Friday, February 23, 2024

Notable new analysis of notable (old) data on prison admissions

The data on prison admissions (from 2021) reported in this new Crime and Justice News item caught my eye this afternoon.  Here are the details:

A new analysis from the Council of State Government Justice Center found that despite recent declines, parole-probation violators still make up a large proportion of new prison admissions. In 2021, 44% of state prison admission were people who violated the terms of their parole or probation sentences. And on any given day, 1 in 4 people in state prison were incarcerated because they violated the terms of their supervision. Those proportions have remained constant, even as overall numbers have decreased....

Incarceration for violations of supervision declined in 2020 and, in many states, continued to drop in 2021.  Ten states — Colorado, Minnesota, Hawaii, New Jersey, Kansas, New York, Rhode Island, Maryland, Pennsylvania and Vermont — reduced admissions by 50% or more.  The declines are part of a larger trend: from 2018 to 2021, across the country, the numbers of prison admissions from community supervision decreased by one-third. Part of that was due to decreased criminal activity during the height of the pandemic, with the exception of homicides and intimate-partner violence. It was also affected by changes in supervision practices and court backlogs.

Researchers examining those states where supervision incarcerations fell — and where they didn’t — have found no significant relationship between changes in the number of people incarcerated for supervision violations and changes in violent-crime rates at state levels.  But in 2021, states collectively spent more than $10 billion incarcerating probation-parole violators. More than $3 billion of that was for technical violations, not for new criminal activity....

Racial disparities begin prior to criminal-justice-system contact and persist at all stages of the system.  When looking at parole and disparities, 18 states — including much of the Deep South —  did not exhibit disparities in revocation rates, while 20 states increased the disparities.  Twelve states — including Montana, Wyoming, Nebraska, Colorado, New Mexico, Minnesota, Wisconsin, Iowa, Illinois, Indiana, New Jersey, and Pennsylvania — reincarcerated Black parolees at a 20% or higher rate.

February 23, 2024 in Data on sentencing, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (5)

Tuesday, February 20, 2024

New Prison Policy Initiative briefing makes arguments against jail construction arguments

This new briefing from Prison Policy Initiative authored by Emmett Sanders seeks to undercut arguments made in favor of jail construction. The full title of the posting highlights its themes: "Cautionary jails: Deconstructing the three “C”s of jail construction arguments. Communities across the country have been told that investing in new jail construction is the only way to solve old policy problems, but arguments for new jails can leave them with a billion-dollar case of buyer’s remorse."  Here is how the briefing begins (with links from the original):

Arapahoe County, Colorado, is expanding its jail just four years after taxpayers rejected a proposition to raise taxes for a new one.  The justification for the $46 million expansion? Proponents cite the jail’s age, overcrowding, and a sudden sensitivity to the need to treat rather than warehouse people with addiction issues; the sheriff claims, “people’s needs have changed.”  $30 million will come from COVID-19 pandemic relief funds; as the ACLU notes, using relief funds in this way is expressly forbidden by the Department of Treasury.

Similar arguments are being used to justify jail construction all around the country.  Often, this means ignoring voters’ wishes, misusing and redirecting millions of dollars from community-based resources, and saddling citizens with decades of tax liability.  New jail construction projects regularly fail to meet promises, leaving communities to deal with the aftermath.  Drawing from examples across the country, we break down three common arguments for jail construction, discuss how they have been used to build or expand jails, and highlight how reinvesting in cages is not a solution to social problems like crime and substance use.

Jail proponents usually rely on one or more of three central arguments to make their case:

  • The “Capacity” argument: a bigger jail is required to house everyone being incarcerated in the jurisdiction;
  • The “Contemporary” argument: new construction is needed to update an outdated jail;
  • The “Compassionate” argument: new construction is necessary to treat incarcerated people more humanely.

On a surface level, these three “C” arguments are compelling because they speak to very real issues. What these arguments often overlook, however, is that these issues are largely driven by bad policies that have drastically expanded reliance on packing people in cages.  Essentially, the prevailing claim is that the only way to solve the problem of incarceration is to expand our ability to incarcerate — when in fact, communities would be better served by shrinking jail populations.  This sunk cost fallacy often leaves communities without real solutions and holding the bag for decades.

February 20, 2024 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, February 15, 2024

New IG report documents multple problems contributing to multiple deaths in federal prisons

As reported in this new Washington Post piece, a "combination of negligence, operational failures and a blundering workforce has contributed to hundreds of inmate deaths in federal custody, according to a report released Thursday morning by the Justice Department’s inspector general."  Here is more from the start of the post piece:

The report portrayed a short-staffed Federal Bureau of Prisons (BOP) system in which inmates are easily able to smuggle in dangerous contraband and go unsupervised as they kill themselves and others.

A total of 344 inmates died by suicide, homicide, overdose or other unknown accidents between 2014 and 2021, according to the report.  A majority of those deaths were suicides — with a majority of those suicides among inmates in solitary confinement. That death count has crept up between 2014 and 2021 — even as the federal prison population has declined to about 155,000 people in 2024. In 2014, there were 38 inmate deaths by unnatural causes. In 2021, that number was 57 inmates.

Ultimately, the report concluded, the culture of negligence that led to the deaths of high-profile inmates Jeffrey Epstein and Whitey Bulger in recent years is endemic in the prison system.  Epstein, a convicted sex offender, died by suicide in federal custody, with a separate inspector general report concluding that staff failed to do the proper check-ins with him before hanging himself.  Bulger, a Boston mobster, was bludgeoned to death in his bed hours after he was transferred to a new prison facility.

“Available BOP documentation that details the circumstances surrounding these inmate deaths demonstrates significant recurring issues and contributing factors, including inadequate staff response to inmate emergencies, failure to properly assess, manage, and monitor inmates at risk for suicide; and deficiencies in the BOP’s ability to collect, maintain and learn from evidence and post-incident documentation,” the report concluded.

The press release from DOJ's IG office is available at this link, and the full 100+ page report can be found at this link.  Here is part of the press release:

Department of Justice (DOJ) Inspector General Michael E. Horowitz announced today the release of a report on issues surrounding inmate deaths in Federal Bureau of Prisons (BOP) institutions.  The DOJ Office of the Inspector General (OIG) evaluated 344 inmate deaths at BOP institutions from FY 2014 through FY 2021 in four categories: suicide, homicide, accident, and those resulting from unknown factors.  Many of the deaths that occurred under accidental or otherwise unknown circumstances involved drug overdoses. Suicides comprised the majority of these deaths, with homicides the next most prevalent.  The OIG identified several operational and managerial deficiencies that created unsafe conditions prior to and at the time of a number of these deaths.

February 15, 2024 in Prisons and prisoners | Permalink | Comments (18)

Another reminder of the long life (and possible ending) of life without parole sentences

This local news piece, headlined "Man, 77, released from prison after serving decades for 1965 murder conviction," caught my eye because of the numbers involved.  Here is part of story behind the numbers:

A 77-year-old man has been released from prison after receiving a new sentence for a 1965 felony murder conviction, in the wake of a decision by the Michigan Court of Appeals declaring mandatory life without parole sentences for 18-year-old defendants unconstitutional.

Ivory Thomas was convicted in October 1965 at age 18 of first-degree felony murder for fatally stabbing 18-year-old Michael Railsback in Dueweke Park during a robbery. However, in 2022, the Michigan Supreme Court decided that mandatory life without parole sentences for 18-year-old defendants violate the Michigan state constitution’s prohibition against cruel and unusual punishment.

Judge Chandra Baker-Robinson resentenced Thomas this week to 40 to 60 years. Thomas was released Tuesday, a spokesperson for the Department of Corrections confirmed. He was serving his sentence at the Thumb Correctional Facility in Lapeer....

The Wayne County Prosecutor’s Office did not object to Thomas’ resentencing, according to a news release. Prosecutor Kym Worthy’s office said Thomas has community support and Railsback’s family does not object to his release.

February 15, 2024 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

Thursday, February 08, 2024

GAO releases big report examining BOP's use of "restrictive housing"

The United States Government Accountability Office recently released this big new report titled "Bureau of Prisons: Additional Actions Needed to Improve Restrictive Housing Practices." An introduction one-page to the document discusses "Why GAO Did This Study" and "What GAO Recommends" and "What GAO Found," and here are excerpts from this discussion:

DOJ’s BOP is responsible for confining individuals in safe, humane, and appropriately secure conditions. In certain circumstances, such as alleged or substantiated violence, BOP can move individuals to restrictive housing, and generally isolate them in cells for up to 23 hours per day. As of October 2023, BOP continued to house about 8 percent of its population (about 12,000 individuals) in these settings. Strengthening management of federal prisons was added to GAO’s high-risk list earlier this year.

Among its objectives, GAO was asked to examine the extent to which BOP (1) addressed recommendations from two prior restrictive housing studies; and (2) leveraged facility information to ensure restrictive housing policy compliance and enhance operations.

GAO analyzed BOP policies and data; interviewed BOP officials; and conducted non-generalizable interviews with staff and incarcerated individuals at five BOP facilities— selected to cover a range of restrictive housing unit types.

GAO is making eight recommendations to BOP, including that it assign responsibility and establish time frames for recommendation implementation and identify the cause of racial disparity in SMU placements. BOP concurred with the eight recommendations but raised related concerns; GAO discusses these in the report.

The Bureau of Prisons (BOP) has not fully implemented 54 of the 87 recommendations from two prior studies on improving restrictive housing practices. The first study, completed by a BOP contractor in 2014, had 34 recommendations (16 of which are fully implemented.) The other evaluation, completed in 2016 by the Department of Justice (DOJ), had 53 recommendations (17 of those are fully implemented). A May 2022 Executive Order on criminal justice practices directed the Attorney General to ensure full implementation of the January 2016 recommendations. BOP has made slow progress due in part to not assigning responsibility for recommendation implementation to appropriate officials and not establishing associated time frames for completion....

During the 2014 contracted assessment, reviewers found inconsistencies in the application of subjective criteria used to place individuals in the special management unit (SMU)—one that is designed for individuals with heightened security concerns. GAO’s analysis of 2022 data appears to confirm that inconsistencies continued, resulting in equity concerns. Black individuals were 38 percent of the total BOP population but 59 percent of the SMU placements. In comparison, White individuals were 58 percent of the total BOP population and 35 percent of the SMU placements. In response to management challenges, earlier this year BOP closed its remaining SMU and has not yet decided on the future of such units. Analyzing the cause of the substantial racial disparity could inform BOP and DOJ decisions on the future of restricted housing and help ensure consistent and equitable treatment of incarcerated individuals.

February 8, 2024 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (4)

Wednesday, February 07, 2024

New Prison Policy Initiative highlights prison disciplinary fines and fees

The Prison Policy Initiative has this new briefing titled "Prison disciplinary fines only further impoverish incarcerated people and families." Authored by Leah Wang, here is how it starts (with links from the original, but footnotes removed):

In yet another example of how the criminal legal system extracts wealth from the poorest families, at least one-third of prison systems nationwide charge fines as a punishment for a rule violation.  Prison administrators claim that imposing disciplinary fines, along with other punishments, helps to maintain order and reduce violence in correctional facilities.  They also argue that the fines simulate outside-of-prison processes for dealing with misconduct, such as parking tickets.

Though rule violations and their corresponding sanctions are a common feature of incarceration, disciplinary fines and fees aren’t the way to create safe environments where people can prepare for their release.  On the contrary, when prisons impose these charges and subsequently help themselves to the funds in people’s prison accounts, incarcerated people are often left with little to no money for purchasing essential items and services that the prison doesn’t provide.  As a result, their mental and physical health suffers, creating a more volatile environment inside. Loved ones also pay the price of these fines — often literally, as a primary source of financial support.

Like medical “co-pays” and exceedingly low wages in prison, disciplinary fines and fees are little more than a means to exploit incarcerated people.  Whether they’re tiered fines or flat “administrative” fees, they are an undue burden; prison is already one big financial sanction for those who are already on the lowest rungs of the economic ladder.  By focusing on punitive measures that deprive people further, prisons miss the mark on what actually makes prisons safer — providing opportunity rather than taking it away.  We hope advocates and policymakers will understand how disciplinary fees, which exist alongside other excessive punishments, undermine the rehabilitative goals of corrections, the safety of people inside, and the odds of success during reentry.

February 7, 2024 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners | Permalink | Comments (0)

Thursday, February 01, 2024

"The Road to Hell is Paved With Good Intentions: Deinstitutionalization and Mass Incarceration Nation"

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

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution — a response to Jeffrey Bellin’s book Mass Incarceration Nation — I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead.  Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require an interconnected solution.  The lessons of deinstitutionalization’s failures can inform how our decarceration story plays out, offering an opportunity to avoid the mistakes of our past and move toward a more just, humane, and equitable future — a future that takes the “mass” out of mass incarceration.

February 1, 2024 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, January 31, 2024

"The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School"

The title of this post is the title of this article recently posted to SSRN and authored by Sharon Dolovich.  Here is its abstract:

The UCLA Law COVID Behind Bars Data Project began in the first weeks of the COVID pandemic as a two-tab, crowd-sourced spreadsheet allowing advocates for the incarcerated nationwide to share information about the impact of COVID in prisons and jails.  Almost overnight, that spreadsheet became the go-to national clearinghouse for all available data on COVID in detention.  By mid-2020, the United States Centers for Disease Control (CDC) was populating its prison COVID tracker with the national facility-level data the Project collected each day — and things only escalated from there.  This Essay tells the story of how a law professor, a clinical teaching fellow, and a large group of students, researchers, and volunteers created a social justice organization driven by legal scholarship, data, and crisis.  The Data Project experience, conveyed here in narrative form, offers several generalizable lessons about institution building in the public interest and the unique value of doing such work in the law school environment. 

January 31, 2024 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, January 30, 2024

"Addicted to punishment: Jails and prisons punish drug use far more than they treat it"

The title of this post the title of this new Prison Policy Initiative briefing by Emily Widra. The subtitle highlights its themes: "Despite the common refrain that jails and prisons are 'de facto treatment facilities,' most prioritize punitive mail scanning policies and strict visitation rules that fail to prevent drugs from entering facilities while providing little to no access to treatment and healthcare." Here is how the briefing starts (with links from the original):

Jails and prisons are often described as de facto mental health and substance abuse treatment providers, and corrections officials increasingly frame their missions around offering healthcare.  But the reality is quite the opposite: people with serious health needs are warehoused with severely inadequate healthcare and limited treatment options. Instead, jails and prisons rely heavily on punishment, while the most effective and evidence-based forms of healthcare are often the least available.

This tension points to a crucial flaw in our nation’s reliance on criminalization: these institutions were never intended to be -- and can never function as -- healthcare providers. Efforts to reverse engineer them as such have proven ineffective, harmful, and financially wasteful, substituting medical best practices with moralizing and surveillance, from providing exclusively abstinence-based education to scanning and photocopying mail in a vain attempt to keep contraband out. This briefing builds on our past work about the unmet health needs of incarcerated people and the endless cycle of arrest for people who use drugs by compiling data on treatment availability versus drug-related punishment in jails and prisons across the country. We find that despite the lofty rhetoric, corrections officials punish people who use drugs far more than they provide them with healthcare.

January 30, 2024 in Prisons and prisoners | Permalink | Comments (1)

Sunday, January 28, 2024

Some weekend pieces with a focus on prison stories and commentary

My various feeds have been highlighting that tonight's episode of 60 Minutes will have a feature story about the federal prison system titled "Agency in Crisis: The Bureau of Prisons is plagued by understaffing, abuse, and disrepair. This Sunday, Cecilia Vega gets rare access inside a women’s federal prison in Alabama."  I have my DVR set (football gets my live attention), and I also noticed in recent days another group of press pieces and commentary about other prison stories.  Here is a round up:

From Filter, "As Prisons Shutter Classes and Mental Health Care, Drugs Fill the Gap"

From the Richmond Times-Dispatch, "Under Gov. Youngkin, prison reform is working"

From the Seattle Times, "Kimonti Carter was freed from life in prison. Prosecutors want to send him back."

From the Washington Post, "My dad was ill. Could he survive the prison health-care system?"

From wbur, "Mass. will close its oldest men's prison, MCI-Concord, by summer"

January 28, 2024 in Prisons and prisoners | Permalink | Comments (1)

Friday, January 26, 2024

US Sentencing Commission creates helpful information webpage on "First Step Act Earned Time Credits"

In addition to being active in advancing large and small guidelines amendments, the great new US Sentencing Commission has been doing a great new job providing helpful information to the federal criminal justice community (beyond its always terrific and important data publications and analyses).  Specifically, a few months ago, as noted here, the USSC created this terrific webpage collecting information about "problem-solving courts" that have developed through federal court systems.  

This week, the Commission unveiled another helpful new webpage, this one focused on "First Step Act Earned Time Credits."  The Commission's site includes an original infographic and links to other helpful information, and it is introduced this way:

The First Step Act of 2018 (Public Law 115–391) created a system in which some incarcerated individuals can earn time credits for participating in recidivism reduction programming or productive activities. Time credits can later be applied towards early release from secure custody. Eligibility criteria and rules for earning and applying time credits are governed by statute and implemented through BOP program statements and policies.

The Commission has published this page to assist in understanding the First Step Act and its current implementation, relying on primary source documents created by other government agencies. It is for informational purposes only and is not intended as legal analysis. The information does not necessarily represent the official position of the Commission and it should not be considered definitive or comprehensive.

January 26, 2024 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, January 24, 2024

Notable data on the huge number of LWOP sentences in Louisiana

Death penalty practices in general, and individual death sentences in particular, garner a lot of attention in the US.  I understand how a wide array of salient capital issues and cases keeps these matters "evergreen" in legal and political discourse, even though I have long worried about capital cases and concerns problematically crowding out other matters of broader consequence.  (Many years ago, I wrote up some of these worries with a Supreme Court focus in an article titled "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'."  Notably, for a host of reasons, the SCOTUS capital docket has shrunk considerably since I penned that piece in 2008.)

These concerns came to mind for me upon seeing this new Sentencing Project fact sheet titled "Life in Prison Without Parole in Louisiana."  The LWOP data in this document struck me in part because of how much attention was given in 2023 to possible clemency hearings for the 57 persons on Louisiana's death row after outgoing Gov John Bel Edwards said he opposed capital punishment (see some prior posts here and here.)  Gov Edwards got some attention, as detailed here, for commuting over 100 LWOP sentences, though seemingly the bulk of national advocacy and attention was given to a few dozen capital murders rather than the few thousand serving LWOP often for lesser crimes.  The start of the data brief documents the Pelican State's massive LWOP population:  

Louisiana’s share of people serving life without parole (LWOP) ranks highest per capita nationally and in the world. More than 4,000 Louisianans are serving sentences of life without the possibility of parole, amounting to 15% of this state’s prison population.  Between 1995 and 2020, the state added an average of 110 people each year to its total count of life-sentenced individuals.

A major driver behind the large share of people serving LWOP is the state’s automatic imposition of this sentence after conviction for second degree murder, making it one of only two states to impose LWOP in such instances.  Louisiana’s second degree murder statute includes felony murder and drug induced homicide offenses; these cases often include instances where the charged individual was not the direct perpetrator of the killing, nor intended to commit it, though they participated in an underlying felony related to the victim’s death.  It is important to note that felony murder laws such as that in Louisiana are not associated with a significant reduction in felonies nor have they lowered the number of felonies that become deadly.  These crime types are infrequently subject to LWOP sentences elsewhere, much less mandatorily imposed.  But in Louisiana, LWOP in response to second degree murder is both authorized and mandatory.

To provide a bit more perspective on these numbers, there are roughly twice as many persons serving LWOP sentences just in Louisiana than there are persons on death row throughout the United States.  (The Sentencing Project has calculated in prior reports that there are, roughly speaking, about 100 persons serving some form of a life sentence in the US for every person on death row.)

January 24, 2024 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, January 18, 2024

"'Mass Incarceration' Myths and Facts: Aiming Reform at the Real Problems"

The title of this post is the title of this notable new paper authored by Paul Robinson and Jeffrey Seaman now available via SSRN. Here is its abstract:

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing.  To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended.  This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices.  A more accurate understanding is needed to produce effective reform.

The central myth of the mass incarceration narrative is that exceptional and unjustified punitiveness largely explains America’s significant increase in prison population since the 1960s.  This explanation overlooks the numerous non-sentencing factors that increased incarceration: a near doubling in U.S. population, higher crime rates, increased justice system effectiveness, deinstitutionalization of the mentally ill, new and tightened criminalizations, worsening criminal offender histories, and more.  While this Article makes no attempt at statistical precision, these non-sentencing factors can easily explain most of America’s elevated incarceration compared to the 1960s — a fact in direct conflict with the mass incarceration narrative.  Additionally, while some punishments have increased in severity since the 1960s, most of these increases are likely to be seen as moving sentences closer to what the community – and many incarceration reformers – would believe is appropriate and just, as in cases of sexual assault, domestic violence, stalking, human trafficking, firearm offenses, and child pornography, among others.

Comparing America’s prison population to foreign countries, as the mass incarceration narrative often does, similarly overlooks the contributions of many of these non-sentencing factors and incorrectly assumes that a higher American per capita incarceration rate always reflects a problem with American, instead of foreign, practice.  While America can certainly learn from foreign countries, the reality is that many foreign sentencing practices have sparked chronic and widespread dissatisfaction abroad.  It may be that the dispute over incarceration practices is more a dispute between the elites and the community than a dispute between the U.S. and other democracies’ populations.

While all decarceration reformers should welcome a clearer picture of America’s incarceration practices, it is hard not to conclude that many mass incarceration myths were created deliberately by those who oppose not only incarceration but punishment generally.  For these activists, the mass incarceration narrative is primarily a means toward eliminating punishment, a goal that is difficult to pursue directly because it is so contrary to the views of the general population and even a majority of academia.

This Article is not pro-incarceration.  It subjects the mass incarceration narrative to much needed scrutiny precisely because reforming incarceration practices is necessary.  The criminal justice system should strive to deliver just punishment in the most societally beneficial way, which we believe means increasing the use of non-incarcerative sanctions.  The myths of the mass incarceration narrative frequently lead activists to overlook non-incarcerative reforms that deliver just punishment — a tragic failure because such reforms would have much stronger popular support than the anti-punishment or unsophisticated anti-prison reforms now pushed by the mass incarceration narrative.

Part I of the Article describes the mass incarceration myths that have become so broadly accepted.  Part II reviews the facts of American incarceration practice, which contradict many, if not most, aspects of the narrative.  Part III offers our reform proposals, which we believe more accurately address the problems in current incarceration practice. Central to those proposals are the use of creative non-incarcerative sanctions that still deliver punishment proportional to a nuanced assessment of each offender’s moral blameworthiness.

January 18, 2024 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (9)

Wednesday, January 03, 2024

Notable review of how deaths in federal prisons are categorized and investigated

NPR has this extended investgation report headlined "There is little scrutiny of 'natural' deaths behind bars."  I recommend this piece in full, and here are excerpts:

Kesha Jackson was preparing for her husband, John, to be home in a few weeks.  He was incarcerated in Forrest City federal prison in Arkansas, awaiting a court hearing for early release after 18 years.  But then Jackson got a concerning call from other inmates.

Her husband, in the special housing unit, was going in and out of consciousness, the inmates told her.  He tried banging on the door for help.  Three days later, an officer handcuffed him and tried to give him CPR. He died soon after.  And as she waited for some explanation, Jackson was surprised to learn what prison officials pronounced as the manner of death: "natural."

By deeming the death natural, prison authorities were not required to conduct an autopsy for Jackson's death. It's how they characterize at least three-quarters of all federal prison deaths since 2009, yet NPR has found "natural" deaths with details that raise questions for family members....

MRSA is a staph infection — caused by a type of dangerous, drug-resistant bacteria. But it is not generally fatal if treated immediately. John contracted it after he was moved to the Forrest City federal prison in 2017.  According to his medical records, he still had the infection over two years later.  "Saying that it's a natural death can sometimes be misleading because I believe that having the proper medical treatment could have possibly saved his life," Jackson said.

The CDC says natural deaths happen either solely or almost entirely because of disease or old age.  Yet 70% of the inmates who died in federal prison the last 13 years were under the age of 65.  After speaking to some of the families of these inmates, NPR found that potential issues such as medical neglect, poor prison conditions and a lack of health care resources were left unexplained once a "natural" death designation ended hopes of an investigation. Meanwhile, family members were left with little information about their loved one's death....

The Office of Inspector General for the Bureau of Prisons recently launched an investigation into all non-natural federal inmate deaths in custody from 2014 to 2021.  Natural deaths are not included in this investigation.

But NPR spoke with multiple families of inmates who died natural deaths who believed their loved one's death warrants scrutiny.  For instance: an inmate in a prison medical center in Springfield, Mo., waited weeks to be treated for bleeding in his digestive tract.  He died soon after hospitalization.  An inmate in Arkansas complained of stomach pain for a year and a half before his death. His family was not provided with any more details.

January 3, 2024 in Prisons and prisoners | Permalink | Comments (3)

Wednesday, December 20, 2023

New Prison Policy Initiative briefing explores reported 2022 increase in incarcerated persons in US

Over at the Prison Policy Initiative, Wendy Sawyer has this new briefing titled "Why did prison and jail populations grow in 2022 — and what comes next?".  Like so many PPI reports, this one st filled with interesting data and helpful graphics.  It begins this way (link from the original):

The Bureau of Justice Statistics (BJS) recently released its annual reports on prison and jail populations in 2022, noting that the combined state and federal prison populations had increased for the first time in almost a decade and that jail populations had reached 90% of their pre-pandemic level. But what’s behind these trends? Do they just reflect another year of post-pandemic “rebound” or longer-term changes in crime or punishment? And what do these trends suggest about the road ahead for those working to end mass incarceration?

To answer these questions, we looked closely at the annual BJS data as well as 2022 crime and victimization data and criminal court case processing to get a better idea of the reasons behind the new numbers. We also looked at some more recent 2023 jail and prison data to see whether the 2022 uptick appears to have continued in 2023 (spoiler: it does). Finally, we looked at reports from over 20 states to see how states themselves understand these trends, and where they foresee their correctional populations heading in the future.

Ultimately, we conclude that these populations are increasing and can be expected to continue to climb in the next few years, not because of changes in crime but because (a) courts have largely recovered from the slowdowns caused by the pandemic and (b) many states have rolled back sensible criminal legal system reforms — or worse, have enacted legislation that will keep more people behind bars longer, despite decades of evidence that such policies don’t enhance public safety.

December 20, 2023 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, December 15, 2023

Fascinating new Slate series on "how technology is changing prison as we know it"

This week I came across this notable new series of articles at Slate titled "Time, Online: How technology is changing prison as we know it."  The series as of this writing has nine extended pieces by an array of authors covering topics at the intersection of modern technology and modern prison.  I have only started reading a few of the piece, and they are all really interesting.   This piece by Mia Armstrong-Lopez serves as an introduction under this full title: "For Years, Prison Life Was Isolated From Tech. Now Tech Is Beginning to Define It: Introducing Time, Online, a new Future Tense package that explores how technology is changing prison as we know it." Here is an excerpt from that piece (with links from the original):

Around 1.9 million people are currently incarcerated in the United States, and an estimated 45 percent of Americans have at some point experienced the incarceration of an immediate family member.  (For Black Americans, that number increases to 63 percent.)  For many years, prisons have largely been tech bunkers, keeping incarcerated people isolated from the world outside.  But things have started to change.  In some cases, they changed because prison leaders recognized the need to connect incarcerated people to their communities. In other cases, they changed because, in relationship with private companies, prisons found a way to profit.

The pandemic accelerated this trend. Activities like visitation and education programs were paused and in many cases replaced by video callse-messaging, and other virtual activities, facilitated in part by glitchy, specially made tablets distributed by private companies.  As a result, things like tablets and e-messaging — which may seem trivial to those of us on the outside but can be transformational on the inside — are now popular in prisons and jails across the country. Instead of being isolated from technology, big parts of incarcerated people’s lives are now being mediated through it.

Time, Online, a new package from Future Tense, attempts to document this moment.  Through a series of essays that were (with one exception) written by currently and formerly incarcerated people, we’ll examine how tech is changing what it means to be in prison.  We’ll explore what happens when streaming comes to prison and how e-messaging is affecting romantic relationships.  We’ll look at how incarcerated people are finding ways to jailbreak tablets and how you Google from the inside.  We’ll look at what it’s like to wear an ankle monitor and to get access to a laptop after 17 years in prison.  We’ll share diaries that document how incarcerated people interact with tech hour by hour, in three different state prison systems, and how much it costs.  And we’ll dig into the who’s who of prison tech companies and the powerful financial forces behind them.

December 15, 2023 in Prisons and prisoners, Technocorrections | Permalink | Comments (0)

Thursday, December 14, 2023

The Bureau of Justice Statistics releases "Jail Inmates in 2022 -- Statistical Tables"

The Bureau of Justice Statistics this morning published a lot of new data about jail populations as of 2022.  This press release, titled "Local jails held 4% more people in 2022 than in 2021," provides these highlights regarding the data detailed in this 30-page report:

At midyear 2022, local jails held 663,100 persons in custody, 4% more than the year before and 21% more than at midyear 2020.  The number of persons in jail custody saw a 25% decline from 2019 to 2020 as local authorities reduced admissions in response to the COVID-19 pandemic. “Though the jail population declined during the pandemic, by midyear 2022 it was back to 90% of its midyear 2019 size,” said BJS Acting Director Kevin M. Scott, PhD.

At midyear 2022, there were:

• 505,700 inmates held for a felony offense, accounting for 76% of the jail population

• 199 jail inmates per 100,000 U.S. residents, down from 237 per 100,000 at midyear 2012

• 915,900 jail beds in the United States, 72% of which were occupied

• 4.0 jail inmates for every correctional officer, up from 3.6 at midyear 2021 and 3.0 at midyear 2020.

From July 1, 2021 to June 30, 2022, persons admitted to jails spent an average of 32 days in custody before release, longer than the 23-day average a decade prior.  About 1,300 persons served weekend-only sentences on the weekend before the last weekday in June 2022, down from 10,400 in 2012. 

There were 92,900 females in local jails at midyear 2022, who accounted for 14% of the jail inmate population. From 2021 to 2022, the number of females in jail increased 9%, while the number of males increased 3%. From 2012 to 2022, the number of persons age 17 or younger in jail decreased from 5,400 to 1,900, averaging a 10% decline each year.

The racial and ethnic composition of the jail population remained stable from 2021 to 2022. At midyear 2022, about 48% of all persons held in jail were white, 35% were black and 14% were Hispanic.  American Indian or Alaska Native persons, Asian persons, Native Hawaiian or Other Pacific Islander persons and persons of two or more races together accounted for 3% of the total jail population.  From midyear 2012 to midyear 2022, the jail incarceration rate for Hispanic persons decreased at an average annual rate of 3.7%.  The rate decreased, on average, at 2.4% a year for black persons and 0.7% a year for white persons.

December 14, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 12, 2023

"The Role of Policy in Prison Growth and Decline"

The title of this post is the title of this notable new working paper available via SSRN and authored by Derek Neal and Armin Rick. Here is its abstract:

Between 1975 and 2008, the US incarceration rate increased by roughly 400 percent.  Trends in crime rates, arrest rates per crime committed, conviction rates per arrest, and expected time-served in prison given conviction all influence trends in incarceration rates.  Available data do not allow researchers to precisely measure the contribution of each of these factors to the US prison boom.  However, increases in expected prison time-served among those arrested for many different offenses were the most important drivers of rising incarceration rates.  We argue that changes in policies that govern sentencing and parole are the likely drivers of these increases.  We also discuss potential reforms that may reduce expected time-served among convicted offenders while minimizing harm to public safety.

December 12, 2023 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

The Sentencing Project produces new fact sheets on "Racial and Ethnic Disparities in Youth Incarceration"

I received via email an alter that The Sentencing Project has produced "new fact sheets show state-by-state incarceration rates by race and ethnicity" with respect to "youth incarceration."  These facts sheets are accessible at this link, and here is how the work is described at that webpage:

Despite significant drops in youth incarceration over a decade, youth of color remain vastly more likely to be incarcerated than their white peers.  New data released today by The Sentencing Project reveal Black youth and Tribal youths’ disproportionate incarceration is largely unchanged compared to 10 years prior, while Latinx youths’ incarceration disparities with their white peers have been reduced.

The Sentencing Project’s new fact sheets show state-by-state incarceration rates by race and ethnicity and highlight where the problem is getting worse and better.

December 12, 2023 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 07, 2023

The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

As noted in this October post, The Sentencing Project is "producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest report in this series, the third I believe, titled "One in Five: Racial Disparity in Imprisonment — Causes and Remedies."  Here is part of this new report's executive summary:

The United States experienced a 25% decline in its prison population between 2009, its peak year, and 2021.  While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  But with the prison population in 2021 nearly six times as large as 50 years ago and Black Americans still imprisoned at five times the rate of whites, the crisis of mass incarceration and its racial injustice remain undeniable. What’s more, the progress made so far is at risk of stalling or being reversed.

This third installment of the One in Five6 series examines three key causes of racial inequality from within the criminal legal system. While the consequences of these policies and issues continue to perpetuate racial and ethnic disparities, at least 50 jurisdictions around the country — including states, the federal government, and localities — have initiated promising reforms to lessen their impact.

1. Laws and policies that appear race-neutral have a disparate racial impact....

2. Racial bias influences criminal legal practitioners’ use of discretion....

3. A financially burdensome and under-resourced criminal legal system puts people with low incomes, who are disproportionately people of color, at a disadvantage....

Prior related posts:

December 7, 2023 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, December 04, 2023

"Excess mortality in U.S. prisons during the COVID-19 pandemic"

The title of this post is the title of this new article by multiple authors just published in the journal Science Advances.  Here is its abstract:

U.S. prisons were especially susceptible to COVID-19 infection and death; however, data limitations have precluded a national accounting of prison mortality (including but not limited to COVID-19 mortality) during the pandemic.  Our analysis of mortality data collected from public records requests (supplemented with publicly available data) from 48 Departments of Corrections provides the most comprehensive understanding to date of in-custody mortality during 2020. We find that total mortality increased by 77% in 2020 relative to 2019, corresponding to 3.4 times the mortality increase in the general population, and that mortality in prisons increased across all age groups (49 and under, 50 to 64, and 65 and older).  COVID-19 was the primary driver for increases in mortality due to natural causes; some states also experienced substantial increases due to unnatural causes.  These findings provide critical information about the pandemic’s toll on some of the country’s most vulnerable individuals while underscoring the need for data transparency and standardized reporting in carceral settings.

December 4, 2023 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (5)

Thursday, November 30, 2023

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2023"

Providing another report for prison data junkies, the Bureau of Justice Statistics today released this 26-page report titled ""Federal Prisoner Statistics Collected Under the First Step Act, 2023." Here the report's introduction and some of the "Key findings" that seemed most interesting:

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 specific topics and to report these data annually. BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. In addition, BJS is required to report 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 including accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Collected in 2023, the statistics in this report are for calendar year 2022, which represented the fourth full year of reporting under the FSA. Data for calendar year 2023 will be available from the BOP in 2024. Unless otherwise noted, all counts in this report include persons held in federal correctional facilities operated by the BOP (122 institutional facilities).

  • The federal prison population increased about 1%, from 156,542 at yearend 2021 to 158,637 at yearend 2022.

  • At yearend 2022, there were 8,627 persons with prior military service in BOP facilities, accounting for about 5% of the total federal prison population.

  • The number of non-U.S. citizens in federal prison at yearend 2022 was 24,078, virtually unchanged from 2020 and 2021....

  • Seventy percent of persons in BOP facilities at yearend 2022 had earned a high school diploma, general equivalency degree (GED), or other equivalent certificate prior to their admission to federal prison (110,531), and an additional 3,543 earned their GED credential or equivalent certificate during 2022.

  • In 2022, there were 10,177 instances of persons in special housing units, a 10% increase from 2021 (9,261)....

  • In 2022, 20,880 federal prisoners participated in a nonresidential substance use disorder treatment program, while 12,035 participated in a residential program....

  • In 2022, there were 80,490 prohibited acts committed by persons incarcerated in federal prisons....

  • In 2022, BOP staff were physically assaulted by federal prisoners 965 times, which resulted in serious injuries 19 times and 12 prosecutions of prisoners....

  • The BOP partnered with 1,580 external groups to provide recidivism reduction programming in 122 federal prison facilities in 2022.

  • Sixty percent (947) of the BOP’s partnerships that were in place in 2022 to provide recidivism reduction programming were with faith-based groups.

  • Of the 145,062 persons in federal prison as of December 31, 2022 assessed with the BOP’s recidivism risk tool, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN), 54% were classified as minimum or low risk for recidivism, 27% were classified as high risk for recidivism, and 19% as medium risk at yearend 2022.

  • In 2022, PATTERN classified a higher percentage of females than males as minimum or low risk for recidivism (81% compared to 52%).

  • As of December 31, 2022, PATTERN classified 61% of black and 59% of American Indian or Alaska Native federal prisoners as a medium or high risk of recidivism, compared to 36% of white and 27% of Asian, Native Hawaiian, or Other Pacific Islander prisoners.

  • In 2022, PATTERN classified 83% of federal prisoners ages 55 to 64 and 93% of those age 65 or older as having a minimum or low risk of recidivism.

  • In 2022, the BOP identified 41 Evidence-Based Recidivism Reduction (EBRR) Programs and 52 Productive Activities (PAs) that persons in federal prison could access for various needs, including antisocial behavior, anger management, substance abuse, parenting skills, and dyslexia.

November 30, 2023 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (34)

Bureau of Justice Statistics releases "Prisoners in 2022 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics today released its latest yearly accounting of US prison populations titled "Prisoners in 2022 – Statistical Tables." The first page of the 48-page document provides this overview and "highlights":

At yearend 2022, correctional authorities in the United States had jurisdiction over 1,230,100 persons in state or federal prisons, an increase of 2% or 25,100 persons from yearend 2021 (1,205,100 persons) (figure 1). This rise erased the 1% decline reported in 2021 and marked the first increase in the combined state and federal prison population in almost a decade (since 2013). The number of persons held under the jurisdiction of the Federal Bureau of Prisons (BOP) grew 1% (up 2,000 persons) from 2021 to 2022, while the number held under the jurisdiction of state correctional authorities increased 2% (up 23,100).

Ninety-six percent of persons in U.S. prisons in 2022 were sentenced to more than 1 year under the jurisdiction of state or federal correctional authorities (1,185,600). Thirty-five states and the BOP showed growth in their sentenced prison populations from 2021 to 2022, with increases of at least 1,000 persons in eight states and the BOP.

  • The U.S. prison population was 1,230,100 at yearend 2022, a 2% increase from yearend 2021 (1,205,100).

  • The number of females in state or federal prison increased almost 5% from yearend 2021 (83,700) to yearend 2022 (87,800).

  • Nine states and the BOP increased their total prison populations by over 1,000 persons from yearend 2021 to yearend 2022.

  • State correctional authorities had jurisdiction over 1,039,500 persons sentenced to at least 1 year in prison in 2022, while the BOP had legal authority over 146,100 persons with similar sentences.

  • At yearend 2022, an estimated 32% of sentenced state and federal prisoners were black; 31% were white; 23% were Hispanic; 2% were American Indian or Alaska Native; and 1% were Asian, Native Hawaiian, or Other Pacific Islander.

  • The imprisonment rate at yearend 2022 (355 sentenced prisoners per 100,000 U.S. residents of all ages) was down 26% from yearend 2012 (480 per 100,000) but up 1% from yearend 2021 (350 per 100,000).

  • In 2022, states and the BOP admitted 469,200 persons to prison, which was 20,800 more than they released that year (448,400) and 48,200 more than they admitted the year before (421,000).

November 30, 2023 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (1)

Monday, November 27, 2023

"Who Bears the Burden When Prison Guards Rape?"

The title of this post is the title of this new essay authored by Meredith Esser and available via SSRN. Here is its abstract:

Several recent scandals have highlighted the continued problem of institutional sexual abuse within the federal Bureau of Prisons (BOP).  Most notoriously, the rampant sexual abuse of women incarcerated at Federal Correctional Institution (FCI) Dublin, also known as the “rape club,” resulted in the prosecution and conviction of several high-ranking officials within FCI Dublin, including both the former Warden and former Chaplain who worked there for several years.  In response to these patterns of misconduct, the Federal Sentencing Commission’s new guidelines, which went into effect on November 1, 2023, now allow for victims of custodial sexual assault to apply for early release or sentence reductions based on that assault.  However, the Sentencing Commission’s reform in this regard comes with a caveat: to be eligible to move a sentencing court for early release, the assailant’s misconduct must have been established in a separate civil, criminal, or administrative proceeding.

Although the new guideline is commendable, a requirement that misconduct be substantiated in this way effectively places an impossible burden of proof onto incarcerated victims — in a manner inconsistent with other federal early release provisions — and in a context in which the incarcerated movant is in a particularly disadvantaged position to meet and litigate that burden.  For example, lack of access to counsel or discovery tools for survivors, and the need to litigate for one’s early release within a prison setting, make the effective litigation of the substantiation requirement impracticable in many circumstances.  Further, this Essay argues that this substantiation requirement counterproductively minimizes the experiences of survivors, discounts their accounts of sexual abuse, and elevates the adjudication of the assailant above the immediate needs of victims.

November 27, 2023 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Friday, November 24, 2023

A mid-holiday weekend round-up of various sentencing opinions

I am taking much of the holiday weekend off from blogging (which may make many thankful).  And that provides an excuse to keep up a bit by rounding-up here some opinion pieces that have caught my eye recently:

From Forbes, "Bureau Of Prisons Backtracking On First Step Act Law"

From Governing, "No, Criminal Justice Reform Isn’t Driving Rising Crime"

From the New Republic, "The Turkey Pardon Is a Perfect Emblem of Our Very Dumb Politics"

From the New York Post, "Thank NY’s criminal justice ‘reforms’ for this double murder"

From Rolling Stone, "I’m Serving Life in Prison. It’s a Slow-Motion Death Sentence"

From the Times Union, "Parole reform saved New York money. Invest it in helping people stay out of the criminal justice system."

From the Wall Street Journal, "Tech Can Keep Ex-Offenders Out of Jail"


And a notable pair of commentaries from a notable pair of commentators at Reason:

From Josh Blackman, "A Reversal in Rahimi Will Be Tougher to Write Than Critics Admit"

From Will Baude, "It's Not So Hard to Write an Opinion Following Bruen and Reversing in Rahimi

November 24, 2023 in Prisons and prisoners, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, November 17, 2023

"Best Practices: Report on Improving Veterans’ Incarceration and Reentry in Florida"

Though I have missed Veterans Day by almost a week, I am still glad that I did not entirely miss this new report from the Florida Policy Project that has the title of this post. Here are some passages from the start of the report:

Efforts have been made to limit veterans' exposure to incarceration.  While these efforts may be diverting some veterans from prison, many veterans are still incarcerated in Florida and will eventually return to their communities. Understanding how to improve their incarceration experience and lower barriers to reentry will ensure that Florida's veterans have access to the services they earned and return to their communities better than when they left them. This report describes the problems Florida's incarcerated veterans face and offers examples of programs that could be implemented to help reduce recidivism and improve reentry....

Justice involved veterans have garnered increased attention in recent years. Several practices have been deployed to help divert veterans from incarceration.  The Department of Veterans' Affairs (VA) Veterans Justice Outreach (VJO) program and the increased use of Veterans' Treatment Courts have helped respond to the needs of justice-involved veterans while maintaining accountability for criminal activity.  Despite these efforts, many veterans find themselves incarcerated in prisons around the country.  Although national estimates suggest that over 96,000 veterans are incarcerated in state prisons in the United States (accounting for about 8% of all people incarcerated in state prisons) many states underestimate their incarcerated veteran population.  For example, based on data from inmate self-identification, California estimated their incarcerated veteran population to be approximately 2.7% of inmates.  After accessing VA data, they found that 7.7% of their incarcerated population qualified as veterans — making them eligible for numerous federal benefits.

According to data from the Florida Department of Corrections, as of October 2023, 3,989 people in Florida prisons self-identified as veterans.  Over 99% of the 3,989 people are men (only 30 women in Florida prisons self-identified as veterans).  Accounting for approximately 5% of all people incarcerated in Florida prisons, as noted above, this proportion likely underestimates the true number of people incarcerated in Florida facilities who would qualify under federal statute as a veteran.  Difficulty in identifying veterans is exacerbated by the fact that Florida Statute and the United States Code differ in their definition of who qualifies as a veteran.

Though focused on Florida's prisons, the report closes with a helpful national review of "additional veteran-specific programs that Florida policymakers and correctional practitioners should consider implementing."  Anyone concerned about veterans involved with the criminal justice system should fine this report of interest, and a short form of the report here provides a useful overview.

Some of many prior related posts:

November 17, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

Monday, November 13, 2023

Three Justices dissent from denial of cert in Illinois lawsuit over solitary confinement of mentally ill inmate

As mentioned in this prior post, this morning's new Supreme Court order list included a cert grant in a federal drug case and a lengthy dissent from the denial of cert in a state prison conditions case.  The cert grant in Diaz v. US could touch on a variety of interesting issues that might provide to divided the Justices in ways other than the now "usual" 6-3 divide.  But the state prison conditions case, Johnson v. Prentice, did produce the usual 6-3 split, with Justice Jackson authoring a lengthy dissent joined by Justices Sotomayor and Kagan.  Here is how this dissent starts:

This Court has long held that the test for evaluating an Eighth Amendment challenge to a prisoner’s conditions of confinement involves determining whether prison officials acted with “deliberate indifference” to a substantial risk to an inmate’s health or safety.  Estelle v. Gamble, 429 U. S. 97, 104 (1976).  With respect to the Eighth Amendment claim at issue in this case, the Court of Appeals for the Seventh Circuit affirmed the grant of summary judgment to prison officials without applying that well-established standard. Given this indisputable legal error, I would grant certiorari and summarily reverse.

According to the dissent, the case involved an "unusually severe" example of solitary confinement for Johnson.  But I am not too surprised from reading the dissent if this may have seemed to other Justices like an error-correction case, especially with the dissent suggesting the case only concerned whether there was "a genuine issue of material fact for the jury, under the facts and circumstances presented here, such that summary judgment was not appropriate."  I certainly would like to see the full Court take up some of the issues surrounding "severe" use of solitary confinement, but I am not sure this Johnson case would have been ideal for addressing important broader issues.

November 13, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Monday, October 30, 2023

Detailing yet another challenging detail of earned time credits under the FIRST STEP Act

Walter Pavlo has another effective article in Forbes providing another review of yet another accounting challenge in calculating earned time credits under the FIRST STEP Act. This piece is headlined "Bureau Of Prisons’ Dilemma On First Step Act Credits," and here are excerpts:

The First Step Act (FSA) was signed into law in December 2018. The law allowed prisoners, mostly minimum and low security offenders, to earn a reduction in their sentence for being productive while incarcerated. That productivity is measured by the prisoners’ participation in meaningful programs and having a job while incarcerated. However, nearly five years after the law was enacted, the complexities of the Federal Bureau of Prisons (BOP) ability to comply with the law is still being revealed....

According to the BOP’s own program statement:... "An eligible inmate begins earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the inmate arrives or voluntarily surrenders at the designated Bureau facility).”  [But a recent] decision in a federal court in New Hampshire has upended this definition of when FSA Earned Time Credits begins ... [by ruling that] "the date established by the plain language of the FSA upon which [a defendant] is entitled to begin earning FSA time credits is [the date of sentencing]."...

The BOP is in a bad position in that it can either follow the law, which is flawed, because it has no mechanism to measure success under FSA (classes and work assignment) for prisoners not in their custody at the final designated facility. The alternative is that the BOP can follow a judgment from a federal court and award credits to prisoners who have not complied with the programming requirements of FSA.

One solution, or compromise, would be to get prisoners to their final destination in less time, but that does little to those who went through lengthy transportation nightmares getting to their designated facility.  However, even that is outside of the BOP’s power as transportation of prisoners falls under US Marshals.  Another is for the BOP to provide some programming, even a manual, to give to prisoners immediately after sentencing to start the FSA programming and to provide some sort of PATTERN assessment soon after the prisoner is sentenced.  All of these solutions are outside the control of the prisoner who must serve the time with no means to correct the situation other than going to court.

The BOP could change its FSA Program Statement right now to comply with this New Hampshire decision but it has not and it is likely trying to assess how it can comply.  However, the BOP did not appeal the Yufenyuy decision, so many prisoners remain in limbo on this issue. The result is that the FSA continues to experience problems in its implementation and the prisoners and their families are the ones paying the price.

October 30, 2023 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, October 25, 2023

Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity

A week from today, on November 1, 2023, the new US Sentencing Commission's amendments to the US Sentencing Guidelines become law (absent congressional intervention, which does not appear to be in the works).  Back in the spring when the USSC promulgated all these amendments, I blogged a bit about some of the highest-profile amendments regarding compassionate release and criminal history.  But there is far more going on with all these amendments than can be readily summarized in this forum.  Fortunately, the Commission has a lot of new materials on its website in addition to the official amendments.  Specifically, from a USSC training event, here is a slideshow that summarizes the USSC's amendment work, and a whole bunch of helpful "Amendment in Brief" documents assembled here provide primers on nine amendments.

As discussed here last week, the amendment to the compassionate release guideline may prove the highest profile matter (and likely will generate some litigation), but I think the amendment to criminal history rules indisputably will impact the largest number of cases in the years ahead.  And, as noted previously, because the Commission voted to make its new criminal history rules retroactive, thousands of current prisoners are also going to be impacted by these new guidelines.  Helpfully, the Commission has created this "Background Information" page to try to address some questions about retroactivity.  But I suspect there will be lots and lots of questions (and litigation) around these new criminal history guidelines and their retroactive application. 

I predict questions and litigation in part based on an interesting little document that the USSC posted here titled "Comparison of Retroactive Guideline Amendments."   Only hard-core sentencing nerds will find this data document fascinating, but what really draws my attention is the delta between what the document estimates as "Group size" and "Eligible for reduction" under the new criminal history amendments.  In short form, the document estimates that over 85,000 prisoners are in the "Group size" who might file for retroactive application of the new guidelines, but less than 19,000 are actually eligible for a reduction.  In other words, the USSC this estimating that for every one prisoner who secures a sentence reduction, there will be more than four others who might file and have their motion denied.

I also predict questions and litigation in part based on a couple of recent Law360 commentaries on one part of the criminal history amendment by Alan Ellis, Mark Allenbaugh and Doug Passon.  I recommend these highly:

"How Zero-Point Offender Change Will Work Prospectively"

"How Zero-Point Offender Change Should Work Retroactively"

October 25, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, October 22, 2023

Lots of pictures and words about the growing share of persons growing old in prison

The New York Times has this extended opinion piece, with lots of storytelling and lots of pictures, under the headline "Elderly and Imprisoned: ‘I Don’t Count It as Living, Only Existing.’" The piece is authored by Carmilla Floyd and here are excerpts:

Between 1993 and 2013, the number of people 55 or older in state prisons increased by 400 percent. The American Civil Liberties Union estimates that by 2030, people over 55 will constitute a third of the country’s prison population.

Research shows that most people age out of criminal conduct. Moreover, the Department of Justice asserts that the risk of elderly people reoffending after release is minimal. Yet decades of tough-on-crime sentencing and increasingly rigid release policies have left many to grow old in a system that was not designed to accommodate them. The cost is high, for both the residents and the public at large....

Reforms have ignited hope among residents who expected to die in prison. In California, the Public Safety and Rehabilitation Act of 2016 provides a process for nonviolent offenders to be considered for parole if their release poses no unreasonable risk to the community. Also in California, the Elderly Parole Program lays out a path for some residents who are over 50 and who have served at least 20 years. The state has also established compassionate release programs for terminally ill or medically incapacitated residents.

Efforts to reduce the aging prison population are driven not solely by compassion but also by the tremendous cost of incarcerating older people. Residents do not qualify for Medicaid, leaving the state responsible for all care expenses. Older residents are more likely to suffer from chronic illnesses like diabetes, dementia and cancer and to struggle with depression and anxiety.

Yet the rules and policies around parole decisions are often obstacles to releasing elderly residents, especially if they committed violent offenses in their youth. These secretive and subjective policies should be changed to focus on risk assessment and rehabilitation rather than the initial crime. Punitive sentences like life without parole should be abolished altogether.

October 22, 2023 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8)

Friday, October 20, 2023

Prison Policy Initiative provides new resources on prison discipline policies

The folks at Prison Policy Initiative this week released this new briefing which provides a "collection of prison discipline policies [that] covers all 50 states, Washington, D.C., and the Federal Bureau of Prisons, and highlights how each system classifies the severity of offenses and punishments." Here is a bit more from the briefing:

[T]he Prison Policy Initiative is publishing a collection of discipline policies for all 50 state prison systems, the Washington, D.C. Department of Corrections, and the Federal Bureau of Prisons in our Data toolbox.  It includes the discipline policy for each system, a list of offense severity classifications from most to least severe, and links to additional documents to help you understand each system’s classification scheme.

Advocates, researchers, and lawmakers can use this collection to examine the rules, offenses, procedures, and associated punishments for each prison system, or to answer questions about prison discipline systems such as:

  • What behaviors are considered “violations” in your state’s prisons?
  • How are different violations punished? How does the severity of punishment for certain actions compare to others?
  • How many different rules can be applied to punish a single action, such as a fight, potentially allowing prison staff to pick and choose or “stack” violations?
  • Does your state’s prison system punish people more harshly than others for similar violations?
  • What does the severity of punishment for certain actions — such as refusal to work or organizing a strike — tell us about the culture and priorities of prisons?
  • What is the “justice” process like inside prisons? How do people defend themselves? Is there due process inside?

October 20, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, October 19, 2023

Detailing how sex offenders in New York can imprisoned long past their maximum sentences

The Nation has this notable lengthy new article detailing just how some New York offenders end up incarcerated well past the end of their actual sentences.  The article's full title previews the key points: "They Were Supposed to Be Free.  Why Are They Locked Up?: No one wants a person convicted of a sex offense in their neighborhood.  So New York keeps them in prison long past their release dates."  Here are some excerpts:

[Jory] Smith is one of hundreds of New Yorkers over the past decade whom the state has imprisoned past their maximum sentences, often for months or years.  It’s not because the judicial system is afraid that he’ll commit another crime—a judge had determined that Smith’s “risk of re-offense is low.”  He is caged there, essentially, because he is homeless.

In 2015, Smith was imprisoned for sexually abusing an 8-year-old girl, and state legislation severely restricts where people with such sex-offense convictions are allowed to live.  With few politicians willing to publicly defend people who have been found guilty of sex crimes, authorities have been free to push the boundaries of how to enforce the law.

The state redesignates people convicted of sex offenses who have served their maximum prison sentences as parolees. But unlike others on parole, some of them don’t get released.  They’re kept incarcerated until they can find a legal place to stay or until their parole is up — for Smith, that’s August 2025.  They wear normal prison uniforms.  They abide by prison visitation, meal, and recreation rules. Most sleep in general population units.

Many of them also work a prison job. And the state holds most of their wages in an account that they can access only upon their undetermined and mostly unknowable release date.  For his work assignments, Smith receives between $5 and $10 a week.  He called it “slave wages from slave labor.”

This system of prolonged incarceration started nearly a decade ago—and the number of people subjected to it has increased.  In 2015, it was 37, according to data obtained by Appellate Advocates and shared with New York Focus and The Nation.  By 2017, the number had risen to more than 100, and in the first half of 2019, it was 60 — almost 8 percent of the “parolees.”

New York’s Department of Corrections and Community Supervision, or DOCCS, which runs the state prison and parole systems, wouldn’t offer updated annual numbers but said that, as of late July, it was holding 49 people past their release dates.  In a statement, the department said that it “follows the letter of the law” when it comes to confining people convicted of sex offenses.

Lawmakers have exacerbated the situation. And courts have so far greenlighted the practice — though that could soon change.  A judicial shake-up in New York this year saw one of the few people in power who was willing to criticize it become head of the New York Court of Appeals, the state’s highest court.  And a years-in-the-making lawsuit challenging the practice is set to hit the court’s docket.

That case might be the last hope for change until the politics around sex crimes shift.  “It’s very sensitive — people have very emotional reactions to sex offenders,” said James Bogin, a senior supervising attorney at Prisoners’ Legal Services of New York and part of the team working on the Court of Appeals case.  “The idea that the end of the sentence doesn’t mean anything, that it doesn’t even lead to any change in your circumstance, is pretty unbelievable.”

October 19, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10)

Wednesday, October 11, 2023

Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system

The Sentencing Project has released this new report today titled "One in Five: Ending Racial Inequity in Incarceration." The report's lengthy executive summary provides an overview of the report's these and concludes by nothing this report is the first in a series. Here are excerpts from the start and close of the executive summary:

Following a massive, four-decade-long buildup of incarceration disproportionately impacting people of color, a growing reform movement has made important inroads.  The 21st century has witnessed progress both in reducing the U.S. prison population and its racial and ethnic disparities.  The total prison population has declined by 25% after reaching its peak level in 2009. While all major racial and ethnic groups experienced decarceration, the Black prison population has downsized the most.  The number of imprisoned Black Americans decreased 39% since its peak in 2002.  Despite this progress, imprisonment levels remain too high nationwide, particularly for Black Americans.

Reforms to drug law enforcement and to sentencing for drug and property offenses, particularly those impacting urban areas which are disproportionately home to communities of color, have fueled decarceration and narrowed racial disparities.  These trends have led scholars to declare a “generational shift” in the lifetime likelihood of imprisonment for Black men.  This risk has fallen from a staggering one in three for those born in 1981 to a still troubling one in five for Black men born in 2001.  Black women have experienced the sharpest decline in their imprisonment rate, falling by 70% between 2000 and 2021.

But ... progress in reducing racial disparity in the criminal legal system is incomplete and at risk of stalling or being reversed....

To help protect and expand the progress made so far, The Sentencing Project is producing a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms.  This first installment presents an overview of trends in prison and jail incarceration and community supervision. The next installment will examine the high levels of contact that police initiate, particularly with people of color, as well as differential crime rates.  The final reports will examine key drivers of disparity from within the criminal legal system and promising reforms from dozens of jurisdictions around the country.

October 11, 2023 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (16)

Monday, October 09, 2023

"The COVID-19 Pandemic, Prison Downsizing, and Crime Trends"

The title of this post is the title of this new article now available via SSRN and authored by Charis Kubrin and Bradley Bartos.  Here is its abstract:

California has fundamentally reformed its criminal justice system.  Since 2011, the state passed several reforms which reduced its massive prison population.  Importantly, this decaceration has not harmed public safety as research finds these measures had no impact on violent crime and only marginal impacts on property crime statewide.  The COVID-19 pandemic furthered the state’s trend in decarceration, as California reduced prison and jail populations to slow the spread of the virus.  In fact, in terms of month-to-month proportionate changes in the state correctional population, California’s efforts to reduce overcrowding as a means to limit the spread of COVID-19 reduced the correctional population more severely and abruptly than any of the state’s decarceration reforms.  Although research suggests the criminal justice reforms did not threaten public safety, there is reason to suspect COVID-mitigation releases did. How are COVID-19 jail downsizing measures and crime trends related in California, if at all?

We address this question in the current study.  We employ a synthetic control group design to estimate the impact of jail decarceration intended to mitigate COVID-19 spread on crime in California’s 58 counties.  Adapting the traditional method to account for the “fuzzy-ness” of the intervention, we utilize natural variation among counties to isolate decarceration’s impact on crime from various other shocks affecting California as a whole.  Findings do not suggest a consistent relationship between COVID-19 jail decarceration and violent or property crime at the county level.

October 9, 2023 in Impact of the coronavirus on criminal justice, National and State Crime Data, Prisons and prisoners | Permalink | Comments (1)

Thursday, October 05, 2023

"The Dissociative Theory of Punishment"

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

The American public has complex views on criminal punishment.  They are driven primarily by retributive motivations.  But they have other justice considerations, such as restoration and rehabilitation, that can be activated in different ways.  Laypersons are also motivated to psychologically distance and dissociate from those they perceive to be criminal “others” and to see punishment itself as a kind of dissociation, embodied by the prison form.  The psychological processes that produce these beliefs lead to an insistence on prison as a necessary criminal justice outcome, despite reservations about its effectiveness and concerns about the state of mass incarceration and punitive penal policy more generally.

This Article builds on the psychology of punishment literature to offer a deeper understanding of the dissociative theory of punishment and how it produces the belief in the necessity of prison.  Drawing on original, qualitative focus group data and analysis, this Article identifies the specific psychological mechanisms that motivate dissociation, explains the role of the belief in retributive justice as part of this process, and offers nuanced insights into the contours of the dissociative theory and the way people psychologically reason about criminal punishment.

October 5, 2023 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, September 30, 2023

"Cheap on Punishment: Examining the Impact of Prison Population Racial Demographics on State-Level Corrections Spending"

The title of this post is the title of this new article authored by Joshua Williams and Paige Vaughn recently published online at Justice Quarterly.  Here is its abstract:

Research has explored the effects of various state-level characteristics, such as racial composition and economic conditions, on correctional budgetary decisions.  However, researchers have yet to consider how the racial makeup of state prison populations themselves may impact subsequent corrections spending decisions.  Drawing on work suggesting that people of color are simultaneously over-punished and neglected by criminal justice systems, and utilizing a time-series cross-section analysis of 50 states from 1979 through 2017, we explore differences in state budgetary allocations for correctional expenditures based on the racial demographics of prison populations.  We find that the relationship between the Black-to-White incarceration ratio and spending on corrections is curvilinear: once a tipping point of Black-to-White incarceration is reached, spending on corrections decreases.  This finding is especially pronounced in Southern and Midwestern states.  Overall, our results provide a strong starting point for understanding the ways in which Black Americans are neglected in the incarceration setting.

September 30, 2023 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Thursday, September 28, 2023

Robina Institute completes huge project on states' prison-release frameworks

I was pleased this morning to receive an email titled "The Robina Institute Has Completed a Three-Year Effort to Produce Individual Reports on the Prison-Release Frameworks of All 50 States and D.C." This news is worthy of celebration as the text of the email explains (with links from the original):

We're excited to share that the Robina Institute has completed a monumental three-year research project on prison-release mechanisms across all 50 states and the District of Columbia, providing unprecedented insights into the determinants of actual-time-served in prison. This effort was led by Kevin Reitz as part of the Prison Release: Degrees of Indeterminacy Project.

What's in the Reports?

Each report delves into the intricacies of the respective state's prison release frameworks, including the decision-makers and varied mechanisms impacting prison populations.  These reports average 20 pages and are a comprehensive resource for those seeking to understand the causes of mass incarceration and its potential remedies.

Understanding Prison Release Mechanisms 

Each state has its unique blend of mechanisms, such as parole boards, sentence discounts for good or earned time, executive clemency, compassionate release, and emergency release protocols.  These reports provide models and measurements illustrating the distribution of release discretion power among officials, and the interactions between different forms of release discretion.

Insights Into Decision-Making Power 

The reports critically assess which official actors have the power to determine prison population size in each jurisdiction, whether through front-end sentencing discretion by judges and prosecutors or through back-end agencies, including parole boards and departments of corrections.

Why Is This Important? 

Understanding prison-release discretion is crucial in unraveling the complexities of mass incarceration in America. States exhibit substantial diversity in structuring the laws, policies, institutions, and practices of prison-release discretion.  Until now, there wasn't a resource that comprehensively compared the American state-level frameworks, making this series invaluable for those involved in policymaking and criminal justice reform.

We extend our thanks to Arnold Ventures for their support in this project.

Read the Reports

September 28, 2023 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, September 27, 2023

Making the case for expanded use of home confinement for older federal prisoners

Hugh Hurwitz, who served as Acting Director of the federal Bureau of Prisons, has this new commentary in The Hill headlined "Moving elderly prisoners home saves taxpayer dollars without sacrificing safety." I recommend the full piece (and its many links), and here are excerpts:

The First Step Act reauthorized and modified the pilot program for eligible elderly offenders and terminally ill offenders.  This section allows offenders who are over 60 years of age, have served two-thirds of their sentence, are not convicted of a crime of violence and do not have a history of escape to be placed on home confinement for the remaining portion of their sentence.

Well-established research shows that older people are substantially less likely to recidivate.  In fact, the U.S. Sentencing Commission reported the recidivism rate of people over the age of 50 was less than half that of those under 50.  Under the pilot program, only those over 60 are considered, and they can’t have any history of violence, thus making their recidivism rate even lower.

At the same time, the cost of housing older people is becoming astronomical.  The average age of people in the Federal Bureau of Prisons (BOP) facilities has increased by 8 percent over the past decade.  Approximately 45 percent of offenders have multiple chronic conditions. As people age in prison, the demands on the bureau’s health resources will continue to increase....

Since the First Step Act was established, very few have been placed into this pilot program.  The program was first established in 2008 as part of the Second Chance Act. In this year’s Annual Report to Congress on the First Step Act, the Department of Justice reported that only 1,219 have been placed in the pilot program between its original enactment and this January.  Under the act, monthly placements have dwindled to an average of four per month, and a total of only 152 during its first three years.

In comparison, under the CARES Act, BOP placed an average of over 250 people per month on home confinement.  This pilot program has not been given a chance to see if it works.  It is hard to believe that Congress’s rare bipartisan acts of creating and extending this program were expected to reach so few people.  Undoubtedly, it intended this program to move the lowest risk and most costly people to home confinement; and if successful, Congress would consider making it permanent....

The SAFER Detention Act, sponsored by Sen. Dick Durbin (D-Ill.), seeks to take this program a step further.  This bill would lower eligibility to include nonviolent offenders who have served at least 50 percent (instead of two-thirds) of their sentence.  This is not an unreasonable proposal, and recent history demonstrates that this is indeed safe to do.

During the pandemic, under the CARES Act, Attorney General William Barr authorized BOP to move people to home confinement using a set of criteria that included serving at least 50 percent of their sentence.  Only 22 of the 13,204 individuals serving their sentence on home confinement since March 2020 were rearrested for a new offense.  That is just 0.17 percent, and most of those offenses were for drug-related or other minor crimes.  Many of those placed in home confinement were not elderly, so one would expect the rate of elderly recidivism to be even lower. Expanding the elderly pilot to offenders who served 50 percent of their time would save even more taxpayer dollars without creating more risk to society.

September 27, 2023 in Criminal Sentences Alternatives, Offender Characteristics, Prisons and prisoners | Permalink | Comments (13)

Prison Policy Initiative provide updated data on "incarceration stats by race, ethnicity, and gender" in all states

Prison Policy Initiative has this new briefing by Leah Wang fully titled "Updated data and charts: Incarceration stats by race, ethnicity, and gender for all 50 states and D.C.: New data visualizations and updated tables show the national landscape of persistent racial disparity in state prisons and local jails."  here is how the briefing begins (with links from the original):

The best and latest criminal legal system data are often scattered across different government agencies, in incompatible formats, and difficult to compare.  To make the most useful information more accessible, we make the underlying data for our timely reports and briefings available in our Data Toolbox, and create state-specific graphics on our comprehensive State Profiles pages.  Today, we’ve added a rich new series of resources for our users of our work:

First, we now have downloadable spreadsheet of the most recently available incarceration data for people in state prisons and in local jails, by race and ethnicity and by sex, for all 50 states and D.C.  Unlike other datasets, ours provides apples-to-apples state comparisons in three formats (counts, rates, and percentages): We’ve done the math to standardize incompatible measurements found in the various original data sources.

Second, we’ve updated over 100 of the key graphics on our State Profiles pages showing prison and jail incarceration rates by race and ethnicity, and how the racial composition of each state’s prisons and jails compare to the total state population.

September 27, 2023 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Sunday, September 24, 2023

Investigations of various prisons and jails reveal various unsettling stories

Recent days have brought a number of notable lengthy press investigations focused on a number of problems in a number of prisons and jails:

From the Atlanta Journal-Constitution, "Hundreds of GA prison employees had a lucrative side hustle: They aided prisoners’ criminal schemes"

From the Kansas City Star, "Broken Government: Why are hundreds of Missourians stuck in jail, not treated for mental health issues?"

From NPR, "1 in 4 inmate deaths happens in the same federal prison. Why?"

UPDATE:  A bit more web surfing brought a few more notable recent pieces in this genre:

From the Anchorage Daily News, "‘Like a nursing home’: The realities of Alaska’s aging inmate population; More people are living out their final years in Alaska prisons — testing the balance between prison as punishment for serious crimes and the expensive realities of caring for infirm inmates."

From The Guardian, "US prison labor is cruel and pointless legalized slavery. I know first-hand"

From Set for Sentencing (podcast), "Bureau of Prisons (BOP) Means 'Backwards on Purpose'"

September 24, 2023 in Prisons and prisoners | Permalink | Comments (5)

Tuesday, September 19, 2023

Effective coverage of particulars of First Step Act and guideline amendment implementation

I have frequently flagged Walter Pavlo's work at Forbes because he always effectively covers lots of the important nitty-gritty in the implementation of various federal sentencing and corrections rules and policy.  And over the past week, he has two more important pieces in this space, which I will cover with links and full headlines:

"What The US Sentencing Commission’s Decision Means For First Time Offenders: The US Sentencing Commission recently passed a motion to allow a 2 point reduction against the Federal Sentencing Guidelines. The effect could mean freedom for many."

"Bureau Of Prisons’ Challenges With First Step Act Release Dates: The Federal Bureau of Prisons has struggled to implement the First Step Act and one big problem still persists ... predicting when someone will leave prison."

Both of these pieces serve as new reminders of the old aphorism, "The devil is in the details."

September 19, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, September 13, 2023

Notable data from BOP Director on FIRST STEP, compassionate release and home confinement

The US Senate Judiciary Committee held a hearing today on “Oversight of the Federal Bureau of Prisons,” and BOP Director Colette Peters submitted written testimony that is available here.  Much is worth reading from that document, and I thought some of the data on "First Step Act Implementation" and on "Compassionate Release and Home Confinement" was worth blogging:

Since January 2020, more than 104,000 incarcerated individuals have actively participated in approximately 110 evidence-based recidivism-reducing (EBRR) programs and productive activities (PAs) within the Bureau. In that same timeframe, those individuals have completed more than 370,000 EBRRs and PAs.

In 2019, we adopted the new Good Conduct Time calculation required by the FSA and implemented FSA time credit provisions. Initially, implementing the FSA time credit provisions meant interim procedures with manual calculation of credits from the time the language of the final rule was approved until an automated system could be developed and tested. Then, in 2022, we transitioned from manual to automated FSA time credit calculations, streamlining and accelerating the process. In November 2022, we published the policy on FSA time credits to formalize implementation of the earned time credits rule, with subsequent revisions in February and March of 2023. This new policy was designed to streamline the calculation of credits and maximize an individual’s ability to earn and apply these credits when engaging in programming. We have also implemented revisions to our time credit calculation procedures in response to concerns of Congress and stakeholders and applied those changes for eligible individuals....

Additionally, we fine-tuned our PATTERN recidivism reduction tool worksheet by including program completion factors and sanitizing sensitive information, such as Walsh Act criteria. We made functional and technical improvements, including improving auditing capabilities and error reduction by implementing distinct ineligibility codes. We made these important changes to ensure that those in our care who are earning credits get their credits. From January 2022 through August 31, 2023, we released approximately 22,940 individuals through FSA, and approximately 16,125 were released from Residential Reentry Centers.

We support the Department’s development of the PATTERN tool (through the National Institute of Justice), including its evolution to address concerns around racial and ethnic disparities in the tool. In March 2023, the Department conducted its second annual revalidation of the PATTERN risk assessment tool. Following this, the Bureau began utilizing PATTERN version 1.3 with revised risk level categorizations. This addressed previous racial and ethnic disparities in the tool and increased opportunities for eligible individuals to apply earned time credits.

Compassionate Release. The Bureau continues in its efforts to support compassionate release, wherein the sentencing court is able to reduce a sentence due to extraordinary and compelling reasons or for certain individuals.  The FSA went into effect on December 21, 2018, and since that time, we have released a total of around 4,606 individuals who were under our care through compassionate release.  Of that group of individuals, 129 were released through compassionate release on a motion initiated by the Bureau, and 4,477 received compassionate release after a defense motion.  So far in the calendar year 2023 (CY23), approximately 216 individuals under our care have been released through compassionate release.  Of those, we initiated the motions for compassionate release for 9 of those individuals, while 207 received a compassionate release after a defense motion.  Requests for compassionate release receive close and individualized review based on extraordinary and compelling circumstances.

As part of the compassionate release review process, we collaborate closely with U.S. Attorneys’ Offices to determine if petitioning the sentencing court for compassionate release on behalf of an individual is warranted.  While we work to review and handle compassionate release requests accurately and efficiently, ultimately, compassionate release decisions rest with the sentencing courts.  We have considered and will be prepared to comply with the U.S. Sentencing Commission’s proposed amendments to compassionate release as they relate to individuals who are victims of sexual assault while in our custody, which will take effect in November 2023.

Home Confinement. To ensure public safety and effective reentry with the home confinement provision authorized under the FSA, we rely on our Residential Reentry Centers.  Those contractors work diligently to create a personalized reentry process, including individual-specific employment guidance, financial management advice, and more. This approach equips individuals with tools for a responsible and successful transition back into their communities.

During the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security (CARES) Act enabled many individuals in Bureau facilities to be placed in home confinement for health and safety. We tracked the individuals under our care whom we moved into home confinement.  From March 2020 through June 24, 2023, we transferred approximately 13,666 individuals into home confinement through the CARES Act, with the vast majority of those individuals completing their sentence in home confinement without returning to an institution.  Although the specific authority for new CARES Act home confinement placements has ended, those already placed remain in their placements.  As of August 31, 2023, approximately 3,374 individuals remain in home confinement in accordance with applicable rules.  The vast majority 9  of those placed on home confinement have complied with program rules, and less than 0.05% have been returned to custody for committing new crimes.

UPDATE: This AP article reporting on the hearing is headlined "Senators clash with US prisons chief over transparency, seek fixes for problem-plagued agency."

September 13, 2023 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Tuesday, September 12, 2023

CCJ publishes big new data resource, "The Footprint," which seeks to track the size of America's criminal justice system

The Council of Criminal Justice (CCJ) today published this notable new data resource titled "The Footprint: Tracking the Size of America's Criminal Justice System."  Here is how the resource introduces the data it covers on its landing page:

The overall size, or “footprint,” of the American criminal justice system remains well above historical levels, but it has shrunk substantially in recent years.  This series of interactive charts summarizes trends in crime, arrests, and correctional control (incarceration and community supervision), comparing current levels with their most recent peaks or valleys.  Time periods vary due to data availability, and where reliable data are available, trends in race and sex are also presented.

COVID-19 resulted in significant changes in crime patterns and the operations of law enforcement agencies, courts, correctional agencies, and paroling authorities.  Because of the unique influence of the pandemic across the system, analyses also examine the early effects of the pandemic on crime, arrests, and correctional control.

The first section provides a high-level overview of crime, arrest, and incarceration trends in recent decades. The following sections take a closer look at trends in each area, broken down by age, crime type, race, and sex.

The data assembled here, which provides historical national data trends based on already reported public data, are great to have in one place. Sentencing fans may be especially interested in the data trends regarding probation, parole, jails, state prisons and federal prisons, but all the data is really fascinating in all sorts of particulars.

September 12, 2023 in Data on sentencing, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (22)

Monday, September 11, 2023

New PPI briefing argues housing "is one of our best tools for ending mass incarceration"

Brian Nam-Sonenstein writing for the Prison Policy Initiative has this new briefing developing the case for the claim that ending homelessness can help reduce incarceration.  The briefing has this full title: "Seeking shelter from mass incarceration: Fighting criminalization with Housing First; Providing unconditional housing with embedded services can reduce chronic homelessness, reduce incarceration, and improve quality of life – especially for people experiencing substance use disorder and mental illness."  And here is how the briefing gets started (with links from the original): 

Housing is one of our best tools for ending mass incarceration. It does more than put a roof over people’s heads; housing gives people the space and stability necessary to receive care, escape crises, and improve their quality of life. For this reason, giving people housing can help interrupt a major pathway to prison created by the criminalization of mental illness, substance use disorder, and homelessness.

For this briefing, we examined over 50 studies and reports, covering decades of research on housing, health, and incarceration, to pull together the best evidence that ending housing insecurity is foundational to reducing jail and prison populations. Building on our work detailing how jails are (mis)used to manage medical and economic problems and homelessness among formerly incarcerated people, we show that taking care of this most basic need can have significant positive downstream effects for public health and safety.

September 11, 2023 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (7)

Thursday, August 31, 2023

"Extraordinary Punishment: Conditions of Confinement and Compassionate Release"

The title of of this post is the title of this notable new article authored by Meredith Esser and now available via SSRN.  Here is its abstract:

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills.  But civil rights litigation under the Eighth Amendment — the most common vehicle through which people seek to redress these harms — presents significant practical and doctrinal barriers to incarcerated plaintiffs.  Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials.  Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering.  For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.

At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied.  However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.

In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment.  These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences.  Given the challenge of redressing harms under the Eighth Amendment, this Article argues that the expansion of compassionate release ECRs to encompass harmful conditions of confinement makes doctrinal sense and allows for a more appropriate remedy to harms done in prison than traditional civil remedies.

August 31, 2023 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 30, 2023

Notable (and notably little) early coverage of USSC's decision to make new criminal history rules retroactive

As noted in this post, last week the US Sentencing Commission voted to make its new criminal history amendments retroactive.  According to the USSC's calculations, this decision will enable roughly 18,500 federal prisoners to obtain reduced sentence (and may lead to tens of thousands of additional federal prisoners to seek a reduction.  And yet, this big and impactful federal sentencing development has seemingly received almost no significant attention in the media or anywhere else that I have seen. 

Specifically, I have only seen two media pieces on the decision:

From Law360, "Sentencing Commission Backs Retroactive Cuts For 1st Timers"

From Forbes, "Sentencing Commission OKs Retroactive Reduction For Many Inmates"

Helpfully, Thomas Root over at LISA Foundation has a pair of posts providing some more coverage and context: 

I suspect that there may be considerable additional public and private discussions of the USSC's consequential actions among various criminal justice insiders, but I am still somewhat surprised that major action by the leading federal sentencing agency has not generated broader discussion.  Of course, the USSC's actions do not allow reduced sentences and federal prisoner releases to become effective until February 2024, so maybe the absence of an immediate impact is a small part of this story.  (But, notably, there is news of a kind of delayed/uncertain action coming from another federal agency today (basics here) that seems certain to generate nearly endless attention.)

August 30, 2023 in Federal Sentencing Guidelines, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, August 25, 2023

"State Constitutional Prohibitions of Slavery and Involuntary Servitude"

The title of this post is the title of this new article authored by Michael L. Smith and now available via SSRN. Here is its abstract:

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes.  Recent criticism draws on concerns over mass incarceration and expansive forced labor practices — urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, states have begun to take matters into their own hands.  Many state constitutions contain provisions prohibiting slavery and involuntary servitude, yet most of these provisions include similar language permitting involuntary servitude to be imposed as punishment for crimes. Starting in 2018, seven states amended their constitution to remove the punishment exemptions — creating a meaningful difference between the scope of state constitutional protection and the limited protection afforded by the Thirteenth Amendment.

This Article examines state-level constitutional prohibitions of slavery and involuntary servitude, and recent trends toward eliminating punishment clause language from these provisions.  Several recent amendments fall short of meaningful reform by adding additional qualifications that undo any substantive changes these amendments may have made.  Other provisions are limited by other state constitutional requirements that mandate forced labor practices. Despite these shortcomings, Alabama, Colorado, and Nebraska’s constitutions now contain unequivocal bans on slavery and involuntary servitude — provisions that may lend meaningful support to challenges of forced labor regimes.  The Article ends by encouraging other states to take up similar amendments, and urges those pursuing mass incarceration reforms to take note of state constitutional provisions.

August 25, 2023 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, August 23, 2023

"#MeToo in Prison"

The title of this post is the title of this new article now on SSRN authored by Jenny-Brooke Condon.  Here is its abstract:

For American women and nonbinary people held in women’s prisons, sexual violence by state actors is, and has always been, part of imprisonment.  For centuries within American women’s prisons, state actors have assaulted, traumatized, and subordinated the vulnerable people held there. Twenty years after passage of the Prison Rape Elimination Act (PREA), women who are incarcerated still face shocking levels of sexual abuse, harassment, and violence notwithstanding the law and policies that purport to address this harm. These conditions often persist despite officer firings, criminal prosecutions, and civil liability, and remain prevalent even during a #MeToo era that beckons greater intolerance for sexual harassment and abuse outside of prison.  Just as #MeToo helped expose the systemic gender injustice that sustains abuse in the workplace and other areas of public life, the intractability of the sexual abuse crisis for incarcerated women demands recognition of the inequality and power imbalance at its root.

PREA and reform discourse treats this harm, however, as an unwanted byproduct of an otherwise constitutional system of criminal justice.  And the treatment of people in women’s prisons remains largely an afterthought in the response to the broader carceral sexual violence crisis.  Those responses treat prison sexual abuse as a “conditions” problem capable of being remedied, no matter how persistent and endemic.  This Article rejects that prevailing account and describes the ways in which women’s prisons create and exploit gender subordination resulting in more sexual violence and gender-based harm.  As traced in this Article, Edna Mahan Prison in New Jersey serves as a dramatic example of the sordid history of women’s prisons in the United States.  At one time, the facility operated as women-led radical prison without bars and locks. But once it operated like a traditional prison, sexual abuse plagued the facility for decades.  New Jersey’s Governor announced plans to finally shutter the prison in 2020 after a sexual abuse crisis dominated headlines—the final blow to the progressive vision of its former reform-minded supervisor and namesake.

Women’s experiences are often ignored in conversations about mass incarceration even though women are the fastest-growing segment of the incarcerated population and experience the highest rates of prison sexual violence as a group.  The harm inflicted in women’s prisons differs from the crisis affecting men in that incarcerated women experience sexual abuse nearly exclusively at the hands of male correctional officers and staff.  It thus mirrors the gender subordinating nature of sexual abuse and violence in the world outside of prisons even while it also thrives on the power dynamics constructed by prisons.  This Article foregrounds those often overlooked concerns and identifies lessons from #MeToo that are necessary to end these sites of gender-based harm.

August 23, 2023 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (21)

Tuesday, August 22, 2023

Noting the notable death toll in hot Texas prisons this summer

This new Texas Tribune article discussing the considerable number of persons who have died in Texas prisons this summer.  Here are excertps:

At least 41 people have died in stifling, uncooled prisons of either heart-related or unknown causes during Texas’ relentless and record-breaking heat wave this summer, according to a Texas Tribune analysis.

Relatives of those who died and prison rights advocates insist at least some of those deaths were caused by the heat. More than a dozen of the prisoners were in their 20s or 30s, with at least four people 35 and under reportedly dying of cardiac arrest or heart failure. The Texas Department of Criminal Justice says no prisoner has died from the brutal heat in its facilities since 2012, around the time the agency began being bombarded with wrongful death and civil rights lawsuits over the heat.

On Monday, Democrats on the U.S. House Committee on Oversight and Accountability implored Republican Chair James Comer to launch an investigation into conditions at prisons enduring sweltering temperatures, especially in Texas.  The request follows the Republican committee members’ investigation into conditions for defendants jailed on charges related to the Jan. 6, 2021, insurrection at the U.S. Capitol....

More than two-thirds of Texas’ 100 prisons don’t have air conditioning in most living areas inside the concrete and steel buildings where officers and prisoners work and live. With little to no ventilation and temperatures routinely soaring into the triple digits outside, the thermometer reading often rises even higher inside the prisons.

Since June, at least a dozen prisoners have died from reported cardiac arrest or heart failure in uncooled prisons on days when the regions’ outdoor heat indices were above 100 degrees, according to a Texas Tribune analysis of prison death reports and weather data. At least another 29 have died of what are still unknown causes pending autopsy results. The death count is likely higher, as prisons have 30 days to report a prisoner’s death to the state.

August 22, 2023 in Prisons and prisoners | Permalink | Comments (8)

Monday, August 21, 2023

Recapping some recent notable reports on prison realities and more from the Prison Policy Initiative

I recently received a helpful review of just some of the remarkable materials and data assembled by the Prison Policy Initiative on an array of prison- and punishment-related topics.  I am pretty sure I have blogged about some or even most of these reports, but I thought it still helpful to reprint here links to the reports and the brief summaries sent my way:

August 21, 2023 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)