Tuesday, March 18, 2014

"Prisoners Could Serve '1,000 Year Sentences In 8.5 Hours' In The Future"

The title of this post is the headline of this awesome new article that an awesome former student sent my way.  Here are excerpts:

Future biotechnology could be used to trick a prisoner's mind into thinking they  have served a 1,000 year sentence, a group of scientists have claimed.  Philosopher Rebecca Roache is in charge of a team of scholars focused upon  the ways futuristic technologies might transform punishment.  Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives.

Speaking to Aeon magazine, Dr Roache said drugs could be developed to distort prisoners' minds into thinking time was passing more slowly.  "There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel  like they were serving a 1,000-year sentence," she said.

A second scenario would be to upload human minds to computers to speed up the rate at which the mind works, she wrote on her blog.  "If the speed-up were a factor of a million, a millennium of thinking would be accomplished in eight and a half hours... Uploading the mind of a convicted criminal and running it a million times faster than normal would enable the uploaded criminal to serve a 1,000 year sentence in eight-and-a-half hours.  This would, obviously, be much cheaper for the taxpayer than extending criminals’  lifespans to enable them to serve 1,000 years in real time."...

"To me, these questions about technology are interesting because they force  us to rethink the truisms we currently hold about punishment.  When we ask ourselves whether it’s inhumane to inflict a certain technology on someone, we have to make sure it’s not just the unfamiliarity that spooks us," Dr Roache said.  

"Is it really OK to lock someone up for the best part of the only life they will ever have, or might it be more humane to tinker with their brains and set  them free?   When we ask that question, the goal isn’t simply to imagine a bunch of futuristic punishments — the goal is to look at today’s punishments through the lens of the future."

March 18, 2014 in Scope of Imprisonment, Technocorrections | Permalink | Comments (9) | TrackBack

Monday, March 17, 2014

DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims

Very long time readers with very good memories may recall the array of notable post-Booker issues that surround the sentencing of Antwuan Ball following his conviction for crack distribution in Washington DC. As first noted in this prior post (from June 2008!), Ball put the government to its burden of proof concerning allegations of a massive drug conspiracy and murders; a very lengthy jury trial led to Ball being acquitted in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment save for one crack distribution count related to a $600, half-ounce, hand-to-hand crack-cocaine deal in 2001.

Fast forward to 2011 and, as reported here, the feds are urging the district judge to rely heavily on all sorts of alleged/claimed wrongdoing by Ball to impose a max statutory sentence of 40 years on the crack charge. (Significant side note: in light of the passage of the FSA and Supreme Court's subsequent Dorsey ruling, I am not sure 40 years was in fact the proper stat-max for Ball, but more on that point later.)

Relying on the prosecution's allegations that Ball was the leader of a huge crack consipracy (claims which the jury rejected), the district judge apparently calculated Ball's guideline sentence range to be 292 to 365 months (though again, due to the FSA, I am not sure that was the right guideline range circa March 2011).   This NACDL amicus brief filed in January 2013 indicates that Ball's guideline range would have been only 51 to 71 months absent consideration of acquitted conduct.

As reported here, District Judge Richard Roberts at sentencing declared that he "saw clear evidence of a drug conspiracy [and imposed on Ball a 225-month prison sentence] for his conviction of the 2001 hand-to-hand drug transaction."  At the time of Ball's 2011 sentencing, I noted here that I was quite pleased the acquitted conduct issues preserved in this notable case, and I suggested "some circuit has to question at least the substantive reasonableness of a sentence that is greatly elevated on the basis of acquitted conduct."  

Now fast forward exactly three more years, and I find myself quite disturbed and troubled by how the acquitted conduct issues (and other issues) were given seemingly quite short shrift by a panel of the DC Circuit in its ruling late last week in US v. Jones, No. 08-3033 (DC Cir. Mar. 14, 2014) (available here).  

For starters, as I read the panel opinion in Jones, I find myself persistently wondering whether and how the district court at Ball's 2011 sentencing may have been influenced by the pre-FSA crack statutes and guidelines before the Supreme Court in Dorsey subsequently made clear that post-FSA rules should apply to all post-FSA sentencings.  This issue is not discussed in the Jones opinion (and perhaps it was not raised/preserved), but uncertainty about the application of the FSA at the time of sentencing might arguably alone be reason enough to require resentencing for Ball.

More fundamentally, to reject Ball's acquitted conduct claims, the DC Circuit opinion in Jones only cites to (now dated) post-Booker precedents from all the circuits via this discussion (my emphasis added):

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.  See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 [D.C. Cir. 2006] (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”).  This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold.  See Dorcely, 454 F.3d at 370-71.  Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review).  Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges “to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).  

I have emphasized a phrase from the middle of this paragraph because I actually believe there are at least two SCOTUS rulings since the DC Circuit addressed this issue in Settles and Dorcely that arguably "calls their validity into question."  Specifically, just from 2013, the Supreme Court's Peugh decision (basics here) and especially its Alleyne decision (basics here and here) provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements.  A fair reading of Alleyne suggests that judicial fact-finding as to facts which "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment" can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.

Critically, I am not asserting that the 2013 SCOTUS rulings Peugh and/or Alleyne now require reversal of old circuit precedents upholding major acquitted conduct enhancements.  But I do strongly believe that 2013 SCOTUS rulings Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements.  Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.

That all said, perhaps the "optimistic" way to read this opinion is as an invitation to Ball and others to see en banc review of old circuit precedent upholding major acquitted conduct enhancements.  At the very least, given that Ball still likely has a decade in federal prison left for his $600, half-ounce, hand-to-hand crack-cocaine deal in 2001, I hope he seriously considers pursuing further appeals of his sentence.

Some old posts on the Ball case and acquitted conduct sentencing enhancements:

March 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Sunday, March 16, 2014

NY Times sees "A Rare Opportunity on Criminal Justice"

The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform.  Here are excerpts:

The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die.  Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.

Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....

The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.

The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.

Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.

In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”

Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.

Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise.  Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.

Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.

Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level.  States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.

Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)

March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Saturday, March 15, 2014

Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively

As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively.  Here are the basics:

The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery.  Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.

The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane.  Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.

The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.

Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence.  The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote.  But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.

Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....

Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.

Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.

March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Friday, March 14, 2014

"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"

The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms.  Here are excerpts:

Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command....

Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....

The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”

The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.

But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”

Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...

Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”

Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”

In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”

Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:

March 14, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, March 13, 2014

"The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"

The title of this post is the title of this notable recent article by Anders Walker and available via SSRN. Here is the abstract:

This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow.  Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics.  Though generally associated with repression and discrimination, both Jim Crow and mass incarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results.  Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.

March 13, 2014 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Previewing what AG Holder will say about drug sentencing to US Sentencing Commission

As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:

Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.

Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.

“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”

Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.

The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.

Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.

Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.

Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....

Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.

But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).

Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.

As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 13, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 12, 2014

Alabama judges complain about new guidelines that limit their discretion to impose prison terms

Federal practitioners are used to hearing complains from sentencing judges about mandatory sentencing laws (and formerly mandatory guidelines) that require judges to impose lengthy prison sentences in certain cases.  But now in Alabama, as highlighted by this interesting new local article, state sententencing judges are complaining about new sentencing law that prevents them from imposing prison terms in certain cases.  The article is headlined "Judges criticize sentencing guidelines," and here are excerpts:

All three members of Walker County’s Circuit Court were critical of Alabama’s new sentencing guidelines for nonviolent offenders while visiting with the Rotary Club of Jasper Tuesday.

Presiding Circuit Judge Jerry Selman described the current political climate as “frustrating” for judges because of the guidelines, which took effect in October 2013. “We can no longer put people in jail who steal from us or who sell drugs to our children,” Selman said.

Proponents of the guidelines say that they are needed to address overcrowding in the state’s prisons, which are hovering at 195 percent of capacity. In 2009, federal judges ordered officials in California to reduce the prison population after it had reached 200 percent of capacity.

Selman told Rotarians that he prefers stiff sentences because he believes that the fear of incarceration is a deterrent to crime. As an example of the correlation, Selman shared the impact of a 60 year prison sentence he handed down to a female drug dealer.

He said he felt the sentence was justified because the woman had ruined the lives of multiple children in the black community by offering them marijuana and gradually moving them on to other narcotics. “I had several police officers come to me and say that for at least the first six weeks after that sentence, you couldn’t find a single drug in the black section of Jasper,” Selman said.

Selman added that he expected to see an increase in crime once individuals charged with drug and theft crimes realize the implications of the sentencing guidelines. Word recently reached him that a self-described career thief did not intend to hire a lawyer the next time he made an appearance before Selman because he could no longer receive jail time.

Selman said his opinion is that legislators are “misguided” and are using the guidelines to avoid building more prisons. “They are looking for ways to save money that are not apparent to everyday people. If they quit patching the holes in the highway, it becomes obvious,” Selman said.

Circuit Judge Hoyt Elliott agreed that building prisons would be a more logical solution to the state’s overcrowding problem than limiting the sentencing options available to judges. “The Legislature controls the purse strings. It wouldn’t be an easy thing for them to do, but it could be done. Tax structures could be changed. They are just not going to do it because it’s not politically popular. So they put the burden on us to relieve the overcrowding, and that is not our job to do,” Elliott said.

Circuit Judge Doug Farris said the guidelines will also undercut the incentive to participate in the county’s Drug Court program, which has had over 200 graduates since 2008 and has a success rate of more than 50 percent. “Whatever the Legislature says, I’m going to do, but I think the best way is to give the discretion back to the judges. Sometimes we need to be lenient, and sometimes we need to be strict. Every case is different,” Farris said.

March 12, 2014 in Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Ohio Supreme Court explains how Miller is to be applied in discretionary juve LWOP system

The Ohio Supreme Court this morning handed down a lengthy split decision in Ohio v. Long, No. . 2014-Ohio-849 (March 12, 2014) (available here), which explain how the Eighth Amendment rules in Miller, which only formally declare conconstitutional a mandatory juve LWOP sentencing scheme, are to be applied in a system that already gave sentencing judges discretion in cases in which juve killers were made eligible for an LWOP sentence. Here is the start and some additional excerpts from the majority opinion: 

In this case, we are asked whether a trial court violates the Eighth Amendment by imposing a sentence of life imprisonment without parole for an aggravated murder committed by a juvenile.  We hold that a court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)....

As applied to a juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller, because the sentence of life without parole is discretionary.  Nor is our criminal procedure flawed under Graham and Miller by failing to take into account that a defendant is a youthful offender.  Nevertheless, for clarification we expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile.  But this does not mean that a juvenile may be sentenced only to the minimum term.  The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate.  Yet because a life-without-parole sentence implies that rehabilitation is impossible, when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record....

Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole.  For juveniles, like Long, a sentence of life without parole is the equivalent of a death penalty.  Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407.  As such, it is not to be imposed lightly, for as the juvenile matures into adulthood and may become amenable to rehabilitation, the sentence completely forecloses that possibility...

The United States Supreme Court has indicated in Roper, Graham, and Miller that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729.  Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile.  Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles.  Miller, ___ U.S. ___, 132 S.Ct. at 2469, 183 L.Ed.2d 407.  In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.

March 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Tuesday, March 11, 2014

"The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What To Do About It"

The title of this post is the title of this notable new paper by W.C. Bunting now available via SSRN. Here is the abstract:

This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.”  While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based.

A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population.  A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population.  Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy.

The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.

March 11, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, March 07, 2014

Senate Judiciary Committee approves Recidivism Reduction and Public Safety Act

Yesterday the US Senate Judiciary Committee voted overwhelmingly in favor of a bill known as the Recidivism Reduction and Public Safety Act.  This press release from Families Against Mandatory Minimums, headlined "FAMM Hails Continued Bipartisan Support for Criminal Justice Reforms," provides this information about the bill contents and context:

The bipartisan bill, a compromise negotiated by Senators Sheldon Whitehouse (D-RI) and John Cornyn (R-TX), is anticipated to help alleviate overcrowding in federal prisons — now at 138 percent of their capacity — and may help reduce federal prison costs, which consume a full quarter of the Department of Justice’s budget and threaten funding for other law enforcement programs.  Among other things, the legislation passed today:

  • requires the federal Bureau of Prisons to classify all federal prisoners as being at high, moderate, or low risk of reoffending;

  • permits many prisoners to earn time credits for completing recidivism-reducing programs or “productive activities” like maintaining a prison job; and

  • allows low and moderate risk prisoners who earn a certain number of time credits to be released from prison early to serve the remainders of their sentences on prerelease custody in a halfway house, on home confinement, or under community supervision.

This article from Main Justice, headlined "DOJ Spends Too Much on Prisons, Leahy Says," reports than 15 Senators voted in support of this bill and that the only GOP member to vote against the bill was Senator Jeff Sessions.

For a variety of reasons, I expect bills to reform severe sentencing laws like the Justice Safety Valve Act and the Smarter Sentencing Act will continue to get a lot more attention than this Recidivism Reduction and Public Safety Act. But, for a variety of reasons, I think this bill, which may have the broadest support among the most important political players in Congress, could end up being the most important and consequential for helping to transform the nature and future of the federal sentencing system.

March 7, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, March 05, 2014

Michigan enacts Miller fix for current and future cases, just as its Justices are to consider past cases

As reported in this local article, headlined "Gov. Rick Snyder signs 'juvenile lifer' update as old cases head to Michigan Supreme Court," the Great Lakes State is busy this week working through all the fall-out from the U.S. Supreme Court's Miller Eighth Amendment ruling.  Here are some of the details:

Michigan Gov. Rick Snyder on Tuesday signed legislation updating state sentencing guidelines in the wake of a 2012 U.S. Supreme Court decision that outlawed mandatory life terms without the possibility of parole for minors....

Senate Bill 319, sponsored by state Sen. Rick Jones (R-Grand Ledge), changes Michigan law for all pending and future cases involving juvenile defendants convicted of first-degree murder, felony murder or certain repeat sexual assault offenses. Instead of handing down mandatory life sentences in those cases, judges can also consider a term of between 25 and 60 years. Prosecutors may still file a request for a natural life sentence, but judges now have new authority to consider other options....

Michigan is home to some 360 juvenile lifers -- more than all but one other state -- but the new law will not have an immediate impact on most inmates already behind bars.  The U.S. Supreme Court, in banning mandatory life sentences for minors, did not indicate whether the ruling should apply retroactively.  The new law contains a "trigger" for resentencing hearings in case of a future court ruling.

The Michigan Supreme Court is set to consider the "retroactivity" question on Thursday, when justices are scheduled to hear oral arguments in three juvenile lifer cases. Two of the offenders, Raymond Carp and Cortez Davis, have exhausted the traditional appeals process but are seeking resentencing.

The third, Dakotah Eliason, is entitled to resentencing because his case is still on appeal, but his attorneys disputed the limited relief offered by the Michigan Court of Appeals, which told a sentencing judge to consider only two options: life with or without the possibility of parole. Michigan's new law, which also allows for a term of years less than life, makes that particular issue moot.  The Eliason case asks the Michigan Supreme Court to consider other issues as well, however, so it's unclear how oral arguments will proceed.

It may be just coincidence that the Michigan legislature got a Miller fix enacted into law just before the Michigan Supreme Court considers retroactive application of Miller to past cases. But I have to think the Michigan Supreme Court might feel (consciously or unconsciously) at least a bit more comfortable concluding that Miller applies retroactively now that the state has a new sentencing scheme for juve murderers on the books.

Michigan media has been covering the Miller application/litigation story quite effectively in the run up to the state's Supreme Court hearing, and here are the headline links to some of the coverage in the last few weeks:

March 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Just what is Ohio doing so right with respect to reentry and recidivism? Can it be replicated nationwide?

The question in the title of this post is my reaction to this wonderful new AP news from my own state, which carries the headline "State reports record-low Ohio prisoner return rate."  Here are the details:

Fewer Ohio prisoners than ever are going back to prison after they’ve been released, the state announced Wednesday, attributing the drop to community programs that work with newly released prisoners, and new prison units that prepare people for life outside bars.  The Department of Rehabilitation and Correction says the current inmate return rate of 27.1 percent, down from 28.7 percent a year ago, is far below the national rate of 40 to 44 percent.

The rate affects not just the prison system’s bottom line but the bigger goal of reducing crime in Ohio, prisons director Gary Mohr said.  “If our people being released from prison are committing less offenses, then we have less crime victims,” Mohr told The Associated Press. “I think that’s the most important piece.”  Saving money on prison operations also means more state dollars can be spent earlier in people’s lives on things like education, he added.

Going forward, the expansion of Medicaid is expected to help connect incarcerated people to needed resources as they come home.  The state projects that roughly 366,000 residents will be newly eligible for coverage by the end of June 2015 by increasing the state-federal health care program for poor children and families.  Mohr says a lower return rate will also help the state reduce its prisoner population, currently about 50,500.

A 2011 sentencing law meant to lower the number hasn’t had the desired impact, leading to fears that the state may need to spend millions to build a new prison after 2017, while pushing judges to rethink sentences and placing a greater emphasis on rehabilitation.  The current prison population hasn’t changed much since 2011, despite projections that it would drop to 47,000 by 2015 and continue to decline.... Ohio’s prisoner population could grow to 52,000 in two years and top 53,000 in six years, Mohr warned last year....

It’s not that the 2011 law is failing.  Challenges, including a recent increase in violent crime and an uptick in cases filed by prosecutors, are holding back promises that the law would lower the prisoner population.  Ohio Supreme Court Chief Justice Maureen O’Connor has said the courts are also part of the problem and called on judges to be more diligent about reducing the number of offenders behind bars.

The rate announced Wednesday is based on a three-year study of inmates released in 2010.

The report/study on which this article is based is available at this link under the simple title "DRC Recidivism Rates."  I would be grateful for any and all help figuring out if there are other big important conclusions or lessons (good or bad) to be drawn from this report beyond the one discussed above.

March 5, 2014 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

Tuesday, March 04, 2014

Might Obamacare end up reducing prison populations "more than any reform in a generation"?

The question in the title of this post is drawn from the headline of this new Newsweek article that purports to explain "How Obamacare May Lower the Prison Population More Than Any Reform in a Generation." Here are a few highlights:

[The] the Patient Protection and Affordable Care Act (ACA) ... may be the biggest piece of prison reform the U.S. will see in this generation.

On the face of it, there’s no direct connection between the ACA and what experts refer to as the “justice-involved population.”  There’s no mention of prisons or jails or even crime in the language of the law.  However, in what proponents of the act are considering a happy public policy accident, the ACA may inadvertently change the makeup of the U.S. prison population by getting early help to those with mental health and drug abuse issues, ultimately reducing recidivism rates and saving states millions, if not billions, of dollars annually....

The last major study on mental health in prisons, conducted by the Bureau of Justice Statistics, found that 64 percent of inmates in state and federal prisons met the criteria for mental illness at the time of their booking or during the twelve months leading up to their arrest.  For comparison, the rate of mental disorders among U.S. citizens stands at around 25 percent, according to the NIH.  Sixty-nine percent of the country’s prison population was addicted to drugs or alcohol prior to incarceration....

Health and crime have become inextricable in the U.S. Health issues such as drug addiction and severe mental health disorders directly lead to illegal activities and eventual imprisonment.  A high percentage of those incarcerated are guilty of crimes directly related to medical issues, such as illegal drug use or theft to support an addiction.

This population — the poor, homeless, addicted, and mentally ill — has never had any health safety net.  With no jobs or income, they are highly unlikely to have private insurance, and Medicaid — the federally-funded health coverage option meant to protect the poorest Americans — is actually only available to a select group of individuals. Though it varies state by state, eligibility is always categorical, which means besides having a low income, Medicaid is only available to five types of people: pregnant women, children below a certain age, parents of Medicaid-eligible children, the disabled, and seniors.

Essentially, Medicaid left out poor, single, male adults without dependant children – the same demographic most likely to end up arrested and incarcerated.  Starting in January 2014, however, the categories have been eliminated (at least in the states that have chosen to take the medicaid expansion — it is an optional aspect of the ACA).  “That means that a lot of people who are going to jail for mental illness or substance abuse related crimes could potentially avoid jail,” says Marsha Regenstein, a professor of health policy at George Washington University.

Of course, these people are hard to reach, and eligibility doesn’t ensure coverage or healthier behavior.  That’s why the bigger opportunity, according to many health and justice policy experts, is to reach and help this population at the points where they do become involved with the justice system....

[T]he right to health care only applies to the length of a person’s sentence.... [A] 2013 report in California, for example, found that 90 percent of prisoners had no health care upon release. Once released, prisoners are likely to discontinue their meds, delay seeing primary care doctors (out of concern for costs), and, as a result, end up in emergency rooms — where high treatment costs are passed on to everyone else via insurance premiums.

This is not just a public health issue; it’s a public safety concern. Lack of care for chronic conditions creates additional long-term problems, like being physically or mentally unfit for employment. In conjunction with a lack of appropriate care for their drug problems and an inability to effectively medicate their mental health disorders, the formerly incarcerated are likely to return to a life of crime.

Many hope and believe that change is on its way. The Justice Department estimates suggest that with the expansion of Medicaid, 5.4 million ex-offenders currently on parole or probation could get the health care they need.  (It’s important to note that 25 states plus Washington, D.C. have implemented the Medicaid expansion as of 2014. However, many policy experts expect the remaining states to fall in line, citing the historical example of how CHIP was initially rejected by many states when it rolled out in 1997, but is now utilized in every state in the country.)

Even with coverage, those ex-offenders will still need to actually utilize those health, and the key will be making the connection at the time of release. The biggest challenge will be getting state justice systems and health systems — not exactly happy bedfellows in past years — to work together to create coordinated discharge planning between jails and community healthcare....

The cost savings associated with keeping former prisoners out of the ER and out of prisons will likely lead leadership at the highest levels — state governors, for example — to push for the types of collaboration that will keep ex-offenders healthy and out of trouble....

Ultimately, because there is no precise directive in the ACA, the choice on how to handle these issues will be made independently in every state, and in every county. In some cases, reform will be swift; in others, life may go on as though Obamacare never happened.

March 4, 2014 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (28) | TrackBack

Monday, March 03, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Sunday, March 02, 2014

Alabama struggling with enduring challenges as tough-on-crime history creates "box of dynamite"

The New York Times today has this notable and lengthy article about the criminal justice reform challenges facing Alabama headlined "Troubles at Women’s Prison Test Alabama." Here are excerpts:

For a female inmate, there are few places worse than the Julia Tutwiler Prison for Women. Corrections officers have raped, beaten and harassed women inside the aging prison here for at least 18 years, according to an unfolding Justice Department investigation.  More than a third of the employees have had sex with prisoners, which is sometimes the only currency for basics like toilet paper and tampons.

But Tutwiler, whose conditions are so bad that the federal government says they are most likely unconstitutional, is only one in a series of troubled prisons in a state system that has the second-highest number of inmates per capita in the nation.  Now, as Alabama faces federal intervention and as the Legislature is weighing its spending choices for the coming year, it remains an open question whether the recent reports on Tutwiler are enough to prompt reform.

“Yes, we need to rectify the crimes that happened at Tutwiler, but going forward it’s a bigger problem than just Tutwiler,” said State Senator Cam Ward, a Republican from Alabaster who is chairman of the Senate Judiciary Committee.  “We’re dealing with a box of dynamite.”

The solution, Mr. Ward and others say, is not to build more prisons but to change the sentencing guidelines that have filled the prisons well beyond capacity. Just over half the state’s prisoners are locked up for drug and property crimes, a rate for nonviolent offenses that is among the highest in the nation.  “No one wants to be soft on crime, but the way we’re doing this is just stupid,” Mr. Ward said.

Still, in many corners of Alabama, a state where political prominence is often tied to how much a candidate disparages criminals, the appetite for change remains minimal.  The Legislature is in the middle of its budget session, working over a document from Gov. Robert Bentley that includes $389 million for the state’s prisons. That is about $7 million less than last year’s budget.

The Department of Corrections argues that it needs $42 million more than it had last year. Alabama prisons are running at almost double capacity, and staffing is dangerously low, said Kim T. Thomas, the department’s commissioner.  He said he would use about $21 million of his request to give corrections officers a 10 percent raise and hire about 100 officers....

There is no ignoring the prison crisis.  Even Stacy George, a former corrections officer who is challenging Mr. Bentley in the June Republican primary by promising to be “the gun-toting governor,” this past week issued a plan for prison reform.  It calls for changing sentencing rules, rescinding the “three-strikes” law for repeat offenders, releasing the sick and elderly, and sending low-level drug offenders into treatment programs instead....

“It is just a culture of deprivation and abuse, not just at Tutwiler but in institutions across Alabama,” said Charlotte Morrison, a senior lawyer with the Equal Justice Initiative, a legal organization that represents indigent defendants and prisoners.  In 2012, the organization asked the federal government to step in after its own investigation into Tutwiler showed rampant sexual abuse....

“It’s a primitive, very backward prison system,” said Larry F. Wood, a clinical psychologist who was hired at Tutwiler in 2012. He quit after two months, appalled at the conditions and what he said was the administration’s lack of support for mental health services. “I’ve worked in prisons for most of 30 years, and I’ve never seen anything like this,” he said. “We need to back up and look at it with fresh eyes. The people who are running it don’t have the perspective to see what can change.”

March 2, 2014 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0) | TrackBack

Friday, February 28, 2014

"The Private Prison Racket"

The title of this post is the headline of this lengthy piece from Politico. It carries this sub-headline: "Companies that manage prisons on our behalf have abysmal records. So why do we keep giving them business?". And here is one snippet of a piece that merits a full-read by all researchers and policy-makers interested in prison reform:

As inmate populations have soared over the last 30 years, private prisons have emerged as an appealing solution to cash-starved states.  Privately run prisons are cheaper and can be set up much faster than those run by the government.  Nearly a tenth of all U.S. prisoners are housed in private prisons, as are almost two-thirds of immigrants in detention centers — and the companies that run them have cashed in.  CCA, the oldest and largest modern private prison company, took over its first facility in 1983. Now it’s a Wall Street darling with a market cap of nearly $3.8 billion.  Similarly, GEO Group, the second largest private-prison operator, last week reported $1.52 billion in revenue for 2013, its most ever and more than a hundredfold increase since the company went public ten years ago.

But while privatizing prisons may appear at first glance like yet another example of how the free market beats the public sector, one need only look at CCA’s record in Idaho — which recently cancelled its contract with CCA — to wonder whether outsourcing this particular government function is such a good idea.

In July 2000, Idaho’s then-Governor Dirk Kempthorne made a decision similar to Jerry Brown’s. He opened the Idaho Correctional Center, the state’s first private prison. But it wasn’t long before the facility — built and operated by CCA — began to draw concerns. Prisoners in the 2,000-bed facility dubbed it “Gladiator School” for the rampant fighting that took place inside.  A 2008 study by the Idaho Department of Corrections obtained by the American Civil Liberties Union showed that there were four times as many prisoner-on-prisoner assaults there than in all the state’s seven other prisons combined.

The ACLU sued CCA in 2010, alleging that violence had become an “epidemic” in the facility, and the Associated Press released a video showing a prisoner beaten unconscious while correctional officers stood around watching.  A 2011 settlement required CCA to keep more officers on staff, but the company apparently didn’t bother to do that.  Last year, a review of CCA’s staff records showed that prison employees had falsified as many as 4,800 hours over the course of seven months; they had understaffed the prison on purpose and fudged records to boost their personal incomes.  The end result: Idaho will terminate its private prison experiment with CCA in June.

CCA’s failure in Idaho is just one example of the industry’s spotty record.

Some related posts on private prisons: 

UPDATE:  Steve Owen, who is senior director of public affairs for CCA, has this response to the piece linked/quoted above now in Politico, and here are excerpts:  

A recent opinion piece in Politico Magazine about private prisons and our company, Corrections Corporation of America (CCA), was a rehash of stale arguments that failed to provide a balanced look at the important role we play in addressing the many corrections challenges our nation faces.

In reality, our company is helping federal, state and local governments find solutions to overcrowded facilities, skyrocketing taxpayer costs and inmates struggling to break the cycle of crime.  Our company believes we have an opportunity and a responsibility to help inmates develop the skills and values they need to be successful when they are released from prison.  We are a team of 16,000 correctional officers, chaplains, teachers, nurses and counselors providing high-quality corrections services at a cost savings for taxpayers.

The opinion writer opens his piece with ill-informed commentary about CCA’s relationship with California.  In fact, there is perhaps no better example of the important role we can play in addressing corrections challenges.  The difficulties the state has faced with overcrowded facilities are well documented, and for more than seven years, CCA has provided an important relief valve to help them manage their inmate population.  Our facilities and professional staff have alleviated unsafe conditions and created opportunities for offenders to access a wide range of programs that prepare them to re-enter their communities once their time is served.  The most recent iteration of our partnership is an innovative agreement that allows California to lease needed space from our company and staff the facility with public employees.

Additionally, the tools we are providing to help manage this difficult situation are being delivered at a significant cost savings. Overall, economists from Temple University, in an independent study receiving a partial grant from our industry, analyzed state government data and found companies like ours save 12 percent to 58 percent in long-term taxpayer costs....

Overall, we recognize that there’s a national discussion going on about our justice system, and people often feel passionately about what should be done to improve it.  Much of that conversation is driven by frustration with sentencing and detention laws, which under longstanding policy our company doesn’t lobby for or take positions on.  Where we can and do make a difference is in being an available tool for governments, providing them critical flexibility to meet their changing needs, while offering inmates services that can help turn their lives around.  For our company, making that difference is an opportunity, a responsibility to our communities, and at the heart of our business. 

February 28, 2014 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, February 26, 2014

Lots of recent (and long-overdue) new concerns about solitary confinement

Long-time readers know I have bemaoning the enduring use and reliance on extreme solitary confinement in many penal instututions for many years.  Indeed, in some of my posts here and here from 2006 on this issue, during a time when constitutional litigation over lethal injection protocols was just getting revved up, I made assertions here and elsewhere that persons truly concerned about both human dignity and public safety ought to focus a lot more on the tens of thousands of humans in Supermax facilities and subject to long periods of solitary confinement than on the many fewer humans on (much nicer) death rows.  And while it seems there has been remarkably limited progress on the lethal injection front over the last decade, recent developments suggest that extreme solitary confinement is finally getting the attention and criticisms it deserves.

Thanks in large part to this Senate hearing conducted yesterday under the title "Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences," both the old and new media have too many new pieces on this topic to provide a comprehensive accounting of what's now afoot on this front.  Here are a few highlights from various sources and with telling headlines that help sketch the direction of the modern discussion:

From the Smithsonian magazine here, "The Science of Solitary Confinement: Research tells us that isolation is an ineffective rehabilitation strategy and leaves lasting psychological damage"

From the New York Times op-ed pages here, "My Night in Solitary"

From The Atlantic here, "Colorado's Prison Director Spent 20 Hours in Solitary — But That's Not Enough"

From NPR here, "N.Y. Becomes Largest Prison System To Curb Solitary Confinement"

From the AP here, Feds say Pa. prisons misuse solitary confinement"

From Slate here, "The Definitive Case for Ending Solitary Confinement; The practice is impractical as well as immoral. It harms prisoners, costs too much, and leads to more crime.

February 26, 2014 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (16) | TrackBack

Two notable new commentaries via HuffPost

Though they both both likely merit their own posts, I will have to be content on this busy hump-day afternoon to just provide links to, and recommend folks read in full, these two new commentary pieces at The Huffington Post:

February 26, 2014 in Drug Offense Sentencing, Marijuana Legalization in the States, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"The Supreme Court and the Rehabilitative Ideal"

The title of this post is the title of this notable new paper by Chad Flanders now available via SSRN. Here is the abstract:

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual.  The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding.  Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.

My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history.  The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform.  Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement.  Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming.  At best, the state must get out of the way.  Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.

February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack