Tuesday, March 10, 2015

Depressing news that sentencing toughness is doing little to deter child porn offenses

Regular readers know about the severity of some federal and state sentencing schemes for the downloading of child pornography.  The federal sentencing guidelines often recommend sentences of a decade or longer just for downloading child porn (though federal judges do not always follow these guidelines).  In one notable case from Florida, as reported here, a first offender received an LWOP sentence for downloading illegal images on a laptop.  And in Texas a few years ago, as reported here, a child porn downloader received a sentence of 220 years (though probably mostly do to evidence of lots of child molesting).

I have long hoped that these kinds of severe sentences for computer sex offenses would help serve to deter others who might otherwise be inclined to be involved in the harmful and disturbing activity of creating and distributing sexual picture of children.  Sadly, though, according to this discouraging new Houston Chronicle article, child pornography still "is increasing fast, authorities say." The article is headlined "Child porn reports soaring with technology upgrades," and here are excerpts: 

Every week in the Houston area, FBI agents execute warrants on child pornography charges, said agency spokeswoman Shauna Dunlap. "It's one of our busiest areas," Dunlap said. "We're serving search warrants or arrest warrants across the city and county area, whether for our (Houston Area Cyber Crimes) Task Force or the (Harris County) District Attorney's Office."

On Feb. 13, William Butler Myers of Meadows Place in Fort Bend County was sentenced to nearly 20 years (236 months) in federal prison for attempted production of child pornography involving a 14-year-old girl, U.S. Attorney Kenneth Magidson's office announced. Myers, 43, entered a guilty plea on Nov. 21, 2013. Charges against Myers resulted from evidence found on a cellphone that he took to a repair shop. A shop employee called police after seeing what he thought was child pornography on the phone, officials said.

Cellphone evidence also led to charges against Jason Ryan Bickham, 32, of Orange. He pleaded guilty in September to possession of child pornography and was sentenced Feb. 24 to 10 years in federal prison, U.S. Attorney John M. Bales of the Eastern District of Texas announced last month.

With technology advancing rapidly, federal authorities expect the crime of creating, possessing or distributing pornographic images to increase as well, Dunlap said. "One of the issues and concerns with child pornography is that, once those images are shared, there's a great possibility for the victims to be revictimized each time those images are traded and shared," she said....

Like most crimes, this one cuts across socioeconomic lines. "We've had affluent individuals, those in positions of trust and regular, everyday individuals," Dunlap said. "There's not necessarily any particular stereotype with this crime."

On Thursday, March 12, former Denton High School teacher Gregory Bogomol is scheduled to be sentenced in federal court in Fort Worth after pleading guilty to two counts of producing child pornography. Each count carries a maximum sentence of 30 years in federal prison. Bogomol allegedly used social media applications such as KIK, Grindr, and Pinger to initiate conversations with underage males and to entice boys to produce sexually explicit pictures, authorities said.

Terry Lee Clark of Corpus Christi, who admitted possessing more than 5 million pornographic images, was sentenced Feb. 26 to eight years in federal prison, according to a news release from the office of U.S. Attorney Kenneth Magidson for the Southern District of Texas. Clark pleaded guilty in October to possession of illegal pornograpic images, including about 47,000 involving pre-pubescent females, some under the age of 12, engaging in sexually explicit conduct with adult males, authorities said.

On Feb. 17, a Galveston jury convicted William Cody Thompson of two counts of possession of child pornograpny. He was sentenced the next day to 10 years in Texas state prison on each count, with the sentences to run consecutively. Agents with the Houston Metro Internet Crimes Against Children Task Force conducted an investigation, which led to a 2013 search warrant for Thompson's residence and the discovery of thousands of pictures and videos on multiple computers, officials said.

Since 2010, child pornography reports to the National Center for Missing and Exploited Children's cyper tip line have skyrocketed, said John Shehan, executive director of the agency's Exploited Child Division. "We certainly have an increasing trend," he said, noting that 223,000 reports were received in 2010, compared with 1.1 million in 2014 and 560,000 in the first two months of this year.

Part of the spike is explained by a federal law that requires electronic service providers to make a report to the Cyber Tip Line if they become aware of child pornography images on their systems, Shehan said. "Many companies are proactively looking on their network for child sexual abuse images," he said, which likely means they learn about more images than they would by happenstance.

Also boosting the numbers, Shehan said, is the fact that pictures are easily spread around the globe online, he said. Of this year's half-million reports to the tip line, 92 percent were linked back to IP addresses abroad, he said.

However the number of federal child-exploitation cases brought against defendants between 2009 and Fiscal Year 2014 has hovered around 2,100, dipping to 2,012 in Fiscal Year 2012 and jumping up to 2,331 the next year.

This story confirms what social scientists have long known about deterrence: even a very severe punishment is unlikely to deter if its imposition is neither certain nor swift. This story suggests that there may well be at least 1000 other child porn offenses for every one that gets prosecuted. Even if a jurisdiction were to try imposing a death sentence for child porn offenses (which, of course, the Supreme Court has held to be unconstitutional in the US), such a severe sanction would be very unlikely to deter when there is less and a .1% chance of any offender getting caught.

I have long been concerned about the efficacy of severe child porn sentences in the federal system, and this story heightens my concern. In the end, I think some distinct technology and a kind of economic sanction on tech facilitators of this scourge is now needed far more than still tougher sentences (which may not even be possible) in order to deal with this still growing problem.

March 10, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (21) | TrackBack

Monday, March 09, 2015

Right on Crime poll reports most Texans want to "spend more money on effective treatment programs [rather than] on our prison system"

Last week, Bill Otis over at Crime & Consequences in this post wondered what the general public thinks about Attorney General Eric Holder's advocacy for "smart on crime" reforms. Bill there asks:

What is the electorate's view of the current state of crime and punishment in America? Does the public agree with the Attorney General that we have too many people in prison for too long, or does it think we aren't doing enough to keep people who commit crime off the street?  To my knowledge, this question has never been polled by any respected organization.

I am unsure if Bill would consider the Texas Public Policy Foundation or Right on Crime to be a "respected organization," but today brings the release of a new poll from these sources that suggests that Texans strongly support the state's own "smart on crime" reforms that have served as something of a model for AG Holder's own advocacy for sentencing reform. This press release, titled "New Poll Shows Voters Strongly Support New Justice Reforms in Texas," provides the details, and here are excerpts from it:

A new poll released today by Right on Crime, the nation’s leading conservative public policy campaign for criminal justice reform, shows voters strongly support criminal justice reforms in Texas.  The poll conducted by Wilson Perkins Allen Opinion Research for the Texas Public Policy Foundation found that the vast majority of likely Texas voters want to hold more nonviolent offenders accountable in communities, make penalties proportionate to the crime, and ensure those leaving prison spend part of their sentence-under community supervision....

The poll was conducted by Wilson Perkins Allen Opinion Research from February 24-26, 2015. The study has a sample size of 1000 likely voters, with a margin of error of ±3.1%. Some significant findings from the survey, include:

• 73% of voters in Texas strongly support reforms that would allow non-violent drug offenders found guilty of possession to be sent to a drug treatment program instead of jail.

• Voters agree that we should spend more money on effective treatment programs (61%) rather than spending more money on our prison system (26%)....

“Texans are clearly demanding a different solution to the state’s criminal justice problems, especially when it comes to nonviolent offenders,” said Right on Crime Policy Director Marc Levin.  “The primary reason to adopt these policies is that they are the most cost-effective way to fight crime, but it is reassuring to see that average Texans recognize this as well.”

March 9, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, March 07, 2015

California voters through Prop 47 help fix prison crowding problems plaguing state for decades

Images (5)Prison overcrowding has been a persistent problem in California for decades, driven in part by tough-on-crime repeat offender sentencing laws passed in the state in the early 1990s.  Governors and legislative leaders from both political parties have long understood the critical need to address prison overcrowding problems: e.g., in 2006 as noted here and here, Governor Schwarzenegger issued a proclamation calling the state's legislature into special summer session starting to address prison crowding issues.  But, until the US Supreme Court finally affirmed a special federal court order requiring reductions in the prison population, California's political leaders could not agree on laws to address these pressing problems.

I provide all this back-story, which should be familiar to those who follow California crime-and-punishment issues closely, because this new local article about the prison impact of Prop 47 in the state highlights that voters apparently figured out in one election how to address prison crowing problems in a significant way.  The piece is headlined "California prisons have released 2,700 inmates under Prop. 47," and here are excerpts from the piece:

California’s prisons have released 2,700 inmates after their felonies were reduced to misdemeanors under a ballot measure that voters approved in November, easing punishment for some property and drug crimes.

The mass inmate release over the past four months under Proposition 47 has resolved one of the state’s most ingrained problems: prison overcrowding, state prisons chief Jeffrey Beard told a Senate committee at a legislative hearing Thursday.  Prop. 47 has allowed the state to comply with a court-ordered inmate reduction mandate a year ahead of schedule, Beard said.

But law enforcement leaders say they’ve already seen an increase in crime, and they believe it’s because of Prop. 47.  “The good news is we’ve addressed our jail overcrowding situation in California, which wasn’t acceptable to anybody,” said San Francisco Police Chief Greg Suhr in a phone interview.  “The thing we are grappling with is the tremendous rise in property crime.”

Prop. 47 allows inmates serving sentences for crimes affected by the reduced penalties to apply to be resentenced and released early. Those crimes include shoplifting, grand theft and writing bad checks, among others. About 150 inmates a week are being released under the relaxed laws. Initially, 250 to 300 inmates a week were being let out....

Prisoners released under Prop. 47 are required to be on parole for one year unless a judge decides otherwise. California now has 112,500 inmates in its prisons, which is 1,300 inmates below the final cap the state was required to meet by February 2016....

In San Francisco, Suhr said burglaries are up 20 percent, larceny and theft up 40 percent, auto theft is up more than 55 percent, between 2010 and 2014.  Suhr said those crimes shot up largely due to prison realignment, Gov. Jerry Brown’s program that changed sentencing, sending thousands of convicted felons to county jail or probation instead of state prison. Suhr said auto burglaries are up quite a bit this year, and he believes it’s because of the Prop. 47 release.

Last year, violent crime and property offenses in San Francisco were down overall, according to end-of-year data released by the Police Department last month. “This situation is not unique to San Francisco,” Suhr said.  “I don’t think this is something we can’t figure out, but there is a new normal for property theft we have to figure out.”

Prop. 47 scrapped felony penalties for possession of most illegal drugs, such as methamphetamine, cocaine and heroin, as well as for property crimes in which the loss was $950 or less.  Prior to the measure, the threshold for misdemeanor property crimes was $450.  Those crimes include forgery, check fraud, petty theft, shoplifting and receiving stolen property.

Defendants in those cases could still be charged with felonies if they had a previous conviction for specified serious or violent crimes or sex offenses. “There are still consequences,” Anderson said. “Anyone convicted of a misdemeanor can face a year in county jail.”

Each year, 40,000 people in California are convicted of crimes covered by Prop. 47, according to the nonpartisan Legislative Analyst’s Office, which projected the state will save $100 million to $200 million beginning next fiscal year from the measure.  Most of that money is slated for mental health and substance abuse programs.

I think it will likely take at least a few more years to sensibly measure and understand even the short-term impact of Prop 47 and other legal reforms in California on crime rates. But I suspect that, economic savings aside, most California voters and victims could tolerate an increase in property crime if it is accompanied by a decrease in violent crime. And I have long believe it is important to reduce the number of nonviolent offenders in prison so that there is more room for the violent ones.

Thanks to California voters passing Prop 47, the state now finally has 1,300 spare prison beds available for the confinement of the most serious and dangerous offenders. in addition, it has many millions of tax dollar to devote to programming to reduce crime and recidivism among those at great risk based on substance abuse. I am hopeful (though not especially optimistic) that California officials will allocate all these extra resources to programs with a proven track record in helping to drive down violent crimes (which I believe are already at record low levels in California).

Some prior related posts on California's Prop 47 and its early impact:

March 7, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, March 06, 2015

Highlighting that mass incarceration is "Not Just the Drug War"

For lots of good reasons, the modern war on drugs is the focal point for lots of criticisms of criminal justice systems in the United States.  But this effective Jacobin Magazine Q&A with Marie Gottschalk, author of the book "Caught: The Prison State and the Lockdown of American Politics," spotlights that the US affinity for record-levels of incarceration is about a lot more than the drug war. The full piece is today's must-read, and here are excerpts from its start:

[The] new book by University of Pennsylvania political scientist Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics, makes it clear that the problem is far worse than commonly suspected, and that the reforms on the table are unlikely to even make a dent in the forces that keep millions behind bars.

Contrary to what many progressives believe, Gottschalk argues it’s not primarily the War on Drugs that’s driving this beast.  Instead, it’s an all-out assault that “extends a brute egalitarianism across the board.”  Jacobin editor Connor Kilpatrick recently got a chance to interview Gottschalk.

Q:  One of the most shocking stats in your book is that simply rolling back punishments for violent offenses to their 1984 levels in 2004 would have done more to lower the incarceration rate — a cut in state prison rates of 30 percent — than simply ending the drug war.

A: The intense focus in criminal justice reform today on the non-serious, non-violent, non-sexual offenders — the so-called non, non, nons — is troubling.  Many contend that we should lighten up on the sanctions for the non, non, nons so that we can throw the book at the really bad guys.  But the fact is that we’ve been throwing the book at the really bad guys for a really long time.

Legislators are making troubling compromises in which they are decreasing penalties in one area — such as drug crimes — in order to increase them in another area — such as expanding the use of life sentences.  In doing so, they’re also fostering the mistaken idea that it is easy to distinguish the non, non, nons from the really bad guys.

March 6, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (7) | TrackBack

Thursday, March 05, 2015

Should there be a presumptive incarceration "retirement age" to deal with the graying of prisons?

The question in the title of this post is my latest provocative (but very serious) thought about how to deal with the aging US prison population and the costs that incarcerating the elderly places on taxpayers.  This thinking is prompted today by this new commentary from New York titled "Address the Graying of Prisons," which makes these points:  

In New York, roughly 17 percent of the state's prison population is elderly. By 2030, the aging are expected to account for one third of the prison population. This large-scale incarceration of the elderly is enormously expensive. The United States spends over $16 billion annually on incarceration for individuals aged 50 and older — approximately double the cost of incarcerating a younger person.

But cost is not the only reason to address this crisis. Prisons were not designed to meet the basic needs of elderly individuals. Wheelchair inaccessibility and bunk beds make daily life difficult for people with mobility impairment; cognitive impairments and hearing loss exacerbate the challenges. When the health ward proves incapable of providing care, prisoners must be cared for at an outside hospital — with expensive around-the-clock guards.

Weigh this against the following fact: many "long-termers" are so old, sick, and frail that they pose virtually no safety risk to the public, with a national recidivism rate of only 4 percent for those over 65.

But, if we release more of the aging, as we should (of the 2,730 requests for compassionate release in New York between 1992-2002, only 381 were granted), we will need to address the dearth of community-based services to support them. The majority of those released after serving long sentences face fading social and family networks, a struggle to access health care and housing, and a lack of skills required to live independently. Nursing homes often won't take them, they are ineligible for Medicare while on parole, and many haven't paid enough into Social Security to receive benefits....

And the solution cannot be left only to those of us in criminal justice and corrections. We need the fields of gerontology, mental health treatment and senior services, working together to develop better solutions to the complex, multifaceted problems faced by aging formerly incarcerated individuals....

Here in New York, the Osborne Association will soon begin a pilot project to provide discharge planning and case management support for elders released to New York City. It is a start. But ultimately, any systemic and sustained change is contingent upon our collective willingness to deal with the looming crisis of a graying prison population in ways that reduce costs and improve lives while recognizing the inherent dignity of all people.

Given that the recidivism rate for those over 65 is so low (and I suspect especially lower for elderly prisoners without a long criminal record and not previously involved in serious sex or drug offenses), why not a national policy that any and all prisoners who have already served a certain number of years in prison and reach 65 ought to be presumptively considered for immediate parole? We could have data-driven risk-assessment instruments that help officials decide which older offenders are likely to pose no real safety risks at their old ages.

Among other benefits, a national "presumptive prison release at 65 scheme" could and would bring all jurisdictions in compliance with the Eighth Amendment rules set forth in Graham and Miller. In addition, both offenders and victims (and lawyers and judges) could/would all know that "life" sentences really mean serving for sure in prison until the offender is 65 at which point the offender would have a chance to seek release.  And victims and others could plan and gear up to explain why they would oppose or support release at that date certain.

Especially in light of improving life expectancies, even for those imprisoned, I could image tweaking this proposal to set the presumptive prison retirement age at 70 or even 75.  But, whatever the selected retirement age, I think our sentencing and prison systems might be improved by having some national presumptive norms about being "too old to jail."   Indeed, just as many employers and employees believe it is not just or efficient to expect elderly individuals to work full-time until they drop dead, I suspect many prison officials and prisoners may believe it is not just or efficient to expect elderly individuals to remain imprisoned full-time until they drop dead.

March 5, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

"Evolving Standards of Domination: Abandoning a Flawed Legal Standard and Approaching a New Era in Penal Reform"

The title of this post is the title of this provocative new paper by SpearIt now available via SSRN. Here is the abstract:

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress.  Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society.  Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social control.  This evolutionary model was thus betrayed by Court opinions that allowed states nearly unfettered authority over prison sentencing and use of solitary confinement, a self-fulfilling prophecy — a deep irony in the expanded incarceration of poor, uneducated, minorities — the very population that might be expected under an evolutionary frame.

The Article urges the Supreme Court to abandon evolving standards as a flawed and pernicious concept, and simultaneously, accept the duty to reinterpret the Eighth Amendment for prison sentencing and solitary confinement.  Looking forward, the Article advances a blueprint for employing research and science as a means of reimagining the scale of imprisonment.  It challenges the Court to do something never done before in American penal history — justify the length of prison sentences with more than just random and arbitrary figures.  The Court has been trying to implement objective standards to guide punishment practices for decades, but has constantly fallen prey to its own subjective inclinations.  This Article suggests that the objectivity the Court has been seeking all along is there for the taking, provided it abandons the sociological myth of “survival of the fittest” along with the idea that American society is ever-progressing in humane decency.  The Court must move beyond its obsessive tinkering with the death penalty and focus on the realities of “doing time” in America.

March 5, 2015 in Death Penalty Reforms, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, March 02, 2015

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, March 01, 2015

Must one study lynchings past to understand US punishments present?

The question in the title of this post is prompted by this article discussing a recent speech by a prominent civil rights activist.  The piece is headlined "Angela Davis equates lynchings with prisons, death penalty," and here are excerpts:

Iconic civil rights leader Angela Davis opened her lecture Wednesday evening at Purdue University by evoking Black History Month — setting the stage for a moving presentation that connected past stories of oppression to today's movements for freedom....

During her talk at Purdue, Davis tied the historical tradition of the black struggle against oppression to multiple contemporary movements against racist violence, anti-Semitism, Islamophobia, homophobia and able-ism.  "The black radical tradition can be claimed by anyone who believes that freedom is a worthy cause and that the struggle for freedom links our contemporary aspirations with many struggles of the past," she said.

She connected the history of black lynchings to today's issues of mass incarceration and capital punishment. "The death penalty's roots are sunk deep into the legacy of lynching," she said. "… If we fail to take into account the central role of lynching, then we will never truly understand the way racism worked its way into the criminal justice system."

March 1, 2015 in Death Penalty Reforms, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Friday, February 27, 2015

"A Second Chance: Education's Role in Reversing Mass Incarceration"

The title of this post is the headline of this notable new Atlantic commentary by Irwin Weathersby.  Here is how it starts: 

The American Journal of Men’s Health published a study this month titled "I Want a Second Chance" that explores the challenges faced by formerly incarcerated men as they seek to redeem themselves in the eyes of their children and society.  The research questions of the study sought to illustrate the unique circumstances of African American men: "What are the daily experiences of reentry for African American men?  What identities are African American men in reentry negotiating? What are the experiences of fatherhood for African American men in reentry? What are the experiences of their participation in a reentry program?  The findings of the focus group featured in the study reveal a collective desire to provide for themselves and to be looked upon with dignity so that their lives can regain value.  At the core of what they want most is simply to be regarded differently. As an educator who has worked closely with this population, I am convinced that their desires can be achieved through education: Formerly incarcerated men must learn to embrace methods of self-improvement, and Americans must learn to empathize and restore their citizenship.

Imagine the impact of this not-so-radical idea — if our American gaze of formerly incarcerated black men was altered — at a time when this country is fractured among race and class lines that are as bright and conspicuous as new scars.  Just this month another politician has become embroiled in controversy after an off-color portrait of the president; another unarmed black man was killed at the hands of a police officer; another wrongfully convicted black man was awarded millions of dollars in retribution after his sentence was vacated; another black man’s family was awarded millions of dollars in a settlement for his wrongful death while incarcerated; another formerly incarcerated black man was likely denied a job due to the 50-percent decrease in callback rate for applicants with criminal records.  Another day of Black History month has borne witness to our persistent troubles.

According to an article written by Amy L. Solomon and published by the National Institute of Justice, an estimated 13 million people in the U.S. are admitted to and released from local jails.  And more than 700,000 people are admitted to and released from state and local prisons each year, with men accounting for more than three-fourths of those arrested.  The numbers are even more staggering for African Americans, who comprise almost 40 percent of the entire prison population.  But even more troubling is the fact that, on any given day, one in 15 black men are in prison.  And among young African American men — those ages 20 through 34 — the ratio lowers further to one in nine.  "In fact, young, male African American high-school dropouts have higher odds of being in jail than being employed," Solomon reports.  These shameful statistics suggest that creating channels of reentry are imperative.

February 27, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Thursday, February 26, 2015

Encouraging recidivism realities after three-strikes reform in California

This new New York Times article, headlined "California Convicts Are Out of Prison After Third Strike, and Staying Out," reports on some good post-sentencing-reform news from the West Coast.  Here are excerpts:

Mr. Taylor, 58, is one of more than 2,000 former inmates who were serving life terms under California’s three-strikes law, but who were freed early after voters scaled it back in 2012. Under the original law, repeat offenders received life sentences, with no possibility of parole for at least 25 years, even if the third felony was as minor as shoplifting....

Formerly branded career criminals, those released over the last two years have returned to crime at a remarkably low rate — partly because they had aged in prison, experts say, and because participation in crime declines steadily after age 25, but also because of the intense practical aid and counseling many have received. And California’s experience with the release of these inmates provides one way forward as the country considers how to reduce incarceration without increasing crime.

“I hope the enduring lesson is that all of these people are not hopeless recidivists,” said Michael Romano, director of the Three Strikes Project at Stanford Law School, which provides legal aid to prisoners and training to public defenders. “Those who remain dangerous should be kept behind bars,” added Mr. Romano, who was an author of the 2012 revisions. “But there are many people in prison who are no threat to public safety.”...

In 2012, with crime down and prisons overflowing, California voters had second thoughts. Proposition 36 held that many prisoners whose third offenses were not violent or serious would be eligible for resentencing, so long as a judge did not find an “unreasonable risk of danger to public safety.”

Of about 9,000 prisoners who had been sentenced under the three-strikes law, about 3,000 qualified for a rehearing; another 6,000, with more violent records, did not. As of late February, 2,008 inmates had been released for time served, and 92 were serving out reduced sentences. More than 700 cases remain to be adjudicated.Judges ruled against just 132 of the eligible inmates.

After being free for an average of more than 18 months, just 4.7 percent of the former life prisoners have returned to prison for new crimes, usually burglaries or drug crimes. By comparison, Mr. Romano calculates based on state data, of all inmates released from California prisons, about 45 percent return for new crimes over a similar period.

February 26, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

US Sentencing Commission releases report on LWOP sentences in federal system

I am intrigued and pleased to see that today the US Sentencing Commission has released this effective (reader-friendly) new report titled "Life Sentences in the Federal System." The entire 20-page report is a must read for anyone (like me) who fears we pay too much attention to much attention to a handful of death sentences and too little attention to hundreds of LWOP sentences. Here is how this new report gets started:

Life imprisonment sentences are rare in the federal criminal justice system. Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin. Yet in fiscal year 2013 federal judges imposed a sentence of life imprisonment without parole on 153 offenders. Another 168 offenders received a sentence of a specific term of years that was so long it had the practical effect of being a life sentence. Although together these offenders represent only 0.4 percent of all offenders sentenced that year, this type of sentence sets them apart from the rest of the offender population. This report examines life sentences in the federal system and the offenders on whom this punishment is imposed.

There are numerous federal criminal statutes that authorize a life imprisonment sentence to be imposed as the maximum sentence. The most commonly used of these statutes involve drug trafficking, racketeering, and firearms crimes. Additionally, there are at least 45 statutes that require a life sentence to be imposed as the minimum penalty. These mandatory minimum penalties generally are required in cases involving the killing of a federal official or other government employee, piracy, or repeat offenses involving drug trafficking or weapons. In fiscal year 2013, 64 of the 153 offenders who received a sentence of life imprisonment were subject to a mandatory minimum penalty requiring the court to impose that sentence.

February 26, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?

The question in the title of this post is drawn from the headline of this notable Washington Post article discussing the current (and likely future) prison realities for the Boston marathon bomber.  Here are excerpts: 

What’s worse – being sentenced to be executed or to spend the rest of one’s life in prison?

Dzhokhar Tsarnaev’s defense team includes two attorneys famous for ensuring that the former is replaced with the latter: Judy Clarke from San Diego, who has brokered many high-profile plea deals, and her frequent litigation partner David Bruck of Virginia.  During the jury selection process, which is wrapping up in Boston this week, they have focused on drawing out jurors’ views on the death penalty, and with some regularity have elicited the response that life imprisonment is the harsher of the two options while the death penalty is “the easy way out.”

These potential jurors may have a point.  Tsarnaev, 21, has been in solitary confinement for a year and a half.  Like a handful of other inmates in the U.S., he has also been subjected to “special administrative measures,” or SAMs, while in pretrial detention; if he is sentenced to life imprisonment, SAMs will almost certainly remain in force....

According to a Human Rights Watch report, inmates under SAMs are usually fully isolated from other prisoners. Solitary confinement usually means spending 23 hours a day alone in a cell; SAMs often mean that this cell is in a special block from which the inmate can never see or hear other prisoners, even by knocking on a wall or peering through a window.

Under SAMs, Tsarnaev can make phone calls only when allowed to do so by the prison authority, and only to immediate family members – in his case, this would include his parents, living in Dagestan, and his two sisters, living in New Jersey. He has been calling his mother once a week.... All phone calls are monitored by an FBI agent...

The same rules apply to visits and correspondence: immediate family only. Tsarnaev’s sisters have visited him – his parents have not entered the United States since he was arrested, though one or both of them may travel here for the sentencing phase of the trial. A prison employee or FBI agent is always present during the visits, which include no physical contact – meaning they talk using telephone receivers, through glass.

Tsarnaev’s communication with his lawyers is also limited by the SAMs, but not nearly to the extent that his other communication is: His lawyers can visit without restriction, they can have physical contact with him, and their communication is privileged, which means that no one else is present. If Tsarnaev is convicted and sentenced to death, these visits will continue for the many years the appeals process is likely to last....

On Wednesday, as the court continued to interview potential jurors, the Boston Bar Association issued a statement calling on the Justice Department to take the death penalty off the table and arguing that a plea agreement in exchange for a life sentence would be in the interests of justice. If a plea agreement were to happen, Tsarnaev would stay alone in his cell, under SAMs: He could never have physical contact or a private conversation with anyone except a prison guard for the rest of his life.

Some prior related posts:

February 26, 2015 in Death Penalty Reforms, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

Wednesday, February 25, 2015

"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"

The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:

The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments.  The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.

The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race.  Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.

To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation.  Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures.  This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules.  Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.

Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences.  Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues.  The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.

February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, February 23, 2015

Oscar speech by John Legend spotlights the New Jim Crow stat about hyperincarceration of blacks in US

I watched most of last night's Oscar festivities while trying to get some work done and with most of it with a finger on the fast-forward button on the remote control.  I did so, in part, because we can always count on the media (both old and new) to give extra attention to anything especially interesting or noteworthy that happens during the telecast.  

I am now pleased to learn that one of the interesting and noteworthy Oscar moments getting attention today is a portion of John Legend's acceptance speech.  This Washington Post WonkBlog piece, headlined "There’s a disturbing truth to John Legend’s Oscar statement about prisons and slavery," provides the story and its context:

The artists John Legend and Common received an Academy Award Sunday night for "Glory," their song in the film "Selma."  In his acceptance speech, Legend called for reform of the U.S. criminal justice system. "There are more black men under correctional control today than there were under slavery in 1850," he noted.

It's true.  There are some, as Politifact has written, 1.7 million black men under some form of correctional control, including probation and parole, excluding those held in local jails on any given day. That is about twice the 870,000 or so black men at least 15 years old who were enslaved in 1850, according to the Census.

In some ways, of course, the comparison is misleading. Although there are more blacks under correctional control now than there were slaves before the Civil War, the population has a whole has grown tremendously in that time. The Census that year found that roughly nine in 10 of the nation's 3.6 million blacks were enslaved. By contrast, one in 11 blacks is under correctional supervision today, according to the Pew Center on the States. And it would be wrong to obscure the horrors of slavery by comparing that peculiar institution to today's systems of probation and parole (although in modern prisons, practices such as solitary confinement are indeed profoundly damaging to inmates).

In other ways, though, these numbers conceal the size of our criminal justice system and its consequences, especially for blacks -- in a society that, unlike that of the 1850s, is supposed to be free and equitable.

February 23, 2015 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

SCOTUS denies review for Eighth Amendment challenge to 15-year mandatory minimum sentence for possessing shotgun shells

I am quite bummed, and more than a bit grumpy, that the Supreme Court this morning denied certiorari review via this new order list of the case of Edward Young, who is serving a "mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer."  I am bummed because, as detailed in this post, I helped file an amicus brief in support of Young's Eighth Amendment claim in the Sixth Circuit and also in support of his SCOTUS cert petition.

I am grumpy because the Supreme Court's willingness to deny review in this case, without even requiring the feds to file a brief in opposition and without any noted dissents, highlights yet again that modern Supreme Court Justices remain much more concerned with whether the worst-of-the-worst state murderers might feel some momentary pain while being executed than with whether Congress and federal prosecutors have gone to far in their application of extreme mandatory prison sentencing terms.   In my amicus brief, I had these concluding sentiments about the Young case and its implications:

The essential facts of this case read like a fictional story about a totalitarian dystopian state imagined by the likes of Franz Kafka or George Orwell: after unintentionally coming into possession 18 of a handful of shotgun shells while helping his widowed neighbor — conduct which is not a crime in his home State or in the vast majority of States in our Union — Edward Young was prosecuted by federal officials using a federal law that mandated a sentencing judge to order Mr. Young to spend the next 15 years of his life locked in a cage.  Disconcertingly, this nightmare tale of extreme punishment is not only true, but it has occurred in the United States of America — a country which was supposedly “conceived in liberty,” Abraham Lincoln, Gettysburg Address, and in which school children still recite their commitment to “liberty and justice for all.”  Pledge of Allegiance (codified in Title 4 of the United States Code § 4)....

[I]f Mr. Young’s fifteen-year mandatory federal prison term based on his harmless possession of shotgun shells is allowed to remain in place without further review, this Court would essentially signal to Congress that it very well could constitutionally make even “overtime parking a felony punishable by life imprisonment.” Rummel v. Estelle, 445 U.S. 263, 274 n.11 (1980).

Edward Young can, and I hope will, continue to assail his prosecution and sentencing via a 2255 petition, but such actions are subject to all sorts of additional difficulties (including the absence of a right to counsel).  Moreover, for me this case was not just about how Young's minor crime was treated by the feds, but whether federal judges believe that the Eighth Amendment provides any limit on the mandatory prison terms that could be imposed by federal authorities.  I strongly believe the Framers thought they were doing something about extreme sentences like the one given to Edward Young when they enacted the Eighth Amendment, but it seems no modern federal judges agree with me on this front.  Grrr.

Prior related posts:

February 23, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Urging more media coverage of the "truly guilty and violent"

Via consistently helpful Marshall Project, I came to see this interesting recent piece by Steve Bogira titled "Guilty As Charged" at the Social Justice News Nexus site. Here are extended excerpts:

The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.

The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts.  Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.

When we do write about the guilty, we prefer they be nonviolent offenders.  We’re particularly partial to petty drug offenders. Among violent offenders, we prefer juveniles.

We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills.  We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo.  Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.

But this means we neglect much that is immensely significant.  There are too many drug offenders in prison, but prisons are not mainly holding drug offenders or the nonviolent. Seventeen percent of the 49,000 inmates in Illinois prisons were serving terms for controlled substance crimes, and another 1.6 percent had violated the cannabis control act, as of June 2013 (the most recent figures), according to the Illinois Department of Corrections.  That’s less than 19 percent in all who were doing time for drug offenses–compared with 54 percent who’d been convicted of violent offenses. Nationally, the proportion of prisoners serving sentences for violent crimes in 2012 was also 54 percent, according to the Bureau of Justice Statistics.

Stories about the wrongly convicted, and about the drug war, and about juvenile and mentally ill offenders, can lead to much-needed reforms of the criminal justice system. But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.

Concentrated poverty – resulting from the virulent mix of poverty and racial segregation – yields many poisoned fruits, not the least of which is violence. Children growing up amid concentrated poverty are more likely to witness violence in their neighborhoods, and to experience it in their homes, than children in more advantaged areas. And children growing up amid violence are far more likely to become violent themselves.

There’s a crying need for stories that make the crucial connections between concentrated poverty and violence, and that shift the focus from individual responsibility to our collective culpability. In the context of criminal justice stories, it’s not a connection journalists can make when their subjects are innocent or nonviolent.

February 23, 2015 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 22, 2015

Early report on the early impact of Proposition 47 in California

La-me-g-prop47-crimeThis new Los Angeles Times article provides an assessment of what we know and do not know so far about the impact of the big criminal justice reform passed by California voters back in November.  The lengthy piece is headlined "Prop. 47's effect on jail time, drug rehabilitation is mixed so far," and here are excerpts:

In the months since Proposition 47 became law on Nov. 5, California's criminal justice system is already undergoing dramatic changes — and not always in expected ways. The idea was to reduce incarceration times for nonviolent offenders and focus on rehabilitation while easing jail overcrowding.

On the streets, some people who are committing Proposition 47 crimes are not being arrested, avoiding jail but also the drug treatment that could turn their lives around. Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff's Department, as busy police officers decide that the time needed to process a case is not worth it.

Even when arrested, drug offenders are often issued a citation to appear in court and face little to no jail time if convicted. Law enforcement officials say they have lost an important tool to deal with those offenders, who remain free to get high again or steal to support their habits. Some drug addicts and their relatives agree, saying the new law allows troubled individuals to hurt themselves and steal with little consequence.

Property crimes, which include burglary, theft and motor vehicle theft, have risen in much of Los Angeles County since Proposition 47 passed, according to a Times analysis of crime data. Through the end of January, property crimes were up 10% in sheriff's territory and up 7% in the city of Los Angeles, compared with the same period a year ago.

Some criminal justice experts caution against drawing conclusions, warning that it is too soon to gauge the new law's effect and that other factors could be responsible for the increase. But to Asst. Sheriff Michael Rothans, who oversees patrol operations for the Sheriff's Department, the connection is obvious: More petty criminals on the streets mean more crimes.

"Why is property crime up? It's because of this," said Rothans, who has urged deputies to continue making drug arrests. "The same people are arrested for narcotics and property crimes. We know the cycle is continuing because we know they should have been in jail."

The new law specifies that the financial savings on the incarceration side be reinvested in truancy, drug treatment and mental health programs. But that provision does not take effect until mid-2016. Without the threat of jail time, fewer defendants are opting for the drug treatment programs that judges sometimes offer as an alternative.

Proposition 47 is at the forefront of a national trend to reduce harsh criminal penalties that led to an explosion in prison and jail populations beginning in the 1980s. It follows a revision to California's three strikes law that limits the maximum penalty to those whose last offense is serious or violent. Along with the shift of nonviolent inmates from state prison to county jails approved by the state Legislature in 2011, Proposition 47 is expected to further transform California's criminal justice landscape.

Already, the new law has had a profound effect on the Los Angeles County jails. With fewer people awaiting trial or serving time for offenses that had previously been felonies, overcrowding has subsided. As a result, jailers are keeping county-sentenced inmates for nearly all their time instead of releasing them early.

Thomas Hoffman, a former police official who was a senior advisor for the Proposition 47 campaign, said law enforcement tends to view locking up criminals as the answer, when many have reoffended after spending time in jail. Theorizing about crime increases and the proposition is premature, he said. "The arrest and rearrest of these minor offenses only postpones crime. It doesn't eliminate it. It's a momentary speed bump in these people's lives," said Hoffman, a former director of the state prison system's parole division as well as a former top official in the Inglewood and West Sacramento police departments.

Lenore Anderson, executive director of Californians for Safety and Justice, which coordinated the Proposition 47 campaign, said it will take time for the state's criminal justice system to adjust to the changes and figure out "how to hold people accountable and stop crime."

The key to the new law's success will be whether the cost savings are indeed spent on drug treatment, said Elliott Currie, a professor of criminology, law and society at the University of California, Irvine. "If it is not going to do that, then we are not going to see any change for the better, and we'll see people out there floundering more than they already are," Currie said.

February 22, 2015 in Drug Offense Sentencing, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 17, 2015

"How to Talk About Sentencing Policy — and Not Disparity"

The title of this post is the title of this terrific new piece by Nancy Gertner just published by the Loyola University Chicago Law Journal.  I consider most everything Prof (and former Judge) Gertner writes about sentencing to be a must-read, and these passages from the start of the piece reinforce my sense that this new commentary is especially timely and important:

I want to talk about why I don’t want to discuss sentencing disparity, why this is an issue far, far less important than issues of sentencing fairness, of proportionality, of what works to address crime. Disparity-speak has sucked the air out of all interesting and meaningful discussion of criminal justice reform for the past several decades....

The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?...

To eliminate sentencing disparity, the United States Sentencing Commission and Congress chose to treat drug quantity the same across contexts, contexts that were very different. I want to talk about those contexts and the content of a just sentence. How do we deal with drug addiction? What is the punishment that makes sense? When is drug treatment appropriate in lieu of imprisonment? I want to talk about problem solving courts, reentry programs, and meaningful diversions. How can neuroscience help us craft treatment? What evidence based practices should we implement? What works?

And, above all, I want to talk about how to meaningfully undo the catastrophe of mass incarceration in this country, the catastrophe that we have created with our dual emphasis on eliminating disparity, and imprisonment as a cure all. It is a “one size fits all” approach, and that “size” has been ever more imprisonment. I want to talk about our uniformity-focused, criminal-record emphasis, incarceration-obsessed criminal justice policy.

February 17, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

AG Holder brags about achievements of DOJ's Smart on Crime initiative

The Department of Justice has just made available these two notable items:

I view both of these documents to be must-reads for any and all sentencing fans, and I will here highlight the data reported by AG Holder in his speech that strike me as most intriguing, as well as the AG's closing policy pitch:

In the year before our Smart on Crime charging policy took effect, roughly 64 percent of federally-charged drug trafficking offenses carried a mandatory minimum sentence. Last year, the new policy brought that number down to approximately 51 percent — a reduction of 20 percent relative to the prior year.  Put another way, we have gone from seeking a mandatory minimum penalty in two out of every three drug trafficking cases, to doing so in one out of two.  That’s a major reduction.  In fact, it is historic.  The Sentencing Commission confirms that these numbers show that federal prosecutors sought mandatory minimum penalties at a lower rate in 2014 than in any other year on record....

Even though mandatory minimums have been charged significantly less frequently under our new policies, the percentage of cases in which we receive substantial cooperation from defendants has remained exactly the same.  This also holds true of the ability of our prosecutors to secure guilty pleas in these cases. In the year before Smart on Crime took effect, our prosecutors won guilty pleas in approximately 97 percent of drug trafficking cases.  A year later, despite significant reductions in our uses of mandatory minimums, this percentage stands at 97.5.  So the notion that the Smart on Crime initiative has somehow robbed us of an essential tool is contradicted not only by our history – but by clear and objective facts....

The work we have done is nothing short of groundbreaking.  But this is no time to rest on our laurels. Significant challenges remain before us.  And a great deal of work remains to be done.

Our prisons are still overcrowded.  Across the country, far too many people remain trapped in cycles of poverty, criminality, and incarceration.  Unwarranted disparities are far too common. Law enforcement is distrusted in far too many places and cops are not appreciated for the tough job they do so well.  And if we hope to build on the record we’ve established so far — and to make the Smart on Crime initiative not only successful, but permanent — it will be incumbent upon all Americans — most especially our Congress — to work together to ensure that all of this is just the beginning. From critical improvements to the juvenile justice system, to a range of back-end criminal justice reforms, we must continue to advance promising, bipartisan legislation to make our communities safer, treat individuals more justly and allow more efficient use of law enforcement resources.

Our efforts over the last six years have laid a strong foundation for a new era of American justice. Congress can help us build on this foundation by passing important, bipartisan legislation like the Smarter Sentencing Act, which would give judges more discretion in determining sentences for people convicted of certain federal drug crimes. And going forward – with measures like this one, and with the tireless work of our United States Attorneys and their colleagues, the strong leadership of our outstanding new Attorney General and Deputy Attorney General, and the robust engagement of the American people – I believe there’s good reason for confidence in where this work will lead us.

February 17, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 13, 2015

"Pick a stat, any stat. They all tell you the same thing: America is really good at putting people behind bars."

The title of this post is a line from the start of this detailed analysis of incarceration rates and crime by Oliver Roeder, a senior writer for FiveThirtyEight. The piece merits a full read, and here are excerpts from the start and end of the piece: 

There are 2.3 million Americans in prison or jail. The U.S. has 5 percent of the world’s population but 25 percent of its prisoners. One in three black men can expect to spend time in prison. There are 2.7 million minors with an incarcerated parent. The imprisonment rate has grown by more than 400 percent since 1970.

It’s supposed to help the country reduce crime in two ways: incapacitation — it’s hard to be a habitual offender while in prison — or deterrence — people scared of prison may do their best to not end up there. But recent research suggests that incarceration has lost its potency. A report released this week from the Brennan Center for Justice at the New York University School of Law finds that increased incarceration has had a very limited effect on crime over the past two and a half decades. At incarceration’s current elevated levels, the effect of more incarceration on crime is not statistically different than zero. It’s no longer working....

[C]rime trends are complicated. Surely no one is complaining about the recent decline, but no one fully understands it either. One thing is becoming clear: Increased incarceration’s role was minimal.

Recent related post:

February 13, 2015 in Data on sentencing, National and State Crime Data, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, February 12, 2015

New Brennan Center report asks "What Caused the Crime Decline?"

What_Caused_the_Crime_Decline_CoverThis press release highlights the publication of this important new report by the Brennan Center for Justice titled "What Caused the Crime Decline?".  This report looks like a must-read for all advocates (and opponents) of modern sentencing reform, and here are excerpts of the summary appearing in the press release:

Since 1990, increased incarceration had a limited impact on reducing crime nationwide, concludes a new report from the Brennan Center for Justice at NYU School of Law.  In What Caused the Crime Decline?, a team of economic and criminal justice researchers examine over 40 years of data, gathered from 50 states and the 50 largest cities. Among the report’s new findings:

Incarceration: Increased incarceration had some effect, likely in the range of 0 to 10 percent, on reducing crime in the 1990s. Since 2000, however, increased incarceration had a negligible effect on crime.

State Success: A number of states, including California, Michigan, New Jersey, New York, and Texas, have successfully reduced their prison populations while crime continues to fall.

Other Factors: Increased numbers of police officers, some data-driven policing techniques, changes in income, decreased alcohol consumption, and an aging population played a role in the crime decline. In particular, the report finds CompStat is associated with a 5 to 15 percent decrease in crime. The report also includes new information on the effects of unemployment, the death penalty, and other theories on crime.

During the 25 years since 1990, incarceration rates have exploded — almost doubling in size — and added about 1.1 million additional people behind bars.  During that same time, crime rates have been cut almost in half. Using an economic model that accounts for the diminishing returns of extremely high levels of incarceration and includes the latest 13 years of data, the report bolsters past research suggesting increased incarceration had little impact on crime rates, but finds an even smaller impact on crime.

“Some have argued that despite the immense social and economic costs of America’s mass incarceration system, it has succeeded at reducing crime,” said report co-author Dr. Oliver Roeder.  “The data tells a different story: if reducing crime is the end goal of our criminal justice system, increased incarceration is a poor investment.”

“This report amplifies what many on the left and the right have come to realize in recent years: mass incarceration is not working. It simply isn’t necessary to reduce crime,” said Inimai Chettiar, director of the Brennan Center’s Justice Program and author of the executive summary.  “The prison explosion has been very expensive.  A better use of public resources would be improving economic opportunities, supporting 21st century policing practices, and expanding treatment and rehabilitation programs, all of which have proven records of reducing crime without incarceration’s high costs.”

“This groundbreaking empirical analysis from the Brennan Center shows that, on examination, the easy answers do not explain incarceration’s effect on crime,” wrote Dr. Joseph E. Stiglitz, a Nobel laureate in economics and University Professor at Columbia University, in the foreword.  “This report presents a rigorous and sophisticated empirical analysis performed on the most recent, comprehensive dataset to date.”

February 12, 2015 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Wednesday, February 11, 2015

"Incarceration’s Front Door: The Misuse of Jails in America"

Incarcerations-front-door-infographicThe title of this post is the title of this notable new report produced by the Vera Institute of Justice. This New York Times article, headlined "Jails Have Become Warehouses for the Poor, Ill and Addicted, a Report Says," provides a helpful summary of and context for this report:

Jails across the country have become vast warehouses made up primarily of people too poor to post bail or too ill with mental health or drug problems to adequately care for themselves, according to a report issued Wednesday.

The study, “Incarceration’s Front Door: The Misuse of Jails in America,” found that the majority of those incarcerated in local and county jails are there for minor violations, including driving with suspended licenses, shoplifting or evading subway fares, and have been jailed for longer periods of time over the past 30 years because they are unable to pay court­imposed costs.

The report, by the Vera Institute of Justice, comes at a time of increased attention to mass incarceration policies that have swelled prison and jail populations around the country. This week in Missouri, where the fatal shooting of an unarmed black man by a white police officer stirred months of racial tension last year in the town of Ferguson, 15 people sued that city and another suburb, Jennings, alleging that the cities created an unconstitutional modern­day debtors’ prison, putting impoverished people behind bars in overcrowded, unlawful and unsanitary conditions.

While most reform efforts, including early releases and the elimination of some minimum mandatory sentences, have been focused on state and federal prisons, the report found that the disparate rules that apply to jails is also in need of reform.

“It’s an important moment to take a look at our use of jails,” said Nancy Fishman, the project director of the Vera Institute’s Center on Sentencing and Corrections and an author of the report. “It’s a huge burden on taxpayers, on our communities, and we need to decide if this is how we want to spend our resources.”

The number of people housed in jails on any given day in the country has increased from 224,000 in 1983 to 731,000 in 2013 — nearly equal to the population of Charlotte, N.C. — even as violent crime nationally has fallen by nearly 50 percent and property crime has dropped by more than 40 percent from its peak.

Inmates have subsequently been spending more time in jail awaiting trial, in part because of the growing reluctance of judges to free suspects on their own recognizance pending trial dates, which had once been common for minor offenses.  As a result, many of those accused of misdemeanors — who are often poor — are unable to pay bail as low as $500.

Timed with the release of the Vera Institute report, the MacArthur Foundation announced Wednesday that it would invest $75 million over five years in 20 jurisdictions that are seeking alternatives to sending large numbers of people to jail.  The jurisdictions, which could be cities, counties or other entities that run local jails, will be announced this spring.  Nationwide, the annual number of jail admissions is 19 times higher than the number of those sent to prison, and has nearly doubled since 1983, from about 6 million to 11.7 million. A significant number are repeat offenders, the report said.

Via this link, the Vera Institute has available the full Incarceration’s Front Door report, a helpful summary and the infographic I have tried to reproduce here.

February 11, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

New bipartisan federal prison reform bill introduced (with good chance of passage?)

This article from The Hill, headlined "Senators unveil prison reform bill," reports on the latest iteration of a bipartisan federal criminal justice reform proposal.  Here are the details: 

Two members of the Senate Judiciary Committee are reintroducing a prison reform bill they say will achieve a major goal of criminal justice reformers: reducing the size of the federal inmate population. Sens. John Cornyn (R-Texas) and Sheldon Whitehouse (D-R.I.) pushed the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers in Our National System (CORRECTIONS) Act at a press conference Tuesday.

The law is meant to reduce the number of people — currently just over 210,000 — incarcerated in federal prisons.  The package proposed by the two senators takes a more moderate approach to reducing prison populations than other proposals that would implement reductions to mandatory sentences.  It also supports programs that help prisoners avoid returning to crime after being released.

Prisoners would undergo a risk assessment to determine whether they present a low, medium or high risk of committing another offense.  Prisoners determined to have a low or medium risk of offending again would be eligible to earn time off of their sentences by participating in recidivism reduction programs, including drug counseling or vocational training, a release from Whitehouse’s office said.

In total, prisoners can earn 25 percent of their sentence off through the law. The bill, though, prevents certain types of prisoners, like those serving time for sex offenses or terrorism, from benefiting from the law. "We want to go forward with what's passable without subjecting the bill to the kind of Willie Horton-type critique that it might receive,” Whitehouse said of the decision not to have the law cover some types of prisoners....

Cornyn and Whitehouse said they are open to debating additional measures, including changing the mandatory minimum sentences for nonviolent drug crimes. But they touted their measure as a good starting point for a larger conversation about criminal justice. “This is a debate that we welcome,” Cornyn said when asked whether sentencing reform could conceivably be added to the bill. “There's a lot of things we can do to improve our criminal justice system, and there's a lot of it being discussed. Things like mandatory minimums, sentencing reform, over criminalization, particularly of the regulatory environment. There are a lot of things we can do better.”

"Given the new open amendment process in the United States Senate, anybody who's got a good idea and 60 votes — 59 plus theirs — can offer it by way of an amendment," he added.

Whitehouse said that having a criminal justice bill moving through the Senate could buoy other ideas for reforming the criminal justice system.  "I think if this bill proves to be a catalyst for further legislation in the area of sentencing reform and criminal justice reform, John and I would have no objection to that,” he said....

Some, including Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), have been reluctant to support changes to the mandatory sentences. But Grassley recently expressed an openness to having his committee consider the idea in an interview at a conservative event last month.

As the title of this post highlights, I have little idea if this CORRECTIONS Act has a real chance at passage. But I am keeping my fingers crossed.

February 11, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 10, 2015

ABA resolution calls for elimination of juve LWOP in the United States

DownloadAs reported in this Robina Institute press release, yesterday "the American Bar Association (ABA) approved a resolution calling for an end to the practice of sentencing children to life-in-prison-without-parole and urging meaningful periodic opportunities for release.”  Here is more from the press release:

The United States stands alone in permitting sentences of life without parole for juveniles. It is the only country other than Somalia that has not yet ratified the Convention on Rights of the Child, which prohibits life without parole sentences for children.  Passage of this resolution signals the ABA’s commitment to reforming U.S. juvenile sentencing laws and aligns with recent rulings by the U.S. Supreme Court affirming that children are “constitutionally different” from adults, and that because children have diminished culpability and greater prospects of reform, they should not be routinely subject to our nation’s harshest penalties.

“With the adoption of Resolution 107C, the American Bar Association has sent a clear message to the legal community and policymakers across the country that children should never be sentenced to die in prison,” said ABA President, William C. Hubbard.  “As the world’s foremost leader and defender of human rights, the United States should ban life without parole sentences for children — a severe violation of human rights. The ABA applauds those states that have already taken steps to reform their laws and urges other states to pass similar reforms as soon as practicable.”

“For any one individual, if over time that person continues to pose a significant risk to public safety, a life sentence may be appropriate,” said Robina Institute Executive Director Kelly Mitchell.  “What this resolution is saying is that the moment of sentencing is not the time to make the judgment that a person is forever irredeemable.”

The control and administration of the ABA is vested in the House of Delegates, which is the 560-member policy-making body of the association.  The House of Delegates meets twice each year, at ABA Annual and Midyear Meetings.  Action taken by the House of Delegates on specific issues becomes official ABA policy.

The full text of ABA Resolution 107C and its assoiated report is available at this link.

February 10, 2015 in Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 08, 2015

Highlighting the role of prosecutorial activity in modern mass incarceration

Images (3)I am pleased to see this new Slate piece giving attention to Professor John Pfaff's important and effective analysis of the reasons for modern mass incarceration.  The piece is headlined "Why Are So Many Americans in Prison?: A provocative new theory," and here is how the piece sets up a Q&A with John, along with a key portion of the Q&A explaining the heart of John's statistical insights:

Criminal justice reform is a contentious political issue, but there’s one point on which pretty much everyone agrees: America’s prison population is way too high.  It’s possible that a decline has already begun, with the number of state and federal inmates dropping for three years straight starting in 2010, from an all-time high of 1.62 million in 2009 to about 1.57 million in 2012.  But change has been slow: Even if the downward trend continues, which is far from guaranteed, it could take almost 90 years for the country’s prison population to get down to where it was in 1980 unless the rate of decline speeds up significantly.

What can be done to make the population drop faster? Many reformers, operating under the assumption that mass incarceration is first and foremost the result of the war on drugs, have focused on making drug laws less punitive and getting rid of draconian sentencing laws that require judges to impose impossibly harsh punishments on people who have committed relatively minor crimes. But according to John Pfaff, a professor at Fordham Law School, neither of those efforts will make a significant dent in the problem, because they are based on a false understanding of why the prison boom happened in the first place.  Having analyzed statistics on who goes to prison, why, and for how long, Pfaff has emerged with a new and provocative account of how the problem of mass incarceration came to be.  If he’s right, the implications for the prison reform movement are huge and suggest the work needed to achieve real progress will be much harder than most people realize.

In a conversation with Slate, Pfaff explains his theory....

Q: So why did the prison population keep on rising after 1991, when the crime wave ended? It seems like if your theory is right, that the increase in violent crime and property crime caused the prison boom, the end of the crime wave should have been accompanied by decreasing incarceration rates.

A: Three things could have happened. One, police just got much more efficient—they’re just arresting more and more people, with new policing technologies, new policing approaches—maybe they’re just arresting a bigger share of offenders. But we don’t actually see that. Arrests tend to drop with the crime rate. So the total number of people being arrested has fallen. The other thing it could be is we’re just locking people up for longer—but like I said, it’s not that. So clearly what’s happening is we’re just admitting more people to prison. Though we have a smaller pool of people being arrested, we’re sending a larger and larger number of them to prison.

Q: Why would that be?

What appears to happen during this time — the years I look at are 1994 to 2008, just based on the data that’s available — is that the probability that a district attorneys file a felony charge against an arrestee goes from about 1 in 3, to 2 in 3.  So over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges. Defendants who they would not have filed felony charges against before, they now are charging with felonies.  I can’t tell you why they’re doing that.  No one’s really got an answer to that yet.  But it does seem that the number of felony cases filed shoots up very strongly, even as the number of arrests goes down.

As regular readers likely know, I am a big fan of John Pfaff's research.  Anyone concerned about mass incarceration, especially at the state level, need to look at his research, and I think John is very right to focus on the importance of state prosecutorial activities and the relatively limited direct impact of the modern federal drug war on state incarceration realities.  (I must note, though, that John's analysis here is not now really "new and provocative": as this 2009 post notes, John himself highlighted this statistical story in a Slate commentary six years ago and most informed folks know prosecutorial activities have played a huge role in modern mass incarceration.)

That said, in part because John's analysis  is especially focused on state data, I fear he misses how the modern drug war, fueled especially by the growth of the federal criminal system, provides one big explanation for why and how "over the course of the ’90s and 2000s, district attorneys just got much more aggressive in how they filed charges."   In the 1980s and before, the feds generally prosecuted significantly less than 10,000 drug cases each year.  But thanks largely to the tough new drug penalties (and added prosecutorial resources) that the Congress put in place by the end of the 1980s, the feds started prosecuting tens of thousands more drug offenders each year and averaged more than 25,000 yearly drug prosecutions through the 2000s.  These additional federal prosecution of drug offenders surely freed up state prosecutors to focus more time and attention on other cases/offenders and allowed them to get "much more aggressive in how they filed charges."

In other words, in the 1980s and before, the feds prosecuted far less than 100,000 drug offenders each decade, and all the other folks arrested by states were not as aggressively prosecuted because state prosecutors saw limited value in cycling lots of lower-level drug offenders through their system.  But throughout the ’90s and 2000s, the feds prosecuted well over 500,000 drug offenders; that freed up space, time, energy for other folks arrested by states to be aggressively prosecuted.  (These forces also had a synergistic impact as new tough three-strikes laws in states and at the federal level extended greatly the terms of those repeatedly cycling through criminal justice systems.)

My point here is not to assert that John's data analysis is misguided or inaccurate in any way.  But I do think it important --- indeed, essential --- to see how the drug war and other toughness effort at both the federal and state level fed off each other in order to change state prosecutorial behaviors in the way John highlights.  And, perhaps most importantly, all of this needs to be studied closely to fully understand how we got into our modern costly mass incarceration mess and how we might best find out way out.

Prior posts about Prof. John Pfaff's important research:

February 8, 2015 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, February 06, 2015

Bipartisan Recidivism Risk Reduction Act introduced in US House

This notable press release from the office of Representative Jason Chaffetz provides the details of a federal prison reform bill that would be extremely consequential if it can get enacted. Here are excerpts from the release providing basic details about the bill:

Republicans Jason Chaffetz (R-UT) and Trey Gowdy (R-SC) joined with Democrats Cedric Richmond (D-LA) and Hakeem Jeffries (D-NY) to introduce H.R. 759, Recidivism Risk Reduction Act. This bipartisan legislation uses risk assessment tools to reduce recidivism, lower the crime rate, and reduces the amount of money spent on the federal prison system....

H.R. 759 would implement a post-sentencing dynamic risk assessment system to identify an inmate’s risk of recidivism. Then, using evidence-based practices developed by states, effective recidivism reduction programs are identified and utilized. The bill would then provide incentives for inmates to participate in those programs.

Ultimately, inmates could earn credits toward an alternative custody arrangement – such as a halfway house or home confinement – at the end of their term. Such arrangements reduce the cost of housing an inmate in the federal prison system.

The program will be phased in over a five year period. The savings will be reinvested into further expansions of proven recidivism reduction programs during this time. After that, it is anticipated that the savings can be used either for other Justice Department priorities such as FBI agents, US Attorney offices etc., or the savings can be used to help reduce the deficit. Similar programs have found success on a state level in several states including Texas, Oklahoma, Ohio, and North Carolina.

In addition, Reps. Chaffetz and Jefferies introduced HR 760, the Bureau of Corrections Renaming Act. This bipartisan legislation would simply rename the “Bureau of Prisons” – under the jurisdiction of the Department of Justice – the “Bureau of Corrections.” Over ninety percent of all federal prisoners will eventually be released. This small change will help the Bureau remember that its mission is not just to house people, but also to rehabilitate prisoners such that they are productive members of society when released. Forty-eight states throughout the country use the word ‘corrections’ in describing their prisons.

The Attorney General is directed to consult with appropriate federal agencies and stakeholders to design, develop, implement, and regularly upgrade an actuarial Post Sentencing Risk Assessment System which shall include one or more comprehensive risk and needs assessment tools, which shall be peer-reviewed and validated, and periodically re-validated, on the federal prison population for the specific purposes of this Act.

Prisoners will be divided into high, moderate, or low risks of recidivism. Prisoners will be periodically re-evaluated and have the opportunity to progress to low risk of recidivism. Prisoners who misbehave can move the other way – i.e. from low to moderate risk of recidivism. Bureau of Prisons shall incentivize prisoners to reduce their individual risk of recidivism by participating in and completing recidivism reduction programs.

Prisoners who have committed more serious crimes such as child abuse, terrorism, and violent felonies, are not eligible for the program.

If a prisoner is successfully participating in and/or completing programs, holding a prison job, participating in educational courses, participating in faith-based services and courses, or delivering programs or faith-based services and courses to other prisoners, the prisoner can earn [certain credits based on their risk levels]. Low risk prisoners will be eligible for consideration for alternative custody such as halfway houses, home confinement, ankle bracelets, etc.

This is not automatic – it must be reviewed and approved by the prison warden, the chief probation officer in the relevant federal district, and a judge in the relevant federal district.

This is not a reduction in sentence – prisoners are not being released and nothing in this Act affects Truth in Sentencing requirements that prisoners complete at least 85% of their sentence.

Some recent related posts:

UPDATE:  Not to be overlooked (even though I managed to overlook it), this past week also saw another notable bipartisan federal bill of not introduced in both houses of Congress.  This press release from the office of Senator Rand Paul provides the basics:

Today, Senator Rand Paul (R-KY), Senator Patrick Leahy (D-VT), Representative Thomas Massie (R-KY), and Representative Bobby Scott (D-VA) introduced the Justice Safety Valve Act (S. 353/H.R. 706) in the Senate and House of Representatives.  The Justice Safety Valve Act would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases based upon mitigating factors.

February 6, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 05, 2015

"Could 2015 be the year Congress finally gets serious about criminal-justice reform?"

The title of this post is the subheading of this new Mother Jones piece which carries this main headline: "On These 5 Things, Republicans Actually Might Work With Dems to Do Something Worthwhile." Here are highlights (mostly) from the start and end of the piece:

Recently, bipartisan momentum has been building behind an issue that has historically languished in Congress: criminal-justice reform. Recent Capitol Hill briefings have drawn lawmakers and activists from across the political spectrum—from Sen. Al Franken (D-Minn.) to Koch Industries general counsel Mark Holden, whose boss, conservative megadonor Charles Koch, has made reform a key philanthropic priority.

The emergence of this unlikely coalition has been building for some time: Liberals have long been critical of the criminal-justice status quo, and many "tough on crime" conservatives — growing concerned by the staggering costs of mass incarceration and the system's impingement on liberty — are beginning to join their liberal and libertarian-minded colleagues. In the past, bills aimed at overhauling the criminal-justice system have stagnated on Capitol Hill, but the bipartisan players who are coming together to push for change means that there are some reforms that could realistically gain traction, even in this divided Congress....

Earned-time credits....

Easing up mandatory minimums....

Juvenile-justice reform....

Reducing recidivism....

Sealing and expunging records....

Despite the bipartisan efforts, many experts still believe that there are plenty of issues that could pose serious obstacles to compromise. Beyond the disagreement on mandatory minimums, there's potential conflict on the role of for-profit prisons, which conservatives praise and Democrats like Booker loathe. Additionally, support for loosening drug penalties — particularly for marijuana — is growing broadly popular, but powerful Republicans remain vocal opponents....

There is one especially powerful force pushing along reform: The federal government is expected to spend nearly $7 billion on prisons this year, and conservatives in charge of Congress will be under pressure to bring down costs. "With every Congress, I'm hopeful for reform," Hurst says. "But this Congress' argument is based on money, not humanity, which is why it's more realistic that it'd happen."

February 5, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 04, 2015

A positive perspective on possible prison reform emerging from Congress

This lengthy new article in The National Journal provides an interesting and informative look at the politics and people at the center of federal sentencing and prison reform discussions. The piece's headlined highlights its themes: "This Is How Justice Reform Can Actually Happen This Year: Chuck Grassley's power will change the dynamics of sentencing reform. But there's still a bipartisan way forward in the Senate." The full piece is a must-read for anyone closely following congressional reform realities, and here is how the article starts:

The rise of Sen. Chuck Grassley to the head of the Judiciary Committee has made a lot criminal-justice reform advocates nervous.

Four months ago, before Republicans took back the Senate, it appeared that reducing mandatory minimums had overcome crucial hurdles.  The Smarter Sentencing Act, which would reduce mandatory minimums for some drug offenders, passed out of committee in January 2014 and attracted a roster of high-profile backers, from former GOP vice presidential nominee Paul Ryan to progressive leader Elizabeth Warren of Massachusetts. Potential 2016 presidential candidates such as Sens. Rand Paul and Ted Cruz had decried mandatory minimums.  Even President Obama and the Koch brothers, who have spent millions against him, agreed the sentencing requirements had to be reduced.

But, like many conservatives who came to power in an era when Republicans branded themselves as the "tough on crime" party, Grassley has made it clear that he sees the steady reduction in violent crime in the United States over the last 30 years as a direct reflection of more-effective policing strategies.  And he believes that mandatory minimum laws that ensure criminals stay locked up have been key to that progress.

Grassley's posture toward mandatory minimums has given some advocates pause. "I do think we can work with him," Sen. Jeff Flake, R-Ariz., a member of the Judiciary Committee, said of Grassley.  "He knows some changes need to be made, but it does influence how far you can go if the chairman stands opposed."

In a Democratic-controlled Congress, many saw a clear path for reducing mandatory minimums.  A handful of vocal GOP supporters have continued to say justice reform should remain a key priority in the new Senate.  But with Grassley in charge, the path forward for criminal-justice reform will likely look very different.

And we may get our first true glimpse of it next week — when GOP Sen. John Cornyn of Texas introduces a rare bill that could actually get through Congress and be signed by the president.  That legislation would be similar to what was known as the Recidivism Reduction and Public Safety Act in the 113th Congress.  That bill was also bipartisan but far less contentious than the Smarter Sentencing Act among the Republican rank-and-file. Even Grassley voted it out of committee last year, where it passed 15 to 2.  Many of the same members are still sitting on the committee with a few GOP additions, including Thom Tillis of North Carolina and David Perdue of Georgia.

The bill next week will focus on transitioning prisoners back into the community after they have served their time. It requires that each inmate undergo a risk assessment to evaluate his or her propensity for recidivism.  Then it allows those deemed medium- and low-risk to earn credits for participating in programs such as job training or substance abuse counseling.  Certain well-behaved and low-risk offenders could then use those credits to serve out the final days of their sentences under some kind of community supervision.

Grassley's office insists that it is early, and no decisions have been made on what bills will make it through the committee.  There is an attorney general to confirm and more on the committee's docket that comes before discussions about far-reaching justice reform.  But, shuffling down the hallways of the Dirksen Senate Office Building in January, Grassley rattled off his top three goals for the committee. "Juvenile-justice reform, patent trolling, and ... prison reform," he said.  "There are some things where there is a pretty good shot of getting some bipartisan agreement."  And, if the Senate GOP's No. 2 introduces the bill, it will make it harder for Grassley to ignore.

February 4, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, February 03, 2015

A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos

Download (1)If the wealthy truly have extraordinary influence on modern federal politics and policies, a notable defendant serving a mandatory 55-year sentence as a result of a few small marijuana sales ought to be getting out of prison before too long.  I say this because, according to this Daily Beast piece, my former client Weldon Angelos is now a "poster boy" for the latest Koch-brothers-backed political effort.  This piece is headlined "The New Face of the Koch Campaign" and here is its subheading: "A father of two was sentenced to 55 years in jail for selling pot. The Koch brothers want to help set him free and make him the face of their new campaign for criminal justice reform."  Here are excerpts:

Weldon Angelos could have hijacked a plane and spent less time in jail.  But due to mandatory sentencing laws, the father of two was sentenced to 55 years in jail for selling pot — a term so long even the judge who gave it to him protested its injustice.  A group backed by the Koch brothers agrees, and is now fighting to get him out of prison.

Angelos is an extreme case: even though the crime was considered non-violent, Angelos carried a firearm during a series of marijuana sales to a Salt Lake City police informant —  so federal mandatory minimums required that he be put in jail until he’s 80 years old. Judge Paul Cassell protested the sentence when he was forced to make it in 2004, a move he told The Daily Beast he considers “the most unjust, lengthy sentence that I had to hand down.”...

Angelos is now 35 years old and has spent some 11 years behind bars.  He has more than 40 years left to go.  Even though his crime was non-violent, parole is not an option at the federal level.  His only hope for relief from his sentence is an order by the president.

“If we’re going to deprive someone of liberty, and deal with the high cost of incarceration, it better solve a problem.  And in this case, it doesn’t solve any problem,” argued Mark Osler, Angelos’ lawyer, who filed a clemency petition on his behalf in 2012.

This is where the Koch brothers come in.  The case is being highlighted by Koch-backed group Generation Opportunity, which targets millenials, in a broader campaign to press for criminal justice reforms this year.  They will kick off the campaign with a documentary highlighting Angelos’ predicament, premiering at Washington, D.C.’s Newseum next week. “[This year] offers a unique moment in history in which people of different backgrounds and political leanings are coming together to facilitate a substantive dialogue on how to fix [the criminal justice system],” said Evan Feinberg, the group’s president. “We can work towards a more just system that reflects the rule of law without overcriminalizing non-violent offenses.”

The new campaign will target the overcriminalization of non-violent crime, mandatory minimum laws, and helping criminals who have served their sentences reintegrate into society.  The demilitarization of police and the excesses of civil asset forfeiture will also be addressed.

Generation Opportunity worked with Families Against Mandatory Minimums on the documentary.  FAMM founder Julie Stewart was in the room during Angelos’ first sentencing hearing.  It was, she said, a severe example of a worrisome trend in the criminal justice system....

“A lot of people just thought that because of the amount of time my brother was [sentenced to], he had done something terrible, just because of the ignorance that is out there about mandatory sentencing,” said Lisa Angelos, Weldon’s older sister and advocate. “Before the case, I had no idea that this was possible in America.”  The judge who was forced to hand down the sentence, Paul Cassell, said the Angelos case is an example of “clear injustice marring the public perception” of the federal courts — and victimizing taxpayers who have to pay to keep him locked up.

“We have in place in our country today some very draconian penalties that distort our whole federal sentencing scheme,” Cassell said.  “When people look at a case like Weldon Angelos and see that he got 55 years, and they see other cases where victims have gotten direct physical or psychological injuries and don’t see a similar [result] from the system, they start to wonder if the system is irrational.”

When he was sent to prison, Angelos’ children were small, now both are in their teens. Without their father, the family fell on hard financial times.  His children rarely talk to him, Weldon’s sister says, because they can’t afford a cell phone on which they can be reached.  “When I tell him stories about his kids, you can tell how very hard it is for him to hear it… to know that he can’t be here,” Lisa Angelos said. “It’s destroyed him in many ways.”

The Angelos’ have waited for more than two years for word on their executive clemency request.  The average successful clemency request takes approximately four years, according to his lawyer.  Weldon Angelos deserves clemency, Osler said, because his sentencing “doesn’t correlate in this country with what’s wrong, and what those wrongs deserve.”

Long-time readers are likely familiar with the Angelos case, which came to my attention on a few months after I started this blog 11 years ago. I litigated pro bono, unsuccessfully, Weldon's 2255 motion with claims (that I still find compelling) that his prosecution and sentencing involved violations of the Second, Fifth, Sixth and Eighth Amendments. I continue to hope Weldon will receive clemency or some other form of relief soon not merely to remedy the injustice of his extreme prosecution and sentencing, but to vindicate critical constitutional principles.

Related prior posts providing some Angelos case history:

February 3, 2015 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"How to Stop Revolving Prison Doors With Books"

The title of this post is the title of this extended piece in the Harvard Political Review authored by Alice Hu.  Here is how it starts and ends: 

Education reduces crime.  This connection seems like common sense, and indeed it has been researched, analyzed, and affirmed countless times.  According to a 2007 collaborative study by Columbia University, Princeton University, and City University of New York, higher education reduces the crime rates of both juveniles and adults by impacting social behavior and economic stability.

The effect of education on crime-reduction is even more dramatic for a certain group within the population: the incarcerated.  To many, the idea of convicts receiving a free college education behind bars is confounding and, more often, infuriating.  When New York Governor Andrew Cuomo introduced a plan to publicly finance basic college education programs in state prisons, legislators in Albany called it “a slap in the face” for law-abiding citizens.

While this response is understandable, the arguments themselves neglect the actual effects of college-in-prison programs.  According to the U.S. Department of Education, inmates who participated in education programs had a 43 percent lower chance of returning to prisons than those who did not.  By drastically reducing the recidivism rate of former inmates, education in prisons returns a tremendous social benefit for all members of society.  Prison education programs not only save an enormous sum of tax dollars spent on prisons annually, but they also have a profound effect on thousands of families and communities.  The current resistance to college-in-prison is founded upon political rhetoric rather than any factual evidence. Indeed, this type of rhetoric by politicians is perhaps indicative of a large, troubling trend in education and incarceration....

College stops the revolving prison doors. It allows inmates the opportunity to reintegrate into society, to work, pay taxes, and contribute to society.  It saves the public billions of tax dollars, money that can go toward higher education aid for students rather than prison expansion.  The “tough on crime” rhetoric may have helped past politicians — Democrats and Republicans alike — to win elections, but it has done little to help the people inside or outside the prisons.  Indeed, the adverse effect of forgoing college programs for inmates cuts across partisan lines and prison bars.  Perhaps this is why President Clinton, who was once adamant about being “on the side of those who abide by the law,” has since commended Bard Prison Initiative as a “good investment in a safer, more productive society.”  Politicians can choose to neglect the evidence and paint college-in-prison programs as unfair to law-abiding citizens, but the true injustice lies in the continuation of ineffective and costly practices when a solution is readily available — education.  It is common sense, after all.

February 3, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, February 02, 2015

Getting a European perspective on crowded prisons

WO-AV345_EUPRIS_9U_20150202185222This new Wall Street Journal article, headlined "Overcrowding Puts Strains on Europe’s Century-Old Prisons," highlights that the US does not have the most densely populated prisons in the world even though we have the largest total prison population. Here are some details from the article:

While cities and states across the U.S. are selling off prisons as the inmate population shrinks, Europe faces the opposite challenge: how to cope with chronic overcrowding in old, cramped jails.

The fortresslike structure of Forest prison is in the otherwise chic Saint-Gilles district of Brussels. Built in 1910 to house 380 inmates, it currently holds 600, most of whom are awaiting trial. In two of the four wings, three inmates are held in 90-square-foot cells designed for one. Two share bunk beds while the third has a mattress on the floor. They eat there and share a toilet. In the other half, prisoners have individual cells but no running water. They must relieve themselves in a bucket that can go unemptied for 48 hours....

“It is medieval,” said Vincent Spronck, who became warden four years ago after a decade working in other prisons. “I didn’t know these conditions still existed until I got here.” The problem isn’t limited to Forest or even Belgium.

In central London, the 170-year-old Pentonville Prison houses 1,303 men in a space designed for 913. An official report found “significant, easily visible vermin infestations,” dirty cells, and rampant drug abuse, and suggested shutting it down.

La Modelo in Barcelona, built in 1904, held 1,781 inmates in space designed for 1,100 when it was last inspected by a team from the intergovernmental Council of Europe, the continent’s human-rights watchdog. Lisbon Central Prison (built 1885) has an official capacity of 886, but was holding 1,310 prisoners in May 2013. Korydallos Prison, built in the 1960s in Athens, should hold 840 people, but held 2,300 in April 2013.

“The whole structure is in a state of crisis,” said Hugh Chetwynd, head of division for the Council of Europe’s Committee for the Prevention of Torture. Overcrowding means “staff struggle to keep proper control, so they resort more to excessive force.” Prison populations per capita are growing in most European countries....

One solution is to send prisoners abroad. Belgium pays €43 million ($48 million) a year to the Netherlands to hold 600 prisoners over the border in a former military barracks in Tilburg. Belgium and Italy, which also has a long-term overcrowding problem, are building new prisons, but some experts argue this doesn’t resolve the problem. “You build big prisons…that leads to higher population rates,” said Peter Bennett, who was warden at four prisons before becoming director of the London-based ICPS. “All the research shows that sending people to prison doesn’t reduce the crime rate.”

Still, while there appears to be no strong relationship across countries between incarceration and crime rates, the crime rate in the U.K. has fallen as the prison population has risen. Peter Cuthbertson, director of the Center for Crime Prevention, said taking serial criminals off the streets cuts crime. “If you don’t do anything else,” he said, a criminal “can easily end up committing hundreds of crimes a year.” He said that longer sentences reduce recidivism rates and while overcrowding isn’t ideal, his solution is to build more prisons.

February 2, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (7) | TrackBack

Indiana sentencing reforms highlight how low-level criminal justice is forced to fill public health gaps

This lengthy local article from Indiana, headlined "County jails fear onslaught of addicts, mentally ill from prisons," provides an effective showcase of the relationships between criminal-justice issues and public-health issues. Here is how:

With the passage of sentencing reforms last year, one study estimates that more than 14,000 low-level offenders, some with serious addictions and mental illnesses, will no longer be kept in prison.  They will be diverted to county jails and community corrections programs that [Franklin County Sheriff Ken] Murphy and others say are ill-equipped to handle the onslaught.

Many such offenders need expensive mental health care — some requiring hundreds of dollars a month in medication.  "These are people with real problems that need treatment," Murphy said. "We need a secure facility or work release or whatever where we can send these folks ... where they can receive treatment, and when they're released, somebody follows up with them."

Sheriffs across the state say jails are not designed for all that.  Jails are meant to hold people awaiting trial, not to house and rehabilitate those who have been convicted. Many do not have mental health services.  Some counties also lack money to expand treatment programs or to launch community corrections programs that provide alternatives to jail, such as housing and GPS monitoring.  That, Murphy said, makes this legislative session critical for public safety.

The success of the criminal code reform under House Enrolled Act 1006, which took effect in July, hinges largely on providing funds for county programs.  Without them, Murphy and others say, people with mental illness and substance abuse problems have a higher risk of failing and re-offending....

"County jails are totally based on the idea in our society that you are innocent until proven guilty," said Howard County Sheriff Steve Rogers. "(HEA) 1006 wants us to hold folks after they've been convicted. Then they won't be pretrial detainees." Rogers said HEA 1006 will put a strain on his jail's mental health resources. "If we can reduce the amount of people that have these mental health issues in our jail," Rogers said, "I think we can handle what 1006 will bring us."

Jails also lack educational programs and vocational training offered in the DOC. "We're not here to rehabilitate," said Capt. Harold Vincent, commander at the Howard County Jail. "That doesn't happen in the jail setting."

Inmates with mental illnesses and substance abuse problems are expensive to incarcerate because of their medical and psychiatric needs. In Marion County, for instance, about 30 percent of inmates are mentally ill, and they take up roughly $7.7 million of the sheriff's budget every year, Layton said. Eighty-five percent have substance abuse problems.

Medication for the mentally ill costs about $800 to $1,500 per dose per person, said Dr. Erika Cornett, medical director for the behavioral health division of Community Howard Regional Health.  Some need an injection once a month, while others need two. That means one mentally ill inmate can cost a jail up to $3,000 a month in medication alone....

Will the political atmosphere be agreeable to spending more money on programs and services that help criminals?  Some hope so....   Some, however, think there will be political resistance.  Investing in other areas, such as education, is more popular.

This article is notable in part because it helps highlight that efforts to reduce prison populations and associated costs could be "penny wise, pound foolish" if there are not adequate resources devoted to services needed to aid localities with community supervision and reentry needs.  More broadly, by detailing various links between health-care needs and criminal justice institutions, this article suggests that effective health-care reform (especially for the poor) may be as critical to public safety and to the public fisc as is effective sentencing reform.

February 2, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 01, 2015

Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata

DownloadAs long-time readers will recall, the US Supreme Court in 2011 in Plata upheld, by a 5-4 vote, a lower-court order that imposed on California a requirement to have its prison population reduced below 137.5% of capacity to remedy extreme Eighth Amendment violations in prison conditions (basics here).  In their dissenting Plata opinions (as noted here and here), Justices Alito and Scalia predicted this ruling would likely produce "a grim roster of victims" and a massive number of "murders, robberies, and rapes" in California.  Similarly, as noted here, in response to Gov Jerry Brown's realignment plan to deal with the Plata problems, the Los Angeles DA predicted "the greatest spike in crime of the last several decades."

Fast forward a few years and this local story now reports that "California’s prison system has hit a milestone, with new figures showing that the inmate population inside the state’s 34 adult prisons has fallen below a court-ordered cap more than a year ahead of schedule."  Here is more: 

California’s prisons steadily filled in the 1990s as tough-on-crime measures such as the “three-strikes” law won public support. In November 2006, the prison population hit 162,804 -- larger than Elk Grove’s current estimated population -- or 200.2 percent of the design capacity at that time.

Lawyers for the inmates said overcrowding had reached the point that medical and mental health care services for prisoners were unconstitutional, and they renewed their legal challenge to a system in which inmates were being housed in triple-deck bunks in prison gyms and other open spaces.  The state disagreed and continued to fight, but in August 2009 a panel of three federal judges said the situation had “brought California’s prisons to the breaking point.”

The panel decreed that within two years the state would reduce inmate populations to 137.5 percent of capacity.  The U.S. Supreme Court agreed in a 5-4 decision in 2011 that the prison population had to be reduced, prompting a series of efforts under Gov. Jerry Brown that led to Thursday’s levels.

Under the latest court orders, California has until Feb. 28, 2016, to cut its inmate population to the 137.5 percent benchmark. The early success in getting to that point can be traced largely to the governor’s prison realignment plan, passed in 2011, which shifted responsibility for nonviolent, low-level offenders from the state to counties.

Before that plan, as many as 60,000 inmates annually were sent to prisons as parole violators and served an average of 90 days. The Department of Corrections says realignment has cut the prison population by about 25,000 inmates. Counties statewide have seen an increase in jail inmates during that time frame....

[In addition,] 2,035 inmates have been released since passage of Proposition 47 in November, which redesignated several felony-level crimes, including some drug possession and property offenses, as misdemeanors. [And] 1,975 inmates in prison after a “third strike” have been released since voters approved Proposition 36 in 2012.  The measure allows for inmates to seek resentencing if their third strike was not considered serious or violent.

So, one should ask, what has happened recently in California with respect to crime rates, especially violent crimes that produce the greatest harms to victims.  This Crime & Consequences post provides a quick summary of the latest official data: "California property crimes per 100k population totaled 2,665.5 in 2013, a 3% drop from the 2012 figure although still above the rate before the realignment law went into effect.  Even better, the rate of violent crimes, less affected by that law, is down to a level not seen since 1967."

Posts at C&C highlight data indicating an increase in car thefts and other property crimes in recent years in California.  But I do not think even the greatest critics of Plata and the state's responses can assert that, as was predicted by a prominent prosecutor, California has experienced "the greatest spike in crime of the last several decades."  In sharp contrast, violent crime has continued to drop in the state in the wake of Plata.  

Though I doubt we will be hearing any sort of mea culpa from those who predicted that the public safety sky was sure to fall after Plata, I hope the California story will help inform assessments of future Chicken-Little-type predictions.

February 1, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, January 29, 2015

Examining the sources of an ever-aging US prison population

NA-CE465_AGING_9U_20150128190609This Wall Street Journal article, headlined "U.S. Prisons Grapple With Aging Population: More Middle-Age Offenders Are Entering or Re-entering Facilities, Research Shows," explores why and how the population of incarceration nation is aging.  Here are excerpts:

Criminal-justice experts often attribute the older prison population to harsher sentencing policies and antidrug laws adopted in the 1980s.  The conventional wisdom is that enforcement of these laws led to longer sentences and more time served, which, in turn, is rapidly driving up the average age of inmates.

New research, however, offers an alternative view: The population of graying prisoners has exploded in recent years largely because more offenders ... are entering or re-entering prison in middle age.  It is a finding that could force states to rethink their efforts to tamp down on the escalating costs of caring for older inmates.

“People are getting arrested and sentenced to prison at a higher rate in their 30s, 40s and 50s than they used to,” said Shawn Bushway, a public policy professor at the University at Albany who co-wrote a coming study on the aging of those incarcerated.

The average inmate generally costs $20,000 to $30,000 a year to incarcerate.  Elderly prisoners, often defined as those older than 50, cost as much as three times more, researchers estimate, because they are more likely to have chronic medical conditions that require expensive treatments.

The population of U.S. prisoners over the age of 44 grew more than 8% annually from 1991 to 2011 — four times the rate of prisoners under the age of 35, according to the Bureau of Justice Statistics, the research arm of the Justice Department.  The proportion of inmates 54 years or older nearly tripled in that time, from 3% to more than 8%.  At the end of 2013, about 270,000 U.S. inmates were 50 years or older, out of a total prisoner population of more than 1.5 million, according to BJS.

Mr. Bushway’s research, based on U.S. Census surveys of state prisoners spanning from 1974 to 2004, suggests the trend is linked to high rates of reported drug use among older inmates — particularly those who came of age in the 1980s ... and have cycled in and out of prison for much of their adult lives....

A separate study on aging prisoners, funded by the Bureau, analyzed data from South Carolina, North Carolina, New York and California, where the proportion of prisoners 50 years or older more than doubled since 2000.  The researchers, economist Jeremy Luallen and statistician Ryan Kling of consulting group Abt Associates, concluded that “rising admission age is the primary force driving the increase in the elderly group.”

The changing nature of offenses over time doesn’t explain the trend, nor do changes in sentencing severity, which had “virtually no impact” on the size of the group, they wrote. “Policy makers are missing an important part of the problem,” Mr. Luallen said in an interview. As states try to rein in costs of mass incarceration, Mr. Luallen said, they would do well to focus more on the flow of older people into the prison system than on reducing their sentences.

“Changing sentencing laws won’t affect” the increasing number of older prisoners, said John Pfaff, a professor at Fordham University School of Law, who studies mass incarceration. “You need to change the behavior of the district attorneys.”

The issue of recidivism continues to pose problems for state governments struggling to contain the costs of mass incarceration. A 2014 U.S. Bureau of Justice Statistics study that examined state prisoners released in 2005 found that about two-thirds were arrested for a new crime within three years.

Harsher laws, such as those that mandate a life sentence after a person is convicted of three felonies, indisputably have led to more time behind bars for some. Bryce Peterson, a researcher at the Urban Institute, said longer sentences have “some effect” on the aging prison population. “It would be misleading to downplay that too much.” Mr. Peterson said he believed that Messrs. Luallen and Kling would have found that the length of time served in prison played a larger role in the graying of the inmate population had their study looked back further than 2000.

January 29, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Intriguing review of early impact of California's Prop 47 reducing offense seriousness

La-me-g-early-release-20150127Though marijuana reform is the national criminal justice reform story most significantly driven by voter initiatives, voters in California the last two major election cycles have been enacting significant sentencing reforms through the initiative process.  In 2012, voters approved Proposition 36 to revise the state's tough Three Strikes Law; last year, voters passed Proposition 47 to reduced various crimes from felonies to misdemeanors. These developments provide yet another reason to view California as the most interesting and dynamic of all states in the history of modern sentencing reform.

The Los Angeles Times now has this lengthy new article detailing some early impacts of Prop 47. The piece is headlined "Prop. 47 brings a shift to longer time spent behind bars," and here are excerpts:

For decades, Los Angeles County jail inmates divided their sentences by five, 10 or 20 to calculate the time they would actually spend behind bars. Because of overcrowding, they left after completing as little as 5% of their sentences.

Now, as Proposition 47 begins to reshape the California criminal justice system, they are serving much more of their time. The new law, passed by voters Nov. 4, reduced drug possession and other minor crimes from felonies to misdemeanors. The county jail population plummeted and sheriff's officials began increasing the time served for the remaining inmates to 90% or more.

Most of the affected inmates will end up serving only half of that, due to automatic credits prescribed by state law, but the change is still profound. Because of Proposition 47, others who would have landed in jail are not being arrested as street cops take a pass because of the low stakes. At the Los Angeles County Sheriff's Department, bookings are down by 23% and narcotics-related arrests are down 30%.

Other California counties are also seeing significant decreases in their jail populations as a result of the new law. In Los Angeles County, the altered landscape has led to renewed questions about how big the new Men's Central Jail should be, as well as concerns about whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.

Under the new law, the cost savings from smaller county jail populations, which the state legislative analyst estimated could be hundreds of millions of dollars, will be channeled into substance abuse and mental health programs, victim services and reducing school dropouts and truancy.

But some, including law enforcement officials, worry that people who need help will not enter the system. Already, fewer are opting for mandatory drug treatment programs because they face little to no jail time as an alternative. "What concerns me is that some of those offenders were getting treatment," said Gardena Police Chief Ed Medrano, the Los Angeles County representative for the California Police Chiefs Assn., which lobbied against Proposition 47. "If they're getting arrested less, that doesn't mean their drug addiction problems have gone away."

Early release has been a near-constant feature in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding. Many inmates were freed after serving only 10% of their time. A 2006 Times investigation found that nearly 16,000 were rearrested for new offenses while they could have been finishing out their sentences. Sixteen were charged with murder....

Over the years, the county has tried solutions including electronic monitoring, work programs and firefighting camps. But nothing had a dramatic impact until Proposition 47 passed with nearly 60% of the vote.

More than 400 county jail inmates have been released in the last three months because their crimes — which include theft and writing bad checks as well as drug possession — have been downgraded to misdemeanors under Proposition 47. That, combined with the reduced number of arrests, helped bring the jail population down to a low of about 15,000 from 18,600. Since early release has been scaled back, the inmate count has rebounded to about 17,400.

Inmates with county sentences for burglary, theft, DUI and the like are now serving 90% of their terms, whereas men had been serving 20% and women serving 10%. Those convicted of more serious offenses such as child molestation or assault with a deadly weapon are now serving 100% of their terms, compared with 40% previously. About 3,000 inmates are serving the longer county sentences; most of those serving state sentences are not affected.

The smaller jail population has allowed sheriff's officials to complete overdue repairs and has freed up more space for educational programs, Cmdr. Jody Sharp said. Dist. Atty. Jackie Lacey praised the news that serious offenders in Los Angeles County are now serving most of their terms, calling it "a positive and welcome effect" that could help her office strike better plea deals. "Every defendant asks the following question: 'When can I get out?' " Lacey said. "If the 'when can I get out' is far in the future, it could impact if they plead guilty early or if they demand a trial."

Lacey emphasized that keeping a close eye on crime and recidivism rates will be key to understanding the full impact of the new law.

In Orange County, the inmate count has dropped nearly 22% since Proposition 47 took effect after the election, allowing sheriff's officials to close a section of the James A. Musick jail. Previously, there were no extra beds for new arrivals on the long weekends when court was not in session. "Now, we've got the luxury of not waiting on pins and needles — now we have some space," said Lt. Jeff Hallock, a department spokesman.

This report provides early evidence that Prop 47 has succeeded in redirecting California's state law enforcement and correction resources principally to the most serious offenders presenting the greatest risk to public safety.  Of course, long-term developments and analyses will been needed to conclusively assess whether the Prop 47 reform is an unqualified success.  But this early report sure is encouraging (and perhaps explains why the folks at Crime & Consequences, who had substantive posts assailing Prop 47 before the November vote, have not substantively discussed the law since its passage).

Some prior related posts on California's Prop 47:

January 29, 2015 in Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 28, 2015

Notable political debate over adding LWOP to punishments in Canada

The lengthy press article from Canada, headlined "Tories to table life in prison without parole, shifting legal landscape," spotlights an interesting debate over LWOP sentences up north. Here are excerpts:

The Conservative government is developing legislation that would mean some murderers will have no hope of release from prison. The new penalty would apply to several categories of those convicted of first-degree murder: killers of police and jail guards, anyone who kills during a sexual assault, kidnapping or act of terrorism and for especially brutal murders. The current penalty for first-degree murder is an automatic life sentence with the first chance for a parole review after 25 years, and the supervision of parole authorities for life.

The planned legislation has yet to be approved by cabinet, a source said. The departments of Public Safety and Justice, which are working together on the new bill, were told to speed up their work after a man shot two Mounties in St. Albert, Alta., on Jan. 17, killing one. The bill is expected to be introduced within a couple of weeks of a new terrorism bill coming on Friday, the source said....

A spokesperson for Justice Minister Peter MacKay declined to comment directly on the categories outlined by The Globe, but quoted the Throne Speech of October, 2013, saying: “Canadians do not understand why the most dangerous criminals would ever be released from prison. We are currently reviewing options to ensure that a life sentence actually means life.”...

The United States is one of the last democracies with the death penalty, and all states but Alaska have the penalty of “life without parole.” The U.S. Supreme Court says life without parole shares some characteristics with the death penalty in that it alters an offender’s life by a “forfeiture that is irrevocable.” Prisoner advocates have dubbed it “the other death penalty,” and “death by incarceration.”

Since Canada abolished the death penalty in 1976, the homicide rate has fallen from 3.08 victims for every 100,000 people to 1.44, its lowest rate since 1966. “It is so patently a sentence that reeks of vengeance that it’s hard to have a sensible political debate,” Archie Kaiser, a specialist in criminal law at Dalhousie’s Schulich School of Law in Halifax, said of life without parole. Vengeance is “really something we have cast aside in Canada, at least since we removed the death penalty.”

Gary Clewley, a defence lawyer in Toronto whose clients are mostly police officers, said the law professor “confuses vengeance with legitimate public indignation. You can’t compare a trial and appellate process at great public expense where people are guaranteed legal counsel and a trial of their peers to a lynch mob.”...

Until now, the Conservative government has taken an incremental approach to life penalties. In 2011, it removed the “faint-hope clause,” which allowed those convicted of murder to apply to a jury after 15 years for the right to an early parole hearing. Also in 2011, it allowed judges to add together the periods of parole eligibility for multiple murders. Two Canadians have been sentenced under the provision, including Justin Bourque, 24, sentenced to life with no eligibility for 75 years in the shooting deaths of three Mounties in New Brunswick last spring....

The cost could be enormous: Canada has 1,115 offenders who were sentenced to life for first-degree murder, of whom 203 have been released on parole; the average cost to keep a man in maximum security is $148,000, compared with $35,000 on parole, figures from Correctional Service Canada show. Forty years in jail would cost nearly $6-million for one person in maximum-security, and $6-billion for 1,000.

As of 2006, lifers on parole had killed 58 people. That category includes those such as Robert Bruce Moyes, sentenced to life as an armed bank robber, who, while on parole killed seven people in Abbotsford, B.C., in 1996. In recent years, the website of Correctional Service Canada has described those serving life sentences as “the most likely to succeed on parole.” A spokesperson said on Monday the agency could not identify, for privacy reasons, the last first-degree murderer released on parole who killed again, nor how many have done so since 1976.

January 28, 2015 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0) | TrackBack

Monday, January 26, 2015

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

PSPP_Fed_Growth_FS_fig1The question in the title of this post is part of my reaction to this new fact sheet released by the Pew Public Safety Performance Project. The Pew document is titled "Growth in Federal Prison System Exceeds States': Federal imprisonment rate, taxpayer costs soar as states curtail expansion, protect public safety," and here is how it starts (footnoted omitted):

Between 1980 and 2013, the federal imprisonment rate increased 518 percent, from 11 inmates for every 100,000 U.S. residents to 68.  During the same period, annual spending on the federal prison system rose 595 percent, from $970 million to more than $6.7 billion in inflation-adjusted dollars.  Prison expenditures grew from 14 percent of the Justice Department’s total outlays to 23 percent, increasingly competing for resources with law enforcement and national security programs.

States, like the federal government, recorded sharp increases in incarceration and corrections costs over the past three decades.  However, between 2007 and 2013, many states made research-driven policy changes to control prison growth, reduce recidivism, and contain costs. While the federal imprisonment rate continued to rise during that period, the state rate declined.

Folks like Bill Otis and some other defenders of the modern state of the modern federal criminal justice system are often suspect when I (and others like Senator Rand Paul and Grover Norquist) assert that a true commitment to conservative values should prompt serious questions about the size and operation of federal criminal justice system.  And I fully understand how folks committed to certain social conservative values, and who also believe the federal government should be actively promoting certain social values, can continue to support strongly the federal war on drugs and ever-increasing federal expenditures in service to promoting certain social values.

But, as the title of this post suggests, I do not understand how anyone who is truly committed to fiscal conservative values is not now compelled to examine whether it is wise to keep spending/borrowing more and more federal monies to keep growing the federal prison system.  As this Pew document and many others have highlighted, a significant number of states have been able to reduce its spending on incarceration over the last decade without any obvious harmful impact on public safety.  My advocacy for federal sentencing reform is based largely on the hope and belief that the feds can now do the same.

January 26, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, January 23, 2015

"Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights"

The title of this post is the title of this recent essay by Robynn J.A. Cox  from the Economic Policy Institute.  Here is the essay's executive summary:

On the surface, crime and punishment appear to be unsophisticated matters.  After all, if someone takes part in a crime, then shouldn’t he or she have to suffer the consequences? But dig deeper and it is clear that crime and punishment are multidimensional problems that stem from racial prejudice justified by age-old perceptions and beliefs about African Americans.  The United States has a dual criminal justice system that has helped to maintain the economic and social hierarchy in America, based on the subjugation of blacks, within the United States.  Public policy, criminal justice actors, society and the media, and criminal behavior have all played roles in creating what sociologist Loic Wacquant calls the hyperincarceration of black men.  But there are solutions to rectify this problem.

To summarize the major arguments in this essay, the root cause of the hyperincarceration of blacks (and in particular black men) is society’s collective choice to become more punitive. These tough-on-crime laws, which applied to all Americans, could be maintained only because of the dual legal system developed from the legacy of racism in the United States. That is, race allowed for society to avoid the trade-off between societies “demand” to get tough on crime and its “demand” to retain civil liberties, through unequal enforcement of the law. In essence, tying crime to observable characteristics (such as race or religious affiliation) allowed the majority in society to pass tough-on-crime policies without having to bear the full burden of these policies, permitting these laws to be sustained over time.

What’s more, the history of racism, which is also linked to the history of perceptions of race and crime, has led society to choose to fight racial economic equality using the criminal justice system (i.e., incarceration) instead of choosing to reduce racial disparities through consistent investments in social programs (such as education, job training, and employment, which have greater public benefits), as King (1968) lobbied for before his assassination. In other words, society chose to use incarceration as a welfare program to deal with the poor, especially since the underprivileged are disproportionately people of color.

At the same time, many communities attempted to benefit economically from mass incarceration by using prisons as a strategy for economic growth, making the incarceration system eerily similar to the system of slavery. Given all of the documented social and economic costs of mass incarceration (e.g., inferior labor market opportunities, increases in the racial disparity in HIV/AIDS, destruction of the family unit), it can be concluded that it has helped to maintain the economic hierarchy, predicated on race, in the United States. In order to undo the damage that has been done, and in order to move beyond our racial past, we must as a nation reeducate ourselves about race; and then, as a society, commit to investing in social programs targeted toward at-risk youth. We must also ensure diversity in criminal justice professionals in order to achieve the economic equality that King fought for prior to his death. Although mass incarceration policies have recently received a great deal of attention (due to incarceration becoming prohibitively costly), failure to address the legacy of racism passed down by our forefathers and its ties to economic oppression will only result in the continued reinvention of Jim Crow.

January 23, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Sunday, January 18, 2015

Highlighting that most prisoners in Wisconsin now sent there for parole or probation violations

B99420782z.1_20150117211308_000_g199j1go.1-0This lengthy Milwaukee-Wisconsin Journal Sentinel article highlights the interesting reality of just who gets sent to prison in the Badger State and how. The piece carries this headline and subheading: "No new conviction, but sent back to prison; Re-incarceration for rule, parole violations costs taxpayers millions." Here is how the article starts:

More than half of the nearly 8,000 people sent to Wisconsin's prisons in 2013 were locked up without a trial — and they weren't found guilty of new crimes.  Some were punished for violating probation or parole by doing things such as accepting a job without permission, using a cellphone or computer without authorization, or leaving their home county. Some were suspected of criminal activity, but not charged.

Re-incarcerating people for breaking the rules costs Wisconsin taxpayers more than $100 million every year. The process that forces violators back behind bars relies largely on the judgment of individual parole agents, which can vary widely. Once accused of violations, people on parole can be sent back to prison for years without proof beyond a reasonable doubt — and they are left with little chance of a successful appeal.

Hector Cubero's agent, for example, recommended he be returned to prison on his original sentence of life with the possibility of parole after he inked a tattoo on the shoulder of a 15-year-old boy. The tattoo featured a cross and a quote from peace activist Marianne Williamson: "Our deepest fear is not that we are inadequate, our deepest fear is that we are powerful beyond measure."

Cubero maintains the teen lied about his age. Had Cubero been found guilty of tattooing a minor, a city ordinance violation, he would have been ticketed and fined $200. If he had been convicted of tattooing without a license, a misdemeanor, he could have been fined $500 and faced a maximum of 30 days in jail. But because he was on parole at the time, Cubero, 52, has served more than two years — with no guarantee he will ever go home.

Cubero already had spent more than 27 years behind bars for being a party to the crimes of first-degree murder and armed robbery. Court records show Cubero, 18 at the time of the offense, did not plan the robbery or fire the shots that killed the victim, a Milwaukee dentist.

Until the parents of the 15-year-old complained about the tattoo, Cubero had never violated parole, according to Corrections Department records. During the four years he'd been free, he passed all his drug tests, paid his restitution and court costs and worked fairly steadily. Nonetheless, Cubero's parole agent recommended he be sent back to prison. The agent, with cooperation from a prison social worker, also blocked his fiancée, Charlotte Mertins of Delafield, and her three children, all in their 20s, from visiting him.

January 18, 2015 in Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Saturday, January 17, 2015

"If crime is falling, why aren’t prisons shrinking?"

Cbpp_statesThe title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:

The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here.  But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons.  You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
 Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies.  Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform.  Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making.  For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.

January 17, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 15, 2015

Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation

Murakawa2014I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author.  Here is how the piece starts and some of my favorite excerpts:

Are liberals as responsible for the prison boom as conservatives?

That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America.  It has begun to attract reviews and debate from across the political spectrum.  Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment.  She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone.  Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP.  These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias.  But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.

Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....

Q: Your book aims to expose the liberal roots of the prison boom.  But Democrats did not create the Willie Horton ad.  It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors.  Is it important to distinguish between the different motives of conservatives and liberals?

A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot.  I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record.  It doesn’t make the brutality of living in a cage any less violent.

Kennedy promulgated this idea of sentencing guidelines.  It was his baby.  He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral.  They became guidelines that were rigid and more carceral.  And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.”  Not once did he introduce legislation to reform the guidelines.  Not once did he apologize or try to change it.  When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.

Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime.  Can you talk about Biden’s history?

A:  He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences.  Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up.  There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly.  But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.

That 1994 act is overwhelmingly, incredibly punitive.  One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone.  It provided political coverage for everyone who wanted to vote for it.  There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act.  The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.

Prior related post:

January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

Wednesday, January 14, 2015

"In a Safer Age, U.S. Rethinks Its ‘Tough on Crime’ System"

The title of this post is the headline of this lengthy front-page New York Times article discussing modern criminal justice realities that should already be known by regular readers of this blog.  Here are a couple snippets from the effective piece:

Democrats and Republicans alike are rethinking the vast, costly infrastructure of crime control and incarceration that was born of the earlier crime wave. “The judicial system has been a critical element in keeping violent criminals off the street,” said Senator Richard J. Durbin, Democrat of Illinois, who is co­sponsor of a bill to reduce some federal drug sentences. “But now we’re stepping back, and I think it’s about time, to ask whether the dramatic increase in incarceration was warranted.”

Senator Charles E. Grassley, Republican of Iowa and the new chairman of the Senate Judiciary Committee, has opposed broad reductions in sentences. But he still agreed, in an interview, that “there are a lot of ideas — prison reform, policing, sentencing — being discussed now that wouldn’t be if we hadn’t had this drop in the crime statistics.”...

Along with uncertainty about the sources of lower crime are contentious debates about what should come next.  How far can incarceration be reduced without endangering safety? Where is the proper line between aggressive, preventive policing and intrusive measures that alienate the law­abiding?

The rise in incarceration has been even more striking than the decline in crime, leading to growing agreement on both the right and the left that it has gone too far.  From the early 1970s to 2009, mainly because of changes in sentencing, the share of American residents in state or federal prison multiplied fourfold, reaching 1.5 million on any given day, with hundreds of thousands more held in local jails, although the rate has tapered off somewhat since 2009.

The social and economic costs are now the subject of intense study.  Some conservatives such as William G. Otis, a former federal prosecutor and adjunct professor of law at Georgetown University, argue that while many factors account for falling crime, harsher justice surely played a significant role. “When people are incarcerated they are not out on the street to ransack your home or sell drugs to your high school kid,” he said.

But many criminologists say the impact has been limited.  “The policy decisions to make long sentences longer and to impose mandatory minimums have had minimal effect on crime,” said Mr. Travis, of John Jay College. “The research on this is quite clear.”

Higher imprisonment might explain from 10 percent to, at most, 25 percent of the crime drop since the early 1990s, said Richard Rosenfeld, a criminologist at the University of Missouri ­St. Louis.  But it brought diminishing returns, he said, as those committing less severe crimes also received lengthy sentences.  

Many states, led by Republicans as well as by Democrats, have acted to reduce sentences for low­level and nonviolent crimes and to improve drug and other treatment services, while still bringing down crime rates.

January 14, 2015 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, January 12, 2015

County budget woes forces a official jail break in Ohio

Jail12-01A helpful reader altered me to this remarkable local story from Ohio, headlined "Summit County releases 72 inmates from jail," which highlights the extreme measures some officials feel they have to take when budget pressures and prisoner overcrowding reaches a breaking point.  Here are the details that explain this picture:

Summit County closed a wing of its jail Sunday for financial and safety reasons and began releasing inmates.  Seventy-two people — some with low-level felony charges and most nonviolent — filed out of the correctional facility shortly after noon.

They were greeted in the parking lot by family and social agencies, and then headed either to shelters, alternative sentencing programs or home.

“For the safety of everyone in this facility, not only the staff but the inmates as well, we’re doing what we have to do due to the financial situation of this county,” Sheriff Steve Barry said.  Barry, whose career began with the sheriff’s office in 1979, could not recall another time when the county released a large number of inmates for budgetary reasons.

The sheriff had announced the release plan last month, saying he doesn’t have enough deputies to safely oversee the jail.  The county already has cut recreation time and programming for inmates because of staffing.

In late 2013, a national jail expert recommended that the county hire at least 50 more workers or close a portion of the facility.  Then last fall, county voters rejected a sales tax increase that would have funneled most of the money to jail operations.  The facility, on East Crosier Street in Akron, can hold 671 inmates, but will be reduced to 522.  “I don’t want these people out,” Barry said. “I got no choice.”

Asked what the county would do in the future, the sheriff responded: “That’s a very good question” and acknowledged he doesn’t know what the solution is.  The release Sunday was complicated by the fact that the jail received about 50 new inmates over the last two days, Barry said.  That meant some people charged with assaults, domestic violence and other crimes not expected to be let go were set free.

No one charged with murder or rape was released, the sheriff said. It was unclear if any of the inmates were released early from a sentence or if they were all awaiting trial. Sheriff’s officials could not say Sunday.

Barry credited the jail staff for handling the background reviews of all inmates. “They have been working around the clock the last four to five days on who could go and who could not go,” Barry said. He added that authorities attempted to contact every victim of the inmates who were released.

Former inmate Antonio Spragling, 50, of Akron had been in the jail for 47 days. He was arrested last year on drug charges and violation of a protection order and is awaiting trial. “All I could do is thank God,” he said. “I’m spiritual. God is my savior. … Unfortunately I’ve been in situations like this before and there was talk of release and it never happened. I look at it as a second chance and I’m not going to let anyone down. No judge. The system. And more important, I’m not going to let myself down.”

David Kennedy of Barberton and Joseph Griffin Jr. of Akron came to the jail to pick up relatives. As they stood in the parking lot waiting, they said they wished there were more programs to help former inmates and more businesses willing to hire them. Without training and jobs, they’ll just end up back in jail, they said. “They’ve got some good people in there,” Kennedy said. “They just had a bad turn. Somebody didn’t help them out. Nobody gave them that momentum, encouraging them to do the right thing. Some of the people in there you can tell have a good heart.”

January 12, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Sunday, January 11, 2015

Toledo Blade urges "No more prisons" for Ohio as it deals with overcrowding issues

This new editorial from The Toledo Blade makes the case for sentencing reform to deal with Ohio's prison overcrowding problems.  Here are excerpts:

Fueled largely by growing numbers of nonviolent, drug-addicted offenders from rural counties, Ohio’s crowded prison system is at a crossroads: The state must either increase capacity or take the far more sensible, humane, safe, and cost-effective route of finding community-based alternatives to incarceration.

Statistical profiles of the state’s incoming inmates underscore the need for change.  They show many low-level offenders with short sentences that community sanctions could handle more effectively, at a fraction of the $25,000 a year it costs to lock up each prisoner. Ohio’s prison system costs $1.5 billion a year.

Nearly 45 percent of inmates who go to prison each year in Ohio — almost 9,000 people — serve less than a year.  That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.  Expanding drug courts in Ohio would ensure that more offenders who struggle with addiction were sentenced to treatment instead of prison.

Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, prudently and courageously rules out building more prisons, though he said crowding statewide could force Ohio to reopen a prison camp.... “As a state, we’re going to have to make some policy decisions,” Mr. Mohr told The Blade’s editorial page. “Are we going to invest in brick and mortar, spending $1 billion over the next 20 years to build and run another prison, or are we going to invest in people? ... I’m not going to build another prison, not with so many nonviolent people coming into the system.”

The rest of the state should listen to its prison chief. Mr. Mohr recently convened a working group of judges and state politicians to find ways to divert more low-level offenders from prison.  He said he would expand halfway houses and other community alternatives to incarceration, and support sentencing reforms that could emerge from the General Assembly this year.

Roughly 30 percent over capacity, Ohio’s prison system holds 50,382 inmates, including 4,049 women.  That’s up about 2 percent from August, 2012.  The prison population would be far higher if the recidivism rate in Ohio were not at a record low 27.1 percent, compared to nearly 50 percent nationwide.  The state could lower that rate even further by starting drug treatment, including medication-assisted treatment, before prisoners are released and continuing that treatment after they go home....

The number of offenders coming from Ohio’s six largest counties, including Lucas, is down, Mr. Mohr said. But a growing number of new prisoners from the rest of the state has more than offset decreases from major urban areas. Ohio’s goal should not be to manage its prison population. It should be to reduce that population significantly, by acting now to expand cost-effective alternatives to incarceration.

Some recent related posts:

January 11, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, January 10, 2015

SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!

The US Supreme Court on Friday afternoon added a remarkable twist to what had been a small sentencing case, a case which had its (first) SCOTUS oral argument earlier this Term, via this new order:


This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii), is unconstitutionally vague."  The supplemental brief of petitioner is due on or before Wednesday, February 18, 2015.  The supplemental brief of the United States is due on or before Friday, March 20, 2015.  The reply brief, if any, is due on or before Friday, April 10, 2015.  The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.  The case will be set for oral argument during the April 2015 argument session.

As some readers likely know, and as Will Baude effectively explains in this new post at The Volokh Conspiracy, "Justice Scalia has been arguing with increasing force that the Act is vague, and the reargument order suggests that there’s a good chance he may finally have convinced his colleagues that he’s right."

This strikes me as huge news, especially because I think any ruling that part of ACCA is unconstitutionally vague would be a substantive constitutional judgment that should get applied retroactively to hundreds (and potentially thousands) of federal prisoners serving mandatory minimum terms of 15 years or more. US Sentencing Commission data suggests that perhaps 5000 or more federal defendants have been sentenced under ACCA over the last decade, though I would guess the majority of these cases did not hinge on the ACCA subprovision that SCOTUS might now find unconstitutional.

January 10, 2015 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, January 09, 2015

"How White Liberals Used Civil Rights to Create More Prisons"

9780199892808The potent title of this post is the potent title of this new piece at The Nation by Willie Osterweil, which serves as a review of sorts of a book by historian Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America. Both the full Nation article and the book it discusses are worth attention, and here are excerpts from the article:

In her first book, The First Civil Right: How Liberals Built Prison in America, historian Naomi Murakawa demonstrates how the American prison state emerged not out of race-baiting states’-rights advocates nor tough-on-crime drug warriors but rather from federal legislation written by liberals working to guarantee racial equality under the law.  The prison industry, and its associated police forces, spy agencies and kangaroo courts, is perhaps the most horrific piece of a fundamentally racist and unequal American civil society.  More people are under correctional supervision in the United States than were in the Gulag archipelago at the height of the Great Terror; there are more black men in prison, jail or parole than were enslaved in 1850. How did this happen?

The common-sense answer is that launching the war on drugs during the backlash against civil-rights struggles encouraged agents of the criminal-justice system to lock up black people for minor infractions.  This isn’t wrong, or not exactly. Ronald Reagan’s infamous Sentencing Reform Act of 1984, which established federal minimums (a k a sentencing “guidelines”) and abolished parole in the federal prison systems, did lead to an explosion in the number of federal prisoners, particularly drug offenders.  It was one of the pivotal moments in the production of the prison-industrial complex (PIC) — the overlapping sphere of government and industrial activity that employs hundreds of thousands of guards, cops, judges, lawyers, bail-bondsmen, administrators and service employees and which sees millions of prisoners performing barely paid production labor to generate profit.  But, as Murakawa painstakingly demonstrates, the Sentencing Reform Act has a “liberal core,” and is built on the technical and administrative logic of racial fairness that structures all federal civil-rights legislation.

This is the fundamental thesis of Murakawa’s book: legal civil rights and the American carceral state are built on the same conceptions of race, the state and their relationship. As liberals believe that racism is first and foremost a question of individual bias, they imagine racism can be overcome by removing the discretion of (potentially racist) individuals within government through a set of well-crafted laws and rules.  If obviously discriminatory laws can be struck down, and judges, statesmen or administrators aren’t allowed to give reign to their racism, then the system should achieve racially just outcomes.  But even putting aside the fact that a removal of individual discretion is impossible, such a conception of “fairness” applies just as easily to producing sentencing minimums as school desegregation....

Murakawa does not simply collapse liberal and conservative into each other. She makes an important distinction between postwar racial-liberalism and postwar racial-conservatism. Race conservatives are those who don’t believe that racism is real, but that race is: they believe that black people are innately inferior to whites, and attribute their place in society to a failure of black culture. This race-conservatism is what is broadly considered “real racism.”

Race-liberalism, on the other hand, remains the dominant — and usually unspoken — American framework for understanding race.  Built on the premise that racism is real but manifests as the prejudice of white people, race-liberals argue that individuals’ racism can corrupt institutions and bias them against black people.  That bias damages black psyches as well as black people’s economic and social prospects.  Race-liberals believe that training, laws, stricter rules and oversight can eliminate prejudice and render institutions “colorblind.” Since it is biased treatment that damages black prospects, then this fix — civil rights — applied to all of society’s institutions, would eventually end racial disparity.

Both race-liberals and race-conservatives base their theories on one disastrous assumption: black people naturally produce crime.  For race-conservatives, black people are innately, genetically criminal, full stop.  For race-liberals, the psychological, economic and social damage of prejudice makes black people “lash out” violently and criminally–either in the form of individual criminal acts or, as the black freedom movement begins in earnest, as protests and rioting. Under both schema, however, the reason society must achieve racial equality is because equality will eliminate black crime.

January 9, 2015 in Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, January 07, 2015

Mapping facilities in incarceration nation which "has more jails than colleges"

The terrific Washington Post wonkblog has this notable post by Christopher Ingraham with a fascinating map and discussion of prisoners and incarceration facilities in the United States.  The post is titled "The U.S. has more jails than colleges. Here’s a map of where those prisoners live." Here is an excerpt: 

There were 2.3 million prisoners in the U.S. as of the 2010 Census. It's often been remarked that our national incarceration rate of 707 adults per every 100,000 residents is the highest in the world, by a huge margin. We tend to focus less on where we're putting all those people....

Much of the discussion of regional prison population only centers around inmates in our 1,800 state and federal correctional facilities. But at any given time, hundreds of thousands more individuals are locked up in the nation's 3,200 local and county jails....

To put these figures in context, we have slightly more jails and prisons in the U.S. -- 5,000 plus -- than we do degree-granting colleges and universities. In many parts of America, particularly the South, there are more people living in prisons than on college campuses. Cumberland County, Pa. -- population 235,000 -- is home to 41 correctional facilities and 7 colleges.  Prisons outnumber colleges 15-to-1 in Lexington County, S.C....

[S]tates differ in the extent to which they spread their correctional populations out geographically. Florida, Arizona and California stand out as states with sizeable corrections populations in just about every county. States in the midwest, on the other hand, tend to have concentrated populations in just a handful of counties.

I encourage everyone to click through to see the map of all this in the WaPo posting.

January 7, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

"How to reduce poverty and improve race relations by rethinking our justice system"

The title of this post is the subheadline of this notable Politico commentary authored by Charles Koch and Mark Holden.  Here are excerpts:

As Americans, we like to believe the rule of law in our country is respected and fairly applied, and that only those who commit crimes of fraud or violence are punished and imprisoned.  But the reality is often different.  It is surprisingly easy for otherwise law-abiding citizens to run afoul of the overwhelming number of federal and state criminal laws.  This proliferation is sometimes referred to as “overcriminalization,” which affects us all, but most profoundly harms our disadvantaged citizens.

Overcriminalization has led to the mass incarceration of those ensnared by our criminal justice system, even though such imprisonment does not always enhance public safety. Indeed, more than half of federal inmates are nonviolent drug offenders.  Enforcing so many victimless crimes inevitably leads to conflict between our citizens and law enforcement.  As we have seen all too often, it can place our police officers in harm’s way, leading to tragic consequences for all involved.

How did we get in this situation?  It began with well-intentioned lawmakers who went overboard trying to solve perceived or actual problems.  Congress creates, on average, more than 50 new criminal laws each year.  Over time, this has translated into more than 4,500 federal criminal laws spread across 27,000 pages of the United States federal code. (This number does not include the thousands of criminal penalties in federal regulations.) As a result, the United States is the world’s largest jailer — first in the world for total number imprisoned and first among industrialized nations in the rate of incarceration....

We have paid a heavy price for mass incarceration and could benefit by reversing this trend.  It has been estimated that at least 53 percent of those entering prison were living at or below the U.S. poverty line when their sentence began.  Incarceration leads to a 40 percent decrease in annual earnings, reduced job tenure and higher unemployment.  A Pew Charitable Trust study revealed that two-thirds of former inmates with earnings in the bottom fifth upon release in 1986, remained at or below that level 20 years later.  A Villanova University study concluded that “had mass incarceration not occurred, poverty would have decreased by more than 20 percent, or about 2.8 percentage points” and “several million fewer people would have been in poverty in recent years.” African-Americans, who make up around 13 percent of the U.S. population but account for almost 40 percent of the inmates, are significantly affected by these issues.

According to Harvard sociologist Bruce Western: “Prison has become the new poverty trap. It has become a routine event for poor African-American men and their families, creating an enduring disadvantage at the very bottom of American society.”...

Fixing our criminal system could reduce the overall poverty rate as much as 30 percent, dramatically improving the quality of life throughout society — especially for the disadvantaged.

Some prior related posts on Koch family efforts in support of criminal justice reform:

January 7, 2015 in Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Criminology & Public Policy special issue on sentencing reform and mass incarceration

CoverA helpful reader alerted me to this special November 2014 issue of the journal Criminology & Public Policy with an array of top criminologists and legal scholars talking about modern sentencing reform and mass incarceration in the united States. The entire issue looks like a must-read, and here is a list of the contents: 

January 7, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, January 06, 2015

Notable discussions of children as mass incarceration’s "collateral damage"

Child-in-Court-boy-text1The latest issue of The Nation includes this effective piece about the generational impact of incarceration headlined "Mass Incarceration’s Collateral Damage: The Children Left Behind; When a parent is sent to prison, a child’s life is derailed, leaving schools to pick up the pieces."  Here is an excerpt:

A growing body of research suggests that one of the most pernicious effects of high adult-incarceration rates can be seen in the struggles of children ... who often lose a crucial source of motivation and support with their parents behind bars....

A very small subset of children — those with abusive parents — were found to be more likely to thrive academically and socially if their parents are incarcerated. But most children declined markedly. In fact, the new research suggests that prisoners’ children may be the most enduring victims of our national incarceration craze. “Even for kids at high risk of problems, parental incarceration makes a bad situation worse,” concluded Christopher Wildeman and Sara Wakefield in their recently published book, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality.

Wildeman and Wakefield found that children with incarcerated fathers were three times more likely than peers from similar backgrounds to become homeless. They also suffered significantly higher rates of behavioral and mental-health problems, most notably aggression.

Kristin Turney, a professor of sociology at the University of California, Irvine, reached similar conclusions in a report published this past September. Turney found that children with incarcerated parents were three times more likely to suffer from depression or behavioral problems than the average American child, and twice as likely to suffer from learning disabilities and anxiety....

Within the last few years, however, a broad range of agencies and policy-makers have begun to frame the nation’s prison boom as a children’s issue. Last summer, the Justice Department launched a wide-reaching campaign to provide support to the children of imprisoned parents — by rethinking visitation policies and changing the protocol for arresting parents in front of children, for example. In August, the American Bar Foundation and the National Science Foundation invited key researchers, advocates and federal officials to the White House for a conference to discuss reducing the “collateral costs” to children and communities when parents are incarcerated. The conference was part of a larger inter-agency initiative begun in 2012 to focus the attention of participating agencies, including the Department of Education, on the children of incarcerated parents. A few months later, in November, the Federal Bureau of Prisons hosted its first-ever Universal Children’s Day, an event attended by nearly 8,500 children visiting more than 4,000 federal inmates....

John Hagan, a professor of sociology and law at Northwestern University, led the White House conference with his research collaborator, Holly Foster, of Texas A&M University. Fifteen years ago, in an oft-cited paper, Hagan first suggested that the effects on children might be “the least understood and most consequential” result of mass incarceration. Now Hagan is seeing his hypothesis proved. More than that, as his adolescent subjects enter adulthood, the effects are compounded: “Almost no children of incarcerated mothers make it through college,” he noted. “These people are now in early adulthood, and they’re really struggling.”

I have long believed and asserted that politicians and policy advocates truly concerned about family values and children's interests should be deeply concerned about the over-use of incarceration as a punishment, especially for non-violent offenders.  And I find fascinating and compelling the suggestion in this lengthy post at The Clemency Report titled "Children deserve legal standing when parents are sentenced." Here is how the potent post by Dennis Cauchon starts:

Are children entitled to legal standing when parents are sentenced in criminal cases? The current answer is “no.” The answer should be “yes.”

Today, the well-being of a defendant’s children is close to irrelevant in criminal courtrooms. Institutional indifference to children is official policy. This is the most profound legal error in the last 35 years, the mistake that made mass imprisonment possible.

Criminal courts produce millions of orphans every year using procedures that weigh only the interests of adults in the courtroom. This is a profoundly ignorant way for a bureaucracy to act. Removing a mother or father from a child’s life is a not mere “side effect”of the day’s procedure; it is an “effect,” often the most important thing that will happen that day.

Children deserve rights — legal rights, established in law — to end their mistreatment in criminal courts.

In domestic courts, the “best interest of the children” is the trump card standard that overrides almost all other adult needs in divorce and custody cases. In criminal courts, defendant’s children are treated as trash in the back row. This difference is legally shameful and morally indefensible.

January 6, 2015 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (5) | TrackBack