Thursday, March 24, 2016
Am I crazy to really like the "White Collar Crime Offender Registry" now being developed in Utah?
The question in the title of this post is prompted by this notable new Wall Street Journal article headlined "Financial Crime: a New Twist on the Sex-Offender Registry: Utah is most aggressive jurisdiction in publicly shaming financial criminals." Long-time readers likley know that I tend to be a supporter of shaming sanctions as an alternative to imprisonment in some settings, and I see financial crimes as an especially useful arena to explore alternative punishments. Here are details on how Utah is engaged in an alternative sanctions experiment:
States have taken the idea of the sex-offender registry and applied it to everything from kidnapping to animal abuse. Utah is expanding it into new territory: financial crime. An early version of the White Collar Crime Offender Registry, which has been online since February, includes more than 100 people convicted of tax, credit-card or insurance fraud; thefts from employers or friends; and bilking investors.
They include 41-year-old Kenneth Ray Wagner. “Eye Color: Blue. Hair Color: Blonde … Targets: Insurance company.” The registry displays Mr. Wagner’s mugshot and explains that he was convicted in 2008 of fraud for dismantling his motorcycle, hiding the parts in a storage locker and claiming to his insurance company that it had been stolen.
The list makes Utah the most aggressive jurisdiction in the country when it comes to publicly shaming financial criminals. No other state operates such a list. The Securities and Exchange Commission often shields the identities of offenders. The agency last month refused a public-records request by The Wall Street Journal for information on sanctions paid by specific individuals, saying that providing such information would be “a clearly unwarranted invasion of personal privacy.”
The Financial Industry Regulatory Authority does require disclosure of events like some criminal convictions, regulatory actions and customer complaints. But it only applies to securities professionals, and the disclosures are intermingled in a database that includes more routine facts like work history.
Utah lawmakers say their list, which is being administered by the state’s attorney general, will help protect investors by offering easy access to information about con artists. It could also create leverage to get felons to make their victims whole. Convicts who comply with court orders on time and pay restitution in full won’t appear on the list. “That’s the carrot,” Utah Attorney General Sean Reyes said.
The new policy plunges the state into a broader debate about using name-and-shame tactics to punish convicts who have already served their time. Registries have proliferated rapidly in the U.S., experts say. While some lists restrict access to law-enforcement agencies or fire officials, others can be viewed online by anyone, according to the National Conference of State Legislatures. In addition to the 50 states that publicly track sex offenders, five states including California require registration for arson. Minnesota, Illinois and six others maintain lists of methamphetamine producers. In Indiana, a public website lets visitors use Google Maps to find the location of homes that have been used as meth laboratories. Tennessee requires registration for animal abuse— something nine other state legislatures are debating. Florida law requires registration by anyone convicted of a felony of any kind for up to five years after completing the sentence.
Utah itself maintains a sex-offender and kidnap-offender list, as well as its new financial-crimes registry. In all, the number of Americans on such lists will soon approach a million, if it isn’t already there, said J.J. Prescott, a law professor at the University of Michigan. He warned of possible unintended consequences from applying a public alert designed for sex offenses to other crimes, such as the risk of drug-offender registries being used by addicts to find suppliers....
Utah’s white-collar registry will include anyone convicted of second-degree frauds or other financial felonies since January 2006. A total of about 230 people are expected to be on the registry when it is formally launched in a few months, officials said. The state will generally keep people registered for 10 years after a first offense. A second offense adds another decade, and people with three convictions never get off.
Mr. Wagner’s lawyer, Tara Haynes, said he already has paid a considerable price for his crime. He appeared on the list after serving 90 days in county jail and being ordered to pay more than $16,000 in restitution. “He is not a white-collar criminal,” Ms. Haynes said. "He’s a blue-collar construction worker.”
Utah lawmakers voted last year to create the registry to stem what they called a growing tide of white-collar crime in the state, particularly by con artists preying on its close-knit religious communities. Convicts need to fill out a form to register, arrange to have a photo taken and update their address and phone number if they change. All but one entry in the early version of the registry includes a photo, typically a mugshot, while some also list aliases such as “ Missy Moniker” or “Connie.”
The site has some glitches. It included one man who died of cancer last year—he was removed after The Wall Street Journal sent officials a link to his obituary—and another where the wrong offense was initially shown. Mr. Reyes said the state is still vetting the registry, including by asking offenders to check the accuracy of their entries. “We want to be fair,” he said.
Some legal experts say Utah’s approach could be an improvement on federal efforts to encourage restitution.... The SEC has yet to collect $9.4 billion of $17.7 billion of sanctions it has imposed in the last five fiscal years, according to data on its website.
The question of whether Utah’s registry violates defendants’ rights could end up in court. Clair Rulon Hawkins, a former employee of a Utah real-estate firm, was convicted in 2013 of defrauding an investor who lost $852,000 deposited on two lots of land that Mr. Hawkins helped sell. Mr. Hawkins served four months in Salt Lake County jail and a halfway house. He remains subject to a restitution order for more than $1.4 million. The 50-year-old is appealing his conviction. He also plans a legal challenge to his inclusion on the Utah registry, arguing it violates his constitutional rights to due process, privacy and economic liberty, his lawyer said.
State lawmakers and other officials hope their idea will catch on nationally. Mr. Reyes, the attorney general, said his office has been contacted by legislators in several states as well as by federal prosecutors interested in replicating the experiment. “I know we’re the first in the nation for doing it,” said Michael McKell, a Republican who sponsored the bill in the Utah House to create the white-collar registry. “I certainly don’t think we will be the last.”
Wednesday, February 10, 2016
"'In the Wasteland of Your Mind': Criminology, Scientific Discoveries and the Criminal Process"
The title of this post is the title of this interesting new article available via SSRN authored by Michael Perlin and Alison Lynch. Here is the abstract:
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.
In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.
Monday, February 01, 2016
Seventh Circuit panel upholds Wisconsin's lifetime GPS monitoring for certain sex offenders against various constitutional complaints
As reported in this local Wisconsin article, headlined "Court upholds GPS tracking of sex offender convicted before law passed," a Seventh Circuit panel late last week reversed a district judge's determination that a Wisconsin law requiring lifetime GPS tracking of certain sex offenders was constitutionally problematic. Here are the basics from the start of the news report:
Making a Wisconsin sex offender wear a GPS anklet for life, when he was convicted before that was the law, does not violate the constitutional prohibition against retroactive punishment, a federal appeals court has ruled. A three-judge panel of the 7th U.S. Circuit Court of Appeals on Friday reversed a Green Bay federal judge who found the lifetime tracking improper for 72-year-old Michael Belleau. The case had been argued before the court earlier this month.
In 2012, two years after Department of Corrections officials affixed an ankle bracelet on him after his discharge from civil commitment, Belleau sued, claiming the practice amounted to an ex post facto law, banned by the Constitution, as well as unreasonable search and seizure without a warrant.
In September, Chief U.S. District Judge William Griesbach agreed, saying Belleau had served his sentences and couldn't be punished further just because the state now thinks the original sentence was too lenient. "Nor may the state force Belleau to wear a GPS tracking device around his ankle so that it can record his movement minute-by-minute for the rest of his life because it believes he might commit another crime in the future," Griesbach wrote. "The state's authority over the individual is not unlimited."
But Judge Richard Posner agreed with the state's position that the GPS monitoring is merely regulatory, not punitive, and doesn't limit where Belleau can go, like someone on probation. Posner also agreed that it's not an illegal retroactive law because the monitoring was triggered by Belleau's discharge from civil commitment in 2010, after the GPS law took effect in 2006, not his earlier criminal convictions. "So if civil commitment is not punishment, as the Supreme Court has ruled, then a fortiori neither is having to wear an anklet monitor."
The full ruling in Belleau v. Wall, No. 15-3225 (7th Cir. Jan. 29, 2016), which rejects both a Fourth Amendment claim and an ex post facto claim lodged by the sex offender to the lifetime GPS requirement, is available at this link.
Saturday, January 23, 2016
New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines
As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:
The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights. The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.
Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests. The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole. But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.
Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests. Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....
A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders. The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.
But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions. The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."
Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes. "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently." Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.
The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation. "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.
But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities." If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."
The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.
Wednesday, January 20, 2016
"Free computers for inmates? It’s latest deal at Sacramento County jail"
The title of this post is the headline of this encouraging Sacramento Bee article which reinforces my long-standing belief that lots of modern technology could and should be put to good use in our not-so-modern jails and prisons. Here are excerpts from the piece:
On the surface, the notion seems preposterous: Hand out Samsung computer tablets to dozens of Sacramento County Main Jail inmates. But 40 of the tablets have been in use at the Main Jail downtown for two months, and officials say they have had virtually no problems. Inmates have used them to take classes toward high school diplomas, for parenting and domestic violence courses and, once they have earned enough points from studying, to watch preapproved movies or listen to music.
The project, which officials hope soon will offer 500 tablets to inmates, is similar to others that have been launched in jails nationwide and is not costing taxpayers a dime, sheriff’s Sgt. Brian Amos said. Instead, the tablets, which cost about $200 each, are paid for through an inmate fund that collects revenues from commissary and other purchases. “An inmate can work on their GED, they can take anger management classes,” Amos said as he stood on the fifth floor of the jail Thursday as inmates drifted toward a table holding dozens of tablets and earphones. “There’s even parenting classes. We had an inmate here during this pilot who was learning how to fix carburetors on a car or fix brakes. There’s thousands of hours of content.”
The computers cannot be used for email or be hooked up to wireless Internet, Amos said. Instead, they can only connect with a secure network operated by a Chicago-based company called Edovo that offers the service. If someone somehow managed to hack into the system, “they’d end up at Edovo,” Amos said.
Although Amos acknowledges the notion originally worried some deputies at the jail, which houses about 2,000 inmates, the pilot program has proved to have a calming effect on inmates who have been given access to the devices. On two visits last week to the day room where the devices are being used, there was something present that is entirely out of the ordinary for the cacophonous jailhouse: silence.
Jason Rogers, 43, who has been in the jail for eight months on drug charges, sat with one of the tablets studying a chapter book and taking notes on a pad. “I think it’s great,” Rogers said, adding that he has used the device to study current events, such as the ongoing war in Syria, or to watch movies. Without access to a tablet, Rogers said, he’d most likely be writing letters or watching television in the day room.
Steve Wilson, 52, who is awaiting the results of an appeal on a federal white-collar crime case, said he uses the devices to listen to TED talks and watch documentaries. In a previous stint at the jail while awaiting trial, Wilson said disputes among bored inmates were common. “At least twice a week, when those doors popped open, there was a fight,” Wilson said. “Now that I’m back I haven’t seen a fight yet. People are taking their issues and instead of taking it out on each other, they have a mechanism of escape where they can bury themselves into that. And there’s going to be more, there’s going to be games, there’s going to be magazines.”
The tablets, which officials say can also be used to eliminate paperwork by allowing inmates to request medical care or to read up on jail policies and procedures, are designed so they cannot be altered to allow communication with the outside. “You’d have to be a genius to figure out how to do that,” Rogers said. The seven-inch tablets cannot be taken into cells, and must be locked in a charging cart at night.
Deputy Brent Snyder, who was watching over inmates on Wednesday, said he was skeptical when he heard inmates would be given access to the small computers, noting that he wanted assurances they could not access the Internet or communicate outside the jail. Since then, Snyder said, he has been won over by the program and the effect it has had on inmates. They are calmer, quieter and eager to use them to study and to listen to music ... and officials say they do not expect any serious violations because the inmates do not want to lose their access to the devices.
Edovo and its tablet programs are the brainchild of Sacramento native Brian Hill, a 2002 Del Campo High School graduate who says his company has about 1,000 tablets in fewer than 10 facilities nationwide, but expects to more than double that in the coming year. As prisons and jails try to focus more on reform than simply punishment, the need for programs that can be made available to inmates is greater than ever, Hill said, and the use of tablets can help. “You’ve got 2 million people behind bars in the nation watching daytime television,” Hill said. “That’s not a recipe for success. With this, there’s a window, there’s a chance for success.”...
The tablets are encased in hard plastic that protects them and prevents them from being opened by inmates. And, Hill said, if someone smuggled a cellphone or other device into the jail and hacked into the secure system, they would only gain access to the coursework Edovo offers. “It’d be the most depressing hack ever,” he said. Hill acknowledged that there is hesitation from some — especially guards — when they first hear about the program. “It generally takes about five minutes,” Hill said. “The minute you see it live and 100 inmates put on headphones and they are quiet for six hours, it really changes people’s perspectives.”
Such programs have been put into use from San Francisco to Pennsylvania using iPads and other tablets and are generating a surprisingly positive response from some. “It’s a good thing,” said Christine Ward, executive director of the Crime Victims Assistance Network Foundation in Sacramento. “I know you don’t often hear that from me.” But, Ward said, as long as inmates are being held accountable for their crimes, it is important for institutions to offer prisoners the ability to improve and educate themselves.
Sunday, December 13, 2015
Encouraging DUI alternative sentencing story from South Dakota
The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:
Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....
South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].
The program offers those accused or convicted of an alcohol-related crime an alternative to jail. The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.
It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws. "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began. The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.
An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.
Experts say incentive grants are an effective way to encourage states. "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.
South Dakota started the practice in 2005. Participants come to a site each morning and evening to blow into an alcohol breath test. Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles. Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.
North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states. And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.
Thursday, November 19, 2015
"Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention"
The title of this post is the title of this interesting-sounding paper available via SSRN authored by Adam Shniderman and Lauren Solberg. Here is the abstract:
Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime. A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system.
For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population. Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders. However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention. This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.
Tuesday, October 27, 2015
"Automatic Justice? Technology, Crime and Social Control"
The title of this post is the title of this intriguing new paper authored by Amber Marks, Ben Bowling and Colman Keenan. Here is the abstract:
This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice. It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system. These blur the boundary between the innocent person, the suspect, the accused and the convicted. They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment. The entire process is being automated and temporally and procedurally compressed. At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past.
This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model. The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.
Saturday, September 26, 2015
"Chain Gang 2.0: If You Can’t Afford This GPS Ankle Bracelet, You Get Thrown In Jail"
The title of this post is the headline of this effective lengthy article from International Business Times discussing the intersection of modern technocorrections and modern criminal justice economics. Here are excerpts:
In Richland County, South Carolina, any person ordered to wear the ankle monitor as a condition of their bail must lease the bracelet from a private, for-profit company called Offender Management Services (OMS), which charges the offender $9.25 per day, or about $300 per month, plus a $179.50 set-up fee, according to county documents obtained through a Freedom of Information Act request made by International Business Times.
This arrangement reflects an opportunistic pitch by prison-oriented technology companies that has found favor with budget-minded government officials. In effect, companies like OMS have allowed municipalities like Richland County to save the costs of monitoring offenders by having the offenders pay themselves. The county wins, the company wins and people like Green find themselves confronting additional drains on their limited means.
In Richland County, if offenders don’t -- or simply can’t -- meet their payments, the company is obliged to contact police in order to "return [the offender] to the custody of the [Richland County] Detention Center,” a public facility. In other words, if you can't pay your electronic monitoring bill, you get sent back to jail.
“The electronic monitoring people are like old-fashioned bounty hunters,” says Jack Duncan, a public defender in Richland County, who says some of his clients have been locked up because they can’t make their payments. “It’s a newfangled debtors' prison. People are pleading guilty because it’s cheaper to be on probation than it is to be on electronic monitoring.”
Richland County is far from the only county in the United States that requires people to pay for their own tracking. In the last decade, “offender-funded” electronic monitoring programs -- as they’re known in the business -- have exploded in popularity.
States like Georgia, Arkansas, Colorado, Washington and Pennsylvania now contract with private, for-profit companies that require individuals to pay for their own tracking, according to analysis of county and state records by IBT. While there is no centralized database on how often states charge defendants for their tracking, from 2000 to 2014 the use of electronic monitoring as alternative to jail detention grew by 32 percent, according to figures provided by the Bureau of Justice Statistics in a 2014 annual survey of jails. In 2014, NPR conducted a survey that found that in "all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring." One industry report now pegs the number of people under electronic monitoring in the United States at 100,000, and that number likely will grow.
Companies routinely use lobbyists -- especially at state and local jurisdictions -- to establish relationships with officials from local corrections departments. The country’s largest private corrections company, GEO Group, spent $2.5 million in lobbying dollars in 2014, in part for its electronic monitoring efforts, according to company statements. In a nod to the high value of local relationships, GEO noted in company documents that “approximately $0.3 million was for lobbying at the Federal level and approximately $2.2 million was for lobbying at the state and local levels.”...
As government agencies look to decrease the financial burden of keeping so many people locked up, the electronic monitoring business appears poised for growth. SuperCom, an Israeli software provider, predicts the industry will balloon to $6 billion in annual revenues by 2018, largely from offender-funded programs.
Clearly, the business is good for businesses and cheaper on taxpayers. But is it fair to charge individuals for their own electronic tracking? Several lawyers interviewed for this story say absolutely not, even though it routinely happens. “The business model itself is blatantly illegal,” said Alec Karakatsanis, a lawyer and the co-founder of Equal Justice Under Law, a nonprofit civil rights organization. “If it were ever challenged in court, it would be struck down immediately.” Cherise Burdeen, executive director of the Pretrial Justice Institute, agreed, saying that “charging of offenders for their supervision conditions, whether that’s electronic monitoring -- all of that is unconstitutional and illegal.” Jack Duncan, the public defender, simply contends that electronic monitoring is “a legal monstrosity.”...
The electronic monitoring pitch is appealing to state and county governments. For example, Behavioral Inc., one of the largest electronic monitoring companies now owned by the private prison behemoth GEO Group, boasts in marketing materials that in Luzerne County, Pennsylvania, offender-funded electronic monitoring “has saved the county ... more than $40 million in jail bed costs by diverting offenders to community supervision.”
In some states, counties don’t only save money by contracting out the monitoring to private companies -- they actually make money from it. For instance, in Mountlake Terrace, a suburb north of Seattle, the city contracts with a small electronic monitoring company, which charges the the town $5.75 “per client.” However, the person placed on electronic monitoring actually pays the city $20 per day, resulting in a net revenue for the city of “approximately $50,000 to $60,000” per year, according to Mountlake Terrace county documents.
“We’re at peak incarceration as a society,” says Karakatsanis. “A lot of these companies are devoting extraordinary efforts to shift their business model and profit off of that growing surveillance and supervision.”...
Like many industries, businesses compete for contracts with a mix of lobbying, marketing and old-fashioned schmoozing. Companies routinely pitch their products' services at trade shows and conferences around the country. “You go to the National Association of Pretrial Services Conference, or the American Parole and Probation Association, and in the vendor room is all this technology for tracking,” says Cherise Burdeen. “They portray it as a great technology, and they tell all these county folks, “This doesn’t cost you anything; the defendant pays for it all!”
Thursday, September 24, 2015
Wisconsin appeals court urges state's top court to review use of risk-assessment software at sentencing
This local article, headlined "Court may review use of defendant-risk tool," reports on a Wisconsin appellate court ruling that has urged the state's top court to consider a challenge to the use of risk-asssesment at sentencing. Hetre are the details:
Wisconsin's highest court could decide whether judges are violating thousands of criminal defendants' rights by using specialized software to assess whether they are a risk to society.
Correctional Offender Management Profiling for Alternative Sanctions, or COMPAS assessments, are routinely used by judges in all Wisconsin counties, said Department of Corrections spokeswoman Joy Staab. The tool is intended to help judges determine the risk a defendant presents to the community as well as the potential to commit another crime. Judges use the results to help decide whether a defendant should be sentenced to prison or instead offered alternative sentences such as probation.
Questions arose after a 2013 La Crosse County case, when Circuit Judge Scott Horne relied in part on a COMPAS assessment to decide that Eric Loomis was not eligible for probation. At sentencing, the judge said the assessment suggested Loomis presented a high risk to commit another crime, according to court records. Loomis, who was convicted of taking and driving a vehicle without the owner's consent and fleeing an officer, was sentenced to six years in prison.
Loomis appealed, questioning the scientific validity of the assessment. Attorneys for Loomis assert that COMPAS was not developed to assist sentencing decisions, but to determine program needs for offenders, according to court records. Proprietary rights held by the company that developed the tool prohibit defendants from challenging the assessment's methodology, leaving Loomis and other defendants with little recourse, according to court filings. The Loomis appeal also questions the use of gender-specific questions during the assessment to help determine potential risk. Federal civil rights laws prohibit courts from relying on gender when making sentencing decisions.
The appeals court opted not to rule in the case, instead asking the Wisconsin Supreme Court to weigh in on the matter. Although judges are given training on how to use COMPAS, the appeals court is asking the higher court to decide whether using the tool violates defendants' rights, either because defendants are not allowed to challenge the scientific basis of the assessments or because gender is taken into consideration. "There is a compelling argument that judges make better sentencing decisions with the benefit of evidence-based tools such as COMPAS,” the Court of Appeals wrote in a Sept. 17 filing. “Yet, if those tools lack scientific validity, or if defendants cannot test the validity of those tools, due process questions arise.”
The software-based assessment, created by Colorado-based Northpointe Inc., eliminates the need for judges and corrections officers to rely on manual assessment procedures, which are often more subjective and discretionary, to assess risk. Wisconsin began using the assessment more than four years ago, Staab said.
The referenced appellate court certification opinion is available at this link, and it begins this way:
We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice violates a defendant’s right to due process, either because the proprietary nature of COMPAS prevents defendants from challenging the COMPAS assessment’s scientific validity, or because COMPAS assessments take gender into account. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.
Saturday, August 29, 2015
"Is It Ethical to Chemically Castrate a Child Sex Offender?"
The question in the title of this post is the headline of this RYOT piece discussing an alternative sentencing debate afoot in Australia. Here is how the piece gets started (with links from the original):
When it comes to its convicted child sex offenders, Australia is considering nipping the problem in the bud, literally. The country may soon require perpetrators to be chemically castrated instead of sent to prison, VICE News reports.
New South Wales’ justice minister, Troy Grant, would like the treatment to be made mandatory since the rate of recidivism for sex offenders is so high, according to the Australian Broadcasting Corporation. About 17 percent are arrested for a similar crime within two years of being released from prison. Currently, sex criminals can volunteer for treatment, but are not required to undergo it.
Child sexual abuse runs rampant in Australia. Thirty percent of the population reports having fallen victim to it in their lifetime, 10 percent of whom say the abuse was “severe,” a report by the Australian Institute of Criminology found.
Anti-libidinal treatment is nothing new. In fact, courts in Western Australia and Victoria can already mandate libido-reduction treatment to convicts who have been deemed dangerous by prison standards.
In the US, child sex offenders could potentially be sentenced to life in prison; many opt to undergo anti-libidinal treatment instead of extended prison stays, especially since even after sex-offending convicts are released, at least seven states mandate they remain in confinement.
Compared to other offenses, recidivism rates for sex criminals in America are not as high. Only about 5 percent are sent back to prison within three years for a similar crime. Yet states such as Iowa, Florida and California can require sex offenders to be administered libido-eliminating treatment.
Sex offenders may not be a particularly sympathetic group since they pose a serious threat to the most vulnerable members of society, children. Still, many feel chemical castration goes too far.
Both Amnesty International and the American Civil Liberties Union in the US have condemned the practice, calling it inhumane. “At first sight, forced chemical castration could be taken as a matter-of-course decision; however, it is incompatible with human rights, which are the foundation of any civilized democratic society,” read a statement by Amnesty International in March 2012.
In addition to the controversy around forcing people to take drugs they may not want in their bodies, the drugs used for chemical castration don’t come without their fair share of side effects, namely symptoms mimicking menopause in women.
Sunday, July 26, 2015
Could brain implants "make the death penalty obsolete"?
The technocorrections question in the title of this post is drawn from this intriguing Motherboard article authored by futurist Zoltan Istvan, headlined "How Brain Implants (and Other Technology) Could Make the Death Penalty Obsolete." For those who believe (as I do) that technology could well become the most important (and mist disruptive) force in how we look at crime and punishment, this full piece is a must-read (and I am very grateful to the reader who sent this my way). Here are excerpts:
The death penalty is one of America’s most contentious issues. Critics complain that capital punishment is inhumane, pointing out how some executions have failed to quickly kill criminals (and instead tortured them). Supporters of the death penalty fire back saying capital punishment deters violent crime in society and serves justice to wronged victims....
Regardless of the debate — which shows no signs of easing as we head into the 2016 elections — I think technology will change the entire conversation in the next 10 to 20 years, rendering many of the most potent issues obsolete.
For example, it’s likely we will have cranial implants in two decades time that will be able to send signals to our brains that manipulate our behaviors. Those implants will be able to control out-of-control tempers and violent actions — and maybe even unsavory thoughts. This type of tech raises the obvious question: Instead of killing someone who has committed a terrible crime, should we instead alter their brain and the way it functions to make them a better person?
Recently, the commercially available Thync device made headlines for being able to alter our moods. Additionally, nearly a half million people already have implants in their heads, most to overcome deafness, but some to help with Alzheimer’s or epilepsy. So the technology to change behavior and alter the brain isn’t science fiction. The science, in some ways, is already here — and certainly poised to grow, especially with Obama’s $3 billion dollar BRAIN initiative, of which $70 million went to DARPA, partially for cranial implant research.
Some people may complain that implants are too invasive and extreme. But similar outcomes — especially in altering criminal’s minds to better fit society’s goals — may be accomplished by genetic engineering, nanotechnology, or even super drugs. In fact, many criminals are already given powerful drugs, which make them quite different that they might be without them. After all, some people — including myself — believe much violent crime is a version of mental disease.
With so much scientific possibility on the near-term horizon of changing someone’s criminal behavior and attitudes, the real debate society may end up having soon is not whether to execute people, but whether society should advocate for cerebral reconditioning of criminals — in other words, a lobotomy. Because I want to believe in the good of human beings, and I also think all human existence has some value, I’m on the lookout for ways to preserve life and maximize its usefulness in society....
Speaking of extreme surveillance — that rapidly growing field of technology also presents near-term alternatives for criminals on death row that might be considered sufficient punishment. We could permanently track and monitor death row criminals. And we could have an ankle brace (or implant) that releases a powerful tranquilizer if violent behavior is reported or attempted.
Surveillance and tracking of criminals would be expensive to monitor, but perhaps in five to 10 years time basic computer recognition programs in charge of drones might be able to do the surveillance affordably. In fact, it might be cheapest just to have a robot follow a violent criminal around all the time, another technology that also should be here in less than a decade’s time. Violent criminals could, for example, only travel in driverless cars approved and monitored by local police, and they’d always be accompanied by some drone or robot caretaker.
Regardless, in the future, it’s going to be hard to do anything wrong anyway without being caught. Satellites, street cameras, drones, and the public with their smartphone cameras (and in 20 years time their bionic eyes) will capture everything. Simply put, physical crimes will be much harder to commit. And if people knew they were going to be caught, crime would drop noticeably. In fact, I surmise in the future, violent criminals will be caught far more frequently than now, especially if we have some type of trauma alert implant in people — a device that alerts authorities when someone’s brain is signaling great trouble or trauma (such as a victim of a mugging).
Inevitably, the future of crime will change because of technology. Therefore, we should also consider changing our views on the death penalty. The rehabilitation of criminals via coming radical technology, as well as my optimism for finding the good in people, has swayed me to gently come out publicly against the death penalty.
Whatever happens, we shouldn’t continue to spend billions of dollars of tax payer money to keep so many criminals in jail. The US prison system costs four times the entire public education system in America. To me, this financial fact is one of the greatest ongoing tragedies of American economics and society. We should use science and technology to rehabilitate and make criminals contribute positively to American life — then they may not be criminals anymore, but citizens adding to a brighter future for all of us.
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