Tuesday, March 02, 2021

"Association between county jail incarceration and cause-specific county mortality in the USA, 1987–2017: a retrospective, longitudinal study"

Concerns about public safety and justice have long been central to discussions and debate over modern mass incarceration in the United States.  But, especially as a result of the COVID pandemic, we are seeing more and more consideration of incarceration as a public health issue.  Consequently, I was really struck by this new research published online at The Lancet Public Health which analyzes mortality associated with jails over three decades (and has the title that serves as the title of this post).  Here is the "Summary" from this paper:

Background

Mass incarceration has collateral consequences for community health, which are reflected in county-level health indicators, including county mortality rates.  County jail incarceration rates are associated with all-cause mortality rates in the USA. We assessed the causes of death that drive the relationship between county-level jail incarceration and mortality.

Methods

In this retrospective, longitudinal study, we assessed the association between county-level jail incarceration rates and county-level cause-specific mortality using county jail incarceration data (1987–2017) for 1094 counties in the USA obtained from the Vera Institute of Justice and cause-specific mortality data for individuals younger than 75 years in the total county population (1988–2018) obtained from the US National Vital Statistics System.  We fitted quasi-Poisson models for nine common causes of death (cerebrovascular disease, chronic lower respiratory disease, diabetes, heart disease, infectious disease, malignant neoplasm, substance use, suicide, and unintentional injury) with county fixed effects, controlling for all unmeasured stable county characteristics and measured time-varying confounders (county median age, county poverty rate, county percentage of Black residents, county crime rate, county unemployment rate, and state incarceration rate).  We lagged county jail incarceration rates by 1 year to assess the short-term, by 5 years to assess the medium-term, and by 10 years to assess the long-term associations of jail incarceration with premature mortality.

Findings

A 1 per 1000 within-county increase in jail incarceration rate was associated with a 6·5% increase in mortality from infectious diseases (risk ratio 1·065, 95% CI 1·061–1·070), a 4·9% increase in mortality from chronic lower respiratory disease (1·049, 1·045–1·052), a 2·6% increase in mortality induced from substance use (1·026, 1·020–1·032), a 2·5% increase in suicide mortality (1·025, 1·020–1·029), and smaller increases in mortality from heart disease (1·021, 1·019–1·023), unintentional injury (1·015, 1·011–1·018), malignant neoplasm (1·014, 1·013–1·016), diabetes (1·013, 1·009–1·018), and cerebrovascular disease (1·010, 1·007–1·013) after 1 year.  Associations between jail incarceration and cause-specific mortality rates weakened as time lags increased, but to a greater extent for causes of death with generally shorter latency periods (infectious disease and suicide) than for those with generally longer latency periods (heart disease, malignant neoplasm, and cerebrovascular disease).

Interpretation

Jail incarceration rates are potential drivers of many causes of death in US counties.  Jail incarceration can be harmful not only to the health of individuals who are incarcerated, but also to public health more broadly. Our findings suggest important points of intervention, including disinvestment from carceral systems and investment in social and public health services, such as community-based treatment of substance-use disorders.

March 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, February 26, 2021

New coalition letter urges Prez Biden "to aggressively reduce jail and prison populations" in first 100 day

Via email this afternoon, I learned of this new extended letter addressed to Prez Biden on behalf of The Leadership Conference on Civil and Human Rights and organizations urging various criminal justice with particular focus on "the health and safety of incarcerated individuals during the COVID-19 pandemic." The full letter covers lots of ground, and here is its first substative paragraph:

While the pandemic jeopardizes everyone’s safety, incarcerated individuals are much more likely to be people with disabilities or to have pre-existing health conditions, making them exceptionally vulnerable due to overcrowding, unsanitary prison conditions, and a lack of access to quality healthcare services.  Though the COVID-19 vaccine is a critical advancement, distribution to incarcerated populations will take precious time, and correctional medical experts expect participation rates will be low because the Bureau of Prisons (BOP) has failed to pair vaccine rollout with needed outreach and education.  Indeed, BOP has already reported a low adherence rate by staff to the vaccine: a January 15, 2021 BOP press release reported that roughly half of staff had agreed to accept the vaccine.  Moreover, the emergence of new strains of the virus that are potentially more contagious and deadly means that the need to protect high-risk individuals remains as urgent as ever.  To uphold your campaign commitments to advance racial justice and criminal justice reform and effectively confront COVID-19 during your first 100 days, it is imperative that you use existing authorities to aggressively reduce jail and prison populations.

February 26, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, February 24, 2021

"Viral Injustice"

The title of this post is the title of this notable new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.

February 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, February 23, 2021

"Tax Administration and Racial Justice: The Illegal Denial Of Tax Based Pandemic Relief To The Nation's Incarcerated"

The title of this post is the title of this notable and timely new article authored by Leslie Book now available via SSRN.  (Among other virtues, this piece provides yet another example of how all areas of law have something to do with sentencing and corrections.)  Here is its abstract:

In the midst of a devastating pandemic that would sicken millions, kill hundreds of thousands, and cause widespread financial distress, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. CARES provided for the IRS to deliver up to $1,200 for adults and $500 for dependent children.  It was ostensibly structured as a refundable credit to be claimed on a 2020 tax return, but with a twist.  The statute authorized the IRS to pay it in advance, even to those who did not have a tax return filing obligation, and to do so as “rapidly as possible.”  While there were some problems, the IRS generally did remarkably well, and within six months it had delivered about 160 million payments totaling over $270 billion.

This Essay addresses one of those exceptional problems: it involves the IRS’s unexplained change in position on the eligibility of those incarcerated in our nation’s federal, state, and local prisons and jails.  At first, the incarcerated, just like other Americans suffering the effects of the pandemic, received the money that they were entitled to receive under the CARES legislation.  That changed.  In early May of 2020, the IRS announced on its web page that those who were incarcerated were not eligible for immediate cash benefits, worked with prison officials to claw back payments it had made, and stopped in their tracks hundreds of thousands of payments that it had not yet made.  By October, the government faced a complete rebuke of its policy in Scholl v Mnuchin, a class action suit that held that the IRS’s actions were contrary to law and arbitrary and capricious under the Administrative Procedure Act.

By looking at the IRS actions that led to Scholl v Mnuchin, this Essay explores the relationship of tax administration and racial justice.  It reveals how tax administration can normalize and reinforce patterns of racial inequality through the presence of racialized administrative burdens.  Finally, this Essay then considers how the IRS’s actions with respect to restricting payments to the incarcerated population can offer lessons to minimize the risk that future IRS actions will harm people of color, especially given the IRS’s role in delivering benefits.

February 23, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, February 22, 2021

"COVID-19 Cases Among Employees of U.S. Federal and State Prisons"

The title of this post is the title of this notabel new research published in the American Journal of Preventive Medicine.  Here is its abstract:

Introduction

Prior research has found coronavirus disease 2019 (COVID-19) cases to be disproportionately prevalent among U.S. prisoners.  Like prisoners, prison staff experience ventilation and social distancing hazards and may have limited access to testing, paid sick leave, personal protective equipment, and other workplace protections.  Yet, systematic case surveillance among prison staff remains unexplored.  The objective of this study is to document trends in COVID-19 cases among U.S. correctional staff relative to prisoners and the U.S. population.

Methods

Reports of COVID-19 cases among prisoners and staff were collected from state Departments of Corrections and the federal Bureau of Prisons from March 31, 2020 to November 4, 2020. In November 2020, this series of aggregated case records was linked to population estimates to calculate COVID-19 period prevalence among prison staff and residents with comparison to U.S. population trends.

Results

Within the prison environment, COVID-19 case burden was initially higher among staff than prisoners in 89% of jurisdictions.  Case prevalence escalated more quickly among prisoners but has remained persistently high among staff. By November 4, 2020, COVID-19 was 3.2 times more prevalent among prison staff than the U.S. population.

Conclusions

Prison staff experienced substantially higher COVID-19 case prevalence than the U.S. population overall.  Across prison staff and resident populations, cases were rapidly rising in November 2020, indicating poor outbreak containment within the prison environment.  An Emergency Temporary Standard, issued by federal and state Occupational Safety and Health Administrations, and priority vaccination are urgently needed to reduce COVID-19 occupational risk.  Reduced occupational transmission of COVID-19 will benefit workers, incarcerated people, and community members alike.

February 22, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, February 17, 2021

The Sentencing Project releases "No End in Sight: America’s Enduring Reliance on Life Imprisonment"

The Sentencing Project has done remarkable work in recent years tracking (and advocating against) the growth of life and functional life sentences in the United States. This great work continues with the release today of this big report authored by Ashley Nellis titled "No End in Sight: America’s Enduring Reliance on Life Imprisonment." The whole 46-page report is worth a close read for anyone concerned about extreme punishments and mass incarceration, and here the start of the report's initial "Findings and Recommendations" section:

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000.  Today, it’s 1.4 million; and more than 200,000 people are serving life sentences — one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.
Nearly five times the number of people are now serving life sentences in the United States as were in 1984, a rate of growth that has outpaced even the sharp expansion of the overall prison population during this period.  The now commonplace use of life imprisonment contradicts research on effective public safety strategies, exacerbates already extreme racial injustices in the criminal justice system, and exemplifies the egregious consequences of mass incarceration.
In 2020, The Sentencing Project obtained official corrections data from all states and the Federal Bureau of Prisons to produce our 5th national census on life imprisonment.
KEY FINDINGS
• One in 7 people in U.S. prisons is serving a life sentence, either life without parole (LWOP), life with parole (LWP) or virtual life (50 years or more), totaling 203,865 people;
• The number of people serving life without parole — the most extreme type of life sentence — is higher than ever before, a 66% increase since our first census in 2003;
• 29 states had more people serving life in 2020 than just four years earlier;
• 30% of lifers are 55 years old or more, amounting to more than 61,417 people;
• 3,972 people serving life sentences have been convicted for a drug-related offense and 38% of these are in the federal prison system;
• More than two-thirds of those serving life sentences are people of color;
• One in 5 Black men in prison is serving a life sentence;
• Latinx individuals comprise 16% of those serving life sentences;
• One of every 15 women in prison is serving life;
• Women serving LWOP increased 43%, compared to a 29% increase among men, between 2008 and 2020;
• The population serving LWOP for crimes committed as youth is down 45% from its peak in 2016;
• 8,600 people nationwide are serving parole-eligible life or virtual life sentences for crimes committed as minors.

February 17, 2021 in Data on sentencing, Detailed sentencing data, Examples of "over-punishment", Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, February 16, 2021

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2020"

The US Justice Department's Bureau ofJustice Statistics today released this interesting new data report titled "Federal Prisoner Statistics Collected under the First Step Act, 2020."  Despite the year in its title, the report provides data on the federal prison population at the end of 2019 (so before any COVID-era shocks).  Here is how this 19-page report gets started and a few of its "key findings":

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually. BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs. Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2019, which represented the first full year under the FSA, and were collected in 2020. Data for 2020 will be available from the BOP in the second half of 2021. Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.

Key findings

  • The portion of federal prisoners who were the parent, step-parent, or guardian of a minor child (defined as a dependent age 20 or younger by the BOP) grew from 45% to 49% from year-end 2018 to year-end 2019 (table 1).
  • On December 31, 2019, a total of 31,458 federal prisoners were non-citizens of the United States (18% of all BOP prisoners), and 21,922 prisoners identified English as their second language (13% of all BOP prisoners). 

  • During 2019, a total of 3,791 federal prisoners earned a general-equivalency degree (GED) or other equivalent certificate while in prison. 

  • In 2019, there were 386 incidents of prisoners being placed in administrative maximum - segregated housing, the BOP’s most restrictive level of segregated housing. 

  • Of the 180 pregnant prisoners in federal custody in 2019, a total of 94 gave birth in custody and 74 were released before giving birth (table 2)....

  • While in custody, 116 federal prisoners received medication-assisted treatment for a substance-use disorder in 2019....

  • ƒIn 2019, all 122 BOP-operated facilities had video-conferencing capabilities for prisoners to participate in judicial hearings, foreign embassy consultations, reentry-related communications from probation offices, preliminary reentry preparation, disciplinary hearings, and the Institution Hearing Program.

  • A total of 89,369 prohibited acts occurred in BOP-operated facilities during 2019, of which 63,025 were committed in medium- or high-security facilities (71%) (table 4).

  • A total of 54,848 individual federal prisoners committed the 89,369 prohibited acts (table 5).

  • More than half of the individuals who committed prohibited acts in 2019 were age 35 or older (29,175 prisoners or 53%).

  • During 2019, there were 1,252 physical assaults on BOP staff by federal prisoners, with 18 of the assaults resulting in serious injury to the staff member (table 7).

  • In 2019, a total of 11,491 persons volunteered at BOP-operated facilities (table 8).

  • Faith-based programs made up 56% of all BOP recidivism-reduction partnerships in 2019 (table 9).

February 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Monday, February 15, 2021

"Just Let People Have Cellphones in Prison"

The title of this post is the title of this notable new Slate commentary authored by Hannah Riley.  I recommend the full piece, and here is how it starts:

In 2017, a man named Willie Nash was booked into a Mississippi county jail on a misdemeanor charge.  For reasons that aren’t clear, his cellphone wasn’t confiscated as the law dictated.  When he asked a jailer for a charger, the phone — which he had been using to text his wife — was seized.  Nash was then sentenced to 12 years for possessing the cellphone.  The case went all the way up to the Mississippi Supreme Court, where the 12-year sentence was affirmed. “While obviously harsh,” Justice James D. Maxwell II wrote for the court, “Nash’s twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate.”  Mr. Nash, a father of three, will be released back to his family in January of 2029, for the crime of texting his wife from jail.

In all federal and state prisons and jails, personal cellphones are classified as contraband — illegal for incarcerated people to possess.  Incarcerated people are allowed to communicate with loved ones via letters, expensive phone calls in a centralized location (done through a prepaid account or collect calls, for a limited amount of time), or sometimes through expensive email and video messages on a prison-issued tablet.  Due to COVID-19, in-person visitation has been halted in most prisons and jails since last March.

These rigid policies isolate incarcerated people and weaken their ties to friends and family. And this isolation radiates harm well beyond each individual.  The vast majority of the millions of people currently incarcerated in this country will, at some point, be released.  Every year, roughly 600,000 people leave prisons across the U.S., and a much higher number cycle in and out of jails.  Roughly 2.7 million children in the U.S. have an incarcerated parent....  There is a wealth of research that confirms that the stronger the relationships and connections to loved ones and community, the better a person will fare once they are released from prison or jail.  We’ve known this for a long time.  A study from 1972 noted that, “The central finding of this research is the strong and consistent positive relationship that exists between parole success and maintaining strong family ties while in prison.”  Decades later, the findings remain the same.  “Incarcerated men and women who maintain contact with supportive family members are more likely to succeed after their release,” a 2012 Vera Institute report found.

There is one obvious way to facilitate these community ties: allow incarcerated people to have cellphones.  For more than a decade, jailers and elected officials have attempted to incite a moral panic in the general public around the danger of cellphones, warning that incarcerated people would only use them to organize hits and buy drugs and run gangs on the outside.

It’s true that some incarcerated people have used contraband phones to extort people on the outside.  But targeting the tools rather than the roots of the corruption and violence within prisons is misguided.  A full decade ago, the New York Times conceded that the harsh penalties and increased vigilance weren’t working to keep phones out of prisons: “The logical solution would be to keep all cellphones out of prison. But that is a war that is being lost, corrections officials say.”  That hasn’t changed.  If you want to find a cellphone in prison or jail now, you can.  One former sheriff in South Carolina even allowed detainees in his jail to purchase cheap cellphones from commissary, arguing access to cellphones actually improves safety....

The reality is that prisons and jails are already saturated with cellphones (mostly smuggled in by correctional officers), and the vast majority of people use them in the exact same ways the vast majority use them on the outside: to stay connected.  To stave off boredom.  To learn.  To laugh.

February 15, 2021 in Prisons and prisoners, Technocorrections | Permalink | Comments (0)

Thursday, February 11, 2021

Senators Durbin and Grassley re-introduce "COVID-19 Safer Detention Act"

As detailed in this post from last June, US Senators Dick Durbin and Chuck Grassley responded to the ugly realities of the COVID pandemic and its impact on incarcerated persons by introducing a modest, but still important, new bill to reform the procedures surrounding federal elderly home release and compassionate release.  Disappointingly, that bill never moved forward in the last Congress, but this press release reports that it is back on the docket for the new Congress.  Here are excerpts from the release:

Amid the COVID-19 public health pandemic, U.S. Senate Democratic Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, authors of the bipartisan First Step Act, landmark criminal justice reform legislation, introduced bipartisan legislation to reform the Elderly Home Detention Pilot Program and compassionate release from federal prisons.  Sadly, more than 200 federal prisoners with pre-existing medical conditions that made them more vulnerable to COVID-19 have died as a result of the virus, more than half of whom were over 60 years old.  Elderly offenders, the fastest-growing portion of the prison population, have much lower rates of recidivism and are much more expensive to incarcerate due to their health care needs.  

Since enactment of the First Step Act, the Federal Bureau of Prisons (BOP) has opposed the vast majority of compassionate release petitions.  Since March of last year, BOP has opposed nearly all compassionate release requests, while courts have granted more than 2,000 over the objections of the Department of Justice and BOP.  BOP has reportedly refused to approve any compassionate releases based on vulnerability to COVID-19.

“My legislation with Senator Grassley would help ensure that the most vulnerable prisoners are quickly released or transferred to home confinement for the remainder of their sentence – just as the First Step Act intended.  This is especially critical during the COVID-19 pandemic to protect against the spread of this deadly virus, which we know thrives in places like prisons.  I’m hopeful that we can take up legislation on a bipartisan basis so we can start to properly implement the First Step Act and protect communities from further COVID-19 outbreaks,” said Durbin.

“In the middle of a pandemic the federal government ought to be doing everything it can to protect the inmates in its care.  We already established important home confinement and early release programs in 2018, which are especially important right now as older inmates face very serious risks because of the virus.  Our bill will clarify and expand those programs we wrote into the First Step Act, so we can better protect these vulnerable populations,” Grassley said.

Specifically, the COVID-19 Safer Detention Act would reform the Elderly Home Detention Pilot Program and compassionate release by:

  • Clarifying that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); 
  • Expanding the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment;
  • Clarifying that elderly nonviolent D.C. Code offenders in BOP custody are eligible for the Elderly Home Detention Pilot Program and that federal prisoners sentenced before November 1, 1987 are eligible for compassionate release;
  • Subjecting elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision); and
  • Providing that, during the period of the pandemic, COVID-19 vulnerability is a basis for compassionate release and shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days.

Joining Durbin and Grassley in cosponsoring the legislation are Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Kevin Cramer (R-ND), Chris Coons (D-DE), Roger Wicker (R-MS), and Cory Booker (D-NJ). 

As the release reveals, Senators Durbin and Grassley are now the leading member of the Senate Judiciary Committee, which would seem to improve the odds of this bill moving forward. But, of course, Congress moves in mysterious ways, and I have learned never to expect too much from inside the Beltway.

February 11, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Wednesday, February 10, 2021

"Evading the Eighth Amendment: Prison Conditions and the Courts"

The title of this post is the title of this book chapter authored by Sharon Dolovich now available va SSRN.  Here is its abstract:

The greater the “slippage” between Eighth Amendment norms and their enforcement, the broader the judicial permission conferred on correctional officers to treat people in prison cruelly.  This chapter examines the governing standards for Eighth Amendment prison conditions claims, tracing their evolution towards enabling cruelty on the part of the state actors charged to keep people safe while they are in custody.  It argues that the Supreme Court’s early efforts to shape those standards looked set to enable judicial determinations consistent with fundamental Eighth Amendment moral imperatives, but that, in later cases, the Court betrayed that early promise by several doctrinal moves that have allowed courts to dismiss prisoners’ claims without ever squarely confronting either the character of the challenged conditions or their consistency with core Eighth Amendment values.  The effect was to leave the people in prison without judicial protection from needless pain and suffering.  And recent signs from the new Roberts Court suggest that people in prison may soon face an Eighth Amendment regime even less protective than the already diminished standards that currently govern.

February 10, 2021 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, February 03, 2021

Federal judge in Oregon orders state to vaccinate inmates along with correctional workers

As reported in this local press piece, "A federal judge ordered Oregon officials late Tuesday to immediate offer state prison inmates COVID-19 vaccines."  Here is more about this notable ruling:

U.S. Magistrate Judge Stacie Beckerman granted a temporary restraining order as part of a larger case by a group of prison inmates. They’ve criticized the state’s response to the pandemic inside prisons and argue it’s violated the U.S. Constitution. Beckerman’s ruling applies to more than 12,000 inmates who live in one of the state’s 14 prisons. “Defendants shall offer all [Adults in Custody] housed in [Oregon Department of Corrections] facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine,” she wrote....

Gov. Kate Brown is also named in the lawsuit. Brown’s communications director, Charles Boyle, confirmed Wednesday that the state won’t appeal the decision. “The court’s decision is clear,” Boyle said in a written statement. “We will move ahead with a weekly approach that will integrate adults in custody into our Phase 1a distribution plans.”...

Beckerman’s order comes as the Oregon Department of Corrections has struggled to combat the COVID-19 pandemic. More than 3,000 inmates have tested positive for the virus. Of those, 42 people in custody have died; including 20 in January alone. “From the beginning of the COVID-19 pandemic, it was clear that our country’s prisons were uniquely vulnerable to the transmission and spread of the virus,” Beckerman wrote in her 34-page order. “Oregon prisons have not been spared from this reality, as COVID-19′s toll continues to mount behind bars.”

The full 34-page ruling is available at this link, and the press coverage does not fully highlight the important point that Oregon was prioritizing vaccinations for prison workers but not for people confined to prison.  Here are a few paragraphs from the start of the opinion:

Defendants are aware of the higher risk of COVID-19 exposure and infection to individuals living and working in congregate living facilities, and do not dispute that vaccination is an essential component of protecting against COVID-19 exposure.  For these reasons, defendants Governor Brown and Oregon Health Authority (“OHA”) Director Patrick Allen (“Allen”) have prioritized in Phase 1A of Oregon’s COVID-19 Vaccination Plan the vaccination of those living and working in congregate care facilities and those working in correctional settings.  Yet, Governor Brown and Allen have excluded from Phase 1A individuals living in correctional settings.

The Court acknowledges the difficult and unenviable task faced by defendants Allen and Governor Brown: they must determine the order in which Oregon citizens will receive a lifesaving vaccine that is limited in supply during a global pandemic.  The question of which groups of Oregonians should receive priority is best left to the policymakers, and is not the question before this Court.  The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state’s care.

Our constitutional rights are not suspended during a crisis.  On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless.  Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.  See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”) (quotation marks and citation omitted).  For the reasons that follow, the Court finds that the law and facts clearly favor Plaintiffs’ position, and therefore grants Plaintiffs’ request for preliminary injunctive relief.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Disconcerting new data on pandemic parole practices from the Prison Policy Initiative

The Prison Policy Initiative has this new briefing authored by Tiana Herring that provides some notable data on parole realities in 2022. Authored by Tiana Herring, the full title of the piece highlights its themes: "Parole boards approved fewer releases in 2020 than in 2019, despite the raging pandemic: Instead of releasing more people to the safety of their homes, parole boards in many states held fewer hearings and granted fewer approvals during the ongoing, deadly pandemic."  Here is much of the exposition (click through to see data):

Prisons have had 10 months to take measures to reduce their populations and save lives amidst the ongoing pandemic.  Yet our comparison of 13 states’ parole grant rates from 2019 and 2020 reveals that many have failed to utilize parole as a mechanism for releasing more people to the safety of their homes.  In over half of the states we studied —Alabama, Iowa, Michigan, Montana, New York, Oklahoma, Pennsylvania, and South Carolina — between 2019 and 2020, there was either no change or a decrease in parole grant rates (that is, the percentage of parole hearings that resulted in approvals).

Granting parole to more people should be an obvious decarceration tool for correctional systems, during both the pandemic and more ordinary times.  Since parole is a preexisting system, it can be used to reduce prison populations without requiring any new laws, executive orders, or commutations.  And since anyone going before the parole board has already completed their court-ordered minimum sentences, it would make sense for boards to operate with a presumption of release.  But only 34 states even offer discretionary parole, and those that do are generally not set up to help people earn release.  Parole boards often choose to deny the majority of those who appear before them.

We also found that, with the exception of Oklahoma and Iowa, parole boards held fewer hearings in 2020 than in 2019, meaning fewer people had opportunities to be granted parole.  This may be in part due to boards being slow or unwilling to adapt to using technology during the pandemic, and instead postponing hearings for months.  Due to the combined factors of fewer hearings and failures to increase grant rates, only four of the 13 states — Hawaii, Iowa, New Jersey, and South Dakota — actually approved more people for parole in 2020 than in 2019.

February 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

New Urban Institute briefs on improving prison-related research

Via a helpful email, I learned about two recent topical briefs produced by the Urban Institute's relatively new Prison Research and Innovation Initiative.  I believe both of these briefs are part of broader research agenda for the an initiative that seeks to "leverage research and evidence to shine a much-needed light on prison conditions and pilot strategies to promote the well-being of people who live and work behind bars."  Here are the titles, authors, links and abstracts:

"Conducting Prison Research with a Racial-Equity Frame" by Cassandra Ramdath

Abstract: The history of slavery in America shapes the experience of incarceration for Black people and must therefore inform strategies to remediate institutional harms.  This brief sets forth guiding values and recommendations for grounding prison research in principles of racial equity.  These values are intended to help researchers more accurately capture and measure racial biases, and design and conduct research that can elevate and disrupt systemic biases.

"Using Research to Improve Health and Health Care in US Correctional Facilities" by Alexandra Kurland

Abstract: To implement policies and practices that foster positive health outcomes and fulfill the US government’s constitutional obligation to provide adequate health care to people who are incarcerated, researchers and practitioners must understand their health needs and the nature and quality of the care they receive.  This brief provides an overview of what is known about health and health care in correctional settings and what must be investigated to improve treatment and health outcomes in correctional settings.

February 3, 2021 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

The Sentencing Project releases new report documenting "Racial Disparities in Youth Incarceration Persist"

Josh Rovner has authored this new report for The Sentencing Project titled " "Racial Disparities in Youth Incarceration Persist." Here is its executive summary:

In an era of declining youth incarceration, Black and American Indian youth are still overwhelmingly more likely to be held in custody than their white peers.

In ten years, the United States has cut youth incarceration in half. While the reduction is impressive, youth involvement in the juvenile justice system continues to impact youth of color disproportionately.

In every state, Black youth are more likely to be incarcerated than their white peers, about five times as likely nationwide. American Indian youth are three times as likely to be incarcerated as their white peers. For Latinx youth disparities are smaller but still prevalent; Latinx youth are 42 percent more likely than their white peers to be incarcerated.

Nationally, disparities are essentially unchanged from 10 years’ prior for Black and American Indian youth, but represent a 21 percent decrease in incarceration disparities for Latinx youth. In state rankings, New Jersey warrants special mention due to its number one and number three status for highest Black-white and Latinx-white disparities in youth incarceration, respectively.

These disparities are not only caused by differences in offending but also by harsher enforcement and punishment of youth of color.  White youth are less likely to be arrested than other teenagers, which is partly attributable to unequal policing and partly to differential involvement in crime.

After arrest, youth of color are more likely to be detained pre-adjudication and committed post adjudication.  They are also less likely to be diverted from the system.  These patterns hold across a range of offenses.

Advancement of racial justice priorities with youth decarceration efforts has proven elusive.  More steps must be taken to invest in youth and communities in order to prevent crime and to protect youth from overly punitive system responses to misbehavior.

Recommendations

1. Racial impact statements

States and localities should require the use of racial impact statements to educate policymakers about how changes in sentencing or law enforcement policies and practices might impact racial and ethnic disparities in the justice system.

2. Publish demographic data quarterly

States and counties should publish demographic data quarterly on the number of incarcerated or justice-system involved youth, including race and ethnicity. The federal government should disseminate this information nationwide.

3. Invest in communities

States and localities must invest in communities to strengthen public infrastructures, such as schools and medical and mental health services, with particular focus on accommodating the needs of children of color.

February 3, 2021 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, February 02, 2021

"Local Spending on Jails Tops $25 Billion in Latest Nationwide Data"

The title of this post is the title of this new report from the Pew Charitable Trust folks.  Here are excerpts from the report's overview:

Historically, the roughly 3,000 local jails operating in the United States have received less public and policymaker attention than prisons.  But now, the COVID-19 pandemic has put jails — secure correctional facilities, generally operated by county or municipal governments, where people are detained before trial or confined post-conviction for periods usually lasting less than a year — under additional scrutiny.  Jails rely on close confinement and so are high risk for disease transmission.  Local governments are also confronting the budget implications of the pandemic and looking for potential savings, especially in costly areas such as corrections.

This environment provides an opportunity to examine correctional expenditures and consider strategies that may offer enduring public safety and fiscal benefits.  The available data indicates that to mitigate COVID-19 exposure risk, jurisdictions reduced jail populations by about 31% nationwide from March to May 2020, and although those populations partially rebounded, they were still 15% below March levels as of October 2020.  Further, people released from jail in March were readmitted less often over the ensuing six months than those released in January, suggesting that the pandemic-related decreases in jail populations did not affect public safety.  These reductions may not yield immediate savings, but a sustained commitment to safely cutting the number of people in jail could provide long-term financial benefits.  The recent experience of reducing prison populations offers a glimpse of the potential cost savings: The 9% drop in the prison population from 2008 to 2018 virtually flattened corrections spending, which had averaged 5.4% annual growth from 1991 to 2007.

To support state and local efforts to reduce jail spending and protect public safety, The Pew Charitable Trusts undertook an analysis of jail costs, using expenditure data for all U.S. localities, primarily from 2007 and 2017, and related criminal justice data..... 

Key findings include:

Local governments spend billions on jails.  As of the end of 2017:

  • Jail and other local corrections costs had risen sixfold since 1977, with jail costs reaching $25 billion.
  • Almost 2 in 5 dollars spent on state and local correctional institutions went to jails.
  • About 1 in 17 county dollars was spent on jails.
  • The average annual cost of holding a person in jail was about $34,000.
  • Roughly a third of jail facility capacity was more than 30 years old, and about 20% of jails were overcrowded, which could present significant capital challenges to local budgets.

Jail costs rose even as crime and admissions to jail fell.  As of the end of 2017:

  • A 20% decrease in crime and a 19% drop in jail admissions since 2007 had not led to reduced jail spending.
  • The portion of local budgets spent on jails did not correlate with state crime rates.
  • Small localities spent more per capita on jails than most other jurisdictions, despite having lower crime rates.

Nationwide, counties and cities are seeking to address budgetary pressures during these difficult fiscal times and for the long term.  New policies and practices — including many they already have embraced in response to the pandemic — can safely reduce jail populations and associated costs and help them achieve those goals.

February 2, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, January 29, 2021

"The Transparency of Jail Data"

The title of this post is the title of this new paper available via SSRN and authored by William Crozier, Brandon L. Garrett and Arvind Krishnamurthy. Here is its abstract:

Across the country, pretrial policies and practices concerning the use of cash bail are in flux, but it is not readily possible for members of the public to assess whether or how those changes in policy and practice are affecting outcomes.  A range of actors affect the jail population, including: law enforcement who make arrest decisions, magistrates and judges who rule at hearings on pretrial conditions and may modify such conditions, prosecutors and defense lawyers who litigate at hearings, pretrial-service providers who assist in evaluation and supervision of persons detained pretrial, and the custodian of the jail who supervises facilities.  In the following Essay, we present the results of a case study in Durham, North Carolina.  We began this project in the fall of 2018 by scraping data portraying daily pretrial conditions set for individuals in the Durham County Jail.  The data was scraped from the Durham County Sheriff’s Inmate Population Search website and details the individual’s name, charges, bond type, bond amount, court docket number and time served.  Scraping was initiated on September 1, 2018, and continues to the present.

Beginning in early 2019, the judges and prosecutors in Durham, North Carolina, adopted new bail policies, reflecting a shift in the pretrial detention framework.  This Essay provides a firsthand look into the pretrial detention data following these substantive policy changes. Our observations serve as a reflection on how the changes in Durham reflect broader pretrial detention reform efforts.  First, we observe that a dramatic decline in the jail population followed the adoption of these policy changes.  Second, we find that the policy changes corresponded with changes in aggregate conditions imposed pretrial. We describe, however, why public data that simply reports initial pre-trial conditions cannot answer additional questions concerning the jail population or outcomes for the released population.  Nor can this data fully answer questions concerning which actors can be credited with the observed changes.  During a time in which jail populations are a subject of pressing public concern, we have inadequate information, even in jurisdictions with public jail websites, to assess policy.  We conclude by discussing the implications of data limitations for efforts to reorient bail policy.

January 29, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 28, 2021

ACLU urging Prez Biden to "use his clemency powers to bring home 25,000 people" from federal prisons

In this post yesterday reviewing commentary on former Prez Trump's use of the clemency power, I mentioned that on this front I am always more eager to look forward than look back.  Consequently, I am pleased to see that via this press release that the ACLU is looking forward and pressing the new President to use his clemency powers boldly.  Here are excerpts:

On Tuesday, the Biden administration announced a slate of executive orders on racial justice. Notably missing was any executive action to boldly use his power of clemency. Today, the American Civil Liberties Union launched a six-figure advertising buy asking President Biden to honor his commitment to significant decarceration by immediately using his clemency authority to help tens of thousands of people in federal prison who could be safely released immediately.

poll released by the ACLU last year found widespread support for executive officials to use their clemency authority to correct past injustices.... “The American public, voters, and most importantly, incarcerated people and their families were encouraged by President Biden’s commitment to reduce our country’s prison population significantly. Now that he is in office, the president has the opportunity to act on this commitment and correct the harms created by decades of racist policies that have led to the unjust and disproportionate incarceration of Black and Brown people by using his executive power to grant clemency to thousands of people,” said Cynthia Roseberry, deputy director of the ACLU’s Justice Division and former project manager for the Obama administration’s 2014 Clemency Initiative. “Clemency provides an opportunity for the Biden administration to show mercy to those who are incarcerated, repair injustices, and mend communities most impacted by mass incarceration. The new administration must commit itself to the routine and bold use of clemency.”

Specifically, the ACLU is asking President Biden use his clemency powers to bring home 25,000 people in some of our most vulnerable populations including individuals who are currently incarcerated under statutes that have since changed, older people and medically vulnerable people, particularly people at risk of COVID-19 infections, and people incarcerated for drug offenses. Collectively, these categories add up to tens of thousands of people currently incarcerated in the federal prison system.

I am quite pleased that the ACLU is making a big, big ask in this way, but I think it critical for everyone to also be pushing Prez Biden to just get his clemency pen flowing ASAP in even modest ways.  Though it would be amazing to see thousands of commutations in short order, Prez Biden could send a powerful signal by simply making a regular habit of commuting, say, a few dozen sentences every week while also encouraging all the nation's governors to do the same. 

If Prez Bden would just grant 10 clemencies each week (with perhaps five pardons and five commutations), he would set a record-setting pace for the use of the historic clemency power.  According to the latest BOP data, there are over 10,000 federal prisoners aged 60 or older and over 66,000 in for drug offenses; surely five can be found among this group each week who could safely be released from confinement.  There are hundreds of thousand of Americans still bearing the burdens of a long-ago federal conviction, surely five can be found among this group each week who deserve a pardon.

Interestingly, though not properly attributed to anything done by the Biden Administration, the federal prison in the last week has increased by over 400 persons.  Last week, BOP reported the federal prison population at 151,646; today, BOP reports that it stands at 152,071.  This reality provide an important reminder that, absent proactive and sustained effort to decarcerate, the federal punishment bureaucracy may often be lkely to drive up prison populations.

January 28, 2021 in Clemency and Pardons, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, January 27, 2021

Vera Institute reports on "People in Jail and Prison in 2020" and finds US total now well below two million

Images (7)The Vera Institute of Justice has been taking on the challenging task of collecting data on the number of people in state and federal prisons and jails to provide more timely information on incarceration that the Bureau of Justice Statistics releases in its annual reports. Impressively, Vera has already produced this great new report, titled "People in Jail and Prison in 2020," with the latest nationwide prison and population headcounts. Here his part of the start of the report (with a few sentences I have emphasized):

The United States saw an unprecedented drop in total incarceration between 2019 and 2020.  Triggered by the onset of the COVID-19 pandemic and pressure from advocates to reduce incarceration, local jails drove the initial decline, although prisons also made reductions.  From summer to fall 2020, prison populations declined further, but jails began to refill, showing the fragility of decarceration.  Jails in rural counties saw the biggest initial drops, but still incarcerate people at double the rate of urban and suburban areas.  Despite the historic drop in the number of people incarcerated, the decrease was neither substantial nor sustained enough to be considered an adequate response to the COVID-19 pandemic, and incarceration in the United States remains a global aberration.

Vera Institute of Justice (Vera) researchers collected data on the number of people in local jails and state and federal prisons at both midyear and fall 2020 to provide timely information on how incarceration is changing in the United States during the COVID-19 pandemic.  Vera researchers estimated the national jail population using a sample of 1,558 jail jurisdictions and the national prison population based on a sample of 49 states and the Federal Bureau of Prisons....

Generally, jails and prisons do not make race and gender data available.  However, preliminary results from other studies suggest that race inequity in incarceration may be worsening during the pandemic.

The number of people incarcerated in state and federal prisons and local jails in the United States dropped from around 2.1 million in 2019 to 1.8 million by mid-2020 — a 14 percent decrease.  This decline held through the fall. This represents a 21 percent decline from a peak of 2.3 million people in prison and jail in 2008.  State and federal prisons held an estimated 1,311,100 people at midyear 2020 — down 124,400, or 9 percent, from 2019.  Prisons declined by an additional 61,800 people in late 2020, bringing the total prison population to 1,249,300 people, a 13 percent decline from 2019 to late 2020 (the end of September or beginning of October).

Local jails had steeper population declines than prisons in the first part of 2020. From June 2019 to June 2020, the jail population decreased by 182,900 people, or 24 percent.  However, from June to September, jail populations increased substantially, growing 10 percent in just three months. By late 2020, there were 633,200 people in local jails, up from an estimated 575,500 people at midyear.  In total, the national jail population declined 17 percent from midyear 2019 to late 2020, with jail incarceration trending upward in recent months.

The national jail population counts hide stark divergence across the urban-to-rural continuum. In the past year, the largest and most sustained jail population declines were in rural areas, where the jail population dropped by 60,400 (33 percent) between midyear 2019 and midyear 2020, and subsequently grew by 10,600 (9 percent) between midyear 2020 and late 2020.  Urban areas and small and midsized metro areas had smaller incarceration declines followed by slightly higher subsequent growth from June to September 2020. Even with dramatic declines, rural areas still have the highest incarceration rates by far.  Three out of five people incarcerated in local jails are in smaller cities and rural communities.

This four-page fact sheet goes with the report and provides a lot of its highlights and includes recommendations for policy-makers.

January 27, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, January 26, 2021

Prez Biden signs Executive Order "to Eliminate the Use of Privately Operated Criminal Detention Facilities" in the federal prison system

I had heard reports that today was going to be a day for Prez Biden to sign a number of executive orders related to criminal justice, but it seems as though only one such order was actually signed today during an event that was focused more broadly on racial equity.  Still, as reported in this AP piece, the one criminal justice executive order signed today is still notable:

President Joe Biden on Tuesday ordered the Department of Justice to end its reliance on private prisons and acknowledge the central role government has played in implementing discriminatory housing policies. In remarks before signing the order, Biden said the U.S. government needs to change “its whole approach” on the issue of racial equity. He added that the nation is less prosperous and secure because of the scourge of systemic racism....

Beyond calling on the Justice Department to curb the use of private prisons and address housing discrimination, the new orders will recommit the federal government to respect tribal sovereignty and disavow discrimination against the Asian American and Pacific Islander community over the coronavirus pandemic....

The order to end the reliance on privately-run prisons directs the attorney general not to renew Justice Department contracts with privately operated criminal detention facilities. The move will effectively revert the Justice Department to the same posture it held at the end of the Obama administration. “This is a first step to stop corporations from profiting off of incarceration,” Biden said.

The more than 14,000 federal inmates housed at privately-managed facilities represent a fraction of the nearly 152,000 federal inmates currently incarcerated. The federal Bureau of Prisons had already opted not to renew some private prison contracts in recent months as the number of inmates dwindled and thousands were released to home confinement because of the coronavirus pandemic.

GEO Group, a private company that operates federal prisons, called the Biden order “a solution in search of a problem.” “Given the steps the BOP had already announced, today’s Executive Order merely represents a political statement, which could carry serious negative unintended consequences, including the loss of hundreds of jobs and negative economic impact for the communities where our facilities are located, which are already struggling economically due to the COVID pandemic,” a GEO Group spokesperson said in a statement.

David Fathi, director of the American Civil Liberties Union’s National Prison Project, noted that the order does not end the federal government’s reliance on privately-run immigration detention centers. “The order signed today is an important first step toward acknowledging the harm that has been caused and taking actions to repair it, but President Biden has an obligation to do more, especially given his history and promises,” Fathi said.

The full EO, which is titled "Executive Order on Reforming Our Incarceration System to Eliminate the Use of Privately Operated Criminal Detention Facilities," can be found at this link, and it has this interesting "preamble" in its first section:

Policy.  More than two million people are currently incarcerated in the United States, including a disproportionate number of people of color.  There is broad consensus that our current system of mass incarceration imposes significant costs and hardships on our society and communities and does not make us safer.  To decrease incarceration levels, we must reduce profit-based incentives to incarcerate by phasing out the Federal Government’s reliance on privately operated criminal detention facilities. 

We must ensure that our Nation’s incarceration and correctional systems are prioritizing rehabilitation and redemption.  Incarcerated individuals should be given a fair chance to fully reintegrate into their communities, including by participating in programming tailored to earning a good living, securing affordable housing, and participating in our democracy as our fellow citizens.  However, privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources.  We should ensure that time in prison prepares individuals for the next chapter of their lives. 

The Federal Government also has a responsibility to ensure the safe and humane treatment of those in the Federal criminal justice system. However, as the Department of Justice’s Office of Inspector General found in 2016, privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff.  We have a duty to provide these individuals with safe working and living conditions. 

January 26, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Monday, January 25, 2021

"Is Mass Incarceration Here to Stay?"

The title of this post is the title of this recent essay authored by Lynn Adelman and now available via SSRN. Here is its abstract:

This article argues that the number of people imprisoned in the United States is so large and that policymakers’ concerns about being perceived as soft on crime are so significant that it is very possible that mass incarceration will be with us for a very long time.  The article discusses some of the reasons that have been put forward as to why the United States has imprisoned so many people in the last 50 years and the harms that mass incarceration has brought about.  The article also explores some of the proposals that scholars and others have offered to reduce the number of people imprisoned.  Ultimately, however, the article questions whether there is sufficient will to address the enormity of the problem.

January 25, 2021 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Sunday, January 24, 2021

Why not a clemency push focused on the (more lethal) new death penalty that is COVID in federal prisons?

I noted in this recent post that group of Democratic members of Congress signed a letter calling upon Prez Biden to "commute the sentences of all those" on federal death row.  I wondered in my post if there might be a less politically controversial group of federal prisonsers who might be a better focal point for the very first clemencies from Prez Biden.  And this new BuzzFeed News piece, which carries the subheadline "In crowded cells, where COVID is running rampant, appeals for clemency for thousands of prisoners have gone unanswered or flat-out rejected," reminded me that Prez Biden might actually save many more lives right away if he were to focus on communiting federal prison sentences for the most vulnerable persons at risk of suffering "the new death penalty" that takes the form of COVID-19.  Here is some contexnt from the BuzzFeed piece: 

For many federal inmates who aren’t politically connected to the president, or state inmates with no sway with their governor, a pardon isn’t just about getting out of prison or having their sentence overturned, it’s literally a case of life and death.  In crowded prisons, with little access to healthcare or the ability to socially distance, COVID-19 cases have exploded, with at least 1 in 5 inmates infected.

A new report from the Prison Policy Initiative found that crowded jails and prisons led to more than half a million additional COVID-19 cases nationwide — or about 1 in 8 of all new cases — over the summer, including cases both inside and outside correctional facilities because the virus spreads via prison workers to the world beyond bars. At least 2,144 inmates and 146 corrections staff have died from the disease, according to data collected by the Marshall Project....

Wanda Bertram, a spokesperson for the nonpartisan Prison Policy Institute, pointed out that people in prison are infected with COVID-19 at a rate four times higher than that of the general population and twice as likely to die from the disease. “What that means is that people who were never sentenced to death are being killed by COVID-19,” Bertram said. “More people have been killed by COVID-19 in prisons than have been killed by the death penalty in like the last few decades, all over the country.”

Bertram pointed to a report published last month showing places with prisons record higher levels of community infection. “This is a tragedy,” she said. “It’s something that governors and the federal government should have been dealing with a long time ago by doing whatever it is that they had to do to get huge numbers of people out.”

The federal Bureau of Prison's COVID-19 page currently reports that there "have been 204 federal inmate deaths ... attributed to COVID-19 disease."  That amounts to more than four times the number of persons on federal death row; in a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes, and thus crimes much less serious than the aggarvated murders that lead to formal death sentences.   

The Buzzfeed piece rightly notes that "Public officials have been slow to use clemency powers, despite calls from the American Medical Association and other groups to reduce the prison population."  I sure wish a bunch of members of Congress and lots and lots of other folks would focus a push for clemency on the persistent and pressing need to try to depopulate federal prisons in order to reduce the spread and carnage of COVID in federal prisons.

A few of many prior related posts:

January 24, 2021 in Clemency and Pardons, Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, January 22, 2021

"Can We Wait 60 Years to Cut the Prison Population in Half?"

The question in the title of this post is the title of this new publication authored by The Sentencing Project's Senior Research Analyst Nazgol Ghandnoosh.  Here is how it gets started:

The U.S. prison population declined 11% in 10 years after reaching an all-time high in 2009.  This modest reduction follows a nearly 700% increase in the prison population between 1972 and 2009.  As of year end 2019, 1.4 million people were in U.S. prisons; an imprisonment rate unmatched worldwide.  At the recent pace of decarceration, it will take nearly six decades to cut the U.S. prison population in half.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic began in 2020, a number of states and the federal system have made additional, albeit limited, reductions in their prison populations.  This analysis underscores the need to reduce unnecessarily high levels of imprisonment amidst a public health crisis and going forward.  Meaningful decarceration, as explained below, requires reducing excessive prison terms for violent convictions.

January 22, 2021 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, January 21, 2021

Notable OLC opinion on "Home Confinement of Federal Prisoners After the COVID-19 Emergency"

In this post from this past October, I wondered "Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?".  That post was prompted by this Walter Palvo piece at Forbes reporting on a US Attorney suggesting that persons who BOP placed on home confinement in response to COVID would be returned to prison after the pandemic ended for any remaining time.  Though the end of the pandemic still seems depressingly far away, the outgoing Trump Justice Department addressed this issue last week when the Office of Legal Counsel put out this opinion titled ""Home Confinement of Federal Prisoners After the COVID-19 Emergency."  Here is how it gets started:

The Federal Bureau of Prisons (“BOP” or “the Bureau”) has statutory authority to place a prisoner serving a term in a federal prison in home confinement for the concluding portion of his sentence. See 18 U.S.C. § 3624(c)(2).  In connection with the COVID-19 pandemic, Congress expanded the authority of the Director of BOP to place federal prisoners in home confinement earlier than that statutory period.  See Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516 (2020) (“CARES Act”).  The question is what happens to these prisoners once the pandemic emergency ends.  At that time, some inmates will have completed their sentences or be sufficiently close to the end to be eligible for home confinement.  Other inmates, however, may have a substantial time to go before becoming eligible.  Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.

We conclude that the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning.  See id.  Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2).  We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

I had assumed that BOP might have some discretion to keep persons on home confinement whenever we emerged from the pandemic; but this OLC opinion asserts that BOP has no discretion in this matter and thus "would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement."  This opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.  Nevertheless, as FAMM's Kevin Ring explains in this Twitter thread, this OLC opinion could cause lots of heartache and worry for lots of persons on home confinement and their families.

Persons on home confinement are those that BOP generally determined posed little risk to public safety and that were at high risk of COVID and so likely older and less healthy relative to most other prisoners.  And, since the BOP has had discretion to return these persons to prison for misbehavior while in home confinement, it is hard to see a compelling public safety justification for sending all these individuals back to prison post-pandemic.  But if extant law is interpreted to require BOP to recall all these folks, policy arguments alone cannot fix this legal reality.

But even if this particular interpretation of BOP authority under the CARES Act were to persist, there are multiple means to address these matters.  Most obviously, Congress could modify the applicable statutes to clearly give BOP discretion to keep persons on home confinement.  And even without congressional action to address this problem, the other two branches could step in: Prez Biden could grant a kind of conditional clemency and/or district courts could grant compassionate release to keep these folks on home confinement.  Walto Palvo discusses these matters further in this new Forbes piece, which concludes with this fitting sentence: "One thing is for sure, the pandemic is not over but discussions on how to handle inmates currently on home confinement is something that should begin now."

January 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?

Regular readers know that I have been following federal prison population data quite closely during the COVID era and giving particular attention to the numbers the federal Bureau of Prisons updates weekly at this webpage.  This morning, which just happens to be the first full day of the new Biden Administration, BOP reports "Total Federal Inmates" at 151,646.  I am very curious to hear predictions as to what this number might be a year from now, or two years from now, or four years from now.

Here is some notable recent historical perspective.  Thanks to the wayback machine, we can see here that during Prez Trump's first week in office in late January 2017, BOP was reporting 189,212 total federal inmates.  Because I cannot find parallel data going back to the Obama inaugural months, I can just link to BOP historical data showing the federal prison population was reported at 201,668 at the end of 2008 and was at 218,687 at the end of 2012.  So, roughly speaking, the federal prison population increased by 17,000 persons during Prez Obama's first term (roughly 8%), and then it declined nearly 20,000 persons during Prez Obama's second term (roughly 9%).  And then the federal prison population decreased by nearly 38,000 persons(!) during Prez Trump's term (nearly 20%).

Gosh knows I would not have predicted that the federal prison population would have increased so significantly during Prez Obama's first term, and I also would not have predicted that this prison population would have decreased so much more significantly during Prez Trump's time in office.  Of course, the unpredictable COVID pandemic is a big part of this Trump era story, but BOP data shows that the federal prison population was declining at a pretty steady clip even in the pre-COVID years of the Trump era despite the fact Trump's Justice Department back in 2017, as noted here, was forecasting prison population increases. 

In short, hindsight shows that the direction of the federal prison population is quite hard to predict.  So, all the more reason for me to want to hear any and all new predictions now.  I am tempted to predict the federal prison population will be relatively steady during the Biden years, at least initially.  Though I would like to see Biden's Justice Department do a lot more to get a lot more vulnerable inmates out of federal prisons, I suspect it may be many months before we see any big DOJ policy changes and likely many more months before any big policy changes start to impact the federal prison population.  (I would love to see the Biden Administration have the gut to set a target of a federal prison population under 100,000, but I will save discussion of that idea for a future post.)

So, dear readers, any federal prison population predictions for the Biden era?

January 21, 2021 in Criminal justice in the Biden Administration, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Sunday, January 17, 2021

"Mass Incarceration, Meet COVID-19"

The title of this post is the title of this paper now available via SSRN authored by Sharon Dolovich. Here is its abstract:

With the global pandemic still unfolding, we are only beginning to make sense of the overall impact of COVID-19 on the people who live and work inside American prisons and jails, and of what effect, if any, the pandemic will have on the nation’s continued commitment to mass incarceration under unduly harsh conditions.  In this Essay, I take stock of where things now stand.  I also consider how we got to this point, and how penal policy would need to change if we are to prevent another round of needless suffering and death when the next pandemic hits.

Part I explains why the incarcerated face an elevated risk of infection and potentially fatal complications from COVID-19. Part II describes the measures various corrections administrators took at the start of the pandemic to try to limit viral spread inside jails and prisons, and why, however well-intentioned, these measures were insufficient to bring the virus under control.  Part III addresses the steps taken by public officials at all levels to reduce the number of people in custody and offers initial thoughts as to why, after a concerted push for releases on the part of many public actors in the first months of the pandemic, these efforts had already considerably slowed by the latter part of May 2020. (Here, the focus is primarily, though not exclusively, on the federal courts’ nonresponse to urgent petitions from incarcerated plaintiffs.)

Part IV draws on the work of the UCLA Law COVID-19 Behind Bars Data Project.  It explores what the data shows regarding infection rates and COVID deaths in custody, describes the limits of the available data, and explains why the impact on people in jails and prisons is likely even greater than the official numbers suggest.  Part V zeroes in on the culture of secrecy that American corrections administrators have long been empowered to cultivate regarding what goes on behind bars.  It argues that this culture has exacerbated the threat COVID poses to the incarcerated as well as to staff, that such secrecy is at odds with the imperatives of a public institution, and that we need to replace the reigning default posture of concealment with an ethos of transparency.  This Essay concludes with a call for a broad normative reorientation toward assessing carceral policy through a public health lens.

January 17, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, January 15, 2021

"Top Trends in State Criminal Justice Reform, 2020"

The title of this post is the title of this short paper from Nicole Porter at The Sentencing Project. Here is how it gets started and its concluding paragraph:

The United States is the world leader in incarceration and keeps nearly 7 million persons under correctional control.  More than 2 million are in prison or jail, and 4.6 million are under community surveillance on probation or parole.  At least 19 million persons are living with a felony conviction while an estimated 100 million have a criminal record.  The persistence of extremely punitive sentencing laws and policies, not increases in crime rates, sustain the nation’s high rate of incarceration.  Ending mass incarceration requires a transformative change to sentencing policies and practices aligned with the scaling back of collateral consequences of conviction, and challenging racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences.  This briefing paper highlights key reforms undertaken in 2020 prioritized by The Sentencing Project....

Lawmakers advanced policy reforms to address mass incarceration and scale back collateral consequences.  Too few policy changes were adopted to address COVID-19 and its impact on the incarcerated in overcrowded congregate lock ups.  While reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take substantial changes to significantly reduce the nation’s rate of incarceration.  Given the limited impact of incarceration on crime, there continues to be potential for substantial reductions in state prison populations.  Lawmakers and advocates must explore key changes that limit the use of incarceration by retroactively ending mandatory minimum sentencing, adopting universal sentencing review policies, challenging racial disparities through structural reforms, and addressing collateral consequences.

January 15, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, January 14, 2021

"Incarcerated Activism During COVID-19"

The title of this post is the title of this new essay authored by Eve Hanan now available via SSRN. Here is its abstract:

Incarcerated people have a notoriously difficult time advocating for themselves.  Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy.  Also like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest.  Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts.  Indeed, a dramatic increase in prisoner activism correlates with the onset of the COVID-19 pandemic.

Just as the COVID-19 pandemic highlights injustice in other areas of criminal legal practice, it reveals both the dangers of silencing prisoner speech and the potential for prisoner self-advocacy.  This Essay first discusses silencing and speech in carceral spaces during the pandemic using a theory of political philosophy called epistemic injustice.  The theory of epistemic injustice addresses how disfavored social groups are excluded from sharing knowledge in public conversations. The stifling of prisoner speech occurs in part because incarcerated people are deliberately separated from the outside world.  But it also reflects their status as a stigmatized — and thus discredited — group.  Even when their speech is heard, it is discounted as manipulative and untrustworthy.

Second, this Essay argues that the self-advocacy efforts made by incarcerated people during the pandemic demonstrates the democratic value of their participation.  Among the necessary predicates to meaningful change in criminal legal practices is the democratic participation of the targets of those practices, including suspects, criminal defendants, and prisoners.  Their participation in the political sphere serves a vital democratic function the absence of which is felt not only in the authoritarian structure of prisons, but in the society-wide failure to enact widespread change to criminal legal practices.

January 14, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, January 13, 2021

"More states need to use their 'good time' systems to get people out of prison during COVID-19"

The title of this post is the title of this new briefing from the Prison Policy Initiative. The subtitle highlights its themes: "Most states have statutes that allow incarcerated people to earn time off of their sentences. Why aren’t more states using this tool to safely reduce prison populations during COVID-19?".  Here is an excerpt (with links from the original):

With the COVID-19 infection rate in prisons four times that of the general U.S. population, public health and medical experts are urging prisons to reduce their populations to save lives.  But governors and corrections officials are still passing the buck — almost a year into the pandemic. Overlooking existing mechanisms that could be used to release people, states have instead imposed a number of policy changes that have caused further harm to the incarcerated people they are supposed to protect....

What states need now is a simple, equitable way of getting lots of people out of prison safely, rather than continuing to incarcerate them in ever more dangerous and cruel conditions.  A solution — albeit one that will require legislative action in most states — is for states to immediately change their “good time” policies.

Good time” — also called “earned time,” “meritorious credit,” or similar — is a system by which people in prison can earn time off their sentences.  States award time “credits” to incarcerated individuals to shorten the time they must serve before becoming parole-eligible or completing their sentences altogether.  Good time systems vary between states (see the National Conference of State Legislatures’ detailed table) but time credits are often given out for participating in programs.  For example, New York offers a six-month credit for completion of the GED.  26 states have a good time program that offers credits for certain educational programs and attainments, while 23 states offer credits for vocational training, 17 for participation in mental health or substance abuse treatment, 16 for work, 21 for other programming, and five for participating in disaster response (like firefighting).  Almost none of these kinds of programs are being offered consistently during the pandemic, effectively eliminating the option for incarcerated individuals to reduce their sentences while in prison during COVID-19.

People in prison can also often earn time off their sentences by complying with prison rules.  During the pandemic, people in prison have had to comply with much stricter rules than usual, including lockdowns that subject entire prisons to conditions “akin to solitary confinement.”  Yet most have not been rewarded with additional “good time” for compliance with these harsher conditions.

Rather than holding people back from accruing good time credits during the pandemic, states should give out more of those credits, not just because it’s the fair thing to do but because it will allow some people to leave prison immediately.

January 13, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, January 08, 2021

The new death penalty: Marshall Project reporting COVID has now killed more than 2000 prisoners in the United States

I am always sad to report when we pass yet another remarkable milestone in COVID prisoner deaths, but passing a new big ugly number prompts another one of my series of "new death penalty" posts.  The Marshall Project, which continues the critical job of counting via this webpage prisoner deaths from coronavirus, reports as of Thursday, January 8, 2021 that there are now "at least 2010 deaths from coronavirus reported among prisoners." 

Notably, just a month ago as noted in this post, the COVID prisoner death accounting was "only" at 1568 deaths.  So we have seen a huge uptick in prisoner deaths in just the last month (which is somewhat unsurprising because the same uptick has been seen in the general population).   Sadly, we are also seeing a big increase in correctional staff dying from COVID.  The Marshall Project now reports "at least 139 deaths from coronavirus reported among prison staff," when that number was "only" at 105 deaths as of last month. 

I highlighted here a few weeks ago some of the sound arguments being made that incarcerated persons should be high on the list of who first receives the COVID vaccines.  These latest data should further advance that notion.

A few of many prior related posts:

January 8, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, January 05, 2021

Notable recent reports on FIRST STEP Act implementation efforts

While there is considerable discussion of the next steps in federal criminal justice reform (including by me), there is still lots and lots of work still to do in implementing fully the FIRST STEP Act of 2018.  The reality of FIRST STEP work to do comes through over and over again in these two recent implementation reports from the Department of Justice and the Independent Review Committee:

The Attorney General's First Step Act Section 3634 Annual Report (Dec. 2020)

Report of the Independent Review Committee Report Pursuant to the Requirements of Title I Section 107(g) of the First Step Act (FSA) of 2018 (Dec. 21, 2020)

January 5, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Sunday, January 03, 2021

New year round-up highlights more of the same struggles with COVID in incarceration nation

Gosh knows we all wish we could forget about COVID in this new year, and I sure wish the turn of the calendar would lead to a big turn in the stories of how the coronavirus is impacting prisons and the broader criminal justice system.  But, as this round-up of recent headlines and stories highlight, incarceration nation continues to be ravaged by COVID-19 in so many ways:

From the Anchorage Daily News, "Nearly every inmate in Alaska’s largest prison has now had COVID-19, officials say"

From the New York Times, "States Are Shutting Down Prisons as Guards are Crippled By Covid-19"

From Time, "With Over 275,000 Infections and 1,700 Deaths, COVID-19 Has Devastated the U.S. Prison and Jail Population"

From the Washington Post, "Early vaccination in prisons, a public health priority, proves politically charged"

From the Wisconsin State Journal, "‘They played with our lives’: How one Wisconsin prison failed to contain a COVID-19 outbreak"

 

From the AP, "COVID vaccine being administered at same Indiana prison where DOJ carries out executions"

From The Intercept, "How the Pandemic Exposed the Failures of Capital Punishment"

From NBC News, "Ohio inmate who survived execution attempt dies in prison of probable Covid-19"

I have broken out the "death penalty" pieces even as they highlight how the death penalty is necessarily intertwined with broader stories of incarceration.  I find the last of these pieces especially stunning as it reports that Rommel Broom, who survived a botched Ohio execution attempt way back in 2009 and had a pending US Supreme Court appeal seeking to preclude a second Ohio execution effort, could not survive the new death penalty that is COVID-19.

January 3, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, December 31, 2020

Federal prison population closes out 2020 at new modern low of 152,184 according to BOP

Screenshot 2020-12-31 at 9.56.12 AMA helpful reader recently reminded me that the last federal prison population headcount from the Bureau of Prisons in 2019 — specifically from December 26, 2019 — reported "175,858 Total Federal Inmates."  That number was itself a pretty notable decarceration achievement for the federal system: just six years earlier, in 2013, the federal prison population clocked in at around 220,000 total inmates according to the BOP.

I am focused on the last federal prison population headcount from last year because the Bureau of Prisons this morning reported at this webpage the "Total Federal Inmates" count at the very end of 2020.  Remarkably, this remarkable year has brought a decline of over 23,500 inmates, as the total now stands at 152,184

The COVID pandemic, of course, accounts in various ways for these 2020 decarceral developments.  It is hard to unpack just how much this year's decline can be attributed to a lot more persons being moved out of federal prisons or a lot fewer people being moved into federal prison.  (As noted in this post, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.)  Interestingly, after the pace of declines in the federal prison population seemed to slow considerably in the late summer and fall, there has now been a 2000-person decline in the BOP population since Thanksgiving.  These data make me a bit more hopeful that we could end up below 150,000 total federal inmates during the first few months of 2021.

A few of many prior related posts:

December 31, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, December 22, 2020

Following the Garden State's path to ending mass incarceration

This new commentary authored by Jeremy Travis and Marc Mauer provides yet another reason to love the Garden State. The piece is headlined "New Jersey shows that we can end mass incarceration," and here are excerpt:

New Jersey is on a path to release more than 3,000 people from prison as part of Gov. Phil Murphy’s attempts to fight the spread of the COVID-19 virus in the criminal justice system.  While the pandemic has kept far too many of us feeling trapped at home, Murphy is responding to this crisis in a way that prioritizes freedom for thousands of Americans.  In fact, since the beginning of the outbreak, New Jersey’s prison population has shrunk by 35%.

But it shouldn’t take a deadly virus to know that too many Americans remain stuck in prisons, serving sentences that are unnecessarily long and being denied basic human dignities like privacy and safety....

Rather than asking taxpayers to maintain this massive prison system, our nation should be demanding a different investment strategy.  Prison budgets should be cut and the savings directed to support crime prevention strategies of proven effectiveness, including substance abuse treatment programs, early intervention with families at risk, and community-based anti-violence initiatives.  Savings should also be reinvested in Black and brown communities that have borne the brunt of this failed policy.  Achieving this goal will move society toward repairing decades of harm while also advancing a stronger and healthier nation....

The United States has become the world leader in incarceration not simply because we send more people to prison.  We also keep them behind bars far longer than other nations. One in every seven people in prison today — an estimated 206,000 — is serving some form of a life sentence.  People are staying behind bars well into old age, leading modern-day prisons to resemble a network of high-security nursing homes.

These excessive sentences are counterproductive in reducing crime because individuals “age out” of their high crime years.  Long prison terms frequently extend well past the point of diminishing returns for public safety.  Other democracies have recognized this statistical truth and rarely imprison individuals for more than 20 years.

New Jersey is already starting to make these changes.  Following the recommendations of a bipartisan Criminal Sentencing and Disposition Commission, the state is tackling critical reforms that may shrink the prison population and close the racial gap in incarceration rates.  So far, the Legislature has debated policies like ending mandatory minimum sentences for many nonviolent crimes, expanding compassionate release, and resentencing people assigned multi-decade punishments when they were teenagers.

Under the leadership of Gov. Murphy, New Jersey is becoming a model for how states can use thoughtful, systemic, and data-driven policies to chart the end of mass incarceration and eliminate racial disparities.... In response to the onslaught of the COVID-19 pandemic, tens of thousands of people have been released from U.S. prisons.  It took the United States 40 years to quadruple its incarceration rate. With brave leadership and sustained community advocacy, we can end the reality of mass incarceration and its underlying systemic racism within a generation.  Our national promise of freedom demands no less.

December 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, December 21, 2020

Congress agrees on education reforms that include restoring Pell Grants for incarcerated persons!!

As well reported in this NPR piece, headlined "Congress Poised To Simplify FAFSA, And Help People In Prison Go To College," it appears federal lawmakers have reaching a deal on an array of higher-education reforms that include a very important reform for incarcerated individuals.  Here are the details (with links) from the NPR piece:

For the past 26 years, one sentence in federal law has withheld federal Pell Grants from the nearly 1.5 million people in state and federal prison. The proposed change would strike this line from the law, and allow incarcerated people eligibility to use federal dollars to pay for college while in prison. This change was already approved by the U.S. House in July.

The ban stems from the 1994 crime bill, which was signed into law by President Bill Clinton.  Without that federal funding, higher education programs in prisons began to disappear.  That's despite research that's shown education to be one of the most cost-effective ways to keep people from returning to prison once they're released.  The Vera Institute of Justice estimates restoring Pell for inmates would open the grant up to about half a million people -- and there's growing interest among higher education providers to once again offer credentials and classes to incarcerated people.

Over the last three years about 17,000 people have enrolled in higher ed classes while in prison, according to the Vera Institute.  That's thanks to a pilot program, started by the Obama administration, called Second Chance Pell. The program made Pell Grants available to a handful of college-in-prison programs across the country, and has won the support of both Democrats and Republicans.

I am not prepared to fully celebrate this news until I see official legislation passed by Congress and signed by the Prez.  But, even before this is fully official, this news is worthy of considerable attention because it impacts all prisons and prisoners nationwide, not just those in the federal system.  Moreover, I have sensed for a number of years that there has been growing "pent-up demand" among colleges to provide instruction to prisoners if and when adequate resources were available to do so.  And now that a pandemic has allowed us to figure out we can (effectively?) provide higher education instruction remotely, these grants could and should be a catalyst for dramatically expanding higher education availability into a segment of society that can and should benefit from it greatly.  Huzzah!

A few of many prior related posts:

December 21, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Saturday, December 19, 2020

"1 in 5 Prisoners in the U.S. Has Had COVID-19"

The title of this post is the headline of this Marshall Proeject accounting of the ugly state of the pandemic in incarceration nation. Here are some excerpts:

One in every five state and federal prisoners in the United States has tested positive for the coronavirus, a rate more than four times as high as the general population. In some states, more than half of prisoners have been infected, according to data collected by The Marshall Project and The Associated Press.

As the pandemic enters its tenth month — and as the first Americans begin to receive a long-awaited COVID-19 vaccine — at least 275,000 prisoners have been infected, more than 1,700 have died and the spread of the virus behind bars shows no sign of slowing. New cases in prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August....

Nearly every prison system in the country has seen infection rates significantly higher than the communities around them. In facilities run by the federal Bureau of Prisons, one of every five prisoners has had coronavirus. Twenty-four state prison systems have had even higher rates.

Not all states release how many prisoners they've tested, but states that test prisoners broadly and regularly may appear to have higher case rates than states that don't. Infection rates as of Tuesday were calculated by The Marshall Project and the AP, based on data collected weekly in prisons since March. Infection and mortality rates may be even higher, because nearly every prison system has significantly fewer prisoners today than when the pandemic began, so rates represent a conservative estimate based on the largest known population.

And here are just a few of many recent headlines reporting on some of the ugly particulars in various prison facilities and systems:

From Cincinnati Enquirer, "Coronavirus in Ohio: COVID-19 cases surging among state inmates, prison employees

From FOX10 Pheonix, "Yuma prison warden dies from COVID-19; facility fighting virus outbreak"

From NBC News, "'Like a war zone': Prison that freed Paul Manafort early now ravaged by Covid: Nearly 75 percent of the 856 prisoners at FCI Loretto in Pennsylvania tested positive for Covid-19 in the last month."

From WXYZ, "MDOC hits bleak milestone: Over 100 Michigan prisoners have died from COVID-19"

Sadly, I could links to dozens of stories about COVID outbreaks in prisons all around the country.  Especially given research (some noted here) detailing how COVID caseload grews in the broader community in regions with prisons and fails, I sure hope everyone sees the public health wisdom of prioritizing incarcerated persons for the vaccines.

December 19, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, December 18, 2020

"How States Transformed Criminal Justice in 2020, and How They Fell Short"

The title of this post is the title of this big retrospective put together masterfully by Daniel Nichanian at The Appeal: Political Report.  I highly recommend review of the whole piece, so that you can fully understand its subhealine: "This year of crises, revisited. Nearly 90 state-level bills and initiatives. 17 themes. 7 maps." And here is the lengthy piece's preamble to the issue-by-issue review of reforms:

Throughout 2020’s unprecedented challenges, criminal justice reform advocates called for sweeping changes.  But state officials and legislatures largely ducked the COVID-19 pandemic that is raging inside prisons and jails, and the protests against police brutality and racial justice that followed Breonna Taylor and George Floyd’s murders.  With some exceptions, they forgoed the sort of reforms that would have significantly emptied prisons amid the public health crisis or confronted police brutality and racial injustice in law enforcement.

Still, on other issues there was headway, and states — whose laws and policies control a lot about incarceration and criminal legal systems—set new milestones: They decriminalized drug possession, expanded and automated expungement availability, repealed life without parole for minors and the death penalty, and ended prison gerrymandering, among other measures.

Throughout the year, The Appeal: Political Report tracked bills, initiatives, and reforms relevant to mass incarceration.  Just as in 2019, here’s a review of major changes states adopted in 2020.

Jump to the sections on: the death penaltydrug policyearly release and paroleyouth justicepolicingfines and feespretrial detentiontrials and sentencingvoting rightsexpungement and re-entryprison gerrymandering — and then there’s more.

December 18, 2020 in Elections and sentencing issues in political debates, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, December 16, 2020

"The Role of Prisoner Voice in Criminal Justice Reform"

The title of this post is the title of this notable new paper by Kaitlyn Woltz now available via SSRN.  Here is its abstract:

This paper examines the role of prisoner voice in criminal justice reform in the US. Previous research has attributed reform of criminal justice institutions to either political elites or the public.  This research has not considered the role of prisoner voice in influencing reform. This paper fills that gap.  I argue that prisoner voice — through the avenues of prison journalism and prisoner litigation — serves as an information channel in state criminal justice bureaucracies, holding bureaucrats accountable to their superiors.  I conclude that prison journalism is the only avenue for prisoner voice that influences reform in ways that aligns with voters’ interests.  Prisoner litigation and prison riots result in reform that drives the growth of state prison systems and loss of prisoner privileges.

December 16, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, December 15, 2020

Prison Policy Initiative reports on "Mass Incarceration, COVID-19, and Community Spread"

Gregory Hooks and Wendy Sawyer with the Prison Policy Initiative has authored this important new report titled "Mass Incarceration, COVID-19, and Community Spread." The full report is today's must-read, and here are parts of its introduction and conclusion:

In 2020, a decades-long American policy failure — mass incarceration — collided with a brand new American policy failure: the mismanagement of the COVID-19 pandemic. After decades of needlessly locking up ever more people in jails and prisons, state and federal lawmakers now faced a public health disaster if they were unable to decarcerate quickly. In this report, we show that the persistent overuse of incarceration — despite decades of evidence of its inefficacy and harms — has had serious consequences. Mass incarceration and the failure to reduce prison and jail populations quickly led directly to an increase in COVID-19 cases, not just inside correctional facilities, but in the communities and counties that surround them.

Since the beginning of the pandemic, it was abundantly clear that the crowded and unsanitary conditions in American prisons and jails would facilitate the rapid spread of the virus, putting incarcerated people and staff at serious risk once the novel coronavirus entered facilities. Officials across the country ignored the threat for too long, perhaps imagining that confined populations would be too isolated from the outside world to contract the virus. But the boundaries between life “inside” and surrounding communities are actually quite porous, with staff, vendors, volunteers, and visitors constantly flowing in and out of correctional facilities — not to mention the frequent turnover and transfers of incarcerated people themselves....

This report outlines our initial findings so that they may be immediately useful to policymakers and advocates; the full study, which includes an analysis of nursing homes and ICE facilities, will be published by co-author Gregory Hooks separately. In addition, we have compiled Appendix tables with more detailed state and local data. In brief, however, we find that:

  1. COVID-19 caseloads grew more quickly over the summer of 2020 in nonmetro counties with more people incarcerated.
  2. COVID-19 caseloads grew much more quickly over the summer of 2020 among counties in multicounty economic areas with more people incarcerated.
  3. Mass incarceration added to COVID-19 caseloads in multicounty economic areas and states. Nationally, this impact reached a tragic scale: Mass incarceration added more than a half million cases in just three months....

The number of people in prisons and jails has led to more COVID-19 cases, among those working or confined in these facilities and among those who simply live near them. As documented here, the number of new COVID-19 infections over the summer of 2020 was greater in counties and multicounty areas with larger and more concentrated incarcerated populations. In total, we estimate that mass incarceration led to 560,000 additional COVID-19 cases nationwide in just three months....

What is needed immediately, at the policy level, is an increased use of clemency, parole expansion, and other legal mechanisms to depopulate prisons and stop the virus from spreading behind bars.  But there is a greater need over the long term: a profound rethinking of how we use incarceration in this country.  It has never been more obvious that locking up millions of people in crowded and unsanitary conditions is harmful — not only for those who are locked up, but for people outside prisons as well.  With the pandemic dragging on, our ability to radically reduce our use of incarceration is now a life or death matter.  If lawmakers cannot make swift changes to reduce correctional populations and keep them low, we should expect that more COVID-19 outbreaks — and more deaths — in prisons and the communities that surround them are still to come.

December 15, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 14, 2020

"Experience to Action: Reshaping Criminal Justice After COVID-19"

Final-Report-Banner-WebsiteI have noted repeatedly (most recently here) the great work being done by a special commission created by the Council on Criminal Justice (CCJ) titled the "National Commission on COVID-19 and Criminal Justice."  This commission today released this important new report with the title that I used for the title of this post.  Here is part of the report's executive summary:

This report, Experience to Action: Reshaping Criminal Justice After COVID-19, provides criminal justice policymakers and practitioners with a priority agenda to prepare the nation’s criminal justice system for future public health crises.

Through its recommendations, the Commission seeks to better balance the roles and responsibilities of the public health and public safety fields.  Launched at the end of July, the Commission received multiple reports and extensive testimony from leading national and local experts.  Key findings include:

  • Crime: Property crime and drug offense rates fell from 2019 to 2020, but violent crime increased significantly. In particular, homicide rates increased by 42% during the summer months (June to August) in a sample of more than 20 medium to large cities, and by 34% in the fall (September to October).

  • Prisons: Prison populations have been reduced by about 5% nationally. On average, the COVID-19 mortality rate within prisons (61.8 deaths per 100,000 people in prison) was double the mortality rate for the general population, after adjusting for the gender, age, and race/ethnicity of those incarcerated.  There are also substantial differences among states in the rate of prison infections and deaths.

  • Jails: Jail populations fell by 31% in the early weeks of the pandemic but have been slowly climbing toward prior levels since May. During the pandemic, the rates at which people have been rebooked on new charges 30, 60, and 180 days after release remain below pre-pandemic rates. Unfortunately, data regarding COVID-related infections and deaths in jails is scarce.

  • Racial and Ethnic Disparities: The COVID-19 pandemic may have exacerbated some racial and ethnic disparities in the criminal justice system.  As jail populations began to fall in March at the onset of the pandemic, there were increases in the proportion of people who were Black, who were booked on felony charges, who were male, and who were 25 or younger.  These changes in the population composition persisted even as jail populations began to rise again in early May.

  • Substance Use and Mental Health Disorders: More than 40 states have reported increases in opioid-related fatalities since the onset of the pandemic.  Mandatory lockdowns, restrictions on movement, social distancing guidelines, orders limiting access to facilities for nonessential workers, and the absence of in-person treatment have created gaps in the system's ability to identify and monitor the needs and legal requirements of people with substance abuse and mental health disorders, and to intervene when they are in distress.

  • Budgets: State and local governments face daunting budget deficits that will worsen as the pandemic wears on, and unemployment levels remain high.  Because criminal justice operations (law enforcement, courts, and corrections) are funded more heavily by state and local governments than most other government functions, revenue shortfalls will disproportionately damage the criminal justice system without effective policy interventions....

The report’s findings and recommendations identify weaknesses in the nation’s criminal justice response to the pandemic and provide concrete suggestions for how to build a stronger, fairer, and more resilient system.

As detailed here, there is a webinar to discuss this report is scheduled for midday tomorrow.

December 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, December 12, 2020

Highlighting arguments that incarcerated persons should be high on the list for the COVID vaccines

I have been pleased to see recently more than a few commentaries making the case for making sure persons in prisons and jails have access to the coming COVID vaccines.  Here is a round up of some of these recent pieces:

From America: The Jesuit Review, "A Covid-19 vaccine has finally arrived. Prisoners must be prioritized."

From The Appeal, "People in Prisons and Jails Should get COVID-19 Vaccines as Early as Possible"

From the News-Gazette, "Vaccinating inmates — early — would be small step on long path toward justice reform"

From the Orange County Register, "An argument for the early immunization of prisoners"

From USA Today, "Here's why inmates should get vaccinated against COVID-19 before the rest of us"

December 12, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Friday, December 11, 2020

Rounding up some headlines in incarceration nation

An array of press stories about prison issues and conditions, none encouraging, caught my eye this morning. Here is a round up organized by state:

Alabama: "U.S. Department of Justice sues Alabama over unsafe prison conditions"

Arizona: "Advocates concerned over COVID-19 outbreaks, no running water inside Arizona prisons"

California: "Disabled California Prisoners Say Mistreatment Persists Despite Court Orders"

Connecticut: "Judge says Danbury prison is slow to enforce COVID-19 agreement and orders immediate release of 17 inmates"

Hawaii: "90% of Waiawa’s inmate population has tested positive for COVID in recent months"

New York: "‘A lack of compassion’: Lawyers say New York prisons are dragging their feet releasing eligible inmates amid coronavirus concerns"

Pennsylvania: "More than half the inmates at Pennsylvania federal prison have covid"

Washington: "Nearly 50-percent of Airway Heights Corrections Center inmates infected with COVID-19"

December 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, December 10, 2020

BJS seeking comment on data collection regarding state and federal prison responses to COVID

A helpful reader suggested helpfully that I note this new Federal Register notice from DOJ's Bureau of Justice Statistics which seeks to "encourage comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan)."  The email I received linking to the notice describes the request this way:

The Bureau of Justice Statistics encourages comments for 60 days until February 8, 2021, on a new data collection: National Prisoner Statistics program: Coronavirus Pandemic Supplement (NPS-CPan).  Your comments to BJS's request to the Office of Management and Budget, published in the Federal Register, should address points such as—

  • whether the proposed data collection is necessary, including whether the information will have practical utility
  • the accuracy of the agency's estimate of the burden of the proposed collection of data, including the validity of the methodology and assumptions
  • whether and how the quality, utility, and clarity of the information to be collected can be enhanced
  • the burden of the information collection on respondents, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.

This data collection will provide data on the state and federal prison response to the coronavirus disease (COVID-19) between March 1, 2020 and February 28, 2021, including: monthly counts of admissions and stock populations in all publicly and privately operated facilities within each state, the total number of persons who received expedited release from prison due to the COVID-19 pandemic and criteria for deciding which prisoners received expedited release, the number of tests performed on prisoners and staff, the number of unique prisoners and staff testing positive for COVID-19, the age, sex, and race distributions of prisoners testing positive for, and dying from COVID-19, the number of prison staff who died from COVID-19, and the use of common mitigation tactics in facilities to identify persons with the disease and prevent its spread.  Respondents will be staff in state departments of corrections and the Federal Bureau of Prisons.

December 10, 2020 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, December 09, 2020

Lots of great updates from CCJ's National Commission on COVID-19 and Criminal Justice

Cropped-ccj_nationalcommissioncovid_finallogo_halfreverse-small-2noted here a few month ago that the Council on Criminal Justice (CCJ) had launched an important, timely and impressive new commission titled the "National Commission on COVID-19 and Criminal Justice" and headed by two former US Attorneys General.  That commission has already helped support and has produced a number of important works (examples here and here), and I see that the commission now has a lot of new/updated work linked on the bottom of this webpage.  Here are links to what's there:

Impact Report: COVID-19 and Crime

Two researchers evaluating crime trends in 27 American cities during the pandemic and social unrest over police violence presented new findings through October 2020 in a report for the Commission.

Impact Report: COVID-19 and Jails

A report by researchers with the NYU Public Safety Lab, based on data from 375 jails across 39 states, examined changes in jail populations, their composition, and rebooking trends from Jan. 1 through late October.

Impact Report: COVID-19 and Prisons

Advancing knowledge about the impacts of COVID-19 on state and federal prisons, a report to the Commission updates a previous report on rates of COVID-19 infection and mortality in correctional facilities and describes differences in such rates among states.

December 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"Invisible Prisons"

The title of this post is the title of this notable new paper authored by Eve Hanan now available via SSRN. Here is its abstract:

Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration.  While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty.  Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing.  This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration.

This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory.  The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions.  Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions.  As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced.

Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice.  To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing.

December 9, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Monday, December 07, 2020

Congressional Budget Office estimates bill to end federal marijuana prohibition would reduce federal prison time "by 73,000 person-years, among existing and future inmates"

As noted in this prior post, late last week a high-profile federal marijunana reform bill with provisions seeking to redress the harms of the drug war, the MORE Act, was passed by the US House of Representative.  An accounting of the possible fiscal impact of the bill (which is H.R. 3884) was released here by the Congressional Budget Office (CBO), and sentencing fans might find these calculations especially interesting:

H.R. 3884 would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners.  As a result, CBO estimates, thousands of current inmates would be released earlier than under current law.  In the future, decriminalization also would reduce the number of people in federal prisons and the amount of time federal inmates serve.  In total, over the 2021-2030 period, CBO estimates that H.R. 3884 would reduce time served by 73,000 person-years, among existing and future inmates. CBO's analysis accounts for time served by offenders convicted of cannabis-only crimes and by those convicted of another crime in addition to a cannabis offense.

Federal prisoners generally are not eligible for federal benefit programs.  By reducing the prison population, CBO estimates, H.R. 3884 would increase the number of federal beneficiaries, compared with current law, and thus increase direct spending for federal benefit programs by $636 million over the 2021-2030 period.

December 7, 2020 in Marijuana Legalization in the States, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

Saturday, December 05, 2020

The new death penalty: COVID has now killed in nine months more US prisoners than capital punishment over last 50+ years

I am sad to report that we have passed yet another remarkable milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage deaths from coronavirus reported among prisoners, and as of Friday, December 4, this accounting had tabulated "at least 1568 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and still ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire "modern era" of capital punishment.  According to DPIC data, there were a total of 1527 executions from the 1970s through today.  (Because of Supreme Court litigation, there were no US executions between 1967 and 1977, and death sentences and executions since the 1970s are generally considered the "modern" capital punishment era in the United States.) 

As I have mentioned in prior posts, I think comparing capital punishment and COVID incarceration carnage is problematic in various ways.  All persons executed in the US in modern times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to the facct that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 105 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

December 5, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Friday, December 04, 2020

More terrific work on persistent carceral problems from the Prison Policy Initiative

Regular readers are surelty familiar with all my posts highlighting the curring-edge research and analysis by the Prison Policy Initiative, and this week PPI released two more important new reports on pressing and persistent prison and jail problems:

By Emily Widra, "As COVID-19 continues to spread rapidly, state prisons and local jails have failed to mitigate the risk of infection behind bars." Excerpt:

[M]ore than eight months after the World Health Organization declared the pandemic, prisons and jails have generally failed to reduce their populations enough to protect the health and lives of those who are incarcerated.  While state prison populations have slowly declined from pre-pandemic levels, the pace of these modest reductions has slowed since the spring, even as national infection rates continue to rise.  And county jails — which made promising reductions in the spring — have failed to sustain those reforms....

Since July, 77% of the jails in our sample had population increases, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.  For example, by mid-April, the Philadelphia city jail population reportedly dropped by more than 17% after city police suspended low-level arrests and judges released “certain nonviolent detainees” jailed for “low-level charges.”  But on May 1st — as the pandemic raged on — the Philadelphia police force announced that they would resume arrests for property crimes, effectively reversing the earlier reduction efforts. Similarly, on July 10th, the sheriff of Jefferson County, Alabama, announced that the jail would limit admissions to only “violent felons that cannot make bond.”  That effort was quickly abandoned when the jail resumed normal admission operations just one week later.  The increasing jail populations across the country suggest that after the first wave of responses to COVID-19, many local officials have allowed jail admissions to return to business as usual.

On the other hand, state prison populations have continued to decline, but not quickly or significantly enough to slow the spread of COVID-19. Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and increased health care requirements.  For example, although California has reduced the state prison population by about 20% since January, the number of large COVID-19 outbreaks in California state prisons suggests that the population reduction needs to be much more drastic.  In fact, as of November 18th, California’s state prisons were still holding more people than they were designed for, at 105% of their design capacity.

By Emily Widra, "No escape: The trauma of witnessing violence in prison."  An excerpt:

Early this year — before COVID-19 began to tear through U.S. prisons — five people were killed in Mississippi state prisons over the course of one week.  A civil rights lawyer reported in February that he was receiving 30 to 60 letters each week describing pervasive “beatings, stabbings, denial of medical care, and retaliation for grievances” in Florida state prisons. That same month, people incarcerated in the Souza-Baranowski Correctional Center in Massachusetts filed a lawsuit documenting allegations of abuse at the hands of correctional officers, including being tased, punched, and attacked by guard dogs.

While these horrific stories received some media coverage, the plague of violence behind bars is often overlooked and ignored. And when it does receive public attention, a discussion of the effects on those forced to witness this violence is almost always absent.  Most people in prison want to return home to their families without incident, and without adding time to their sentences by participating in further violence.  But during their incarceration, many people become unwilling witnesses to horrific and traumatizing violence, as brought to light in a February publication by Professors Meghan Novisky and Robert Peralta.

In their study — one of the first studies on this subject — Novisky and Peralta interview recently incarcerated people about their experiences with violence behind bars.  They find that prisons have become “exposure points” for extreme violence that undermines rehabilitation, reentry, and mental and physical health. Because this is a qualitative (rather than quantitative) study based on extensive open-ended interviews, the results are not necessarily generalizable. However, studies like this provide insight into individual experiences and point to areas in need of further study.

December 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 01, 2020

House Judiciary subcommittee to hold oversight hearing on federal Bureau of Prisons

As detailed at this link, the US House of Representative's Subcommittee on Crime, Terrorism, and Homeland Security (of the Committee on the Judiciary) has scheduled for the morning of December 2, 2020 on "Oversight of the Federal Bureau of Prisons and the U.S. Marshals Service." The witness list, available at this link, shows Directors of the Bureau of Prisons and of the United States Marshals Service, as the only witnesses.  I believe the hearing can be watched started at 9am on Dec 2 at this link

The written testimony of Michael Carvajal, Director of the Bureau of Prisons, is available at this link. Here is some interesting bits of data from this written  testimony:

The Residential Drug Abuse Program (RDAP), vocational and occupational training, education, and Federal Prison Industries (FPI) have been shown to reduce recidivism. In previous research studies, RDAP participants were 16 percent less likely to recidivate and 15 percent less likely to have a relapse in their substance use disorder within three years after release. Inmates who participate in vocational or occupational training were 33 percent less likely to recidivate, and inmates who participate in education programs were 16 percent less likely to recidivate.

I am pleased to report that since March 26, 2020, BOP has transferred 18,112 inmates to Home Confinement, and there are an additional 175 who are scheduled to transfer to Home Confinement in the coming weeks. These assessments remain ongoing and will continue for the duration of the pandemic.

UPDATE This Courthouse News Service piece, headlined "Officials Spar Over Covid Spread Through Prison System," provides an overview of some parts of the hearing.

December 1, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Federal Defenders' updated fact-sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders now have updated this fact sheet on "The COVID-19 Crisis in Federal Detention."  This two-page document is dense with information and links about the continued ugly state of federal detention amidst the pandemic.  I recommend the full document and all its helpful links, and here are some of the details (absent the links):

Eight months into the pandemic, the failure to control COVID-19 in federal detention remains “both a public health catastrophe and a moral one.”  In the Federal Bureau of Prisons (BOP), the disease is infecting incarcerated individuals at a rate at least 4.77 times the general population.  The U.S. Marshals Service (USMS) doesn’t publicly post data on infections, but in statements to the media, it has reported that as of mid-November, 6,676 individuals in its custody had tested positive for COVID-19 and 20 had died. Federal officials have the power to protect individuals in federal custody from harm, but have failed to do so....

There have now been 157 reported deaths of individuals incarcerated in BOP, a devastating loss.  They were parents, siblings, and children.  They were us.  And some of their deaths surely were preventable.  BOP’s press releases reveal that the majority — 117 — were at higher risk of complications from COVID-19 and that BOP knew it.  Nearly a third of those who have died in BOP’s care were sixty-five or older.

At least 25 individuals died in BOP custody after filing—and in some cases, even after being granted — requests for release.  Many wrote to the court to plead for their lives in the days, weeks, and months preceding their deaths....

BOP and AG Barr have barely used the tools Congress gave them to safely lower prison populations.  The CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  Instead, AG Barr and BOP issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  The OIG found that BOP failed to use its early-release authorities to transfer vulnerable individuals to safety in its reviews of hard-hit facilities like Lompoc Federal Correctional Complex (FCC) and Oakdale FCC.  During the first three months of the pandemic, BOP approved only 11 of the 10,940 — 0.1% — of compassionate release requests it received.  The First Step Act of 2018 expanded compassionate release so that individuals may file a motion directly with the court 30 days after the warden’s receipt of a request, but that delay, coupled with routine opposition to release by DOJ, prevents vulnerable defendants from obtaining critical relief.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

December 1, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, November 30, 2020

"Prisons Are Covid-19 Hotbeds. When Should Inmates Get the Vaccine?"

The title of this post is the headline of this new New York Times piece.  Here are excerpts:  

They live in crowded conditions, sharing bathrooms and eating facilities where social distancing is impossible.  They have high rates of asthma, diabetes and heart disease.  Many struggle with mental illness. A disproportionate number are Black and Hispanic, members of minority communities that have been hard hit by the coronavirus pandemic.

So should prisoners and other detainees be given priority access to one of the new Covid-19 vaccines?...

[T]he C.D.C. advisory committee has prioritized correctional officers and others who work in jails and prisons for the first phase of immunizations.  The federal prison system will set aside its initial allotment for such employees, according to documents obtained by The Associated Press.

The discrepancy raises a chilling prospect: another prison outbreak that kills scores of inmates after the only preventive was reserved for staff.  Officials at the Justice Department did not respond to a request for comment.

Now several groups, including the American Medical Association, are calling for coronavirus vaccines to be given to inmates and employees at prisons, jails and detention centers, citing the unique risks to people in confinement — and the potential for outbreaks to spread from correctional centers, straining community hospitals....

The idea is controversial.  Allocating precious medical resources to people who are serving time may be anathema to much of the public, but it is widely accepted that the nation has an ethical and legal obligation to safeguard the health of incarcerated individuals.

There is also a powerful public health argument to be made for prison vaccination: Outbreaks that start in prisons and jails may spread to the surrounding community.  “Prisons are incubators of infectious disease,” Dr. Toner said. “It’s a fundamental tenet of public health to try and stop epidemics at their source,” he added.

One approach, under consideration by the National Commission on Covid-19 and Criminal Justice, would be to prioritize vaccination only for prisoners and detainees whose medical conditions or advanced age put them at great risk should they become ill.  “This isn’t a criminal justice recommendation,” said Khalil Cumberbatch, a senior fellow at the Council on Criminal Justice, a nonpartisan group focused on criminal justice policy.  “It’s a public health recommendation. The virus is not in a vacuum if it’s in a state prison.”

November 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)