Thursday, June 18, 2015
In aftermath of prison escape, NY legislator suggests microchip tracking implants for violent offenders
As reported in this local piece, headlined "N.Y. State Senator Proposes Using GPS Implants To Track Violent Convicts," a high-profile prison escape has now prompted a high-tech proposed solution to prison escapes. Here are the details:
Bloodhounds and expensive manhunts are so yesterday when it comes to hunting escaped prisoners. That’s the opinion of one lawmaker, who says the state should explore implanting tiny GPS devices under convicts’ skin. Others say microchipping criminals could have multiple uses, CBS2’s Marcia Kramer reported Tuesday.
“If you’ve got convicted murderers, the type of people these two men are, that it would make some good sense at that level that we should have something that we could track them,” said State Sen. Kathy Marchione, R-Saratoga. With 800 law enforcement officials still unable to pick up the trail of escaped murderers Richard Matt and David Sweat, the suggestion from Marchione to implant microchips in people convicted of serious crimes is picking up steam.
“I’m in favor of it, but I do think there have to parameters with respect to the crime itself. I wouldn’t do it for arson, which falls under the violent, but I would do it for aggravated rape and murder,” said Paul Viollis, a security expert and former investigator in the Manhattan District Attorney’s Office. “I see the public safety value in it, not just from an escape standpoint but also from an inmate-control perspective within the institution,” said Jon Shane, a professor at John Jay College.
The New York Civil Liberties Union said microchipping inmates is unconstitutional. “It sounds like a knee-jerk reaction. They should plug the security inside prisons,” said NYCLU Executive Director Donna Lieberman. “As a constitutional matter, it won’t survive a challenge because it’s an invasion of body autonomy.”
Shane, a former cop, said it might pass constitutional muster if the chip was removed if and when a prisoner is released. “Removing it when they are paroled, those sorts of things, transitioning from a microchip to an ankle monitor, are all going to have to be explored,” Shane said.
There’s also the question of whether the microchip could be cut out the minute the inmate escaped. Experts say the chips would be embedded in the neck, underneath six or seven layers of skin. So simply cutting it out without medical assistance would pose a significant health risk, Kramer reported.
I tend to favor at least the considerationof new technologies and technocorrections, so I personally would endorse this kind of innovation. I would especially endorse this kind of technocorrections if it might provide a ready means to give better-behaving prisoners more freedom and liberty while they are imprisoned without crating any risks to general public safety.
Sunday, June 07, 2015
"Expunging America's Rap Sheet in the Information Age"
The title of this post is the title of this notable new paper by Jenny Roberts now available via SSRN. Here is the abstract:
As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.
States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age. Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.
This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.
Sunday, May 24, 2015
Effective review of effective(?) use of sentencing mitigation videos ... and concerns about equity
Today's New York Times has this lengthy discussion of a digital development in modern sentencing proceedings. The piece is headlined "Defendants Using Biographical Videos to Show Judges Another Side at Sentencing," and here are excerpts:
Lawyers are beginning to submit biographical videos at sentencings, and proponents say they could transform the process. Defendants and their lawyers already are able to address the court before a sentence is imposed, but the videos are adding a new dimension to the punishment phase of a prosecution. Judges “never knew the totality of the defendant” before seeing these videos, said Raj Jayadev, one of the people making the[se videos].... “All they knew was the case file.”
Yet as videos gain ground, there is concern that a divide between rich and poor defendants will widen — that camera crews and film editors will become part of the best defense money can buy, unavailable to most people facing charges. Videos, especially wellproduced ones, can be powerful. In December, lawyers for Sant Singh Chatwal, a millionaire hotelier who pleaded guilty in Federal District Court in Brooklyn to illegal campaign donations, submitted a 14minute video as part of his sentencing. Elegantly produced, it showed workers, family members and beneficiaries of Mr. Chatwal describing his generosity.
As he prepared to sentence Mr. Chatwal, Judge I. Leo Glasser said he had watched the video twice, including once the night before. The judge, echoing some of the themes in the video, recounted Mr. Chatwal’s good works. Judge Glasser then sentenced Mr. Chatwal to probation, much less than the approximately four to five years in prison that prosecutors had requested.
Yet efforts like those on behalf of Mr. Chatwal are hardly standard. While every criminal defendant is entitled to a lawyer, a day in any court makes it clear that many poor people do not receive a rack-up-the-hours, fight-tooth-and-nail defense like Mr. Chatwal did.
Even in cities with robust public defense programs, like New York City, lawyers may be carrying as many as 100 cases at once, and they say there is little room to add shooting and editing videos to their schedules. “It’s hard for me to imagine that public defenders could possibly spare the time to do that,” said Josh Saunders, who until recently was a senior staff attorney at Brooklyn Defender Services, adding that lawyers there are often physically in court for the entire workday. He sees the humanizing potential of videos, he said, but “I would also be concerned that defendants with means would be able to put together a really nice package that my clients generally would not be able to.”
Mr. Jayadev’s nonprofit, Silicon Valley DeBug, a criminal justice group and community center in San Jose, Calif., believes that videos are a new frontier in helping poor defendants, and is not only making videos but encouraging defense attorneys nationwide to do the same. The group has made about 20 biographical videos for defendants, one featuring footage of the parking lot where a homeless teenage defendant grew up. With a $30,000 grant from the Open Society Foundation, DeBug is now training public defenders around the country....
LaDoris H. Cordell, a former state court judge in Santa Clara County who is now the independent police auditor in San Jose and who has seen some of Mr. Jayadev’s videos, said she would like them to be used more widely at sentencings.
“I’m very wary, and I was as a judge, of the double standard,” where wealthy defendants can afford resources that poorer defendants cannot, she said. “It is a problem, and what Raj is doing, these videos, is something that should be available to anyone who needs to have it done.” A prosecution, she said, is “usually is a onesided process, and now it’s like the scales are being balanced out.
Monday, May 04, 2015
"Are video visits a smart innovation for jails — or yet another way to exploit families?"
The title of this post is the title of this notable lengthy new Quartz piece. Here are excerpts:
To visit her son in jail in the suburbs of Austin, Texas, Barbara Brutschy would get on a plane and fly 1,700 miles from her home in Oregon. She would arrive at the jail, go through security checks, including metal detectors, all airport-style. An hour later, she would sit down in a booth, wait, and after a couple of minutes her son, Richard Fisk, would appear — on a video screen.
Video visitation, as it’s called, is the latest innovation in America’s jails. Hundreds of jails have introduced on- and off-site video visitation since it became widely available two-to-three years ago. (In 95 known cases, jails are using it to replace in-person visits altogether.) Jail authorities say it’s more secure, less costly to supervise, and better for inmates too, as it allows jails to extend visiting hours. Prisoner advocates, once optimistic about its potential, now see something more sinister: A financially-squeezed jail system and a handful of private communications companies creating an environment where inmates are exploited, often at considerable financial and emotional cost....
Twelve million people pass through the US jail system each year, most of them in pre-trial detention or serving short terms. Jails are run by counties, while prisons, where inmates serve longer sentences, are managed by state and federal authorities. Video visitation is much more commonly used in jails reported advocacy group Prison Policy Initiative.
“The whole purpose of video visitation was to cut down on man hours and the movement inside the jail of our inmates,” said Charlie Littleton, chief deputy sheriff at Bastrop County, Texas, which introduced video visitation and banned face-to-face in November 2014.
Jail authorities commonly say they cut labor costs when guards do not have to escort prisoners from their cells to the visiting room. It’s unclear exactly how much the jails are saving. When asked about whether they had calculated their savings over the course of the ban, Littleton said they hadn’t “run the figures”.
Another benefit that’s touted is increased safety through a reduction of contraband and violent incidents. But because visits in county jails often occur through glass — the kind you see in movies, where the inmate sits on one side of the partition and the visitor on the other, with phone receivers on both ends — how video visits promote safety is not apparent. In fact, records from Travis County showed an overall increase in infractions and contraband after banning face-to-face visitation.
Authorities say that installing video systems makes it easier for families to visit. That’s how the systems are marketed as well. “By leveraging the technology, facilities are able to provide far more hours of operation for visits for friends and family,” Tim Eickhoff, a vice president at GTL told Quartz.
But those extended hours can come with a catch, prisoners and their families have found. In some cases, the frequency of free on-site visits has been curtailed, forcing families to use paid off-site services to communicate....
The financial cost to prisoners and their families of video calls can be considerable. A Securus video call can cost as much as $1.50 per minute–all of which falls on the outside caller. That means a 20-minute video call can cost as much as $30 — for a service not very different from Skype or Google Hangouts, that most of us in the outside world use for free. Some companies also add a flat service charge, further hiking up the fees. In Buchanan County, Missouri, the fee to simply deposit money into your TurnKey Corrections phone account is $8.95....
Starting in 2013, the Federal Communications Commission initiated efforts to limit how much prisons could charge inmates for phone calls, amid public outrage at reports of exorbitant costs. One 15-minute phone call, operated by a private communications company, can cost as much as $12.95 (paywall). But while the commission is beginning to impose caps on costs of phone calls, it did not extend the limits to video visits. (It has “sought comment on the matter” a spokesperson for the FCC tells Quartz.)
“Video visitation is absolutely unregulated. Phones are beginning to be regulated, and I think that most people in the field see video visitation as a way to skirt around that regulation,” says Josh Gravens of advocacy group Texas CURE. The cost is too much, he says, for the quality of the call. “In this day and time, we have such a technological advantage. It’s not even justifiable.”
Private communications companies typically add sweeteners to encourage jails to sign up for their services. These can include the free installation of the systems, as well as significant commissions to the jails for each video call ranging from less than 1% to half of what an inmate is charged, and even 63% in one case, found the PPI report. For jails, the sweeteners, along with the savings they anticipate, can offer a way to bolster their cash-strapped budgets. As Ann Jacobs, director of the Prison Reentry Institute at the John Jay College of Criminal Justice in New York noted, although jail budgets have grown along with the prison population, that growth has only been enough to accommodate basic needs of the facilities. “Correctional authorities are encouraged to get creative where to find profit.”...
Video visits exact an emotional as well as financial toll on inmates and their families. Jail sentences are relatively short, but some inmates linger in pre-trial detention for as long as six years. Research maintains that the best kind of meeting for inmates is a contact visit, the kind that is offered in state prisons. Studies have repeatedly proven that touch helps with creating social bonds, reducing stress, and increasing trust.
Placing a camera and screens between inmate and visitor eliminates some of the advantages of a visit. “They’re probably less than 500 feet away from you and you feel like they’re still in another state,” said Fisk. Just like with a Skype or FaceTime connection, you can’t maintain eye contact on a video call, because you spend most of your time looking at the screen, not at the camera. “You can never look someone in the eye. It’s impossible.”
Some prior related posts:
- NY Times debates "Visiting Prisoners, Without Visiting Prison"
- New report examines value of video visitation for kids of incarcerated
- "Louisiana prisons expand inmate medical care through video conferencing"
- Prison videoconference visitation program expanding in New York
- Might all video visitation companies be eager to have prisons and jail prohibit in-person visitation?
- "The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"
Wednesday, April 22, 2015
New problems with drones smuggling contraband in to prisons
This New York Times article would perhaps be amusing if it were not so disconcerting. The headline is is "Illegal Air Mail for Prisoners, via Drones," and here are excerpts:
During the graveyard shift at 1:44 a.m., security cameras at the prison here picked up the blinking lights of an unidentified flying object approaching the facility’s fence. A corrections officer was dispatched to investigate, but by the time she got there, all she could see was a man running away into the dense forest that surrounds the prison.
It was not until dawn that officers found a package that included a cellphone, tobacco and marijuana tangled in the power lines outside the prison and a small drone that had crashed in the bushes nearby. In the woods, investigators located a makeshift campground, the remote control device used to fly the drone, a bottle of grapeflavored Gatorade and drugs.
“It was a delivery system,” said Bryan P. Stirling, the director of the South Carolina Department of Corrections, explaining how the drone’s operators had planned to send the contraband into the prison, the Lee Correctional Institution. “They were sending in smaller amounts in repeated trips. They would put it on there, they would deliver it, someone inside would get it somehow, and they would send it back out and send more in.”
It is the high-tech version of smuggling a file into a prison in a birthday cake, and it underscores the headache that drones are now creating for law enforcement and national security officials, who acknowledge that they have few, if any, ways of stopping them.
Drones flying over prison walls may not be the chief concern of corrections officials. But they say that some wouldbe smugglers are experimenting with the technique as an alternative to established methods like paying off officers, hiding contraband in incoming laundry and throwing packages disguised as rocks over fences into recreational yards.
The authorities have detected at least three similar attempts at corrections facilities in the United States in the past two years. In the same period, there were also at least four reported attempts abroad, in Ireland, Britain, Australia and Canada.
Wednesday, April 15, 2015
"Trending Now: The Use of Social Media Websites in Public Shaming Punishments"
The title of this post is the title of this intriguing new piece authored by Lauren Michelle Goldman now available via SSRN. Here is the abstract:
This Note proposes that a social media shaming sanction might be an effective addition to the menu of public shaming punishments the judiciary already offers. Section II of this Note lays the foundation of shaming punishments in America, giving an overview of their history and development. Section III discusses the Ninth Circuit’s recent decision in Gementera, in which the court upheld a modern-day public shaming punishment, as well as other select cases that have upheld public shaming punishments that involve print media.
Section IV outlines the current scholarly debate surrounding the use of public shaming punishments. Section V gives an overview of the presence of social media and Internet usage in today’s society, discusses a new trend among parents in which parents have begun to utilize social media to punish their children, and evaluates public shaming punishments via social media websites from the vantage point of various criminal law theories. Finally, Section VI advocates for the inclusion of online social media public shaming punishments into the judiciary’s already expansive list of sentencing options, but with some limitations and guidelines.
Monday, March 30, 2015
"Monitoring Youth: The Collision of Rights and Rehabilitation"
The title of this post is the title of this notable and timely new paper by Kate Weisburd now available via SSRN. Here is the abstract:
A monumental shift in juvenile justice is underway, inspired by the wide recognition that incarceration is not the solution to youth crime. In its place, “electronic monitoring” has gained widespread support as a new form of judicial control over youth offenders. Supporters herald it as “jail-to-go”: a cost-efficient alternative to incarceration that allows youth to be home while furthering rehabilitative and deterrent goals. But despite electronic monitoring’s intuitive appeal, virtually no empirical evidence suggests its effectiveness. Instead, given the realities of adolescent development, electronic monitoring may cause more harm than good.
This Article is the first to examine the routine, and troubling, use of electronic monitoring in juvenile courts. After describing the realities of the practice and its proffered justifications, this Article refutes three key misperceptions about the practice: (1) that it lowers incarceration rates because it is used only on youth who would otherwise be detained; (2) that it effectively rehabilitates youth; and (3) that it is cost-effective.
Yet because of the deference afforded to judges in crafting terms of probation and pretrial release, the rehabilitative rhetoric of juvenile court, and the perception of electronic monitoring as non-punitive, electronic monitoring is subject to virtually no judicial oversight or scrutiny. The result is that the practice exists in a legal and policy netherworld: wielded and expanded with almost no limits. This Article concludes by arguing that electronic monitoring should be categorized as a form of punishment, warranting a new doctrinal framework that more rigorously evaluates, and circumscribes, monitoring and other forms of non-carceral control.
Tuesday, March 24, 2015
Ohio prison officials decide security drones are not (yet) cost effective
As reported in this local piece, headlined "Prisons no longer testing security drones," Ohio's prison guards do not quite yet have worry excessively about being replaced by technology. Here is why:
The Ohio Department of Rehabilitation and Correction has put a stop to drone testing at the Lebanon and Warren prison sites. Late last year, officials announced they were testing drones, an unmanned aerial system equipped with cameras, on the grounds of the two prisons. The drones, state leaders hoped, would be a new security model for the state prisons system.
But that testing stopped in December, shortly after it started, this newspaper has learned. A $170,000 aerostat, a balloon-shaped drone equipped with both day and night cameras, was tested on prison grounds in October but officials quickly learned the cameras were not strong enough for the prisons’ security needs, said Ed Voorhies, the managing director of Ohio’s prisons.
Voorhies said state officials decided buying the aerostat wouldn’t be a good investment of taxpayer dollars. “They’re going to go back to the table and discuss some potential solutions,” he said....
Drones at Ohio’s prisons are still a possibility, Voorhies said, but other security measures will likely be considered, too. “We are looking at technological solutions to augment our existing security,” Voorhies said.
A spokesman for Wright Patterson Air Force Base confirmed researchers are working with state officials but said the work is in “the earliest conceptual stages” and declined to comment further. State prison officials want to step up security cameras placed outside of the prison walls so less contraband — drugs, cellphones and cigarettes, for example — is smuggled into the prison, to prevent inmates from escaping, and to better analyze how fights start between inmates on the grounds, Voorhies said. In 2013, for example, corrections officers caught nearly 500 cellphones smuggled into the prison.
Ohio became the first known prison system to begin testing drones in October. The testing began just a month after notorious Ohio school shooting killer T.J. Lane and two others escaped from the Allen Oakwood Correctional Institution in Lima.
Voorhies said the two prisons — which sit next to one another and are located in Warren County — will continue to be testing grounds for any new security models introduced. That’s because the state is able to test security for two prisons at once and because the prisons are so closely located to the Air Force Research Lab.
Prior related posts:
- Why those who follow sentencing and corrections reform should be following drones
- South Korea rolls out new robot prison guard
Tuesday, January 20, 2015
How Texas prisons struggling with cost concerns innovate with telemedicine
This Dallas Morning News article, headlined "Texas prisons try telemedicine to curb spending," highlights how the Lone Star State and other states struggle to cope with the increased cost of an aging prison population. Here are excerpts:
Christopher Aldridge walks into the clinic, hops onto the edge of the examination table and greets his doctor.... It sounds like a routine medical visit — but patient and doctor are not in the same room or even in the same city. The doctor is in a clinic in Galveston, and Aldridge, an inmate at the Estelle prison in Huntsville, is 135 miles away in the prison clinic, talking to the doctor on a TV screen.
The high-tech medical consultation, known as telemedicine, uses technology to connect prisoners, who are often housed in remote areas, with medical experts throughout the state. It’s just one way that the Texas Department of Criminal Justice is trying to control spending on prison health care. But while telemedicine has shown some success in curbing spending, it hasn’t been enough to stem rising costs due to an aging prison population.
From 2001 to 2008, the cost of providing health care per inmate increased nationally by an average of 28 percent, according to a 2013 report by the Pew Charitable Trusts that examined cost data from 44 states. During that period, Texas and Illinois were the only states to see a reduction in spending. Texas reduced the cost of health care per inmate by 12 percent while Illinois saw a 3 percent decrease.
But that trend has changed in recent years. From 2007 to 2011, Texas prisons have seen a 24 percent increase in health care spending per inmate, according to a more recent study by the Pew Research Center. The July 2014 report looked at cost data for 50 states and found spending increased by an average of 10 percent....
Prison health care is expensive. It cost $7.7 billion to provide health care to U.S. prisoners out of an overall $38.6 billion spent on corrections in 2011, according to the Bureau of Justice Statistics. More than $581 million was spent on health care for Texas’ 152,841 prisoners in 2011.
Texas is trying to lower that cost by subcontracting prison health care to the University of Texas Medical Branch and Texas Tech University. The partnership reduces medication costs through a federal program and uses cost-saving technology such as telemedicine....
But critics argue that telemedicine isn’t the way to save money in a system plagued with long-standing concerns of poor medical care. The Texas Civil Rights Project has filed dozens of lawsuits against the Texas Department of Criminal Justice and its medical contractors citing medical negligence. Wayne Krause Yang, the project’s legal director, is concerned that telemedicine could shortchange an already vulnerable population....
Telemedicine saved the Texas Department of Criminal Justice $780 million from 1994 to 2008. Those savings are set to increase as the number of telemedicine consultations rises. About 100,000 telemedicine encounters take place in Texas state prisons each year....
But a steady increase in the number of older prisoners is stretching the prison health budget. Costs for their medical care are two to three times higher than for younger prisoners....
While some states begin to enroll inmates in health insurance under the new Medicaid expansion part of the Affordable Care Act — an option not available to prisoners in Texas — others look to Texas for cues on expanding telemedicine and accessing federal drug pricing programs.
Sunday, January 18, 2015
"Smart Guns Save Lives. So Where Are They?"
The question in the title of this post is one that long-time readers know I have been asking on this blog for nearly a decade. Today the question also serves as the headline for this Nicholas Kristof op-ed in the New York Times. Here are excerpts:
About 20 children and teenagers are shot daily in the United States, according to a study by the journal Pediatrics. Indeed, guns kill more preschool-age children (about 80 a year) than police officers (about 50), according to the F.B.I. and the Centers for Disease Control and Prevention.
This toll is utterly unnecessary, for the technology to make childproof guns goes back more than a century. Beginning in the 1880s, Smith & Wesson (whose gun was used in the Walmart killing) actually sold childproof handguns that required a lever to be depressed as the trigger was pulled. “No ordinary child under 8 years of age can possibly discharge it,” Smith & Wesson boasted at the time, and it sold half-a-million of these guns, but, today, it no longer offers that childproof option.
Doesn’t it seem odd that your cellphone can be set up to require a PIN or a fingerprint, but there’s no such option for a gun? Which brings us to Kai Kloepfer, a lanky 17yearold high school senior in Boulder, Colo. After the cinema shooting in nearby Aurora, Kloepfer decided that for a science fair project he would engineer a “smart gun” that could be fired only by an authorized user....
Kloepfer designed a smart handgun that fires only when a finger it recognizes is on the grip. More than 1,000 fingerprints can be authorized per gun, and Kloepfer says the sensor is 99.999 percent accurate. A child can’t fire the gun. Neither can a thief — important here in a country in which more than 150,000 guns are stolen annually.
Kloepfer’s design won a grand prize in the Intel International Science and Engineering Fair. Then he won a $50,000 grant from the Smart Tech Challenges Foundation to refine the technology. By the time he enters college in the fall (he applied early to Stanford and has been deferred), he hopes to be ready to license the technology to a manufacturer.
There are other approaches to smart guns. The best known, the Armatix iP1, made by a German company and available in the United States through a complicated online procedure, can be fired only if the shooter is wearing a companion wristwatch.
The National Rifle Association seems set against smart guns, apparently fearing that they might become mandatory. One problem has been an unfortunate 2002 New Jersey law stipulating that three years after smart guns are available anywhere in the United States, only smart guns can be sold in the state. The attorney general’s office there ruled recently that the Armatix smart gun would not trigger the law, but the provision has still led gun enthusiasts to bully dealers to keep smart guns off the market everywhere in the U.S.
Opponents of smart guns say that they aren’t fully reliable. Some, including Kloepfer’s, will need batteries to be recharged once a year or so. Still, if Veronica Rutledge had had one in her purse in that Idaho Walmart, her son wouldn’t have been able to shoot and kill her.
“Smart guns are going to save lives,” says Stephen Teret, a gun expert at the Johns Hopkins Bloomberg School of Public Health. “They’re not going to save all lives, but why wouldn’t we want to make guns as safe a consumer product as possible?” David Hemenway, a public health expert at Harvard, says that the way forward is for police departments or the military to buy smart guns, creating a market and proving they work....
Smart guns aren’t a panacea. But when even a 17yearold kid can come up with a safer gun, why should the gun lobby be so hostile to the option of purchasing one? Something is amiss when we protect our children from toys that they might swallow, but not from firearms. So Veronica Rutledge is dead, and her son will grow up with the knowledge that he killed her — and we all bear some responsibility when we don’t even try to reduce the carnage.
Among other potential benefits, I think a sophisticated commitment by gun rights advocated to smart gun technologies could in some ways expand gun rights to people now too often denied their rights by overly broad federal firearm restrictions.
Right now, for example, anyone convicted of any felony is forever criminally precluded from ever even possessing a firearm. In a world with more technologically sophisticated guns, some kind of microchip might be installed in certain hunting rifles so that they only work at designated times in designated areas and perhaps then persons guilty of nonviolent felonies could be exempted from broad felon-in-possession prohibitions in order to be able to use these kinds of guns for sport. Or, perhaps technology might allow all persons after completing their formal punishment to still be able to exercise their Second Amendment right to keep and bear arms: ex-cons might be permitted only access to smart guns with GPS tracking/reporting technology (something comparable to the internet tracking/screening software now regularly required to be on sex offenders' computers) so that authorities can regularly follow when and how former felons are exercising their gun rights.
A few recent and older related posts:
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
- "Smart Gun Technology Could Have Blocked Adam Lanza"
- Sentencing "highlights" in President Obama's new gun control push
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
- Interesting developments in "smart gun" discussions and debate
- "Can ‘Smart Gun’ Technology Change the Stalemate Over Gun Violence?"
Tuesday, November 18, 2014
Ninth Circuit upholds injunction, on First Amendment grounds, blocking California law requiring sex offenders to report report online activities
As reported in this Bloomberg story, "California can’t enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled." Here are more of the ruling's basics via the press:
The San Francisco-based court today upheld a judge’s decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. (FB) executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012.
The measure, known as Proposition 35, isn’t clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court’s three-judge panel said today.
The law also harms sex offenders’ ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.
A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution’s First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.
The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) (available here), officially gets started this way:
California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation (“CASE”) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide “[a] list of any and all Internet identifiers established or used by the person” and “[a] list of any and all Internet service providers used by the person.” Id. § 290.015(a)(4)–(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider (“ISP”). Id. § 290.014(b).
Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Thursday, November 06, 2014
New California report finds many challenges in sex offender monitoring
As reported in this local piece from California, "two-thirds of parole agents who monitor sex offenders juggle caseloads that exceed department standards, a state corrections review reported Wednesday in response to an Orange County murder case." Here is more about the report's findings:
Agents are supposed to supervise between 20 and 40 parolees, depending on how many are high-risk offenders. But more often than not, the state Office of the Inspector General found, agents are overburdened. At 14 of the state’s 37 units responsible for supervising paroled sex offenders, all agents had bigger caseloads than department policies allow. The inspector general surveyed the units’ caseloads in August.
The report also criticized the effectiveness of GPS monitoring and housing restrictions enacted through Jessica’s Law, a 2006 ballot measure. The inspector general tied the restrictions to a spike in homelessness and strained resources....
The state Sex Offender Management Board recommended four years ago that agents supervise no more than 20 paroled sex offenders. But the inspector general said corrections officials haven’t adopted the lower threshold.
The inspector general report was requested by state Sen. Darrell Steinberg after the April arrests of Steven Gordon and Franc Cano, two transient sex offenders registered to live in Anaheim. Steinberg was head of the Senate at the time and chairman of its rules committee....
Steinberg didn’t request that the inspector general probe how Gordon and Cano were supervised by parole agents. Previously, the office did just that after the high-profile convictions of sex offenders Phillip Garrido and John Gardner. This time, Steinberg focused on broader questions about the impact of GPS monitoring and housing restrictions.
The Department of Corrections and Rehabilitation estimates that it spent about $7.9 million to monitor more than 6,000 paroled sex offenders with GPS devices in the last fiscal year, a decline from $12.4 million four years earlier.
The detailed 80+-page report from the California Office of Inspector General, which is titled "Special Review: Assessment of Electronic Monitoring of Sex Offenders on Parole and the Impact of Residency Restrictions," is available at this link.
November 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (2) | TrackBack
Thursday, September 11, 2014
Symposium papers on "NSA Surveillance: Security, Privacy, and Civil Liberty"
Though not focused on core sentencing issues, a new set of symposium papers published in a great law journal at Ohio State may be of interest to many blog. The Summer 2014 issue of I/S: A Journal of Law and Policy for the Information Society is the result of a symposium on “NSA Surveillance: Security, Privacy, and Civil Liberty.” Here is a listing of the impressive group of papers that are all available at this link:
- Foreword: The NSA and the Legal Regime for Foreign Intelligence Surveillance, Peter M. Shane
- The Legality of the National Security Agency’s Bulk Data Surveillance Programs, John Yoo
- Membership Lists, Metadata, and Freedom of Association’s Specificity Requirement, Katherine J. Strandburg
- National Insecurity: The Impacts of Illegal Disclosures of Classified Information, Mark D. Young
- Secret without Reason and Costly without Accomplishment: Questioning the National Security Agency’s Metadata Program, John Mueller & Mark G. Stewart
- NSA Surveillance: The Implications for Civil Liberties, Shayana Kadidal
- The Massive Metadata Machine: Liberty, Power, and Secret Mass Surveillance in the U.S. and Europe, Bryce Clayton Newell
- Domesticating Programmatic Surveillance: Some Thoughts on the NSA Controversy, Nathan Alexander Sales
- Standing and Secret Surveillance, Stephen I. Vladeck
- Making No Secrets About It, Reed E. Hundt
- FISA Reform, Laura K. Donohue
- A Cyber Age Privacy Doctrine: A Liberal Communitarian Approach, Amitai Etzioni
Wednesday, September 10, 2014
Might all video visitation companies be eager to have prisons and jail prohibition in-person visitation?
Regular readers know I believe modern technologies can and should be used as much as possible to improve the functioning and efficacy of modern crimnal justice systems. Consequently, I tend to be a supporter of expanded use of video technologies in criminal corrections. But this notable local story from Dallas, headlined "In-person jail visits to continue after Dallas County rejects videoconferencing idea," makes me more than a little uncomfortable about the economics behind some corrections technology and prompts the question in the title of this post. Here are excerpts from this interesting local story:
Face-to-face visits will continue at the Dallas County Jail after county commissioners threw out a proposed contract with a videoconferencing company that would have banned them.
The company, Securus Technologies, was seeking a contract to provide video visitations at the jail. Commissioners said they were still interested in the service, but not at the cost of stopping in-person visits.
The ban on face-to-face visits appeared to be a way for the company, which is based in North Texas, to recoup its expenses for installing the video-visitation system. The company was going to spend around $5 million to set up the technology. It would then charge $10 for each 20-minute video chat. Dallas County would have received up to a 25 percent commission on those calls.
Prohibiting in-person visits almost surely would have increased the number of video chats, which in turn would boost revenues for Securus — and for the county. But when details of the contract were made public last week, County Judge Clay Jenkins led a last-ditch effort to reject it. Backed by inmates’ rights advocates, Jenkins said the contract made video visits too costly.
“It is a way to make money … off the backs of families,” he said. He also said eliminating in-person visits would be inhumane.
Commissioners were flooded with emails opposing the contract. At Tuesday’s meeting of the Commissioners Court, 17 people showed up to speak out against the plan. They included a man convicted of a murder for which he was later exonerated and a former state legislator, Terri Hodge, who spent time in federal prison for tax evasion. After more than two hours of discussion, the court voted to pull the item from its agenda. The staff was instructed to seek a new contract under different terms. Those new terms are to include the continuation of in-person visits and elimination of the county’s commission on video visits....
Dallas County has been exploring video visitation for years. It’s been portrayed as an additional option for inmates’ friends and families who can’t or won’t trek downtown to the jail. But county staff acknowledged that the technology is also intended to save money. Managing visitors and moving inmates to visitation areas takes significant staff time, they said.
Commissioner Mike Cantrell said he thought the per-minute cost of the video chats was fair. He said the county spends about $107 million a year to run the jail and brings in about $10.8 million in bond forfeitures, fines and other assessments on inmates. But the commissioners were unanimous in not wanting to eliminate in-person visits. That was also the main concern of the plan’s opponents who spoke at the meeting, including several defense attorneys....
Richard Miles, who spent nearly 15 years in prison for a murder he didn’t commit, said visits from loved ones are vital to the well-being and rehabilitation of inmates. “My father died while I was in prison,” he said. “What did I hold on to? My visits.”
Some prior related posts:
- NY Times debates "Visiting Prisoners, Without Visiting Prison"
- New report examines value of video visitation for kids of incarcerated
- "Louisiana prisons expand inmate medical care through video conferencing"
- Prison videoconference visitation program expanding in New York
Saturday, July 05, 2014
"The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"
The title of this post is the title of this notable article by Patrice A. Fulcher now available via SSRN. Here is the abstract:
Each year, the United States (“U.S.”) spends billions to house the country’s massive prison population. The need to board over 2.3 million incarcerated human beings has U.S. correctional departments looking for ways to increase revenues and offset costs. According to these correctional agencies, one major expense is prison visitation. In order to reduce spending and alleviate safety concerns, U.S. federal, state, and private correctional facilities have turned to video visitation as an alternative to in-person visits.
The use of prison video visitation systems started in 1995. Since then, many private telecommunications companies have professed to have the solution to correctional visitation problems. These companies promote video visitation as a cheap, safe, and easy alternative to in-person visits, as well as a profitable means of generating revenues. Government and private correctional institutions, buying into these endorsements, have reduced or completely eliminated face-to-face visits and installed video visitation systems within their walls. Under this structure, inmates use video stations in their cellblock to visit family and friends at corresponding video kiosks within the institution; or inmates visit loved-ones who are at home or elsewhere outside prison walls via computer Internet video visitation.
In order to sell this method of visitation to the public, U.S. correctional agencies contend that video visitation helps to keep families together by allowing inmates greater contact opportunities with loved ones. In some regards, it may be argued that video visitation does assist in the preservation of family units. Inmates are often forced to serve time in prisons miles away from their homes, so outside visits are far and few between. Yet, through the use of in-home video visitation configurations, inmates are able to connect with relatives who reside hours away.
At first glance, this visitation scheme may seem beneficial, but this Article argues that prison video visitation is a double edge sword. First, prison video visitation may help preserve family units while people are incarcerated, but the elimination of face-to-face visits robs inmates of much needed human contact with their children, spouses, and other family members. Second, almost all in-home prison video visitation systems exploit the relatives and friends of inmates because they charge excessive fees to visit. Third, the economic success of prison video visitation systems is contingent on the number of incarcerated humans. So, like other profiteering schemes of the Prison Industrial Complex (“PIC”), prison video visitation incentivizes incarceration: A decrease in the prison population has a corollary effect on million dollar revenues and corporate profits, hence compelling the need to detain more U.S. inhabitants.
Consequently, this Article argues that face-to-face visitation should be the primary means of contact for families that visit at prison facilities. In order to accomplish this goal, inmates must be assigned to correctional facilities close to their homes if space is available and there is no proven risk to security. Additionally, if prison video visitation is utilized, any fees associated with its use must be regulated to insure that the financial expense is not exorbitant.
Wednesday, July 02, 2014
An (overly?) optimistic account of how GPS technology could "solve" mass incarceration
This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism. Here is a snippet from the start of the article that highlights its themes:
So why do prisons exist? In theory, because we need them. They keep bad guys off the street. They give people a reason to not commit crimes. They provide a place where violent or otherwise threatening people can be rehabilitated.
But prisons aren't the only way to accomplish those goals. Technological advancements are, some observers say, making it possible to replace the current system of large-scale imprisonment, in large part, with alternatives that are not as expensive, inhumane, or socially destructive, and which at the same time do a better job of controlling crime. The most promising of these alternatives fits on an ankle.
While the idea of house arrest has been around for millennia, it has always suffered from one key defect as a crime control tool: you can escape. Sure, you could place guards on the homes where prisoners are staying, but it's much easier to secure a prison with a large guard staff than it is a thousand different houses with a guard or two apiece.
Today, we have something better than guards: satellites. The advent of GPS location tracking means it's now possible for authorities to be alerted the second a confinee leaves their home. That not just enables swift response in the event of escape; it deters escape by making clear to detainees that they won't get away with it.
Wednesday, June 25, 2014
Notable SCOTUS consensus that Fourth Amendment requires a warrant for cell phone searches
The Supreme Court handed down this morning its last big criminal justice decisions of this Term with a near unanimous ruling in Riley v. California and US v. Wurie. The decision for the Court (available here) was authored by the Chief Justice, and here is how it begins and some of its essential parts:
These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested....
[A] balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.
But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones....
We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search....
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost....
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.
Regular readers will not be surprised to hear that there was one Justice who felt compelled to write a separate concurrence to express some misgivings about the majority's forceful pro-defendant ruling here. Usefully, both the Chief's opinion and the one concurring opinion likely provides lots of interesting discussion of Fourth Amendment interests and applications that should keep commentators buzzing and blogging (and tweeting) about modern privacy law for some time.
Saturday, June 14, 2014
Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders
Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness. Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders. Here are the details:
Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.
The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.
“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”
A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....
Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.
The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.
The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”
“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.
I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.
June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Friday, June 06, 2014
Why those who follow sentencing and corrections reform should be following drones
Regular readers and all my students know that I generally believe any and every important public policy issues is related in some significant way to sentencing and/or corrections issues. More support for this view comes from this local article highlighting why and how drone law and policy could have am impact on sentencing law and policy. The article is headlined "Drones over Ohio prisons? Officials mull the idea," and here are excerpts:
The Ohio Department of Rehabilitation and Correction has expressed interest in using drones to monitor the grounds around prisons, said Andrew Parker, director of WSRI. Drones would be able to not only sense if inmates were trying to escape, but also if people on the outside are trying to smuggle items into the prison.
“We’ve heard a lot of information about the precision agriculture uses of drones but this is another example of a use people might not have originally envisioned,” Parker said.
Drone sensor systems such as infrared sensors would be able to detect movement around the prisons in a less expensive way than setting up security sensors around the perimeter of the grounds. ODRC has considered using such drones as a service, Parker said, adding such a service could begin before the end of the year.
A spokesperson for the Ohio Department of Corrections confirmed officials were on site in Wilmington today for a demonstration, but said they would need to evaluate and discuss the demonstration before they could comment further on the idea.
I am not sure what civil liberties groups and Senator Rand Paul and others who've expressed concerns about drones might have to say about this use of the technology. But I suspect that prison guard unions are not likely to be too excited by the prospected of some other their jobs being replaced by the latest brave-new-world innovation.
Thursday, May 22, 2014
Newt Gingrich and Van Jones say "Prison system is failing America"
Not only has CNN brought together a 2012 Republican presidential candidate and a former advisory to President Barack Obama as co-hosts of "Crossfire," but it now has published this interesting joint commentary under the headline "Prison system is failing America." Here are excerpts from an interesting opinion piece that goes a bit beyond just the usual standard points about the various problems with modern mass incarceration:
Thirty-eight U.S. states are home to fewer people than live under the corrections system in this country. There are about as many people behind bars as live in Chicago. That's one in every 108 Americans. One in 35 are under some form of correctional supervision.
Among African Americans, the numbers are even more horrifying. According to the NAACP, one in three black males born in the United States today is likely to spend time in prison at some point in his life. That's compared with one in six Hispanic males or one in 25 white males.
It would be hard to overstate the scale of this tragedy. For a nation that loves freedom and cherishes our rights to life, liberty and the pursuit of happiness, the situation should be intolerable. It is destroying lives and communities.
Our corrections system is not correcting. Within three years of being released from prison, nearly half of prisoners are convicted of another crime with one out of every four ending up back in prison.
When a typical bureaucracy does its job this badly, it wastes money, time and paper. The corrections bureaucracy, in failing to correct the large majority of inmates in its charge, not only wastes money but also wastes lives, families and entire cities.
The current system is broken beyond repair. It's a human, social and financial disaster. We need a radical strategy of replacement of these huge bureaucracies that lack any meaningful oversight.... We need to rethink prisons, parole and probation for the 21st century.
At a time when high-quality education is increasingly digital and in many cases free, shouldn't we provide opportunities for prisoners to learn skills that will enable them to support themselves as upstanding citizens when they are released?
We know that inmates who earn a GED while incarcerated are substantially less likely to return to prison. There are readily available online tools that our prisons could use extensively for a minimal cost to increase the number of inmates receiving valuable education and skills training.
Khan Academy has replicated virtually the entire K-12 curriculum online for free. Udacity and other online education sites offer introductions to software programming for free. Our prisons should be using tools such as these extensively. They offer the opportunity to interrupt the cycle of poverty, a failing education system, crime and incarceration....
Technology should revolutionize more than just the prisons' rehabilitation programs. It should completely transform the corrections and criminal justice systems.... [T]echnology should enable much more effective probation and community supervision, especially new options that could allow nonviolent offenders to remain with their families living productive lives under an appropriate level of restriction.
Almost any activity to which we might sentence low-level offenders --apprenticeship programs, school, literacy or computer science boot camps, community service -- would be a better use of taxpayer dollars than sticking them idle in prison with hardened criminals. Unfortunately, the current corrections bureaucracy has embraced none of this innovation -- in part because it is captive to the prison guards' unions or the private prison lobby, and in part because it lacks any incentives or sufficient competition based on the right metrics....
Years ago, Van proposed that states give wardens a financial incentive to cut the rates of recidivism for inmates leaving their prisons. More than 65% of inmates in California return to prison within three years of their release, where they will again cost taxpayers an average of $47,000 each year.
Surely it is worth giving wardens a substantial portion of the savings for every inmate that leaves their prison and does not re-offend. Such incentives would spark dramatically more innovation and investment in rehabilitation, job training and job placement programs for prisoners. That would be a revolutionary change from prison administrators' current incentives, which are often to keep as many people in custody as possible.
Finally, we need real market competition that rewards success at every step of the process -- in probation and parole offices as well as prisons. That doesn't just mean privatizing prisons or rewarding probation services with the same failed metrics. We need competition of methods and ideas based on the right criteria: When we send prisoners home, do they have the skills to reintegrate in their communities as working, law-abiding citizens? Or do they end up coming back?...
We should start by opening our prisons and probation offices to innovation to save money, achieve better outcomes for individuals and ensure better safety for us all.
May 22, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, April 22, 2014
"'Not Just a Common Criminal': The Case for Sentencing Mitigation Videos"
The title of this post is the title of this notable new paper by Regina Austin now available via SSRN. Here is the a abstract:
Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing.
This article provides a complete analysis of the constituent elements of these videos, particularly their narrative structure. It raises strategic considerations that are pertinent to the decision to use a video during the sentencing process and explores questions of image ethics that can arise when a defendant’s children and parents are enlisted as video witnesses. Finally and most importantly, it addresses the hearsay challenges that not only present obstacles to the admission of sentencing videos in formal sentencing proceedings, but also impact the weight they are accorded in general.
Monday, March 24, 2014
AG Eric Holder announces new rules for federal halfway houses
Via this official press release, I see that Attorney General Eric Holder is continuing his effort to reshape the policies and practices of the federal criminal justice system, this time through new policies and programming for federal halfway houses. The title and subtitle of the press release itself provides a summary of this latest development: "In New Step to Fight Recidivism, Attorney General Holder Announces Justice Department to Require Federal Halfway Houses to Boost Treatment Services for Inmates Prior to Release; New Rules Also Instruct Federal Halfway Houses to Provide Transportation Assistance, Cell Phone Access in Order to Help Inmates Seek Employment Opportunities."
Here is more from the start of the press release:
In a new step to further the Justice Department’s efforts towards enhancing reentry among formerly incarcerated individuals, Attorney General Eric Holder announced Monday that the Bureau of Prisons (BOP) will impose new requirements on federal halfway houses that help inmates transition back into society. Under the proposed new requirements, these halfway houses will have to provide a specialized form of treatment to prisoners, including those with mental health and substance abuse issues. For the first time, halfway houses will also have to provide greater assistance to inmates who are pursuing job opportunities, such as permitting cell phones to be used by inmates and providing funds for transportation. The new requirements also expand access to electronic monitoring equipment, such as GPS-equipped ankle bracelets, to allow more inmates to utilize home confinement as a reentry method.
Holder announced the changes in a video message posted on the Department’s website. The BOP’s new policies have the potential to be far-reaching. To ease their transition, those exiting prison typically spend the last few months of their sentence in either a federal halfway house — known as a residential reentry center (RRC) — or under home confinement, or a combination of the two. These community-based programs provide much needed assistance to returning citizens in finding employment and housing, facilitating connections with service providers, reestablishing ties to family and friends, and more.
Last year alone, more than 30,000 federal inmates passed through a halfway house. Among the most significant changes Holder announced is the requirement for standardized Cognitive Behavioral Programming (CBP) to be offered at all federal halfway houses. This treatment will address behavior that places formerly incarcerated individuals at higher risk of recidivism. As part of this treatment requirement, BOP is setting guidelines for instructor qualifications, class size and length, and training for all staff at the halfway houses.
Several other modifications are being made to the standard contracts that apply to federal halfway houses in order to provide greater support to returning citizens. Examples include requiring halfway houses to provide public transportation vouchers or transportation assistance to help residents secure employment, requiring all federal halfway houses to allow residents to have cell phones to facilitate communication with potential employers and family, and improving and expanding home confinement by increasing the use of GPS monitoring.
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."
Monday, February 24, 2014
NY Times debates "Visiting Prisoners, Without Visiting Prison"
The Room for Debate section of the New York Times has has this new set of notable commentaries discussing the virtues and possible vices of using video feeds for prison visition. Here is the section's set up:
The attorney general, Eric Holder, recently instructed federal prisons to treat same-sex marriages the same as opposite-sex marriages, including visitation rights for spouses. But at many prisons, family visitation is increasingly difficult and even phone calls are exorbitantly expensive.
Some prisons have instituted “video visitation” as a solution. Does that help or create new problems?
Here are the contributions, with links via the commentary titles:
"A Service to Families and Children" by Doug Phillips, Sheriff's Office, Polk County, Iowa
"Symptoms of a Broken Prison System" by Glenn E. Martin, JustLeadershipUSA
"More Video Visits, and More In-Person Time" by Margaret diZerega, Vera Institute of Justice
"Potential for Exploitation, or Innovation" by Peter Wagner, Prison Policy Initiative
"Lessons From Military Families" by Barbara Van Dahlen, licensed clinical psychologist
Sunday, December 29, 2013
Audit reveals serious problems with GPS tracking of serious offenders in LA
As reported in this new Los Angeles Times article, headlined "One in four GPS devices on criminals in L.A. County were faulty," the potential technical problems posed by technocorrections have been revealed by a new local audit. Here is how the story starts:
One in every four GPS devices used to track serious criminals released in Los Angeles County has proved to be faulty, according to a probation department audit — allowing violent felons to roam undetected for days or, in some cases, weeks.
The problems included batteries that wouldn't hold a charge and defective electronics that generated excessive false alarms. One felon, county officials said, had to have his GPS monitor replaced 11 times over a year; for five days during the 45-day audit period, his whereabouts were unknown. "If you have faulty technology, that is a recipe for disaster," said Reaver Bingham, deputy chief of the probation department.
The findings come as nearly every California county is moving forward with some form of electronic monitoring to contend with tens of thousands of state inmates being released to their supervision, an offshoot of the effort to reduce prison overcrowding.
In Kern County, officials have instituted a "virtual jail." San Bernardino County is using GPS to track its homeless felons. And Los Angeles County Sheriff Lee Baca has floated a proposal to move 3,000 inmates out of crowded jails and into the community wearing GPS trackers.
Mandated for use on high-risk sex offenders by the 2006 passage of "Jessica's Law," GPS tracking has been promoted by both lawmakers and state law enforcement officials as a safe and cost-effective alternative to prison or jail. However, a Los Angeles Times investigation earlier this year showed that California corrections officials were aware of massive problems in their program. Citing an "imminent danger" to the public, the state in 2011 quietly replaced the GPS monitors on half of the paroled sex offenders.
Los Angeles County began leaning on electronic monitoring heavily in 2011, putting GPS devices on its highest-risk felons — repeat sex offenders, domestic abusers who had violated restraining orders and violent gang members.
Tuesday, November 26, 2013
Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites
As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:
A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.
Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.
However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.
The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:
Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.
The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....
For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.
I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime. And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.
November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack
Friday, November 15, 2013
If concerned principally about saving lives and public safety, can one reasonably oppose mass use of safer-driving technologies?
The question in title of this post is prompted by this local news item from my own local paper headlined "More Ohioans die on road in 2012." Here are excerpts:
Traffic fatalities rose last year across the United States for the first time since 2005, and Ohio was a big reason why, according to federal data. More people died in car crashes in 37 states in 2012 than in 2011, and only Texas experienced a bigger jump than Ohio did, according to data released yesterday by the National Highway Traffic Safety Administration....
In all, 1,123 people died in Ohio wrecks last year — an increase of 106 from 2011. More than 70 percent of the increase was attributed to alcohol and impaired driving. Nationwide, 33,561 people were killed in car crashes in 2012, an increase of 1,082. Ohio’s crashes accounted for about 10 percent of the nationwide increase....
Ohio’s trend mirrors what much of the country experienced in 2012: a big jump in traffic fatalities early in the year. About 72 percent of the increase nationwide occurred during the first quarter of the year, and Ralston said Ohio actually experienced a drop in traffic deaths during the second half of 2012. Motorcycle deaths increased in the United States for the third consecutive year.
“I think too many times when we don’t hear about things or think things are going well, we get complacent about that,” MADD Ohio Executive Director Doug Scoles said. “The thing that’s frustrating with this is, impaired driving is completely preventable.”
The National Highway Traffic Safety Administration also announced yesterday that it would develop plans before the end of the year to encourage automakers to incorporate safety features in more vehicles. Those features include seatbelt interlocks that prevent vehicles from being driven before a seat belt is fastened, alcohol-detection systems and collision avoidance.
MADD Ohio wants the state legislature to require ignition interlocks for all people convicted of drunken driving, and it’s hopeful that the auto industry will take a role in adding the safety technology, Scoles said. “I think crackdown campaigns are effective, (but) they’re short-lived,” he said.
As regular readers know well (even if just from this post yesterday), I like to focus on traffic laws as a means to test whether and when citizens are really prepared to live up to oft-heard claims about the importance of public safety and saving innocent lives. And this local article (just like the one I noted yesterday) further reinforces my sense that significant investments in safer-driving technologies may be the most ready and cost-effective way to save innocent lives and improve public safety.
Recent related post:
- If concerned principally about saving lives and public safety, can one reasonably oppose mass use red-light cameras?
Tuesday, October 15, 2013
"Louisiana prisons expand inmate medical care through video conferencing"The title of this post is the headline of this notable new article discussing an interesting technocorrections development in the bayou. Here is how the piece begins:
The Louisiana Department of Corrections has drastically expanded an online medical program in which doctors treat prisoners through video conferencing.
The department plans to take the number of offenders treated by telemedicine from 3,500 to 20,000 in the coming year. The shift is part of Gov. Bobby Jindal's push to privatize state-run hospitals and medical clinics. Inmates traditionally received their more advanced or specialized treatment at those charity facilities.
The Department of Corrections provides primary physician care to offenders on site at state prisons. But officials now use video conferencing and other online services when inmates need to see medical specialists, like cardiologists and neurologists.
For example, an inmate who had recovered from a heart attack or cancer, and only needs routine check-ups to monitor their health, could seek treatment through telemedicine.
Dr. Raman Singh, medical director for the Department of Corrections, said telemedicine is supposed to supplement the traditional patient-doctor encounter. Offenders can go off site for doctor visits if needed, but a larger telemedicine program should cut back on the need for many outside medical trips.
Transporting prisoners to a clinic or hospital can be a complicated affair. Offenders require a secure vehicle and guards to accompany them on the journey, and the travel can also take several hours, since state prisons and medical facilities aren't necessarily near each other. In the case of one north Louisiana facility, offenders, had to make a three-hour round trip every time they needed more than very basic medical attention, said Singh.
Singh knows telemedicine works because LSU has been running an online doctor-offender program in south Louisiana facilities for years. Starting this month, Texas-based US Telehealth is providing online medical care to state prisons in central and north Louisiana, helping to cover the state's whole correctional system. The LSU School of Medicine had wanted to operate the prison contract statewide, but US Telehealth offered a better prices for its services, prompting the Department of Corrections to sign a partial system contract with the company.
Monday, September 30, 2013
How common are DVD submissions as mitigation evidence as part of federal sentencing?The question in the title of this post is prompted by a somewhat amusing discussion toward the end of a Ninth Circuit panel opinion released today in US v. Laurienti, No. 11-50294 (9th Cir. Sept. 30, 2013) (available here). The following passage from the opinion provides the context for the question:
Laurienti claims for the first time on appeal that the district court committed plain error when it did not read the last two pages of his sentencing memorandum or view a DVD he had submitted. We review these contentions under the same plain error standard applicable to his claim that the district court did not listen to his evidence in mitigation. We reject these contentions for two reasons.
First, the court provided Laurienti the opportunity to present the substance of those materials during sentencing. Laurienti did so, and the court listened to his position.[FN7]
Second, and more importantly, the court explained why further considering those materials would not change its decision. The court specifically stated that it had reviewed numerous letters from Laurienti’s family, friends, and business associates. The court did not, however, find these materials persuasive in light of Laurienti’s apparent attempts to avoid making restitution payments. Considering the cumulative nature of the DVD, and the fact that the court allowed Laurienti to discuss his sentencing position at length, Laurienti has failed to establish that the court’s refusal to consider the exhibits amounted to plain error requiring reversal.
[FN7] We note in passing that the time that the attorneys and this court have spent on the issue of the unread two pages and unwatched DVD was, in all likelihood, far more extensive (and, for the parties, expensive) than if the court had simply read and watched what was before it. As Benjamin Franklin astutely observed, “An ounce of prevention is worth a pound of cure.”
Under the circumstances, I am not suprised or troubled by the Ninth Circuit's resolution of this issue, though I can understand why a defendant might be both surprised and troubled that a judge at sentencing would report that he had not bothered to watch a DVD the defense team had created for the occassion. This, in turn, leads me to wonder if mitigation DVDs are common submissions by the defense in some federal courts or for some sets of defendants (and also whether judicial disregard of such DVDs submissions might also be common).
A few prior related posts:
- Interesting sign of the modern high-tech sentencing times
- "Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos?"
September 30, 2013 in Booker in district courts, Booker in the Circuits, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, September 24, 2013
Documenting the enduring challenges of reentry for parolees and society in Colorado
The Denver Post has had a series of recent notable article on parole policies, practices and practicalities under the heading "Behind Bars." Here are the headlines and links to some of the stories in the series:
Ever the fan of evidence-based policies and technocorrections, I was especially drawn to this article in this series headlined "Technology, quick-reaction programs guiding parole reform in other states." Here is how it starts:
Predicting who will murder is now a science. In cities including Philadelphia and Baltimore, high-tech software helps determine which parolees are most likely to kill and what level of supervision makes sense.
The crime-prediction computer program was developed by Richard A. Berk, a criminology and statistics professor at The University of Pennsylvania. "It's saved a lot of money, and resources for those at low risk have been moved to those at higher risk," Berk said. "Human behavior is complicated, and although parole boards might make the best decisions, there is inevitably going to be a mistake."
The software, which makes forecasts based on geographic location, age, type of crime and other variables, is helping parole boards and law enforcement keep closer watch on the most violent offenders.
In Baltimore, where the system is being used to help determine parolee and probation supervision levels, a test of the program on offenders from 2006 had a 75 percent rate in identifying who would kill and be killed, Berk said. The program doesn't predict whether parolees will commit other crimes. "It's hardly perfect, but we're doing much better than the current seat-of-your-pants forecasting," Berk said.
Pennsylvania is expected to apply the software for all parolees by the end of the year. Other states have found success moving away from parole-officer discretion to more restrictive supervision and rapid-reaction punishment.
A model program in Washington state dishes out swift and predictable consequences for parolees who mess up, according to Mark Kleiman, a professor at the University of California, Los Angeles. Criminals, in general, are short-term oriented, so in order to reform behavior, they need near-immediate reaction from their parole officer. Consequences "need to be fast and they need to be every time or they are not fair," said Kleiman, who formerly worked at the U.S. Department of Justice's criminal division.
Sunday, August 18, 2013
"Some prisons let inmates connect with tablets"The title of this post is the headline of this new USA Today article, which provides an effective overview of one interesting recent technocorrections development. The subheading of the piece is "Proponents say allowing inmates to use tablets will help reintegrate them into society and keep them from returning to jail." Here are excerpts:
Ohio became the latest state last month to allow inmates to purchase and use mini-tablet computers while incarcerated — a controversial move intended to better connect those in jail with their families and friends on the outside.
At least six other states, including North Dakota and Georgia, permit the practice, which proponents say will deepen prisoners' ties to their communities and keep them in sync with modern technology. "We have anticipation and hope to make it a good educational tool," said Ricky Seyfang, spokeswoman for the Ohio Department of Rehabilitation and Correction.
Opponents are concerned the tablets will be used for illegal activities or brandished as weapons. "Our challenge is always how we give inmates the exposure to these tools while protecting public safety at the same time," said Douglas Smith III, chief information officer for the Florida Department of Corrections. Florida launched a pilot program last year to test Kindle devices for inmates.
Victims' rights groups say the devices make public safety increasingly difficult to achieve. Kristy Dyroff, director of communication at the National Organization for Victim Assistance, said there is the potential for "unrestricted and unsupervised outreach where inmates can revictimize or continue to intimidate victims."...
In the seven states that allow the tablets — Louisiana, Virginia, Michigan and Washington are the four others — inmates or their family members can purchase a $49.99 mini-tablet that allows them to send e-mails and listen to music, according to Tara Bertram, vice president of marketing at JPay, a mini-tablet vendor. The e-mails and any included attachments can be monitored by the state's department of corrections or the individual facility.
Jesse Jannetta, a senior research associate at the Urban Institute, said expanded technology access in prisons could help inmates transition into their communities — and keep them there — if the devices are used to contact family and potential employers. "It can be hard to build connections to people or organizations they'll be interacting with," Jannetta said.
Jannetta and others caution that tablets, like cellphones, can also breed criminal activity.... "Prisons have trouble containing all sorts of things," said Robert Coombs, spokesman for the National Reentry Resource Center. "You're dealing with folks who probably want to break some rules."
JPay tries to minimize that risk by loading only limited functions, such as music and gaming, on to its tablets. The decision to allow the devices in prisons is made by state corrections departments, Bertram said.
Another vendor, Keefe Group, launched an MP3 player and music download service for prisoners in 2009. The service netted more than 1 million downloads a year after it was introduced, according to a news release on its website.
This month, Maryland Attorney General Douglas Gansler advocated for giving Android tablets to prisoners as a solution to close the "revolving door" of ex-offenders returning to jail. The Democratic gubernatorial hopeful said inmates would be allowed access to e-books, the state's library system, law resources and educational applications. Limited e-mail capability would also be offered.
That proposal could draw concern from taxpayers skeptical of investing more resources in jails. The average per-inmate cost a year is $31,286, ranging from $14,603 in Kentucky to $60,076 in New York, according to the Vera Institute, a research group focusing on justice systems. "When you're talking about buying individual pieces of technology and distributing them, it can be very controversial," Jannetta said.
As technology becomes increasingly embedded within society, some experts say its placement in more prisons is inevitable. "For us to expect inmates will possess the skills necessary to survive in the free world, we'll have to come to the realization they'll have to use these things," Smith said.
Recent related posts:
Wednesday, August 07, 2013
Should prisoners all get iPads?The question in the title of this post is prompted by this intriguing Baltimore Sun story, which is headlined "Gansler proposes tablet computers for inmates: Gubernatorial hopeful says idea would help keep offenders from returning to jail." Here are the details:
Maryland Attorney General Douglas F. Gansler pushed a novel solution Monday for closing what he called the "revolving door" of ex-offenders returning to prisons.
Give inmates tablet computers.
As Gansler envisions it, the proposal would help offenders build both education credentials and social support before they leave prison. The gubernatorial hopeful says the wireless devices would replace brick-and-mortar libraries and classrooms in the state's prison system, providing each inmate with an Android tablet that could connect with e-books, the state's library system, law resources and online learning programs.
They would also allow limited — and monitored — email access, so inmates could connect with family members. "It has to work," Gansler said. "It's common sense that it will work."
The tablet idea is one element of Gansler's 10-part proposal for integrating former inmates into communities. Statistics show that roughly half of the offenders who are released will return to the state's prison system within three years. The most recent state data available puts the rate at 43 percent. Gansler, who presented his plan in Baltimore at the latest in a series of meetings outlining his platform for governor, called the state's approach to re-entry a "policy mess."
The Android proposal drew concern from some in the corrections world, particularly in light of the recent federal indictment of a dozen Baltimore City Detention Center guards, who are accused of smuggling in cell phones to help the Black Guerrilla Family gang run a drug ring.
"There's a lot of challenges with providing Internet access to inmates," said Nancy G. La Vigne, director of the Justice Policy Center at the Urban Institute. "There's a real concern — I think a valid one — that access to the outside can threaten both inmates and staff.
"While it's innovative to think about delivering education with new technology, a lot of things need to be sorted out."
In a presentation to the Corrections Technology Association in June entitled "iPads for Inmates", the Virginia firm HomeWAV LLC listed what it said were the positive benefits: social and job skills, mentoring and rehabilitation. The cons: "gangs," "nudity," "corruption."
"It's a fascinating concept," said Robert Coombs, spokesman for the National Reentry Resource Center, a policy group.
Only a few inmates in Maryland have Internet access, state corrections spokesman Rick Binetti said. All are low-security, pre-release inmates who are permitted to use the Internet only to look for jobs, and only under the direct supervision of correctional officers.
Several states have set up Web kiosks that give limited access to inmates. A company called JPay sells a $49.99 mini-tablet to inmates in prisons in Virginia and Louisiana. Access is limited to music, games and a few other applications.
A New York startup called American Prison Data Systems has been shopping the idea of an indestructible 7-inch Android tablet that states would purchase for inmates' personal use. CEO Christopher Grewe said he expects to finish negotiating pilot projects in three states by the end of 2013. He proposes giving one to each inmate in a low or medium-security prison to limit potential fights. He said they would be designed so that they couldn't be converted into weapons. Each device would come with free access to libraries and legal resources, and cost $500 per year per inmate.
Maryland spends an average of $38,383 per year per prisoner, the Vera Institute of Justice reported last year. Grewe has pitched his idea as a way for states to improve education opportunities for inmates and save money on maintaining expensive classrooms and libraries....
Grewe said that algorithms and a 24-hour center in Ohio would scan all outgoing and incoming email on a 12- to 24-hour delay, and that devices could be heavily restricted or shut off remotely. "We can filter it five ways to Sunday," he said. Prisons, he said, "can't postpone dealing with the digital revolution any longer."
Gansler, in pitching his idea to a room full of people who work with offenders, suggested anyone who has seen the Oscar-nominated film "The Shawshank Redemption" knows libraries can be used as a means of transporting contraband. Replacing them with more secure tablets, he said, would save money and make sense.
"We have the ability in the 21st century to educate children online," Gansler said. "You can learn a language online. … Why can't we educate our offenders?"
Tuesday, July 30, 2013
Intriguing AP review of the challenges of GPS tracking
The AP has this intriguing piece of new reporting on a (too?) popular modern form of technocorrections. The piece is headlined "Some Ankle Bracelet Alarms Go Unchecked," and here are excerpts:
Three decades after they were introduced as a crime-fighting tool, electronic ankle bracelets used to track an offender's whereabouts have proliferated so much that officials are struggling to handle an avalanche of monitoring alerts that are often nothing more sinister than a dead battery, lost satellite contact or someone arriving home late from work.
Amid all that white noise, alarms are going unchecked, sometimes on defendants now accused of new crimes. Some agencies don't have clear protocols on how to handle the multitude of alerts, or don't always follow them. At times, officials took days to act, if they noticed at all, when criminals tampered with their bracelets or broke a curfew....
Twenty-one agencies that responded to the AP inquiry logged 256,408 alarms for 26,343 offenders in the month of April alone. It adds up for those doing the monitoring. The 230 parole officers with the Texas Department of Criminal Justice handled 944 alerts per day in April. The Delaware Department of Correction, which has 31 field officers, handled 514 alarms per day....
Sorting through alerts, and deciding which are serious enough to merit a rapid response, can be fraught with peril....
Supporters of electronic monitoring say [violent crimes by monitored offenders who set off alarms and other] tragedies are the exception and that the devices are a valuable tool for authorities who previously relied only on shoe leather and the telephone to keep tabs on released prisoners. In many cases involving violence by people on trackers, the accused likely would have been free on bail or parole even if electronic monitoring didn't exist, and would have been far harder to monitor.
"No one should think this is going to be 100 percent effective," said George Runner, a former California legislator who wrote that state's voter-approved law requiring bracelets for all paroled sex offenders. "It's just a tool. When used, and used effectively, it can be not only helpful in modifying behavior, but we've heard stories about it actually preventing crimes."
Once used to track straying cows, electronic monitoring of criminals debuted in 1983, when a New Mexico judge inspired by a Spider-Man comic book allowed a man who violated probation to wear an ankle bracelet rather than go to jail. Use took off in the last decade, as technology improved and lawmakers became enamored of trackers as a cost-effective alternative to incarceration and a way of monitoring sex offenders for life.
Today, 39 states require monitoring of sex offenders. The biggest user of ankle bracelets is the federal government, which tracks people on pretrial release and probation, as well as thousands of immigrants fighting deportation....
"It's virtually impossible to sit there and track a person all day," said Kelly Barnett, a union official who represents probation officers doing GPS tracking in Michigan. Barnett said that while officers see value in the monitoring, such programs also give "a false sense of security to the community."
Studies have found mixed results on the devices' value as a crime deterrent. Bill Bales, a criminology professor at Florida State University, said he believes they are beneficial. Offenders wearing them tend to stay home more with their families. "They're glad to be in the free world, albeit tethered, rather than in prison," Bales said.
The key to making the devices work, he and other experts said, is to figure out how best to process the immense amounts of information they generate.
Tuesday, July 02, 2013
Released sex offenders in Great Britain soon to be required to take regular polygraph testsAs reported in this article from across the pond, a novel (and apparently somewhat efficacious) approach to sex offender monitoring is being expanded in part of Great Britain after a successful pilot program. The article is headlined "Lie detector tests set to be introduced to monitor sex offenders: Politicians expected to approve law allowing compulsory polygraph tests of sex offenders released into community," and here are excerpts:
MPs are expected to clear the way for the introduction of compulsory lie detector tests to monitor convicted sex offenders across England and Wales from next January.
The national rollout of US-style mandatory polygraph tests for serious sex offenders who have been released into the community after serving their prison sentence follows a successful pilot scheme. The trial was carried out from 2009-11 in two Midlands probation areas and found that offenders taking such tests were twice as likely to tell probation staff they had contacted a victim, entered an exclusion zone or otherwise breached terms of their release licence.
Continuing concerns about the reliability of the tests and misinterpretation of the results mean they still cannot be used in any court in England and Wales. But it is expected that the compulsory polygraph tests will be used to monitor the behaviour of 750 of the most serious sex offenders, all of whom have been released into the community after serving a sentence of at least 12 months in jail.
The tests involve measuring reactions to specific questions by monitoring heart rate, blood pressure, breathing and levels of perspiration to assess whether the subject is being truthful. The results will be used to determine whether they have breached the terms of their release licence or represent a risk to public safety and should be recalled to prison.
The power to introduce compulsory lie detector tests was put on the statute book six years ago in the Offender Management Act 2007. On Tuesday MPs will debate secondary legislation in the form of a statutory instrument to come into force from 6 January 2014. The House of Lords will be asked to approve it later this month.
The justice minister Jeremy Wright said: "Introducing lie detector tests, alongside the sex offenders register and close monitoring in the community, will give us one of the toughest approaches in the world to managing this group.
"We recently announced the creation of a National Probation Service tasked with protecting the public from the most high-risk offenders. They will be able to call on this technology to help stop sex offenders from reoffending and leaving more innocent victims in their wake."
Hertfordshire police used the tests in a pilot scheme in 2011 to help decide whether to charge suspected sex offenders and gauge the risk they posed to the public. "Low level" sex offenders were involved in the original pilot. At least six revealed more serious offending and were found to pose a more serious risk to children than previously estimated. A further trial was ordered but at the time the Association of Chief Police Officers voiced caution about the adoption of such tests: "Polygraph techniques are complex and are by no means a single solution to solving crimes, potentially offering in certain circumstances an additional tool to structured interrogation," a spokesman said.
Polygraph testing is used in court in 19 states in America, subject to the discretion of the trial judge, but it is widely used by prosecutors, defence lawyers and law enforcement agencies across the US.
I find curious that this article speaks of "US-style mandatory polygraph tests"; I am not aware of any US jurisdiction that uses mandatory polygraph testing as part of a program of sex offender monitoring. That said, I would not be at all surprised if some jurisdictions in the US were to consider such a requirement if there is good reason to believe that such testing does a reasonable job of sorting out more (and less) dangerous released sex offenders.
Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty. For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).
July 2, 2013 in Criminal justice in the Obama Administration, Reentry and community supervision, Sentencing around the world, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (19) | TrackBack
Monday, June 17, 2013
"The Impact of Neuroimages in the Sentencing Phase of Capital Trials"The title of this post is the title of this notable new research paper now available on SSRN and co-authored by Michael Saks, N. J. Schweitzer, Eyal Aharoni and Kent Kiehl. Here is the abstract:
Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.
Two mock jury experiments (n=825 and n=882) were conducted online using nationally representative samples of persons who were jury-eligible and death-qualified. Participants were randomly assigned to experimental conditions varying the defendant’s diagnosis (psychopathy, schizophrenia, normal), type of expert evidence supporting the diagnosis (clinical, genetic, neurological sans images, neurological with images), evidence of future dangerousness (high, low), and whether the proponent of the expert evidence was the prosecution (arguing aggravation) or the defense (arguing mitigation).
For defendants diagnosed as psychopathic, neuroimages reduced judgments of responsibility and sentences of death. For defendants diagnosed as schizophrenic, neuroimages increased judgments of responsibility; non-image neurological evidence decreased death sentences and judgments of responsibility and dangerousness. All else equal, psychopaths were more likely to be sentenced to death than schizophrenics. When experts opined that defendant was dangerous, sentences of death increased. A backfire effect was found such that the offering party produced the opposite result than that being argued for when the expert evidence was clinical, genetic, or non-image neurological. But when the expert evidence included neuroimages, jurors moved in the direction argued by counsel.
Tuesday, June 11, 2013
Documenting problems with using electonic tracking for crime control in ColoradoThe Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring. Here are exceprts:
One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.
Another parolee disappeared from his motel the day he was tethered to an electronic monitor. He now is charged with raping two women and attempting to rape another. A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.
Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble. A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.
Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts. Monitors are strapped to their ankles and receivers installed in their residences. In the most serious sex-offender cases, parolee movements are tracked by a GPS system.
But problems arise. Batteries run down. Plugs get ripped from wall sockets. The systems go dark. The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....
Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case. Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.
"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...
Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them. Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.
Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders. In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement. There are currently more than 800 Colorado parole absconders....
The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.
Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.
In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."
He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."
Tuesday, May 21, 2013
"Colorado Department of Corrections to Pilot Telemedicine for Prisoners"The title of this post is the headline of this interesting report, which starts this way:
In June, the Colorado Department of Corrections (DoC), in partnership with Denver Health Medical Center, will launch a pilot project designed to treat inmates using telemedicine. Doctors will start by providing consultations in areas like rheumatology, orthopedics, infectious disease and general surgery. Nineteen correctional facilities will participate in the pilot.
Driving prisoners to the hospital can be costly. Transportation usually happens after hours, which means that the DoC has to pay overtime wages to security officers. Also, prisoners could potentially escape during the trip. "The program improves accessibility to specialty care, and there’s been some use cases throughout the U.S. about inmates escaping, so this decreases the risk," explained Chris Wells, who is director of health IT architecture for Colorado's Governor's Office of Information Technology.
Tuesday, May 14, 2013
In praise of NTSB seeking to save more innocent lives with tougher DUI lawsI was very pleased to see the news today, like this report from CNN, concerning a new recommendation to lower the level at which a driver is to be considered over the limit. Here are the details:
A common benchmark in the United States for determining when a driver is legally drunk is not doing enough to prevent alcohol-related crashes that kill about 10,000 people each year and should be made more restrictive, transportation safety investigators say.
The National Transportation Safety Board recommended on Tuesday that all 50 states adopt a blood-alcohol content (BAC) cutoff of 0.05 compared to the 0.08 standard on the books today and used by law enforcement and the courts to prosecute drunk driving....
The idea for a tighter standard is part of a safety board initiative outlined in a staff report and approved by the panel to eventually eliminate drunk driving, which accounts for about a third of all road deaths in the United States.
Hersman said progress has been made over the years to reduce drunk driving, including a range of federal and state policies, tougher law enforcement, and stronger advocacy. But she said too many people are still dying on America's roads. The board acknowledged that there was "no silver bullet," but that more action is needed at the federal and state levels.
"In the last 30 years, more than 440,000 people have perished in this country due to alcohol-impaired driving. What will be our legacy 30 years from now?" Hersman asked. "If we don't tackle alcohol-impaired driving now, when will we find the will to do so?"
Lowering the rate to 0.05 would save about 500 to 800 lives annually, the safety board said....
The NTSB investigates transportation accidents and advocates on safety issues. It cannot impose its will through regulation and can only recommend changes to federal and state agencies or legislatures, including Congress. But the independent agency is influential on matters of public safety and its decisions can spur action from like-minded legislators and transportation agencies nationwide. States set their own BAC standards.
The board also recommended on Tuesday that states vastly expand laws allowing police to swiftly confiscate licenses from drivers who exceed the blood alcohol limits. And it is pushing for laws requiring all first-time offenders to have ignition locking devices that prevent cars from starting until breath samples are analyzed.
In the early 1980s, when grass-roots safety groups brought attention to drunk driving, many states required a 0.15 BAC rate to demonstrated intoxication. But over the next 24 years, Mothers Against Drunk Driving and other groups pushed states to adopt the 0.08 BAC standard, the last state falling in line in 2004.
The number of alcohol-related highway fatalities, meanwhile, dropped from 20,000 in 1980 to 9,878 in 2011, the NTSB said. In recent years, about 31 percent of all fatal highway accidents were attributed to alcohol impairment, the NTSB said....
The NTSB cited research that showed most drivers experience a decline in both cognitive and visual functions with a BAC of 0.05. Currently, more than 100 countries on six continents have BAC limits set at 0.05 or lower, the safety board said. The NTSB has asked all 50 states to do the same.
A restaurant trade association, the American Beverage Institute, attacked the main recommendation, saying the average woman reaches 0.05 percent BAC after consuming one drink.... A beer industry trade group said it would examine NTSB's recommendation for lowering the blood-alcohol threshold. "However, we strongly encourage policymakers to direct their efforts where we know we can get results: by focusing on repeat offenders and increasing penalties on those with BAC of (0.15) or more," said Joe McClain, president of the Beer Institute....
The NTSB recommended last December that states require ignition interlocks for all DUI offenders and said states should improve interlock compliance.
I concur with the recommendation coming from the Beer Institute that states get tougher ASAP on repeat drunk drivers and those caught driving with high BACs. But I think that should be done in addition to defining the legal limt for BAC lower, coupled with technological sanctions for first offenders. Specifically, as I have often noted in prior posts, states that require ignition locks for convicted drunk drivers have seen a marked decline in highway fatalities. Unless and until someone can prove to me that tipsy driving is more valuable than innocent human lives, I will praise any and all efforts by NTSB and others to do everything reasonable to reduce the harms of drinking and driving.
Some related posts on sentencing drunk drivers and advocacy for ignition locks:
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
- New York about to require ignition locks as mandated punishment for drunk driving
- Effective commentary complaining about undue leniency for drunk drivers
- Alcohol industry resistant to federal support for more DUI prevention technology
- Notable report on Oregon's use of technology to combat drunk driving
- Ignition lock law in Kansas seeming responsible for huge drop in DUI fatalities
Sunday, April 21, 2013
Sixth Circuit panel finds reasonable 30-day contempt sentence for courtroom cell phone use by observerThe sentencing component of this local Ohio article caught my attention based on the headline "Tweeting and texting earns Cleveland man contempt of court charge, 30 days in jail." Here are the basics:
Cell phones are routinely used in classrooms and bathrooms — sometimes even in churches. But not in federal courtrooms, where all electronic devices are banned. But that didn’t stop Maurtez Prince, 22, of Cleveland, from trying to sneak in a few tweets and texts last year during a buddy’s sentencing hearing at the U.S. District Courthouse in Akron.
Prince will be able to contemplate his crime from behind jail bars, where he will spend 30 days for contempt of court.
On May 31, the day of the friend’s sentencing, an assistant U.S. marshal spotted Prince using his cell phone in the courtroom and ordered him to turn it off, according to court documents. Later, the marshal again caught Prince texting and confiscated the phone.
Then, when Prince went to reclaim his phone, the marshal pointed out the three signs outside the courtroom banning cell phones and any cameras or recording devices, the court documents state. That’s when Prince admitted having photographed his friend with the phone.
When U.S. District Judge John Adams heard about the incident he ordered Prince to appear before him and explain why he shouldn’t be held in contempt. Prince argued that he had not deliberately defied a court order against cell phones or taking photographs, his lawyer said. He claimed he hadn’t seen the signs, and had misunderstood the marshal, believing he simply had to silence his phone. "Mr. Prince was very apologetic to the judge and the marshal for what he did," said Assistant Federal Public Defender Edward Bryan. "He wasn’t cocky at all. It was his first time in federal court and he didn’t understand the seriousness of his actions."
But Adams was not persuaded and found Prince guilty, stating that "the most troubling part" of the crime was that Prince had continued using his phone after he had been ordered to stop. Adams sentenced Prince to 30 days in jail, but allowed him to remain free pending an appeal.
On Friday, a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati released a six-page opinion affirming Adams’s sentence. Judge Deborah Cook wrote that Prince demonstrated "willful disobedience" and that "ample evidence supports the district court’s contempt finding."
A sentence of a month in jail for use of a cell phone in a courtroom struck me as quite severe, but the unpublished Sixth Circuit panel opinion in US v. Prince, No. 12-3789 (6th Cir. April 19, 2013) (available here), suggests to me there may be a lot more to the story. Specifically, the panel opinion highlights that Prince has a significant criminal history and that he may have been doing something quite nefarious when seeking to take pictures and send texts during another's federal sentencing proceedings. In other words, after reading the panel opinion in Prince, I was less troubled by the decision to sentence this defendant to a month in lock-up for his contempt of court.
But I remain curious and uncertain as to whether there are perhaps some First Amendment implications here given that the courtroom Prince was in was not sealed and that sentencings are generally to be public proceedings. I presume the First Amendment would generally preclude a courtroom spectator from being punished for writing/reporting on-line (say on a blog) about a public federal sentencing while that spectator has moved into the hallways of a public courthouse. Should I just view the courtroom ban/punishment here a proper time, place, manner restriction on the First Amendment, or do others agree there might be some important constitutional issues here?
April 21, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Technocorrections, Who Sentences? | Permalink | Comments (8) | TrackBack
Friday, April 12, 2013
Two discussions suggesting potential virtues of shame punishments
I have just noticed two notable punishment theory papers via SSRN discussing shame punishments. This broader piece by Luke Coyne is titled "Can Shame Be Therapeutic?" and here is its abstract:
This paper focuses on alternative judicial punishments such as reciprocal and humiliation punishments. It explores the past and present use of such punishments. It covers the theories behind the use of these punishments. It also takes a look at the praise and criticism for the use of these punishments. Additionally, the paper discusses the use and effects of these punishments, including recidivism rates.
This other piece is by Xiyin Tang is a bit more focused. It is titled "Shame: A Different Criminal Law Proposal for Bullies," and here is the abstract:
Public concern over bullying has reached an all-time high. The absence of a sensible criminal charging and sentencing regime for the problem recently reared its head in the highly-publicized prosecution of Dharun Ravi, who was convicted of 15 counts and faced the possibility of 10 years in prison. This Essay argues that existing criminal statutes used to address the problem, like bias intimidation and invasion of privacy, do not fit neatly with the specific wrongs of bullying. However, recently-enacted “cyberbullying” laws, which give complete discretion to school administrators, are weak and ineffective.
I propose another solution: first, to criminalize the act of bullying itself, thus sending a powerful expressive message that can flip the high school and teenage norm of meanness as virtue. To reinforce that message, sentencing a bully to shaming, not imprisonment, better serves utilitarian, expressive, rehabilitative, and retributive goals specific to the wrongs of bullying.
Thursday, April 04, 2013
"Pretrial Detention and the Right to Be Monitored"The title of this post is the title of this notable new paper available via SSRN by Samuel Wiseman. Here is the abstract:
The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.
This paper develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring -- the intrusion on individual privacy and the threat of surveillance extending to new segments of society -- have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.
Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.
Long-time readers know I am a fan of both the Eighth Amendment and of the potential of technocorrections to reduce the modern incarceration "footprint." I thus find especially intriguing and appealing the notion that the Eighth Amendment might give defendants a right to demand a technocorrections alternative to incarceration in some settings.
April 4, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, April 01, 2013
California figures out GPS tracking won't work if GPS trackers don't workThe silly tilte to this post is prompted by this notable lengthy story from the Los Angeles Times, which carries the following headline and sub-heading: "Tests found major flaws in parolee GPS monitoring devices: One company's devices were deemed so unreliable that California ordered a complete switch to another firm's, citing 'imminent danger' to the public. A lawsuit ensued." Here is how the piece starts:
A little more than a year ago, California quietly began conducting tests on the GPS monitoring devices that track the movements of thousands of sex offenders. The results were alarming.
Corrections officials found the devices used in half the state were so inaccurate and unreliable that the public was "in imminent danger." Batteries died early, cases cracked, reported locations were off by as much as three miles. Officials also found that tampering alerts failed and offenders were able to disappear by covering the devices with foil, deploying illegal GPS jammers or ducking into cars or buildings.
The state abruptly ordered parole agents to remove every ankle monitor in use from north of Los Angeles to the Oregon border. In their place, they strapped on devices made by a different manufacturer — a mass migration that left California's criminal tracking system not operational for several hours.
The test results provide a glimpse of the blind spots in electronic monitoring, even as those systems are promoted to law enforcement agencies as a safe alternative to incarceration. The flaws in the equipment raise the question of whether the state can deliver what Jessica's Law promised when voters approved it in 2006: round-the-clock tracking of serious sex offenders.
In a lawsuit over the state's GPS contracting, corrections attorneys persuaded a judge to seal information about the failures, arguing that test results could show criminals how to avoid being tracked and give parole violators grounds to appeal convictions.
The information, they warned, would "erode public trust" in electronic monitoring programs. The devices, they said, deter crime only if offenders believe their locations are being tracked every minute. "The more reliable the devices are believed to be, the less likely a parolee may be to attempt to defeat the system," GPS program director Denise Milano wrote in a court statement.
State officials say the replacement devices have largely resolved the problems, but officials so far have refused to release test data showing what, if any, improvements were gained.
Some older related posts on tracking technologies:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
Monday, December 31, 2012
"Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment"I usually do not post "front-end" criminal procedure articles, but I am especially to eager to promote this new article on SSRN authored by my Ohis State colleague Ric Simmons because it highlights how new technologies can help engender more productive debates over old criminal justice questions. And this seems like an especially timely topic as we prepare to ring out an old year and ring in a new one. Here is the abstract:
Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.
However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.
The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.
Thursday, December 20, 2012
Wisconsin talk of GPS tracking all with domestic violence restraining ordersThe Milwaukee Journal-Sentinel has this interesting lengthy article about a new technocorrections development in Wisconsin. The piece is headlined "Walker: GPS monitoring needed for those with restraining orders," and here are excerpts:
Gov. Scott Walker wants people who have domestic violence restraining orders issued against them placed on GPS monitoring so victims will be alerted when their assailants are nearby. The idea — which Walker said is still under development and may be included in the state budget he introduces in February — is in response to the October shooting at the Azana Salon & Spa in Brookfield.
The proposal comes as policy-makers around the country debate how to prevent mass shootings like Friday's massacre in Connecticut that killed 20 first-graders and six adults. The perpetrator, Adam Lanza, killed his mother before going on the rampage at Sandy Hook Elementary School in Newtown, where he then killed himself.
Walker said Wednesday that for now he is focused more on this year's shootings in Brookfield and at the Sikh Temple of Wisconsin in Oak Creek because more information is known about them. He said more details about what happened in Connecticut are likely to come out in the weeks ahead, and that would provide the public a better sense of what laws, if any, need to change....
The Connecticut shooting comes just months after two deadly sprees in Wisconsin. In August, white supremacist Wade Michael Page killed six people at the Sikh temple before he was shot by police and then killed himself. In October, Radcliffe Haughton killed his estranged wife Zina and two of her co-workers at Azana, wounded four others and took his own life.
The Republican governor said he is "very interested" in including in his budget proposal a provision that people with domestic violence restraining orders against them be placed on global-positioning monitors. He said he is still working on details....
Walker signed a law this year that allows judges to put people on GPS tracking if they violate a restraining order and are found to be more likely than not to cause serious bodily harm to the person who sought the order. The law takes full effect in 2014. The measure passed with overwhelming support. Only Sens. Glenn Grothman (R-West Bend) and Lena Taylor (D-Milwaukee) voted against it.
Grothman expressed concerns about Walker's latest proposal. "It sounds like a lot of money, but having the government monitor that many people seems a little offensive," he said. More than 15,000 new restraining orders and injunctions are issued a year on average in Wisconsin, according to the state Department of Corrections. The agency's data does not say how many of those were related to domestic violence.
"I've always been afraid that over time government will use GPS technology to keep track of a larger and larger segment of the population," Grothman said. "It does not take a strong burden of proof to get a restraining order, and I don't think we need 15,000 people in this state being monitored."
Walker said the cost would be borne by the people who had restraining orders issued against them. The Department of Corrections monitors some sex offenders at a cost of $6.90 a day per offender. If those under a domestic violence restraining order were put on GPS monitoring and charged the same rate for six months, it would cost them more than $1,200. If those people could not afford to pay for their monitoring, it could add up to millions of dollars a year that taxpayers would pick up.
Tony Gibart, policy development coordinator for the Wisconsin Coalition Against Domestic Violence, said his group supports increased monitoring of domestic abusers but noted that many issues in Walker's proposal would need to be worked out. "I think there are a lot of legal and practical matters that would have to be thought through," Gibart said.
Many with restraining orders against them won't be able to pay, he said. Additionally, victims and assailants often share children, and the assailant is responsible for helping to pay to take care of the children. If they have to pay for their GPS devices, that makes it harder for them to pay costs such as child support....
Tamara Packard, a civil rights attorney in Madison, said she has civil liberties concerns in the government tracking a person who hasn't been convicted of any crime. "The question is whether that's something that's possible under the Constitution and whether that's something that we want in our society," Packard said.
Wednesday, December 19, 2012
"Smart Gun Technology Could Have Blocked Adam Lanza"The title of this post is the headline of this new Huffington Post commentary by David Shuster, which I view as a long-needed and welcome example of a new kind of discourse over gun control needed in the wake of the Newtown massacre. Here are excerpts:
As our leaders begin the uncertain political debate over gun control, there is a simple and straightforward policy solution right now that would uphold gun owners' 2nd amendment rights and still keep our kids safer. It's called "smart gun technology."
The system is similar to "smart technology" already in use for things like cars, iPhones and security doors. A computer microchip measures the bio-metric details of the person attempting to activate the product. If the details match the rightful owner, the device is "enabled." If the details don't match, the device will not work or open.
The most reliable smart gun technology involves a grip recognition system. There are 16 digital sensor chips embedded in the handle. The computerized sensors capture the unique pattern and pressure of your grip, plus the specific size of your hand. If someone else tries to use the gun, the information will not match the stored pattern of the gun owner's — and the weapon will not fire....
[T]his technology, as well as similar versions involving fingerprint recognition, could be embedded in guns today. But for years, the National Rifle Association has blocked these efforts, in part because they would make guns costlier to produce and purchase. The NRA has also insisted that smart gun technology would infringe upon the Second Amendment. Constitutional experts say that argument is absurd. The Constitution allows for all kinds of product regulations....
The best argument against smart gun technology is a logistical one. It could prevent a homeowner who wrestles away an intruder's gun from firing it back at them. I think we can agree, however, that such MacGyver-like situations are exceedingly rare. And the fact is, 10 to 15 percent of guns used in home invasions, robberies and mass shootings are weapons that have been stolen.
Furthermore, smart gun technology allows for multiple biometric "identities" to be stored in one gun. This would solve a problem for police or members of the military who may want to have the option of "sharing weapons."
In the case of the Connecticut massacre, is it possible that Adam Lanza's mother, a gun enthusiast who reportedly took her sons to the range, would have embedded Adam's biometric data on her weapons if that was possible? Sure. But family baby sitters have told reporters that Nancy Lanza repeatedly urged "caution" around Adam and was worried about his behavioral problems....
The weapons Adam Lanza relied on were not his. They belonged to his mother, the only person entitled to use them. And while she may have taught her son how to fire the weapons at shooting ranges over the years, she was the sole owner of the weapons, not him. If smart technology had been in place, the weapons would have likely been useless to Adam Lanza.
And that's the point. Congress and the President should begin their new effort at preventing mass shootings by mandating something that might have made a different in Newtown, Conn. — require smart gun technology in all weapons. Just as our nation insists on basic quality standards for cars, houses, tools, air, water, and etc, insisting on basic features for all weapons that may be "fired" is perfectly reasonable.
It's not about taking guns away. It's about making sure that guns can't be fired by anybody but their lawful owners. Is that too much to ask?
As long-time readers know, I have been talking up smart-gun technology on this blog for years (examples here and here), and I have been sincerely hoping that the horrific shooting in Connecticut will start generating new and needed buzz on this encouraging front. This Huff Post commentary is a good start, and I sure hope the new leadership and initiatives coming from President Obama and VP Biden (basics here from the AP) will be focused like a laser on the potential pros and cons of smart guns.
Prior posts both old and new:
- Technology, smart guns, GPS tracking and a better Second Amendment
- More on smart guns, dumb technologies and market realities
- Could latest tragic mass shooting prompt renewed consideration of "smart gun" technologies?
Tuesday, October 16, 2012
New report examines value of video visitation for kids of incarceratedI received news via my electronic in-box of an intriguing new report from The Sentencing Project. Here is how the e-mail describes the report (with a link within):
On any given day, approximately 2.6 million children have a parent in jail or prison because of the harsh criminal justice policies that have made the United States the world's leading jailer. A growing number of correctional facilities are moving to video visitation because it can be managed by fewer staff than traditional visitation, reduces the chances of contraband being introduced into facilities, and can potentially generate revenue.
In our new report, Video Visits for Children Whose Parents are Incarcerated: In Whose Best Interest?, Dr. Susan D. Phillips addresses the question of whether video visitation may also provide benefits for children who are separated from their parents by incarceration. Our conclusion is that it depends on the particular policies and practices of a given institution.
Video visitation holds the most potential for benefiting children if:
- It is used as an adjunct to, rather than a replacement for, other modes of communication, particularly contact visits;
- Children can visit from their homes or nearby sites;
- Facility policies allow for frequent visits; and
- Fees are not cost prohibitive.
Monday, October 15, 2012
With Texas schools now RFID tracking, is broad criminal justice use of this technology on the horizon?
Long-time readers may recall that more than half a decade ago I was asking in this post whether microchip inplants to track offenders might be an unavoidable inevitability. To some extent, broad GPS tracking of sex offenders in many states has begun a move in this direction.
I have long thought the increased use of this technology for non-criminals would be a key social development that could make more people more inclined to be more comfortable with this kind of Big Brother approach to criminal justice. Consequently, this recent media story coming from Texas about a new use of RFID tracking caught my attention. The story is headlined "RFID chips let schools track students -- and retain funding -- but some parents object," and here are excerpts:
Two San Antonio schools have turned to radio frequency identification (RFID) technology to help administrators count and track the whereabouts of students on campus.
Students at Anson Jones Middle School and John Jay High School are required to wear ID cards imbedded with electronic chips, similar to highway toll tags, which allow schools to more accurately record daily attendance. Public school funding is often tied to the number of students attending class each day....
Pascual Gonzalez, Northside’s communications director, estimates the entire district has been losing about $1.7 million a year because of underreported attendance. He says the RFID system, which costs $261,000, should pay for itself in the first year.... Principal Wendy Reyes says the system has the added benefit of allowing her to find a particular student instantly. “Sometimes it’s difficult to locate a student in a sea of 1,200 others, so this helps locate them in an emergency,” she said. The ID tags can only be read on campus, so students cannot be tracked outside the building.
Some parents and students fear the radio ID tags are just too much Big Brother. Steve Hernandez, whose daughter is a sophomore, objects to the tags on Biblical grounds. He compared the badges to the “mark of the beast” as described in the Book of Revelations.... The American Civil Liberties Union calls the RFID tags “dehumanizing.”
“What kind of lesson does it teach our children if they’re chipped like cattle and their every movement tracked?” asks Jay Stanley, senior policy analyst with the ACLU’s Washington, D.C. office. “It doesn’t create the kind of independent, autonomous people that we want in our democratic society.”
Gonzalez, Northside’s spokesman, says school administrators have no intention of spying on students. “There’s a misconception that somebody’s sitting in a room with a bank full of monitors looking at where 1,200 kids are here at Anson Middle School. That’s not true,” he said. “It’s not even feasible. We’re not staffed nor are we interested in knowing where all the kids are at a particular moment.”
What the RFID system does do, according to Gonzales, is provide an accurate, daily census of students, which helps the district make money. Based on early results, the district may consider expanding the RFID system to its other 109 schools, encompassing nearly 100,000 students.
I find the quotes from various folks in this story especially notable given the potential application of this technology in criminal justice setting: I suspect many policy-makers would be glad, not troubled, to adopt a technology which might be viewed as "dehumanizing" for certain types of offenders, and I am certain there is some policy interest (and some public benefits) from having the every movement of high-risk offenders tracked. And though some are quick to object to any further monitoring of sex offenders, I wonder if there would be the same concerns about using RFID to track potentially violent men who are subject to a restraining order due to a history of domestic violence.
Some older related posts on tracking technologies:
- Are microchip implants for offenders inevitable?
- A sober (and caffeinated) look at GPS tracking realities
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- The devil's in the details of GPS tracking of sex offenders
- New article examining incapacitation innovations
Tuesday, September 18, 2012
South Carolina Supreme Court reconsidering big constitutional ruling concerning broad GPS trackingAs reported in this prior post, last May the South Carolina Supreme Court issued a very interesting (and seemingly ground-breaking) constitutional ruling concerning GPS tracking of a sex offender in SC v. Dykes, No. 27124 (S.C. May 9, 2012) (available here). Via this new AP article, I now see that this Dykes case was reheard today, though it is not clear whether we may get a new (or clearer) opinion this time around. Here are the basics:
Even after hearing the case a second time, the South Carolina Supreme Court isn't sure it is fair to make some sex offenders in the state face lifetime satellite monitoring of their every move without any chance of appeal.
The justices Tuesday reheard a case from May where they decided the monitoring may be too harsh in some cases. The Department of Probation, Parole and Pardon Services asked the court to reconsider its ruling, saying their decision rewrote the law.
A lawyer for Jennifer Dykes again argued her constitutional rights were violated because she had no chance to appeal or revisit the decision to put a bracelet on her ankle that reports her every move to state authorities.
Dykes, 32, was ruled to be a sex offender after being convicted of a lewd act on a child charge stemming from her relationship with a 14-year-old girl in Greenville County several years ago. She was found to be at low risk to abuse a child again.
After violating her probation by drinking alcohol, continuing a relationship with a convicted felon she met while behind bars and rescheduling too many appointments for sex offender counseling, Dykes' probation was revoked, according to court documents.
The probation violation meant under state law authorities could seek lifetime monitoring for Dykes without a chance of appeal.... Dykes' lawyer, Chris Scalzo, held up his wedding ring and said while he loves his wife and wears it nearly all the time, he can take it off. "She's not allowed to take that thing off her body unless there is a court order," Scalzo said.
An attorney for the probation agency, John Aplin, said lawmakers passed the lifetime monitoring law to protect the public. "The reason you are tracking that person every minute of every day for the rest of their life is to protect children from further future harm. It's also to help law enforcement solve crimes," Aplin said.
Chief Justice Jean Toal said she understands the need for public safety from the most dangerous offenders. But she said it is a fair question to ask if a one-size-fits-all law that doesn't allow a timely chance to appeal the ruling or ask a judge to revisit whether an offender is still dangerous is constitutional. "This court has no grief for sex offenders. But there are certainly different levels," Toal said.
Associate Justice Kay Hearn, who wrote her own opinion in May suggesting that revealing every detail of Dykes' private life to state officials violates her constitutional rights, pointed out that Dykes was not considered to be a dangerous sex offender who preys on children and would likely never change her behavior.
Prior related post:
- South Carolina Supreme Court declares lifetime sex offender GPS tracking unconstitutional on various grounds:
Wednesday, August 29, 2012
Prison videoconference visitation program expanding in New YorkThis New York Daily News article, headlined "Videoconference prison visit program set to quadruple in size this fall," reports on the latest technocorrections development in the Empire State. Here are the details:
The fledging program of prison visits via closed-circuit TV — the first one in the state — is set to more than quadruple in size this fall, the Daily News has learned. “The research shows that people will do better when they’ re released if they stay connected with their families,” said Elizabeth Gaynes, executive director of the Osborne Association, a nonprofit that has been conducting the meetings known as televisits for the past two years.
The program has been confined so far to Albion women’ s prison, allowing children to meet with their mothers. It will soon expand to the male-only Auburn, Clinton and Chateaugay facilities, with videoconference rooms added in Manhattan and the Bronx, the state Corrections Department confirmed. “We see it as a complement, if you will, to our visitation process,” said spokesman Peter Cutler. “It’ s been successful, and we’ re confident it’ ll be expanded even further.”
Visiting New York’ s remote prisons, some located more than a 10-hour bus ride away from the city, can be daunting and expensive. A free bus service was discontinued last year, further reducing options to relatives of some 56,000 inmates. Cutler said that those buses were often nearly empty, and that visits dropped by only 5% since they were canceled.
On a recent afternoon, laughter emanated from inside a cheerfully decorated room as Sindy Villanueva, 33, who’s serving a 4.67-to-12-year sentence, chatted with her 9-year-old daughter, Selena Estevec. “Just because we’ re separated from them doesn’ t mean we can’ t be a part of their lives,” Villanueva said....
Families talk on a large-screen TV that looks very much like a computer Skype window. But because most of New York ’s prisons lack Internet connections or cell service (cell phones are considered contraband), facilitating the hookup requires infrastructure work.
The practice of video-streamed visits have been growing around the country in recent years, with some states charging for the service. Last month, Washington, D.C., switched all visitations to televised ones, drawing criticism from some advocates and inmates’ relatives. Corrections officials in New York insisted they intend to keep televisits free — and the prisons open to physical visits.
Gaynes, of the Osborne Association, which assists incarcerated people and their families, said that many clients love the opportunity to see more of their kids, even if it’s through a TV screen. “They’ re like any mother or parent,” she said. “ They worry about their children.”
Sunday, August 26, 2012
A local iPad innovation in technocorrections for sex offendersThough surely not as big a deal as a big patent win in court, Apple shareholders should be pleased by this local article from Georgia reporting on a new corrections use for one of its signature products. The article is headlined "Sheriff deputies use iPads to make sex offender checks," and here are excerpts:
The Muscogee County Sheriff's office is stepping into the 21st century. Deputies working in the sex offender squad are getting new tools to make checks on sex offenders easier. It's out with the old and in with new technology. Muscogee County Sheriff Deputies with the Sex Offender Squad are using iPads to check up on sex offenders. Sheriff John Darr says the iPads will save time and eliminate an excessive paper trail.
"You've got some of these sex offenders that has files of fifty or more pages," Sheriff Darr said. "Now you are going to be able to put it all in one little area."
The new iPad fleet cost a little more than $2,000, which came from the U.S. Marshal's Department. For now, only two deputies will have access to the new technology. They will run checks on the 387 registered sex offenders in Muscogee County. "It makes it more persuasive in this day of technology juries expect us to be able to show them pictures of things, videos of things they want to see that," District Attorney Julia Slater said.
Each sex offender's information is logged into the iPad. Now all a deputy has to do is scroll through the pages of documents in each offender's file. If they break the law, District Attorney Julia Slater says they will be prosecuted.