentencing laws, and signatories asked the candidates to consider the expertise and perspective that led them to the change of heart."
The full letter is available at this link and it gets started this way
Dear Mr. Trump and Secretary Clinton:
We write to you as representatives of our nation’s largest law enforcement organizations. Collectively our membership includes more than 30,000 law enforcement professionals — current and former police chiefs, sheriffs, district and assistant district attorneys, attorneys’ general and U.S. Attorneys from all 50 states.
As the presumptive nominees for President of the United States, we hope that you will take into consideration the perspective of law enforcement as you set your policies. We believe there is an urgent need for the next Administration to help promote the public safety of this country, reduce recidivism, and reform sentencing policies.
As the men and women who dedicate our lives each day to protect this country’s people, public safety and the administration of justice is our utmost priority. Every day, we are required to make tough judgment calls. Sometimes, that judgment call involves locking-up individuals for a long period of time for a heinous crime that damaged a community. We want dangerous offenders off our streets, and behind bars. We want to make sure the people in the communities we serve are protected. Today we are proud that our country is safer than it has been in a generation, and we work hard every day to ensure it remains that way.
However, we also know that our burgeoning prison population is creating a new public safety challenge. Though this may seem counterintuitive, we know from our experience as law enforcement officials that over-relying on incarceration does not deter crime. As prison budgets have continued to rise, funding for state and local law enforcement has been slashed, negatively impacting innovative work in the field including diversion programs, updating information-sharing systems, and smart policing tactics. With finite prison space, we believe prison should be used for the most dangerous offenders.
Budget aside, law enforcement across the country has shifted to embrace rehabilitation and the opinion that certain individuals in our prison system are serving sentences that are too long for the crime they committed. We also realize that, as we see the same offenders reenter the criminal justice system time and time again, we must be creative and devise innovative programs to reduce recidivism, including job training, addiction counseling, and other productive activities.
Thursday, July 07, 2016
Does Massachusetts have a problem with under-punishment of convicted rapists?
The question in the title of this post is prompted by this new Boston Globe article headlined "Dozens of convicted rapists in Mass. have avoided prison. " Here are excerpts:
More than three dozen people convicted of rape in Massachusetts in recent years have received no prison time for their crimes, state data show, including several who had lengthy criminal histories. A Globe review of Massachusetts court system statistics on 305 rape convictions in the 12-year period that concluded at the end of June 2013 found that in 42 cases, or about 14 percent of the time, defendants received no prison time.
They included two defendants who had a record of either “repetitive” or “violent” convictions, and three had a “serious record.” Seven had a “moderate record” of convictions, while 30 had either never been convicted of a crime or had been convicted of what the court system considered minor offenses. The figures come from annual reports by the Executive Office of the Trial Court.
“If you look at any other violent, serious felony, this would never happen,” said Colby Bruno, an attorney at the Victim Rights Law Center in Boston. Rapists should not be given leniency when it comes to sentencing, Bruno said.
In Massachusetts, state sentencing guidelines call for anyone convicted of certain serious crimes, including rape, to be sentenced to some period of incarceration. For rape, the minimum recommended sentence is five years. But judges aren’t required to follow the guidelines. The Massachusetts data reviewed by the Globe showed that convicted rapists who were incarcerated were typically sentenced to between five and 10 years in prison, and that defendants with more troubling criminal histories usually received lengthier sentences....
National statistics on criminal sentencing are limited. But a federal study on cases that began in 2009 in large urban US counties found 11 percent of convicted rapists were not sentenced to jail or prison time. For those who were incarcerated, the median prison sentence length was 10 years....
The Globe’s review of the data focused on convictions under Massachusetts’ definition of rape, which is described as nonconsensual sex with someone by using force or the threat of bodily injury. The review did not look at other classifications of the crime, such as aggravated, statutory, or child rape. The reports did not detail specific cases. The state trial court office, which is exempt from public record disclosure laws, declined to release further details. The most recent year for which data was available was fiscal year 2013.
Defense attorneys, as well as former judges and prosecutors, offered several potential reasons why someone convicted of rape might not get prison time. One of the most likely scenarios, experts said, would be a plea bargain. A prosecutor with a weak case could offer, in exchange for a guilty plea, to recommend a lesser sentence such as probation to the judge.
Getting a conviction and at least some punishment for the defendant is sometimes viewed as a better option than risking losing the case at trial. It also removes the possible need to bring a traumatized victim to testify. “The ultimate goal is to decrease crime and hold people responsible, and sometimes that can come in different forms and packages,” said law professor Mary G. Leary, a former prosecutor whose focus included sexual assault cases.
In another possible scenario, a victim might ask the judge not to incarcerate the assailant. “Sometimes, when you have parties who know each other, they want the person convicted, but they don’t want them to be incarcerated,” said Christine Cole, executive director of the Crime & Justice Institute, part of the Boston-based nonprofit Community Resources for Justice.
In addition, judges carefully weigh many factors when making sentencing decisions. Factors can include the specific facts of the crime, and whether the defendant cooperated with prosecutors, showed remorse, has a criminal past, and is likely to reoffend, specialists said. The details of each case are critical, said Nancy Gertner, a former federal judge in Boston and a former defense attorney. For example, Gertner said, she routinely encountered cases where defendants, particularly those with drug addiction problems, “wound up with these very long rap sheets, but of relatively minor offenses.”
Some observers, including Cole and Gertner, said they believe judges sentence appropriately in the vast majority of cases. Martin Rosenthal, a longtime criminal defense attorney and Massachusetts Sentencing Commission member, agreed, saying that while “it’s certainly unusual for someone to be convicted of rape and not get incarcerated . . . I don’t think that rape is being diminished in any way” by judges or the justice system. “The idea that we’re being soft on rape as a society is just not true,” he said.
Tuesday, July 05, 2016
Examining with decades of hindsight a (not-so-violent) violent crime spree resulting in LWOP sentences
The front-page of today's New York Times has this interesting piece examining one notable defendant serving multiple LWOP sentences for violent crimes that do not quite seem to justify the extreme sentence decades later. The piece is headlined "One Robber’s 3 Life Sentences: ’90s Legacy Fills Prisons Today," and it gets started this way:
Lenny Singleton is the first to admit that he deserved an extended stay behind bars. To fuel his crack habit back in 1995, he walked into 13 stores over eight days and either distracted a clerk or pretended to have a concealed gun before stealing from the cash register. One time, he was armed with a knife with a six-inch blade that he had brought from his kitchen.
Mr. Singleton, 28 at the time, was charged with robbery and accepted a plea deal, fully expecting to receive a long jail sentence. But a confluence of factors worked against him, including the particularly hard-nosed judge who sentenced him and the zero-tolerance ethos of the time against users of crack cocaine. His sentence was very long: two life sentences. And another 100 years. And no possibility for parole.
There is a growing consensus that the criminal justice system has incarcerated too many Americans for too many years, with liberals and conservatives alike denouncing the economic and social costs of holding 2.2 million people in the nation’s prisons and jails. And Congress is currently debating a criminal justice bill that, among other provisions, would reduce mandatory minimum sentences for nonviolent offenders.
But a divide has opened within the reform movement over how to address prisoners who have been convicted of violent crimes, including people like Mr. Singleton, who threatened shop owners but did not harm anyone. Groups like the American Civil Liberties Union favor a swift 50 percent reduction in prison populations, while conservative prison reform organizations like Right on Crime prioritize the release of nonviolent offenders and worry that releasing others could backfire and reduce public support.
Nonviolent drug offenders make up only about 17 percent of all state prison inmates around the nation, while violent offenders make up more than 50 percent, according to federal data.
As the prison population has increased sharply over the past 30 years, so too has the number of those sentenced to life. Mr. Singleton is among nearly 160,000 prisoners serving life sentences — roughly the population of Eugene, Ore. The number of such inmates has more than quadrupled since 1984, and now about one in nine prison inmates is serving a life term, federal data shows.
“People are celebrating the stabilization of the prison population in recent years, but the scale of mass incarceration is so substantial that meaningful reduction is not going to happen by tinkering around the edges,” said Marc Mauer, the executive director of the Sentencing Project, a Washington-based nonprofit that advocates changes in sentencing policy.
Tuesday, June 28, 2016
Overview of state-level sentencing and criminal justice reform developments
The Pew Charitable Trusts has this new Stateline report headlined "Prisons, Policing at Forefront of State Criminal Justice Action." Here are excertps:
Faced with overcrowded prisons and evidence that lengthy sentences don’t deter crime, more states opted this year to revamp sentencing laws and send some people convicted of lesser, nonviolent crimes to local jails, if they’re locked up at all.
In an about-face after a half-century of criminal justice policies that favored long-term incarceration, Alaska, Kansas and Maryland this year joined at least 25 other states in reducing sentences or keeping some offenders out of prison.
The move to end lengthy prison stays for low-level offenders is one of several steps states took this year in reevaluating criminal justice policies during legislative sessions that have wrapped up in all but a few places. Other measures would help offenders transition back into their communities after release and hold police more accountable.
For years, many lawmakers were wary of appearing soft on crime. But states have recently retooled their criminal justice policies in response to tight post-recession budgets, shifting public opinion and court rulings demanding they ease prison overcrowding....
Alaska, Maryland and Kansas passed bills this year that divert all shoplifting and first-time DUI offenders away from prison, eliminate mandatory minimum sentences for low-level drug offenders, expand parole eligibility, and establish diversion programs for youth offenders, respectively.... And in Tennessee, lawmakers changed standards for property theft charges to help reduce the prison population, and established alternatives to re-incarceration for offenders who violate conditions of their parole or probation.
Many of the proposals enacted this year strike a complicated balance between boosting support for ex-offenders and ensuring that those convicted of crimes are held accountable. Relaxing sentencing and increasing the amount of good-time credits prisoners can earn toward an early release means hardened criminals might get out of prison sooner than they should, said Maryland Del. John Cluster, a retired police officer.
But he said his state could have gone farther to help offenders with job training and other re-entry assistance once they serve their time. “You clean an addict up and you let him out,” Cluster, a Republican, said. “[If] he doesn’t have a job, in less than a year he’s going to be back on the drugs.”
Many lawmakers are eager to reduce the expenses that come with running prisons. For example, prison systems cost taxpayers 14 percent more than state budgets indicate because they do not factor in expenses like benefits for correctional employees and hospital care for inmates. Prisons also strain local social services, child welfare and education programs.
But still, some elected officials want to build more. In Alabama, Republican Gov. Robert Bentley proposed spending $80 million to consolidate some of the state’s existing prisons and build four new ones. The state has one of the most overcrowded prison systems in the country, operating at 180 percent of capacity.
Sunday, June 26, 2016
Mother Jones devotes issue to reporter's four months working as a private prison guard
Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.
This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:
In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
Here are the chapter headings and links to this remarkable piece of reporting about private prisons:Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last.... But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase:
- When the information obtained is of vital public interest.
- When other efforts to gain that information have been exhausted.
- When the journalist is willing to disclose the reason and nature of any deception.
- When the news organization applies the skill, time, and funding needed to fully pursue the story.
- When the harm prevented outweighs any harm caused.
- After meaningful deliberation of the ethical and legal issues.
To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced. There is no other way to know what truly happens inside but to go there.But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....
Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.
CHAPTER 1: "Inmates Run This Bitch"
CHAPTER 2: Prison Experiments
CHAPTER 3: The CCA Way
CHAPTER 4: "You Got to Survive"
CHAPTER 5: Lockdown
Saturday, June 25, 2016
Will party platforms include commitment to reduce mass incarceration (and does it really matter)?
The question in the title of this post is prompted by this new Politico article , headlined "Civil rights groups push Dems, GOP to include sentencing reform in their platforms." Here are excerpts:
An influential coalition of civil rights groups pushing for criminal justice reform is pressuring both the Republican National Committee and Democratic National Committee to include the issue in their respective party platforms this summer.
In a new letter, the organizations — including the American Civil Liberties Union, the NAACP, the Urban League and the Brennan Center for Justice — argue that after decades of pushing tougher crime laws, both Democrats and the GOP need a “bold break” toward policies aiming at easing incarceration rates.
“As you convene to set your respective policy agenda, we urge you to include reducing mass incarceration, while increasing public safety, as part of your party platforms,” the groups wrote in the letter, addressed to the respective party chairs and platform committee leaders and provided to POLITICO in advance of its release.
Among the policies called for by the pro-criminal justice reform groups: Revising sentencing laws so the “punishment is proportional to the crime and no longer than necessary to achieve rehabilitation and deterrence,” helping to reduce recidivism rates by promoting job training and educational programs for former inmates, and using federal funds to reward states for policies that reduce both the prison population and crime rates. “While more is needed to fully achieve reform, including these measures in the platforms will signal a significant shift in national policy,” the organizations wrote.
Criminal justice reform has been a lingering issue in Washington, with both President Barack Obama and key Republican leaders in Congress saying they want to pass legislation overhauling sentencing laws and other prison reforms this year. But the issue has also been a divisive one, particularly within the Senate Republican Conference, and its prospects are growing dimmer -- particularly in a contentious election year.
Thursday, June 23, 2016
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Wednesday, June 22, 2016
"Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act"
The title of this post is the title of this interesting new report from the AVID Prison Project. (AVID stand for Amplifying Voices of Inmates with Disabilities, and its website provides more on the report and on the AVID Prison Project.) Here are excerpts from the report's executive summary:
The disproportionate incarceration of people with disabilities in the United States is a serious and growing problem. As the prison population ages, more inmates are reporting physical disabilities. The U.S. has also seen a rise in the number of people with mental illness and developmental and cognitive disabilities in prison. National surveys now indicate that as many as 31 percent of inmates in state prisons report having at least one disability.
While prison is hard for everyone, incarceration is even more challenging for inmates with disabilities. Research shows that inmates with disabilities are sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal convictions. The time they serve is also harder, with more sanctions imposed and less access to positive programming than other inmates. Prisoners with disabilities are also four times more likely to report recent psychological distress as compared to inmates without disabilities. In a system intended to control and sanction behavior believed to violate the many regulations that govern prison life, inmates with disabilities who need accommodations are often overlooked, ignored, or even punished.
Very few outsiders are allowed into the prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with special federal authority to enter facilities that serve people with disabilities, have been going behind prison walls to identify issues facing inmates with disabilities.
P&As have received reports of inmates forced to drag themselves across their cell or sleep on the floor because their cane or walker was removed. Inmates with cognitive disorders, intellectual disabilities, or mental illness have sought assistance because they are unable to complete the programming required to move out of restrictive housing, forcing them to remain in segregation for years, if not decades. These same inmates may be punished for failing to follow the written rules of the prison, rules they either cannot read or cannot understand due to a disability, resulting in sanctions, loss of good time, or even additional criminal charges. Inmates in need of therapeutic diets or those who require assistance in activities of daily living often find themselves caught in an endless cycle of institutional grievances and appeals as they seek approval for accommodations in correctional policy and practice.
In recognition of the growing population of inmates with disabilities, in 2012 Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a private grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.
This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.
This report begins with a brief overview of the P&A system, describes the different types of advocacy P&As use, and outlines the ADA’s application to prisons. Next, this report details the work P&As across the country have done to advance inmates’ rights under the ADA, focusing on three main areas of prison life: (1) hygiene, health, and safety, (2) accommodations in communication, and (3) access to programming and services. A review of this work reveals that while the ADA has been in place for more than 25 years, much remains to be done to bring programs and buildings in the nation’s prisons into compliance with the requirements of the ADA. This report concludes with a series of recommendations for future action....
Ultimately, this report is intended to spur interest and action within the P&A network and other prison advocacy groups and increase focus on what has become a crisis within the nation’s prison system.
Thursday, June 16, 2016
"States of Incarceration: The Global Context 2016"
The title of this post is the title of this notable new report from the folks at the Prison Policy Initiative. This press release from PPI provides an overview of the context and contents of this report:
How does your state compare to the international community when it comes to the use of incarceration? Not very well, says a new report and infographic by the Prison Policy Initiative.
“When compared against each other, some U.S. states appear to be far more restrained in their use of incarceration than high incarcerators like Louisiana,” said Peter Wagner, Executive Director of the Prison Policy Initiative and co-author of the report. “But all U.S. states are out of step with the rest of the world.”
This report, “States of Incarceration: The Global Context 2016,” updates our 2014 briefing that, for the first time, directly situated individual U.S. states in the global context.
“Massachusetts and Vermont have the lowest incarceration rates in the U.S.,” said Alison Walsh, report co-author and Policy & Communications Associate. “Compared to Louisiana, these states look progressive. But if these states were independent nations, they would rank as the 11th and 12th greatest users of incarceration on the planet, following the United States and a group of nations whose recent history often includes wars, military coups and genocides.”
The report includes an interactive graphic showing the incarceration rates for individual U.S. states and the District of Columbia and all countries with a population of at least 500,000. The report also includes a separate graphic comparing the incarceration rates of the U.S. to several NATO nations. “I hope that this data helps all states prioritize further criminal justice reforms. Lower incarceration rates are not only possible, in the rest of the world they are a reality,” said Wagner.
The report and infographic draw international figures on incarceration from the Institute for Criminal Policy Research’s World Prison Brief and state-level figures from the Bureau of Justice Statistics, the Bureau of Prisons and the U.S. Census Bureau.
The Easthampton, Massachusetts-based Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization is most well known for sparking the movement to end prison gerrymandering and for its big picture data visualization “Mass Incarceration: The Whole Pie.”
"Private Prisons and the Marketplace for Crime"
The title of this post is the title of this notable new paper authored by andré douglas pond cummings and Adam Lamparello now available via SSRN. Here is the abstract:
A saner and safer prison policy in the United States begins by ending the scourge of the private prison corporation and returning crime and punishment to public function. We continue by radically reimagining our sentencing policies and reducing them significantly for non-violent crimes. We end the War on Drugs, once and for all, and completely reconfigure our drug and prison policy by legalizing and regulating marijuana use and providing health services to addicts of harder drugs and using prison for only violent drug kingpins and cartel bosses. We stop the current criminalization of immigration in its tracks and block the private prison lobby from influencing legislation in our current immigration policy debates. We provide prisoners a fair wage for work done in prison, allowing them a re-entry account upon release filled with the money they earned while working in prison. We provide humane and habitable prison cells populated by one inmate, as saner and safer crime and punishment policies will imprison far fewer American citizens.
At their core, private prisons reflect a continuation of policies that have tainted the criminal justice system with perceptions of arbitrariness, unfairness, and injustice. As this article has shown, the continued proliferation of private prisons does not save taxpayers money, increase prison safety, or elevate the conditions of the prison environment. Conversely, they do the opposite. Inmates are being physically abused, denied medical care, and forced to endure inhumane living conditions, as corporations like CCA and GEO Group realize higher profits from a marketplace in which prisoners are in high demand. Indeed, CCA is a textbook example of the grave injustices that can occur when profit maximization clashes with human dignity. The time has arrived for private prisons to be eliminated and for legislators and courts to realize that this experiment is one that has failed. Until that time comes, Congress should implement purpose-driven reforms to ensure that private prisons can no longer be institutions where inmates have rights but no remedies.
Friday, June 10, 2016
"The Color of Justice: Racial and Ethnic Disparity in State Prisons"
The title of this post is the title of this notable data-heavy new report from The Sentencing Project. Here is part of the reports "Overview" section:
Growing awareness of America’s failed experiment with mass incarceration has prompted changes at the state and federal level that aim to reduce the scale of imprisonment. Lawmakers and practitioners are proposing “smart on crime” approaches to public safety that favor alternatives to incarceration and reduce odds of recidivism. As a result of strategic reforms across the criminal justice spectrum, combined with steadily declining crime rates since the mid-1990s, prison populations have begun to stabilize and even decline slightly after decades of unprecedented growth. In states such as New Jersey, New York, Rhode Island, and California, prison depopulation has been substantial, declining by 20-30%. Still, America maintains its distinction as the world leader in its use of incarceration, including more than 1.3 million people held in state prisons around the country.
At the same time of productive bipartisan discussions about improving criminal justice policies and reducing prison populations, the U.S. continues to grapple with troubling racial tensions. The focus of most recent concern lies in regular reports of police brutality against people of color, some of which have resulted in deaths of black men by law enforcement officers after little or no apparent provocation.
Truly meaningful reforms to the criminal justice system cannot be accomplished without acknowledgement of racial and ethnic disparities in the prison system, and focused attention on reduction of disparities. Since the majority of people in prison are sentenced at the state level rather than the federal level, it is critical to understand the variation in racial and ethnic composition across states, and the policies and the day-to-day practices that contribute to this variance. Incarceration creates a host of collateral consequences that include restricted employment prospects, housing instability, family disruption, stigma, and disenfranchisement. These consequences set individuals back by imposing new punishments after prison. Collateral consequences are felt disproportionately by people of color, and because of concentrations of poverty and imprisonment in certain jurisdictions, it is now the case that entire communities experience these negative effects. Evidence suggests that some individuals are incarcerated not solely because of their crime, but because of racially disparate policies, beliefs, and practices, rendering these collateral consequences all the more troubling. An unwarranted level of incarceration that worsens racial disparities is problematic not only for the impacted group, but for society as whole, weakening the justice system’s potential and undermining perceptions of justice.
This report documents the rates of incarceration for whites, African Americans, and Hispanics, providing racial and ethnic composition as well as rates of disparity for each state.
Should I really be too troubled by a Texas life sentence (with parole eligibility in 30 years) for nine-time drunk driver?
The question in the title of this post is prompted by this New York Times piece headlined "He Had 8 Convictions for Driving Drunk. On His 9th, He Got Life." Here are the details:
The first eight convictions for driving while intoxicated didn’t stop Donald Middleton of Houston from sliding behind the wheel and getting his ninth conviction. This time, the judge had had enough.
When Mr. Middleton, 56, faced Judge Kathleen Hamilton of the 359th District Court in Texas on Tuesday, she sentenced him to life in prison. He won’t be eligible for parole for 30 years.
Such a harsh sentence is uncommon for drunken-driving convictions, which often lead to temporary license suspensions and prison stays that allow repeat offenders to return to the road. In Mr. Middleton’s case, he still had a valid driver’s license, despite the eight convictions. Mr. Middleton’s case raises the question: How many times does someone have to be caught driving drunk before he or she can no longer legally drive?
He was arrested in May 2015 after he turned into the wrong lane and collided head-on with a vehicle driven by a 16-year-old who was on the way home from work at a grocery store. Mr. Middleton ran into a nearby convenience store and repeatedly asked a clerk to hide him, prosecutors said. He had a blood-alcohol level of 0.184, more than twice the legal limit, 0.08, according to Justin Fowles, a Montgomery County assistant district attorney. Mr. Middleton pleaded guilty to driving while intoxicated last May and has been in jail since.
The teenager, Joshua Hayden, was not injured, but his father, Rowdy Hayden, said in a telephone interview that he appreciated the judge’s harsh sentence. “It angers me, as a father, that this individual skirted the justice system eight times and was still out here endangering our citizens on the roadway by drinking and driving,” said Mr. Hayden, who is a police constable in Montgomery County. “His proven track record showed he was going to continue to drink and drive. And who knows, the next time he may have killed someone.”
Mr. Middleton had four previous stints in prison for driving while intoxicated. His eighth conviction, in 2008, involved rear-ending a car with several people inside; they sustained minor injuries. Mr. Middleton fell out of the car and was unable to stand, Mr. Fowles said.
The conviction from that episode led to a 13-year prison sentence, of which he served four years. After the most recent conviction, he was classified as a habitual offender, which enabled the longer sentence. “He had proven to us that he can’t be trusted with his own freedom, that he’s a danger to our community and that the best thing for everyone else’s safety on the roadways is for him to never be able to drive again,” Mr. Fowles said in a telephone interview.
Rules for stopping habitual drunken drivers vary wildly by state, but repeat offenders tend to get multiple extra chances. The National Highway Traffic Safety Administration estimates that one in three people arrested on drunken-driving charges are repeat offenders. In Minnesota, a 61-year-old man was released from prison last year after a five-year stay for his 27th conviction related to drunken driving. In Pennsylvania, one man was arrested five times in less than a year, but never lost his driver’s license or served more than 10 days in jail....
J. T. Griffin, the chief government affairs officer for Mothers Against Drunk Driving, said the organization had focused on promoting ignition interlock devices, which require anyone convicted of drunken driving to pass a breathalyzer test before starting a car. Twenty-seven states have laws requiring them, including New York, he said. Suspending licenses can be ineffective when many people continue to drive without a valid license, he said.
“We believe in going after D.U.I. the first time, not waiting for the second or third or fourth offense,” Mr. Griffin said. “The first time is unacceptable. And nine times is just ridiculous.”
Thursday, June 09, 2016
Unpacking the (never-simplistic and never-certain) stories of state crimes and incarceration levels
This new Atlantic story, headlined "Crime Is Down, Sort Of: New stats on U.S. imprisonment rates suggest a complicated future for criminal-justice reform," provides a usefully nuanced account of this new Brennen Center report titled simply "Update: Changes in State Imprisonment Rates." Here first is what the Brennan Center sets up its report:
Today, there are 2.3 million people in the nation’s prisons and jails — a 500 percent increase over the last forty years. With almost one in 100 American adults behind bars, our incarceration rate is the world’s highest. This fact sheet provides an update to findings on state imprisonment trends originally outlined in The Reverse Mass Incarceration Act. It analyzes data from all 50 states on imprisonment and crime from 2006 (as bipartisan criminal justice reforms generally began around 2007) through 2014 (the most recent year of data).
Two overarching findings:
1. Many argue that increased incarceration is necessary to reduce crime. Yet the data shows the opposite. Over the last ten years, 27 states have decreased both crime and imprisonment. Not only is this trend possible, it’s played out in the majority of states. Nationally, imprisonment and crime have fallen together, 7 percent and 23 percent respectively since 2006. Crime continued its downward trend while incarceration also decreased.
2. In recent years, states in the South have seen some of the largest decreases in imprisonment. Yet, they also remain the largest incarcerators in the country. Mississippi reduced imprisonment by 10 percent but still has the nation’s 5th highest incarceration rate. Texas has reduced imprisonment by 15 percent yet still has the 7th highest imprisonment rate in the country.
And here is a snippet from the Atlantic's discussion of the report:
Many Americans might make a basic mathematical error in looking at the country’s criminal-justice system: They assume more people in jail or prison always equals less crime, and more crime necessarily calls for putting more people behind bars. Both conclusions are wrong. A new report from the Brennan Center for Justice provides some illuminating data on this point.
The report’s most fascinating finding is that imprisonment and overall crime rates were down 7 percent and 23 percent, respectively, from 2006 to 2014. “States will continue to decrease imprisonment slowly; we might perhaps see crime leveling out,” Chettiar said. “Criminologists say we have reached an all-time low in crime. I expect we’ll continue to see low crime and lowered imprisonment rates.”...
In the analysis, high achievers included Rhode Island, New Jersey, Hawaii, Nebraska, Connecticut, California, Colorado, and South Carolina. All saw double-digit drops in their rates of imprisonment per 100,000 residents. That does not necessarily indicate a dramatic drop in the actual number of people behind bars—an overall decrease in the rate at which a state imprisons people can result from many factors, including the release of current inmates, diversion efforts to keep those arrested out of jail, and the reclassification of low-level crimes that may let some offenders bypass custody....
In terms of overall crime, Vermont, Minnesota, Pennsylvania, North Carolina, Illinois, Maryland, and Louisiana reduced their rates most. Each saw a decrease of 30 percent or more in their crime rates per 100,000 residents. States such as New Hampshire, North Dakota, and South Dakota each saw big increases in their in crime rates, all 30 percent or higher.
As policymakers are paying increased attention to the shortcomings of the criminal-justice system and more citizens seem to accept the need for policy changes, these facts suggest reform will look very different in different states—and above all, it will be complicated.
Wednesday, June 01, 2016
"Correctional Control: Incarceration and supervision by state"
The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):
Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.
Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.
Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population. We find that for every 100 people incarcerated in a state prison in that state:
- Maine has 1 person on parole.
- Florida has 4 people on parole.
- Arkansas has 117 people on parole.
- Pennsylvania has 198 people on parole.
June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Monday, May 30, 2016
New Vera Institute report reviews trends in state sentencing and corrections
The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text:
Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.
Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to
create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;
reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and
support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.
Sunday, May 29, 2016
"Anti-Incarcerative Remedies for Illegal Conditions of Confinement"
The title of this post is the headline of this notable new article by Margo Schlanger now available via SSRN. Here is the abstract:
Our bloated prisoner population includes many people who are especially likely to face grievous harm in jail and prison--prisoners with mental illness, serious intellectual disabilities, chronic illnesses, and physical disabilities; gay, lesbian, and transgender prisoners; juveniles in adult facilities and others. In this symposium essay, I argue that when such difficulties are manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison. What’s novel about this proposal is not the diversionary remedies themselves, but the connection of such programs to conditions of confinement litigation. Only rarely have such initiatives — which I label “anti-incarcerative” — been imposed or negotiated as court-enforceable solutions for jail or prisons conditions problems. And when they have, it’s mostly been to facilitate compliance with a court-ordered population cap. What I’m urging is a new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm’s way by promoting workable alternatives to incarceration.
In Part I, I describe the history of population caps in conditions of confinement lawsuits. These kinds of direct population limits — still available and valuable, in the right case — constituted a first generation of decarcerative conditions orders. They are important both historically and because they demonstrate that ordinary remedial law allows court orders that keep prisoners out of prison in order to avoid constitutional problems inside. I next highlight in Part II a few pioneering court orders that have specified anti-incarcerative remedies, hooked to alleged or proven unconstitutional conditions caused by crowding. Like the population caps, these orders have aimed explicitly at population reduction. I move in Parts III and IV to two models for anti-incarcerative orders that are not premised on crowding. In Part III, I examine recent remedies addressing unconstitutional solitary confinement. Many of these recent orders have not simply barred prisons from imposing the solitary conditions plaintiffs allege are unconstitutional. Rather, they establish and regulate alternatives to solitary confinement. A final useful model, which I examine in Part IV, can be found in ongoing deinstitutionalization remedies in cases, on the model of Olmstead v. L.C, that enforce the Americans with Disabilities Act, which have focused more on provision of services in the community than on institutional exclusions. The orders in both Parts III and IV support my contention that the ordinary law of remedies allows entry of orders keeping prisoners out of a situation in which they would face unconstitutional harm. Finally, in Part V, I explain why the Prison Litigation Reform Act’s constraints on “prisoner release orders” should not obstruct a new generation of anti-incarcerative orders.
Our national infatuation with incarceration has led to the damaging imprisonment of many vulnerable people in jails and prisons ill-equipped to house them safely — people with mental and physical disabilities, juveniles, the elderly, minor offenders, and others. When a particular facility or system is unable to provide these prisoners with lawful conditions of confinement, plaintiffs should seek, and federal courts should grant, anti-incarcerative orders that facilitate alternatives.
Friday, May 27, 2016
"The Story of Federal Probation"
The title of the post is the title of this notable new paper authored by Brent Newton now available via SSRN. Here is the abstract:
Critics of the modern federal sentencing system regularly assert that the sentencing guidelines promulgated by the United States Sentencing Commission (“the Commission”), pursuant to the Sentencing Reform Act of 1984 (“SRA”), have resulted in unnecessarily harsh prison sentences and overcrowded federal prisons. As a central part of their critique, they specifically claim that the Commission’s policy choices, as reflected in the guidelines, have been responsible for the steep decline in the rate of federal probationary sentences (and other non-incarceration sentences, such as a fine only) imposed during the past three decades. That rate has fallen from around half of all federal sentences in the decades before the guidelines went into effect in late 1987, to slightly less than a quarter of federal sentences shortly after the guidelines were first implemented nationwide in the early 1990s, and to one in ten federal sentences today.
This Article assesses those critics’ claims about federal probation sentences and, in the process, tells the story of federal probation — beginning with a short history of federal probation from its creation in 1925, leading up to when the SRA created the Commission, and continuing through the ensuing three decades to the present time. This Article discusses how the original Commission followed Congress’s directive to increase the overall rate of federal prison sentences (and thus reduce the rate of probation), but also analyzes how several factors unrelated to the guidelines are as much — or even more — responsible for the substantial decrease in the rate of federal probationary sentences since the guidelines went into effect on November 1, 1987.
In particular, the current low rate of federal probationary sentences is in large part explained by: (1) significant changes in the types of federal offenses prosecuted during the past three decades (with two-thirds of federal cases today involving substantial drug-trafficking offenses, firearms offenses, or immigration offenses, which typically do not involve realistic candidates for probation); (2) a significant increase in the average federal defendant’s criminal history during the past three decades; (3) the enactment of several federal penal statutes either requiring a mandatory minimum term of imprisonment or otherwise prohibiting probation as a sentence; (4) the implementation of the Bail Reform Act of 1984, which today results in the pre-sentencing detention of three-quarters of federal offenders (and creates a strong incentive for detained defendants not to ask for probation); and (5) a significant increase in the percentage of non-citizen offenders in the federal criminal justice system (who are not eligible for probation as a practical matter).
May 27, 2016 in Booker in district courts, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1)
Wednesday, May 25, 2016
DOJ Inspector General report details (impressively?) rare cases of untimely release of federal prisoners
This New York Times article about a new DOJ report carries a headline that at first led me to wonder what is heck is going on with the federal Bureau of Prisons: "Thousands Held in Federal Prisons for Too Long, Report Finds." But then, upon reading quickly the executive summary of the DOJ Inspector General's report reference in the headline, I am actually impressed with how well BOP seems to be doing a key part of its job. This full DOJ Report is titled "Review of the Federal Bureau of Prisons’ Untimely Releases of Inmates," and here is its first two paragraphs:
Following news reports that the Federal Bureau of Prisons (BOP) had confined an inmate for 13 months past his correct release date, the Department of Justice (Department) Office of the Inspector General (OIG) initiated an examination of the BOP’s process for ensuring federal inmates are released on their correct release dates and the incidences of releases before or after the correct release date due to staff error between 2009 and 2014. We found that of the 461,966 inmate releases between 2009 and 2014, the BOP categorized 157 as untimely due to staff error. We also learned that the BOP classifies a far greater number — 4,183 — as untimely for other reasons.
According to the BOP, the vast majority of non-staff error “untimely” releases were due to situations that are beyond its control, such as amended sentences that result in shorter sentences than the time an inmate had already served. Also, data and information we reviewed indicates that other entities inside and outside the Department may sometimes contribute to untimely releases. Although BOP officials told us that it was highly unlikely that staff error on the part of a Department entity contributed to any of the 4,183 cases, they could not rule out the possibility and we found that the BOP does not always have complete information about the circumstances of untimely releases to which other entities contribute. We therefore concluded that the Department should work with all relevant entities, both within and outside the Department, to review the full range of possible reasons for untimely releases and how to address those that are in any way preventable.
While I know lots of folks have lots of sound reasons to criticize BOP, I have a very hard time knocking the agency too much for staff efforts which impacted only roughly 1 out of every 3000 releases. Of course, as the DOJ report explains, every reasonable effort should be made to avoid BOP staff errors leading to untimely releases. But I think we should general celevrate any government agency with a 99.93% accuracy rate in one of its core responsibilities.
Friday, May 20, 2016
Suggesting we suffer from "under-incarceration," Senator Cotton calls federal sentencing reform "dead in this year’s Congress"
As reported in this Politico article, headlined "Sen. Tom Cotton: U.S. has 'under-incarceration problem'," at least one significant opponent of federal sentencing reform is already claiming victory in his efforts to preclude any legislative changes this year to any severe federal statutory mandatory minimums. Here are the basics via Politico:
Sen. Tom Cotton on Thursday slammed his colleagues' efforts to pass sweeping criminal justice reforms, saying the United States is actually suffering from an "under-incarceration problem."
Cotton, who has been an outspoken critic of the bill in Congress that would reduce mandatory minimum sentences, smacked down what he called "baseless" arguments that there are too many offenders locked up for relatively small crimes, that incarceration is too costly, or that "we should show more empathy toward those caught up in the criminal-justice system."
"Take a look at the facts. First, the claim that too many criminals are being jailed, that there is over-incarceration, ignores an unfortunate fact: for the vast majority of crimes, a perpetrator is never identified or arrested, let alone prosecuted, convicted, and jailed," Cotton said during a speech at The Hudson Institute, according to his prepared remarks. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes. If anything, we have an under-incarceration problem."
Expanding upon his remarks during a question-and-answer session, Cotton said releasing felons under reduced sentences serves only to destabilize the communities in which they are released. “I saw this in Baghdad. We’ve seen it again in Afghanistan," recalled Cotton, who served in the Army during both wars. "Security has to come first, whether you’re in a war zone or whether you’re in the United States of America.” Those advocating for criminal justice reform through such measures appear to have forgotten the high-crime days of the 1980s, Cotton remarked, noting that the federal prison population is declining....
"I believe the criminal-leniency bill in the Senate is dead in this year’s Congress. And it should remain so if future versions allow for the release of violent felons from prison," he went on to say. "I will, though, happily work with my colleagues on true criminal-justice reform — to ensure prisons aren’t anarchic jungles that endanger both inmates and corrections officers, to promote rehabilitation and reintegration for those who seek it, and to stop the over-criminalization of private conduct under federal law. But I will continue to oppose any effort to give leniency to dangerous felons who prey on our communities."
Based on these comments from Senator Cotton (which can be read/seen via this link), I am now growing ever more inclined to agree with Senator Cotton's suggestion that a significant sentencing reform bill will not get through Congress before the 2016 election. Despite efforts to tweak the SRCA to appease some conservative critics, the most vocal opponents of the bill, Senators Cotton and Session, remain vocal in their opposition. In addition, as reported here, Senator Marco Rubio has recently expressed opposition to the SRCA. Perhaps most critically, I have yet to see anyone make a truly forceful political argument that any of the most critical current GOP leaders (namely Donald Trump, Mitch McConnell or Paul Ryan) ought to see great political benefits from now starting to aggressively champion federal statutory sentencing reform efforts.
That all said, I think some of the political calculations here remain fluid. It seems to me possible (though not likely) that the White House and/or leading Democrats might relent on opposition to mens rea reform, which could perhaps jump-start the stalled reform bills in the House of Representatives. Or maybe the even unpredictable Donald Trump will see some poll numbers suggesting he could improve his image with younger and minority voters by claiming he is better than the Clintons on criminal justice reform. And, not to be completely overlooked, it seems to me quite possible that lots of folks uncertain about the current national political mood on crime and punishment would feel comfortable moving forward on reforms during the lame duck period after the Nov 2016 elections.
All those speculations aside, I view Senator Cotton's latest comments as still further confirmation of my own long-standing fear that it continues to be much easier for all sorts of federal political actors to talk a lot about sentencing reform than to actually convert all the sentencing buzzing into actual federal statutory reforms.
A few 2016 related posts:
- Senator Tom Cotton forcefully (and somewhat thoughtfully) makes his case against the current version of SRCA 2015
- GOP empire striking back against federal sentencing reform efforts in Congress
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
- The latest news about the faltering state of federal statutory sentencing reform
- "Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
- Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
- An effective accounting of why "Sentencing Reform is Seriously Stuck"
Thursday, May 19, 2016
Notable new BJS report on "Aging of the State Prison Population, 1993–2013"
As detailed in this official press release, the Bureau of Justice Statistics has just released this interesting new report with lots of data about the sentencing and incarceration of older offenders. Here are the statistical basics from the press release:
Prisoners age 55 or older sentenced to more than one year in state prison increased from 26,300 in 1993 to 131,500 in 2013, the Bureau of Justice Statistics (BJS) announced today. This represented a growth from 3 percent to 10 percent of the total state prison population during this period. From 1993 to 2013, the median age of state prisoners increased from 30 to 36 years.
Two main factors contributed to the aging of state prisoners between 1993 and 2013: a greater proportion of older prisoners were serving longer sentences, predominantly for violent offenses, and the number of admissions of older persons increased. Both the admission rate and year-end imprisonment rate for state prisoners age 55 or older increased from 1993 to 2013, which indicates that the aging U.S. resident population was not solely responsible for the growth in older offenders in prison.
The imprisonment rate for prisoners age 55 or older sentenced to more than one year in state prison increased from 49 per 100,000 U.S. residents of the same age in 1993 to 154 per 100,000 in 2013. Forty percent of state prisoners who were age 55 or older on December 31, 2013, had been admitted to prison when they were at least age 55, and 60 percent turned age 55 while serving time in prison. Additionally, 40 percent of state prisoners age 55 or older on December 31, 2013, had been imprisoned for at least 10 years, compared to 9 percent in 1993.
Admission to prison of people age 55 or older increased 82 percent between 2003 and 2013. People age 55 or older accounted for 1 percent of state prison admissions in 1993, 2 percent in 2003 and 4 percent in 2013.
In 2013, two-thirds (66 percent) of state prisoners age 55 or older were serving time for a violent offense, compared to a maximum of 58 percent of other age groups. In 2013, nearly half (48 percent) of state prisoners age 55 or older were serving sentences for murder or non-negligent manslaughter or sexual assault, compared to nearly a third (31 percent) of prisoners ages 45 to 54 and more than a quarter (27 percent) of those ages 35 to 44. In 2013, 30 percent of state prisoners age 55 or older were imprisoned for sexual assault, which was more than double the percentage of prisoners age 44 or younger.
The mean sentence length for prisoners age 55 or older admitted on new court commitments was consistently higher than other age groups. Their mean sentence length was 82 months in 2013. In comparison, prisoners ages 18 to 39 had a mean sentence length of 69 months, and the mean sentence length for new inmates ages 40 to 54 was 71 months.
Prisoners age 55 or older convicted of new violent crimes received longer sentences and were expected to serve a higher proportion of their sentences than younger offenders. Prisoners admitted in 2013 when they were age 55 or older could expect to serve an average of 182 months (15 years) for new violent offenses, compared to 116 months (10 years) for those admitted at ages 40 to 54 and 55 months (almost 5 years) for those ages 18 to 39.
"Criminal Justice: The Real Reasons for Reform"
The title of this post is the headline of this effective new National Review commentary authored by Vikrant Reddy, a senior research fellow at the Charles Koch Institute. The piece's subheadline highlights its themes: "There’s no reason to exaggerate the need for it; the true state of affairs is bad enough." And here is how the piece starts and ends:
For all public-policy ideas, there are good arguments and there are bad arguments. The bad arguments sometimes carry flash and sizzle, but they should be resisted. Criminal-justice reform — an issue many prominent conservatives have begun to champion — is particularly rife with bad arguments, but that is no reason to ignore the good ones. In a recent piece in RealClearPolicy, the conservative writer Sean Kennedy expertly filleted some of the worst arguments made by overzealous criminal-justice reformers on both the left and the right. But his takedown was not an argument against thoughtful reform efforts that have improved public safety, saved taxpayer dollars, and advanced individual dignity....
The broadly accepted view among criminologists is that incarceration does bring down crime rates, but it is a tool with diminishing marginal returns. At a certain point, if the goal is to decrease crime, each additional tax dollar is better spent on law enforcement and prevention. Indeed, there is even a point at which incarceration becomes criminogenic, causing more crime than it stops. This happens because, as noted above, some petty criminals spend lengthy stints in prison and emerge with limited reentry options and having learned more bad habits.
The upshot of all of this is simple. First, whether or not America has the world’s highest incarceration rate, it certainly has a rate vastly higher than that of any comparable Western democracy. Second, a slight majority of the prison population consists of violent offenders, but this is hardly an argument for ignoring criminal-justice reforms that would (1) reduce the number of non-violent offenders behind bars and (2) better direct resources at preventing violent crime. Finally, reformers should not forget that our high rates of incarceration, in certain ways, make society less safe, and public-safety considerations must be central to any discussion of criminal-justice reform.
Those are the good arguments in support of criminal-justice reform — and they remain good arguments even when some are making weak arguments.
Of course, not everyone who gets published in the National Review is advocating for sentencing reforms, as evidence by these other two notable recent pieces to be found there:
"Why Trump Should Oppose ‘Criminal-Justice Reform’" by Jeffrey Anderson
"Criminals are unicorns: And that’s why it is so difficult to stop them" by Kevin Williamson
Notable sentencing elements in Oklahoma bill making any and all abortions a felony subject to mandatory imprisonment of at least one year
As reported in this new Washington Post piece, headlined "Oklahoma legislature passes bill making it a felony to perform abortions," legislators in the Sooner State have now sent to the Governor a piece of legislation designed to test the enduring constitutional viability of Roe v. Wade sooner rather than later. Here are the basics (with the sentencing portion that caught my eye highlighted):
Lawmakers in Oklahoma approved a bill Thursday that would make it a felony for anyone to perform an abortion and revoke the medical licenses of any physician who assists in such a procedure. This sweeping measure, which opponents have described as unconstitutional and unprecedented, was sent to Gov. Mary Fallin (R) for her signature.
Fallin has five days to decide whether to sign the bill, and her office did not immediately respond to a request Thursday about her plans. The Oklahoma bill is the first such measure of its kind, according to the Center for Reproductive Rights, which says that other states seeking to ban abortion have simply banned the procedure rather than attaching penalties like this.
According to the bill, anyone who performs or induces an abortion will be guilty of a felony and punished with between one and three years in the state penitentiary. The bill also says that any physician who participates in an abortion will be “prohibited from obtaining or renewing a license to practice medicine in this state.”
The bill passed the Oklahoma House of Representatives with a vote of 59-to-9 last month. On Thursday, the state’s senate passed it with a vote of 33-to-12. State Sen. Nathan Dahm, a Republican who represents Tulsa County, told the Associated Press he hopes the Oklahoma measure could eventually lead to the overturning of Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman’s right to an abortion.
The Oklahoma State Medical Association, which has called the measure “troubling,” said it would not take a position on the legality of abortion. However, the group said that it would “oppose legislation that is designed to intimidate physicians or override their medical judgment.”
Ever the sentencing nerd, I found it interesting and notable that Oklahoma would seek to outlaw abortion and make it a felony offense, but then attach to it a mandatory minimum prison sentence of only one year and a mandatory prison maximum of three years. After a little digging, I found the full text of the passed Oklahoma bill going to the Gov here, and I discovered these intriguing criminalization/sentencing terms used to apply only to a prohibition on abortions being performed by anyone other than a licensed physician. But the new bill, as shown below, deletes the language that allows licensed physicians to be excluded from this criminal prohibition:
SECTION 3. AMENDATORY 63 O.S. 2011, Section 1-731, is amended to read as follows:
Section 1-731. No person shall perform or induce an abortion upon a pregnant woman unless that person is a physician licensed to practice medicine in the State of Oklahoma. Any person violating this section shall be guilty of a felony punishable by imprisonment for not less than one (1) year nor more than three (3) years in the State Penitentiary.
Prior (arguably) related post:
- GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal
Major sentencing reform becomes reality in Maryland
One of the nicknames for Maryland (which happens to be the state where I grew up) is the "Free State." And today, as reported in this new Baltimore Sun article, the state has now enacted criminal justice reforms that help justify the continued appropriateness of this nickname. Here are the details:
Maryland officials are about to take steps to reduce the state prison population by more than 1,000 inmates while plowing millions of dollars into crime prevention.
Gov. Larry Hogan on Thursday signed the state's broadest criminal justice legislation in decades — a package that will reduce sentencing guidelines for drug dealers, thieves and other offenders, while increasing the number of crimes that can be wiped from an offender's record fivefold. Users of illegal drugs will be steered toward treatment, not incarceration. And new rules will help the state go after criminal gangs.
The Justice Reinvestment Act, a document of more than 100 pages, is a seismic shift from policies adopted during the late-20th century war on drugs, which critics say led to governments wasting money on incarceration that did little to increase public safety. By reducing the Maryland prison population by about 1,100 people over the next 10 years, officials expect to save an estimated $80 million that can be redirected toward programs intended to prevent crime.
The bill was a compromise reached among Republicans and Democrats, prosecutors and defenders, civil libertarians and victims' rights advocates. Hogan said the bill "represents the largest and most comprehensive criminal justice reform to pass in Maryland in a generation."
But some officials and advocates say Hogan's approval, which came as he signed 144 bills in the final such ceremony this year, should begin an evaluation process. Some say doing away with mandatory minimum sentences was a mistake, as was reducing sentences for some drug offenses. Others bemoan the increased penalty for second-degree murder, and say not enough other penalties have been reduced. Most of the bill's provisions go into effect in October 2017. Some will become law this October....
Supporters say the legislation helps only nonviolent offenders. Del. Herb McMillan, an Anne Arundel County Republican, disagrees. "Pushing heroin and other opioids isn't nonviolent," McMillan told the House during debate last monh. "Reducing jail time for heroin pushers, during an opioid epidemic, does not send the message heroin pushers need to hear."
Maryland is the 30th state to pursue Justice Reinvestment, a concept pushed by Senate President Thomas V. Mike Miller and Del. Kathleen Dumais, both Democrats. pushed after learning about it at legislative conferences. In 2015, the two sponsored successful legislation that created a council to recommend sweeping changes to lawmakers. From those recommendations, the Senate and House of Delegates crafted significantly different bills. The Senate's version was friendlier toward prosecutors. It took a marathon negotiation session two days before the end of the session to reconcile the bills.
The House backed off some of its proposed sentence reductions. The Senate agreed, reluctantly, to the repeal of mandatory minimums.
Sen. Robert A. Zirkin, who as chairman of the Senate Judicial Proceedings Committee led that chamber's work on the legislation, called its passage one of the best moments of his 18 years in the legislature. "There's never been a bill that I can recall of that magnitude, and it was a completely bipartisan, roll-up-your-sleeves and get-to-work effort," the Baltimore County Democrat said. He pointed to his close collaboration with Sen. Michael Hough, a Frederick County Republican.
Zirkin said one of the most important provisions specifies that treatment, rather than incarceration, should be the sentence for a person convicted of possessing drugs such as heroin or cocaine. "That's a more effective way to get that individual out of the criminal realm and back to being a law-abiding, tax-paying citizen," Zirkin said.
Zirkin said the bill also includes "the single largest expansion of expungement, possibly in this state's history." He said it expands the list of offenses that may be erased from public records from nine to about 50. They include misdemeanors related to theft and drug possession. The change is intended to make it easier for ex-offenders to qualify for jobs, housing and education....
Baltimore County State's Attorney Scott Shellenberger, who represented the state's prosecutors through the process, said he had to swallow hard to accept reductions to mandatory minimum sentences. He said such minimums were an effective tool in striking plea bargains.
Still, Shellenberger said, the legislation moves in the right direction. He said prosecutors have sought the increase in the maximum sentence for second-degree murder to 40 years for years. And he's pleased that lawmakers included Hogan's proposal to adopt a state version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) bill to go after criminal gangs.
Paul DeWolfe, Maryland's chief public defender, served on the council that made recommendations. He said he hopes lawmakers continue to build on the reinvestment process in the coming years. An oversight commission created by the bill will make recommendations for further reforms. "I do see this as a first step, and I hope that most members of the commission and the legislature think that way as well," he said.
Shellenberger, a Democrat known for his tough approach to crime, said he hopes the oversight panel will take it slow and let the state absorb the many changes in the bill over several years. "This is such a large change to the criminal justice system that I think we need to take a break and see what savings [result] and what happens as a result of this change," he said.
Wednesday, May 18, 2016
New CBO report indicates federal statutory sentencing reform would save many, many millions
This new Reuters article, headlined "Congress forecasters see major savings from sentencing reforms," reports on this new report from the Congressional Budget Office providing a "Cost Estimate" on S. 2123, the proposed Sentencing Reform and Corrections Act. Here are the basics via the Reuters report:
A criminal justice bill awaiting a vote by the U.S. Senate would reduce federal prison costs by $722 million over the next 10 years by releasing thousands of federal prisoners early, congressional forecasters said on Wednesday.
Federal benefits received by the newly released prisoners would increase direct spending by $251 million and reduce revenues by $8 million over the same period, according to the estimate by the U.S. Congressional Budget Office.
The new savings estimate buoyed supporters of the bipartisan measure to lower mandatory minimum sentences for some non-violent federal drug offenders, which is central to President Barack Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding.
"We have an obligation to change the way we think about incarceration, and today’s CBO report shows that we have a fiscal obligation as well," said the bill's co-authors, U.S. senators Charles Grassley, a Republican from Iowa, and Richard Durbin, a Democrat from Illinois, in a statement.
The bill was revised last month to exclude prisoners convicted of violent crimes in an effort to garner more support among conservatives.
Friday, May 13, 2016
"Was 1960'S Liberalism the Cause of Today's Overincarceration Crisis?"
The title of this post is the headline of this notable book review by Lauren-Brooke Eisen of the Brennan Center for Justice of this notable new book by Elizabeth Hinton "From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America." Here is how the review starts and concludes:
The statistics are stunning. This very second, more than 2.2 million people sit behind bars in America. To put this into perspective, the United States is home to the largest prison system on the planet. But corrections today encompasses more than just metal bars. An estimated 6,851,000 people are under some sort of correctional supervision, such as probation or electronic monitoring. If you do the math, it’s about one in 36 adults. The racial disparities are striking: according to the Sentencing Project, one in every 10 African-American men in his thirties is in prison or jail on any given day.
Elizabeth Hinton, professor of history and African American studies at Harvard University, examines how mass incarceration happened in America in her new book, appropriately titled From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America. Hinton’s approach is novel. Most criminal justice experts cite President Ronald Reagan’s War on Crime as the driver for today’s current levels of incarceration. Hinton argues that President Lyndon Johnson’s Great Society policies — which aimed at improving conditions for the most impoverished Americans — laid the foundation for mass incarceration and its attendant racial injustices. Reagan’s policies, she says, were merely “the fulfillment of federal crime control priorities that stemmed initially from one of the most idealistic enterprises in American history during the era of civil rights.”
This may be a surprising claim, but it is not a unique one: there are a growing number of academics today who are blaming liberals for creating mass incarceration and for the sizable racial disparities that exist in the justice system. Naomi Murakawa, political scientist and associate professor of African American studies at Princeton, made this argument in her recent book The First Civil Right: How Liberals Built Prison America. Murakawa points to federal legislation written by liberals to reduce discretion in sentencing and parole. The liberals’ goal was to avoid racially disparate punishment — judges, they argued, generally used their discretion in ways that hurt racial minorities. Time has shown, however, that reducing judicial discretion only resulted in more racial disparities, as African-Americans ended up spending more time in prison as a result.
University of Pennsylvania professor of political science Marie Gottschalk, made a similar case in her 2015 book Caught: The Prison State and the Lockdown of American Politics. Gottshalk contends that African-American advocacy groups have not always led the way in criminal justice reform and have in fact, at various points in history, supported measures that created more punitive criminal justice policies that have harmed African-Americans. She notes that the majority of the Congressional Black Caucus supported the Anti-Drug Abuse Act of 1986, a law that notoriously, and controversially, punished crack cocaine use (a crime African-Americans are more likely to be convicted of) 100 times more harshly than powder cocaine use (which skews more white).
Building on this theme, Hinton’s well-researched book is filled with historical anecdotes painting a colorful picture of the nation’s persistent struggle with crime since President Johnson coined the phrase “War on Crime” more than fifty years ago. A year before President Johnson declared this war, Congress passed his Economic Opportunity Act of 1964, which Hinton calls “the most ambitious social welfare program in the history of the United States." The Economic Opportunity Act, which invested almost $1 billion in fighting poverty, would prove to be one of the most important parts of President Johnson’s War on Poverty, and his larger Great Society initiative, in which billions of dollars were spent on dozens of antipoverty programs. Hinton, however, criticizes President Johnson for not spending more money on job creation measures and revamping public schools in poor, urban areas. What came next, in her opinion, set the stage for decades of punitive measures that ultimately resulted in today’s phenomenon of mass incarceration....
From the War on Poverty to the War on Crime is smart, engaging, and well-argued. Its one flaw, however, is that it does not adequately recognize that many of the policies it criticizes, with 50 years of hindsight, were well-intentioned at the time – and, their implications for criminal justice aside, did a great deal of good. It is not until the very end of the book — pages 335 and 340 to be exact — that Hinton throws some morsels of recognition their way, conceding that these policies may have been “a product of their time” and that there are “questions of intent”. But the concession is a grudging one — Hinton writes that these questions of intent “are only relevant to a certain extent” as the real issue is to “uncover the series of decisions that made contemporary mass incarceration possible.”
The last 50 years have brought valuable research about crime, evidence-based programs, and how to improve the lives many Americans through education, community support, and mental health and drug treatment services. To give short shrift to the well-meaning efforts of so many of the nation’s academics, researchers, and policymakers is an unfortunate blind spot in an otherwise well-researched and provocative analysis of the causes of our mass incarceration crisis.
Tuesday, May 10, 2016
New study suggests California's prison population reduction via realignment has been generally successful
This new entry at The Crime Report, headlined "California's Prison Downsizing Offers a Model for Other States, Study Says," reports on notable new research suggesting that crime has not increased dramatically after California was force in the wake of the Plata ruling to reduce its prison population. Here is the start of the entry describing the research:
The success of California's Public Safety Realignment Act in reducing state prison populations without a corresponding increase in crime suggests that other jurisdictions around the country can enact similar reforms without endangering public safety, according to a study published in the latest issue of Criminology & Public Policy, an American Society of Criminology journal.
The study, entitled “Is Downsizing Prisons Dangerous? The Effect of California’s Realignment Act on Public Safety” [available here], cites already published data showing that the 17 percent reduction in the size of California’s prison population over a 15-month period, beginning with the Act's implementation in 2011, did not have an effect on aggregate rates of violent crime or property crime.
"Moreover, 3 years after the passage of Realignment, California crime rates remain at levels comparable to what we would predict if the prison population had remained at 2010 levels," write authors Jody Sundt of Indiana University, Emily J. Salisbury of University of Nevada, Las Vegas, and Mark G. Harmon of Portland State University.
The California results demonstrate that "we make a mistake...when we assume that prisons are the only meaningful or viable response to crime,” the authors add.
According to the data referenced in the study, the California Realignment Act reduced the size of the state’s prison population by 27, 527 inmates within 15 months. Many of the inmates were transferred to local jails or released into the community. Critics of the Act linked the policy to recorded increases in offenses such as auto theft. But the authors argued that the slight uptick in such offenses leveled off over time--and was not necessarily linked to realignment.
These results should serve as an object lesson for other jurisdictions, said the authors. "For the first time in decades it appears that a 'window of opportunity' for justice reform is opening to allow for a reevaluation of the effectiveness and wisdom of policies that have created the largest prison population in the world," they wrote, citing a phrase used by criminologist Michael Tonry.
Saturday, May 07, 2016
Drug war and tough-on-crime legislation (and even more judicial discretion) keeping Ohio's prison population growing
My own Columbus Disptach has this article about Ohio's continued struggles to keep its prison population under control. The piece is headlined "Ohio prison population could hit record high this summer," and here are excerpts:
Ohio's prison population is rising, threatening to set a new record as soon as July, despite repeated efforts to divert inmates from state lockups. The number of inmates in Ohio prisons increased 15.1 percent from 2005 to 2016, according to a report released today by the Correctional Institution Inspection Committee, a legislative prison watchdog agency. At the same time, prison overcrowding hit 132.1 percent, up from 114.8.
This is happening at a time when the overall crime rate in Ohio has gone down roughly 15 percent. Gary Mohr, director of the Department of Rehabilitation and Correction, sounded the alarm at statewide opiates conference earlier this week. "I think it’s a pretty safe bet that by July 1 of this year we will set an all-time historic record of incarcerated Ohioans.”
The population stood at 50,899 on May 2; the all-time record is 51,273, set in Nov. 2008. “The day I started in this business, there were 291 women Ohio women locked up in the prison system in Ohio." Mohr said. "Today we’re at 4,300.”...
Mohr has said repeatedly he will not build another prison during his time as prisons director, which could end when Gov. John Kasich leaves office at the end of 2018. State officials have been vigorously trying for a decade to reduce the prison population, largely by diverting non-violent inmates to community-based correction and substance abuse treatment programs.
But the CIIC report points out those efforts have been undercut by new "tough on crime" laws, many of them dealing with sex offenders, passed by the General Assembly, as well as a 2006 Ohio Supreme Court ruling that relaxed requirements for judges to state specific reasons for meting out maximum sentences. As a result, the number of inmates sentenced to the maximum term increased dramatically, requiring an extra 6,700 prison beds.
Drug offenses make up 27 percent of all crimes, the largest single category, followed by crimes against person (24.7 percent), property offenses (12.6 percent), burglary (11.2 percent), and sex offenses (7.5 percent). While men still far outnumber women behind bars, women are coming to prison at a much faster rate, mostly for non-violent drug and property crimes, the report showed.
The (reader-friendly) report that provides the data for this new story can be accessed at this link.
Thursday, May 05, 2016
"Congress Should Follow the Red States’ Lead on Criminal-Justice Reform"
The title of this post is the headline of this notable National Review commentary authored by prominent conservatives Adam Brandon, Timothy Head, Marc Levin and Grover Norquist. Here are excerpts:
Nearly ten years ago, in 2007, Texas faced $527 million in immediate prison-construction costs, and $2 billion in additional costs by 2012. Even for a large and wealthy state, the sticker shock was staggering. Texas had seen its prison population rise dramatically. Between 1990 and 2010, the number of inmates jumped from around 50,000 to more than 155,000 — incarcerating so many inmates began to crowd out other vital areas of the budget.
Texas House Corrections Committee chairman Jerry Madden approached House speaker Tom Craddick and asked what he should do to address the rising costs. “Don’t build new prisons,” Craddick said. “They cost too much.” Madden, a Republican, got to work and, along with his colleagues from both sides of the aisle, devised a plan to tackle the state’s growing prison population. With an investment of $241 million, lawmakers created drug courts to divert low-level, nonviolent offenders into treatment programs as an alternative to incarceration and funded rehabilitation programs to reduce prisoners’ risk of recidivism when they reentered society.
The results of the Texas model are difficult to ignore: The state’s prison population declined by 14 percent and, even more importantly, crime rates dropped by 29 percent. One might argue that crime rates were dropping all over the country at the time — which is true — but if one were to listen to those in rabid opposition to justice reform, wouldn’t the reverse have happened? Instead, Texas now has its lowest crime rate since 1968 and recidivism is 9 percent less than before Texas’s 2007 reforms.
The results were so encouraging that other states sought to replicate Texas’s success. Most of the states that have moved on substantive justice reform are traditionally conservative ones. More than two dozen states — including Georgia, Mississippi, and South Carolina — have passed justice-reform packages.
Interestingly, it wasn’t until multiple Republican-controlled states moved on the issue that traditionally blue states felt that they could: They all waited for red states to move first. Hawaii, Oregon, and Rhode Island, three of the most progressive states in the country, followed the lead of conservative states. Since then, even more red states — including Alabama, Oklahoma, and Utah — have passed justice reform. Red states, and Texas in particular, provided a blueprint for other states to follow while Barack Obama was still the junior senator from Illinois....
Now is the time to bring these conservative reforms to the federal level. The federal prison population grew by nearly 800 percent between 1980 and 2013, and the Bureau of Prisons’ budget increased by almost 600 percent, from $970 million to $6.7 billion. Opponents of justice reform point to the high recidivism rate of federal prisoners as one of the reasons Congress shouldn’t act, but this is exactly why we, like so many conservative states, should act to get smarter on crime.
Moreover, there is also another angle that congressional Republicans may not have considered: There are no guarantees this fall. Conservatives could be facing four or eight more years of a Democrat in the White House, Democratic control of the Senate, and, quite possibly, the House could swing back to left-wing control. While there is more bipartisanship on criminal justice than any other issue, conservatives understand we cannot reduce the prison population without also strengthening alternatives like probation and drug courts. So, for example, there should be swift and certain sanctions — such as a weekend in jail — when someone blows off their probation officer. Some on the far left simply don’t recognize the “stick” part of the carrot-and-stick approach and want to divert savings on prisons to welfare programs rather than following Texas’s proven record by reinvesting the savings in supervision strategies that can help continue crime declines.
It’s time for congressional conservatives to reclaim the narrative that’s rightfully theirs. Justice reform is our issue. They would never admit it, but Democrats are following conservatives’ lead.
Tuesday, May 03, 2016
An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions
The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways." This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes. But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender. Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:
Tyler Moore is serving 50 years in prison. It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder. According to the Mississippi Department of Corrections, his tentative release date is 2061. “I’ll be dead and gone by then,” said his mother, Lisa. So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....
[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge. The charge against him arose from a party where a young man claimed Moore had run his car into him. Moore denied the claim, saying the young man jumped on his hood.
On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined. While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.
The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses. Moore apologized to the judge and admitted he had a drug problem. He spent two days in jail, and the judge ordered drug tests for the next six months.
In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri.... He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....
As months passed, Moore grew homesick, and an old girlfriend wanted to see him. He made it back to Mississippi before Christmas. “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.” In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.
On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars.... After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days. He admitted using crack cocaine, marijuana and alcohol.
A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl. They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test. Once again, the judge sent him for 30 days to drug rehab.
After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired. Devastated, he sank into depression. A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....
On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone. When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”... That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.
Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance. When they arrived in Brandon, he bolted. Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary. With his family behind bars, he confessed to the burglaries.
In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years. Moore refused to plead guilty to statutory rape.
Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended.... In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”
The district attorney’s office didn’t budge. Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail. Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.
On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”... He confessed, “I don’t understand anything anymore, and I need help.”....
In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.
Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....
Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.” Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole. Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.
I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.
Monday, May 02, 2016
Digging deeply into Virginia's crowded prisons and parole paractices
A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state. The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:
Part One: Virginia Has Lowest Parole Rate in the Nation: It’s been more than 20 years since Virginia abolished parole, and over that time the prison population has grown to more than 30,000 people. Just over 10% of them committed crimes before the law changed, so they’re still eligible for parole, but few of them are getting out, and the state now spends more than a billion dollars a year on prisons and correctional programs.
Part Two: Secret Proceedings Offer Little Hope of Parole: Virginia abolished parole in 1995, but people who committed crimes before then — more than 3,300 of them — are still eligible, and a board of five people decides who gets out.
Part Three: Why the Parole Board Rarely Paroles: In a survey of 1,000 Virginians, 75% said the prison population is costing too much — nearly $28,000 per inmate per year. Two-thirds thought the correctional system should reinstate parole, allowing early release for those inmates who are unlikely to commit new crimes. Even people who considered themselves conservative supported that idea by a margin of two to one. Still, Republicans in the legislature oppose parole, and the board empowered to release people who were convicted before parole was abolished frees only a few inmates each year.
Part Four: Paring Virginia's Prison Population: Last year, Governor McAuliffe set up a commission to explore the possibility of reinstating parole — a system of early release for prisoners who follow the rules and are unlikely to commit new crimes. After months of hard work, the group decided not to make a recommendation. Republicans in the legislature had already made it clear they would not support parole. Instead, the commission issued a 50-page report on other ways to reduce its prison population.
Conclusion: Five Years in Prison for Pot: Lawmakers who oppose liberalizing Virginia’s marijuana laws claim no one goes to jail for possessing small amounts of the drug, but a second offense or selling pot does put people in prison. With four states now allowing businesses to profit from the sale of marijuana — and taxing those transactions, some Virginians now question the wisdom of spending nearly $28,000 a year to lock people up for using or even selling marijuana.