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.

April 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

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.

March 30, 2015 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

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:

March 24, 2015 in Prisons and prisoners, Technocorrections | Permalink | Comments (0) | TrackBack

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.

January 20, 2015 in Prisons and prisoners, Technocorrections | Permalink | Comments (1) | TrackBack

Sunday, January 18, 2015

"Smart Guns Save Lives. So Where Are They?"

18kristof-articleLargeThe 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:

January 18, 2015 in Gun policy and sentencing, Second Amendment issues, Technocorrections | Permalink | Comments (13) | TrackBack

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.

November 18, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Technocorrections | Permalink | Comments (12) | TrackBack

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:

September 11, 2014 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, September 10, 2014

Might all video visitation companies be eager to have prisons and jail prohibition in-person visitation?

Video_visits_drawingRegular 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:

September 10, 2014 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (2) | TrackBack

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.

July 5, 2014 in Prisons and prisoners, Technocorrections | Permalink | Comments (2) | TrackBack

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.

July 2, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (7) | TrackBack

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.

June 25, 2014 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

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

Drone-615x345Regular 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.

June 6, 2014 in Prisons and prisoners, Technocorrections, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

April 22, 2014 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Technocorrections | Permalink | Comments (0) | TrackBack

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.

March 24, 2014 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, March 18, 2014

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

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

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

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

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

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

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

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

Monday, 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:

February 24, 2014 in Prisons and prisoners, Scope of Imprisonment, Technocorrections | Permalink | Comments (0) | TrackBack

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.

December 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (12) | TrackBack