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May 13, 2014

"Modifying Unjust Sentences"

The title of this post is the title of this notable new paper by E. Lea Johnston now available via SSRN. Here is the abstract:

The United States is in the midst of an incarceration crisis. Over-incarceration is depleting state budgets and decimating communities. It has also led to the overfilling of prisons, which has degraded conditions of confinement, increased violence, and reduced access to needed medical and mental health care. Judicial sentence modification offers a means to address both the phenomenon of over-incarceration and harsh prison conditions that threaten unjust punishment. Indeed, some legislatures have framed states’ early release provisions as fulfilling goals of proportionality and just punishment. Proportionality is also an express purpose of the proposed Model Penal Code provisions on judicial sentence modification.

This paper explores whether the tools available to judges at sentence modification hearings are adequate to respond to the unjust punishment experienced by prisoners. In examining this question, the article focuses on one population particularly likely to experience disproportionate or inhumane punishment: inmates with serious mental disorders. A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated. This article’s analysis reveals a gap in remedial coverage for some members of this population. In particular, existing remedies are inadequate to respond to the plight of those prisoners who must remain incarcerated, but for whom incarceration in current conditions constitutes a disproportionate or inhumane punishment.

To remedy this shortcoming, the article proposes that states authorize judges, upon a finding of past and likely future unjust punishment, to modify a mentally disordered prisoner’s conditions of confinement. Only with such expanded authority will the process of sentence modification allow judges to reserve prison for those who deserve it and ensure that continued confinement will be a just and appropriate sanction.

May 13, 2014 at 09:17 AM | Permalink


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The overfilling of prisons also dropped the crime rate. It contributed to the boom in real estate prices. It has made us wealthier than ever before, especially the poorest among us. The poor are too fat. They all have X-Boxes, and deny themselves nothing of substance thanks to the lower crime rate that freed them from oppression.

Mental illness makes the person impulsive, unable to control self, and unpredictable even to themselves. It is therefore an aggravating factor, not a mitigating factor. Whom would any of you want as a cellmate, a mob contract assassin, or the Unabomber? So what makes you think it is OK to free the Unabomber and have live next to poor people in bad neighborhood?

Posted by: Supremacy Claus | May 13, 2014 10:38:44 AM

"A deep literature suggests that individuals with serious mental illnesses are especially likely to be victimized by staff and inmates, to be housed in isolation, and to experience an exacerbation of mental illness while incarcerated."

Isolation helps many prisoners calm down, even if they are refusing medications and other treatments.


The abstract of the well designed study. Because Prof. Berman would never post any data contradicting the left wing agenda of more government make work jobs. The alternative to physical controls, including isolation is, of course, massive increases in staffing. I predict that the authors will be working outside of government in the near future. I commend their courage in publishing these data.

A Longitudinal Study of Administrative Segregation

Maureen L. O'Keefe, MA,
Kelli J. Klebe, PhD,
Jeffrey Metzner, MD,
Joel Dvoskin, PhD,
Jamie Fellner, JD and
Alysha Stucker, BA

+ Author Affiliations

Ms. O'Keefe is Research Director, Office of Planning and Analysis, Colorado Department of Corrections, Colorado Springs, CO. Dr. Klebe is Associate Professor of Psychology, and Ms. Stucker is Professional Research Assistant, University of Colorado, Colorado Springs, CO. Dr. Metzner is Clinical Professor of Psychiatry, School of Medicine, University of Colorado, Denver, CO. Dr. Dvoskin is Assistant Clinical Professor, University of Arizona College of Medicine, Tucson, AZ. Mr. Fellner is Senior Advisor, U.S. Program, Human Rights Watch, New York, NY. This project was supported by Grant 2006-IJ-CS-0015 awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. Points of view in this article are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

Address correspondence to: Maureen L. O'Keefe, Office of Planning and Analysis, Colorado Department of Corrections, 2862 South Circle Drive, Colorado Springs, CO 80906. E-mail: maureen.okeefe@state.co.us.


The use of administrative segregation for inmates with and without mental illness has generated considerable criticism. Segregated inmates are locked in single cells for 23 hours per day, are subjected to rigorous security procedures, and have restricted access to programs. In this study, we examined whether inmates in segregation would show greater deterioration over time on psychological symptoms than would comparison offenders. The subjects were male inmates, with and without mental illness, in administrative segregation, general population, or special-needs prison. Subjects completed the Brief Symptom Inventory at regular intervals for one year. Results showed differentiation between groups at the outset and statistically significant but small positive change over time across all groups. All groups showed the same change pattern such that there was not the hypothesized differential change of inmates within administrative segregation. This study advances the empirical research, but replication research is needed to make a better determination of whether and under what conditions harm may or may not occur to inmates in solitary confinement.

Disclosures of financial or other potential conflicts of interest: None.

Posted by: Supremacy Claus | May 13, 2014 1:04:08 PM

Well, we have to blame somebody! It's the American way. And nothing is likely to change until we begin to focus on age 0-6, a period wherein 80% of personality is formed.

Posted by: Patrick M. Sobota, Ph.D | Sep 17, 2014 9:37:00 PM

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