Friday, May 13, 2022

Federal prison population up a lot more than another 1,500 persons in a little more than a month

Regular readers are now used to my regular monthly posts about the federal prison population based on Bureau of Prison data.  These posts of late have regularly noted significant and steady population growth in recent months  In this post on March 18, I noted that the federal prison population had grown by over 1,100 persons in just four weeks from mid February and mid March.  And this post on April 8 noted that it then took only three weeks for another 1000+ person surge of federal prisoners between mid March and early April. 

The federal Bureau of Prisons now has updated reporting of "Total Federal Inmates" as of May 12, 2022, and these basic growth trends are continuing.  As of April 7, 2022, the official BOP count was at 155,274, but now as of May 12, the total number of federal inmates is at 156,939.  So, in just the last five weeks, there has been another 1,655 more federal prisoners added to the population compared to the total in early April.  If this pace of federal prison growth continues in coming months, it is quite possible that 2022 could experience a level of federal incarceration growth we have not seen in decades. 

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."   To his credit, since my last posting on prison population, Prez Biden did grant 75 commutation to federal inmates (most of whom were already serving their time on home confinement).  But a one-time grant of 75 clemencies necessarily looks somewhat paltry in the face of week-over-week-over-week-over-week federal prison population growth averaging more than 300 persons.

May 13, 2022 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 12, 2022

New Sentencing Project fact sheet highlights rise (and recent declines) in the incarceration of women and girls

The folks at The Sentencing Project have assembled some fascinating data on the number of incarcerated women at this site and in this fact sheet. Here is part of their description of the fact sheet:

Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020.  The total count in 2020 represents a 30% reduction from the prior year — a substantial but insufficient downsizing in response to the COVID-19 pandemic, which some states began to reverse in 2021.

Research on female incarceration is critical to understanding the full consequences of mass incarceration and to unraveling the policies and practices that lead to their criminalization. The number of incarcerated women was nearly five times higher in 2020 than in 1980.

Incarcerated Women and Girls examines female incarceration trends and finds areas of both concern and hope.  While the imprisonment rate for African American women was nearly twice that of white women in 2020, this disparity represents a sharp decline from 2000 when Black women were six times as likely to be imprisoned.  Since then Black women’s imprisonment rate has decreased by 68% while white women’s rate has increased by 12%.

Similar to adults, girls of color are more likely to be incarcerated than white girls.  Tribal girls are more than four times as likely, and African American girls are more than three times as likely as white girls to be incarcerated.

All the data in the fact sheet are fascinating, and these particular data points really caught my attention:

May 12, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, May 10, 2022

FAMM urges feds to seek sentence reductions for all incarcerated persons subject to sexual abuse at Dublin FCI

As detailed in this local article from a few months ago, numerous staffers at the federal prison in California have been criminally charged with sexually abusing numerous incarcerated women.  (As press pieces have noted, Dublin FCI "had become known by the nickname 'Rape Club' due to rampant sexual abuse" with dozens of employees investigated for wrong-doing.)  Brining a sentencing angle to this sad story, yesterday FAMM sent this letter to Deputy Attorney General Lisa Monaco urging "the BOP to seek, and U.S. Attorneys to file, reduction of sentence motions for every woman whose allegations have been found credible."

I recommend the two-page FAMM letter in full, and here is an excerpt:

The Bureau of Prisons can refer compassionate release motions to the U.S. Attorney for filing when it finds extraordinary and compelling reasons warrant a reduction in sentence. While the policy statement describing extraordinary and compelling reasons does not include sexual abuse by corrections officials, it does provide the BOP the power to identify “other reasons,” that alone or in combination with recognized criteria merit compassionate release.

Sexual assault by BOP personnel of incarcerated women is an exceptional abuse of trust.  The trauma resulting from such victimization is without doubt an extraordinary and compelling reason justifying consideration for compassionate release. None of the victims was sentenced to endure such violence. It has made their incarceration degrading and terrifying.  The victims could not protect themselves or flee their abusers.  Many struggle to speak about their experience for fear of retaliation.  Sexual abuse survivors bear the emotional scars of their violation for years. Mental health care in the federal system is inadequate to help them begin to heal....

A motion filed by the U.S. Attorney on behalf of the Bureau of Prisons is the best opportunity to secure emotional and physical safety for women who endured sexual abuse by BOP personnel.  A Department-sanctioned motion carries the weight of the Department’s imprimatur, something a defendant-filed motion does not.  But, more than that, a motion filed by the United States would convey the gravity of the harm these women endured and signal your commitment to make it right.

May 10, 2022 in Prisons and prisoners, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Saturday, May 07, 2022

"Prisons and jails will separate millions of mothers from their children in 2022"

The title of this post is the title of this briefing by Prison Policy Initiative authored by Wendy Sawyer and Wanda Bertram and published in time for Mother's Day.  Here is how it gets started:

This Mother’s Day — as the COVID-19 pandemic continues to put people behind bars at risk — nearly 150,000 incarcerated mothers will spend the day apart from their children.  Over half (58%) of all women in U.S. prisons are mothers, as are 80% of women in jails, including many who are incarcerated awaiting trial simply because they can’t afford bail.

Most of these women are incarcerated for drug and property offenses, often stemming from poverty and/or substance use disorders.  Most are also the primary caretakers of their children, meaning that punishing them with incarceration tears their children away from a vital source of support.  And these numbers don’t cover the many women preparing to become mothers while locked up this year: An estimated 58,000 people every year are pregnant when they enter local jails or prisons.

150,000 mothers separated from their children this Mother’s Day is atrocious in and of itself — but that’s just one day.  How many people in the U.S. have experienced separation from their mothers due to incarceration over the years?  Unfortunately, these specific data are not collected, but we calculated some rough estimates based on other research to attempt to answer this question:

  • Roughly 570,000 women living in the U.S. had ever been separated from their minor children by a period of imprisonment as of 2010.
  • An estimated 1.3 million people living in the U.S. had been separated from their mothers before their 18th birthdays due to their mothers’ imprisonment, also as of 2010.

May 7, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, May 04, 2022

"Damned if you do, damned if you don't: How formerly incarcerated men navigate the labor market with prison credentials"

The title of this post is the title of this recent article published in Criminology authored by Sadé L. Lindsay.  Here is its abstract:

Although employment is central to successful reentry, formerly incarcerated people struggle to find work because of criminal stigma, poor education, and sparse work histories. Prison credentials are proposed as one solution to alleviate these challenges by signaling criminal desistance and employability.  Evidence regarding their efficacy, however, is inconsistent.  In this article, I develop a novel explanation — the prison credential dilemma — highlighting the numerous and contradictory ways employers may interpret prison credentials as positive and negative signals.

Drawing on 50 qualitative interviews with formerly incarcerated men in Franklin County, Ohio, I examine how the prison credential dilemma and the uncertainty it produces shape their job search strategies and pathways to employment.  I find that participants concealed or obscured institutional affiliations of prison credentials on job applications to signal employability rather than their criminal records.  In job interviews, however, prison credentials were used to divert conversations away from their criminal record toward skills and criminal desistance via the use of redemptive narratives.  Participants also attempted to acquire credentials outside of prison and/or pursued temporary, precarious jobs, aspiring for such physically strenuous and poorly paid work to materialize into stable employment.  This study has implications for prison programming as well as policies and practices aiming to improve reentry outcomes.

May 4, 2022 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Tuesday, April 19, 2022

Justice Department tweaking prison PATTERN risk tool "to ensure that racial disparities are reduced to the greatest extent possible"

This new NPR piece, headlined "Justice Department works to curb racial bias in deciding who's released from prison," reports on the latest steps being taken to tweak the operation of the FIRST STEP Act.  Here  are the details:

The Justice Department is moving to reduce racial disparities in a tool it uses to assess a prisoner's risk of a return to crime, after scholars and justice advocates pressed for change. Among other steps, it plans to make tweaks that would significantly increase the number of Black and Hispanic men in prison who are eligible to take educational classes or work-life programs that could lead to an earlier release.

But the tool, known as Pattern, continues to overestimate the number of Black women who will engage in recidivism, compared to white women in prison.  And in its latest effort to overhaul the troubled risk assessment algorithm, the Justice Department said it is still unable to resolve other racial disparities. The department outlined the new developments in a report sent to Congress on Tuesday and obtained by NPR, pledging that it would continue to work "to ensure that racial disparities are reduced to the greatest extent possible."

"When using factors with criminal history, prison discipline, and education, the tool is almost inevitably going to have disparities — unless they correct for systemic biases in policing, prosecution, corrections, and education," said Melissa Hamilton, a law professor at the University of Surrey who has closely followed the process.

NPR dissected problems with Pattern in a report earlier this year. It uncovered sloppy math mistakes and other flaws that put thousands of prisoners in the wrong risk category and treated them differently in part because of their ethnic backgrounds. The Justice Department will roll out the new version of Pattern early next month, which it said "will neither exacerbate nor solve these racial bias issues." But the department said it was making other adjustments that could translate into a real difference for people of color in prison.

A law called the First Step Act that passed with bipartisan majorities during the Trump administration offers people in prison a path to early release, by earning time credits for performing work and taking educational classes behind bars. Only low and minimum risk prisoners are eligible for those programs, so how the Bureau of Prisons assesses risk has major consequences for their lives and their release plans.

In its new report, DOJ said it would make no changes to how it evaluates violent recidivism risks, saying that measure provided an essential check for "public safety." Instead, the department shifted the boundaries between other risk levels for its general recidivism algorithm. DOJ estimated that 36 percent more Black men and 26 percent more Hispanic men might now qualify as minimum or low risk, with smaller increases for Black and Hispanic women in prison.

UPDATE: I am pretty sure the report referenced in this NPR piece is this one just released by the Justice Department titled simply "First Step Act Annual Report."  As stated at the start of the executive summary: "This Report reflects the ongoing efforts of the Department of Justice (the Department) to make the goals of the First Step Act a reality and summarizes the Department’s activities in that respect during the period since the publication of the last annual Report, in December 2020."

April 19, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Wednesday, April 13, 2022

Prison Policy Initiative releases new report providing a "deep dive into state prison populations"

As detailed in this press release, today the "the Prison Policy Initiative published Beyond the Count, a report that examines the most recent and comprehensive demographic data about people in state prisons and provides a groundbreaking view of the lives of incarcerated people before they were locked up."  Here is more about the report from the press release:

The report analyzes data from the Bureau of Justice Statistics’ “Survey of Prison Inmates,” collected in 2016 and released in late 2020.  The data show what many in the criminal justice reform movement already know: that the U.S. criminal justice system today locks up the least powerful people in society.  Key takeaways include:

  • Many, if not most, people in prison grew up struggling financially. 42% of survey respondents said their family received public assistance before they were 18. Respondents also reported uncommonly high levels of homelessness, foster care, and living in public housing before the age of 18.

  • Most individuals in state prisons report that their first arrest happened when they were children. 38 percent of the people BJS surveyed reported a first arrest before age 16, and 68% reported a first arrest before age 19. The average survey respondent had been arrested over 9 times in their life.

  • The typical person in state prison is 39 years old and has a 10th grade education, a fact that is most likely linked to youth confinement, which disrupts a young person’s life and schooling.

  • Half (49%) of people in state prisons meet the criteria for substance use disorder (SUD), and 65% were using an illicit substance in the immediate lead-up to their incarceration, suggesting that many people who are not locked up for drug offenses are still victims of our country’s choice to criminalize substance use rather than treat it as a health issue.

The Prison Policy Initiative’s report includes more than 20 detailed data tables that allow readers to better understand the people who are in state prisons and the challenges they have faced in their lives.  Beyond the Count also includes a section diving into the data on the race, age, gender identity, and sexual orientation of people in state prisons, explaining that a disproportionate number of incarcerated people are racial minorities, very young or very old, or LGBTQ.  Many of the key demographic findings in Beyond the Count (such as incarcerated people’s age at first arrest) are also broken down by race or gender.  While the data in this report is about people in state prisons, it does not allow statistics to be broken out for individual states.

April 13, 2022 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, April 12, 2022

Reviewing the application of Miller and juvenile LWOP in the federal system

This AP story, headlined "Juvenile lifer seeks reprieve amid broader push for leniency," focuses on one high-profile juvenile lifer case while also discussing some of the other realities of juve LWOP in the federal system since the Supreme Court's major Eighth Amendment ruling in Miller v. Alabama a decade ago.  Here are some excerpts from a lengthy piece worth reading in full:

Shortly after Riley Briones Jr. arrived in federal prison, he cut his long, braided hair in a symbolic death of his old self. As a leader of a violent gang and just shy of 18, Briones drove the getaway car in a robbery turned deadly on the Salt River-Pima Maricopa Indian Community outside Phoenix in 1994. He was convicted of murder and given a mandatory sentence of life without parole.

In prison, he has been baptized a Christian, ministers to other inmates who call him Brother Briones, got his GED and has a spotless disciplinary record, his attorneys say in their latest bid to get the now 45-year-old’s sentence cut short. “He’s clearly on the side of the line where he should be walking free,” said his attorney, Easha Anand.

The U.S. Supreme Court opened the door for that possibility with a 2012 ruling that said only the rare, irredeemable juvenile offender should serve life in prison. Over the past decade, most of the 39 defendants in federal cases who received that sentence have gotten a reprieve and are serving far fewer years behind bars. Meanwhile, more than 60 legal experts and scholars have asked the federal government to cap sentences for juvenile offenders at 30 years, create a committee to review life sentences in the future and reconsider its stance in Briones’ case.

But the move toward greater leniency has been gradual and not without resistance. Briones is among those whose life sentences have been upheld in recent years, though he still has another chance. Prosecutors in his case have opposed a reduced term. They argue despite Briones’ improvements, he minimized his role in the gang and its crimes that terrorized Salt River amid an explosion of gang violence on Native American reservations in the 1990s....

Briones’ case became eligible for resentencing after the Supreme Court’s 2012 decision in Miller v. Alabama.  It was part of a series of cases in which the court found minors should be treated differently from adults, partly because of a lack of maturity.  The court previously eliminated the death penalty for juveniles and barred life-without-parole sentences for juveniles except in cases of murder.  A handful of the defendants in the 39 federal cases — most of whom are minorities — have been released from prison.

The Feb. 17 letter seeking reform from the Justice Department pointed to statistics that show the median sentence for adults convicted of murder in the federal system is 20 years — nearly half the median for the juvenile offenders.  “Taking a life is really, really serious, and I don’t belittle that at all,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center, one of the signatories.  “But a full life in prison when you’re a juvenile and you’re talking about 40, 50, 60 years in prison is exceedingly excessive probably in almost every case and not consistent with typical sentences for homicides, even adults.”...

The California-based Criminal Justice Legal Foundation, a victims rights group, said changes in the law that continually allow juvenile offenders to get another shot at freedom are damaging for the families, communities and the criminal justice system. “Some of these crimes are just very horrible, and the impacts on the families are substantial, and they never go away,” said the group’s president, Michael Rushford.

The Campaign for the Fair Sentencing of Youth has long argued the changes a person makes once they’ve entered prison should matter, and juveniles offenders should be able to live as adults outside prison walls.  “If the facts of the crime are always going to be the overpowering force, then Miller isn’t going to be meaningfully interpreted to outweigh all this positive growth,” said Rebecca Turner, who tracks the federal cases for the group.

The federal court in Arizona has resentenced more of the juvenile offenders to life in prison than any other state. Texas has two juvenile offenders who are serving life but weren’t able to be resentenced because of how courts interpreted Miller v. Alabama. South Carolina resentenced one inmate to life.  All three federal cases in Arizona were from Native American reservations, where the federal government has jurisdiction when the suspect, victim or both are Native American for a set of major crimes, including homicide. The penalties, in general, are stricter than if the crimes happened off the reservation and the cases ended up in state court.

April 12, 2022 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)

Sunday, April 10, 2022

"Transgender Rights & the Eighth Amendment"

The title of this post is the title of this recent article authored by Jennifer Levi and Kevin Barry and just posted to SSRN.  Here is its abstract:

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law.  The treatment of incarcerated transgender people is no exception.  Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex.  But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019 — the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person.  Other state departments of corrections will surely follow, as they must under the Eighth Amendment.  These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy.  But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

April 10, 2022 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (2)

Friday, April 08, 2022

A new normal?: federal prison population now growing by over 1000 persons for multiple months

In this post on March 18, I noted that the federal prison population had grown by over 1100 persons in just four weeks from mid February and mid March.  Specifically, "Total Federal Inmates," on March 17, 2022 stood at 154,194, nearly 1150 more prisoners than the total number of federal inmates on February 17, 2022, when the number stood at of 153,053.  It is now early April, and checking in at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," one now sees that it has only taken three weeks for another 1000+ person surge of federal prisoners.  As of April 7, 2022, the official BOP count reads at 155,274, and so another 1080 more federal prisoners have been added to the population compared to the total on March 17.

As I have said before, I am inclined to guess that this recent spike in the number of federal prisoners reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and fewer COVID-related releases).  But, whatever the particulars, if this level of month-over-month growth in the federal prison population were to continue through much of the current year, 2022 could end up becoming a year for historically high increases in the federal prison population.  Such a development (especially after 2021 being a year of notable federal prison population growth) would be particularly significant given that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes." 

April 8, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (15)

Sunday, April 03, 2022

Another round of highlights from among many great new Inquest essays

It has now been a few months since my last blog posting highlighting piece from Inquest, "a decarceral brainstorm," but that is not a reflection of that site lacking lots of new must-read essays.  Indeed, there is so much new and important content, I am not sure how anyone can keep up.  For now, here I will spotlight a handful of the many recent pieces worth checking out (with, of course, an emphasis on sentencing and corrections topics):

From Piper Kerman, "Burn the Spot: Writing about people you encounter in prison carries special responsibilities."

From Matthew Caldwell, "The End of Public Defenders: One path to ending mass incarceration is ending our modern conception of public defense. And being transparent about our work is one way to start."

From Caits Meissner, "Finishing Sentences: Writing about the harms of the penal system from within it is a form of freedom-fighting. It is not without risks — and many rewards."

From Ariel Nelson & Stephen Raher, "Captive Consumers: How government agencies and private companies trap and profit off incarcerated people and their loved ones."

April 3, 2022 in Prisons and prisoners, Recommended reading, Who Sentences | Permalink | Comments (0)

Saturday, April 02, 2022

"The Trouble with Time Served"

The title of this post is the title of this new article recently posted to SSRN and authored by Kimberly Kessler Ferzan. Here is its abstract:

Every jurisdiction in the United States gives criminal defendants “credit” against their sentence for the time they spend detained pretrial.  In a world of mass incarceration and overcriminalization that disproportionately impacts people of color, this practice appears to be a welcome mechanism for mercy and justice.  In fact, however, crediting detainees for time served is perverse.  It harms the innocent.  A defendant who is found not guilty, or whose case is dismissed, gets nothing.  Crediting time served also allows the state to avoid internalizing the full costs of pretrial detention, thereby making overinclusive detention standards less expensive.  Finally, crediting time served links prevention with punishment, retroactively justifying punitive, substandard conditions.  The bottom line is this: Time served is not a panacea.  To the contrary, it contributes to criminal justice pathologies.

This Article systematically details the rationales for pretrial detention and then analyzes when, given those rationales, credit for time served is warranted.  The analysis reveals that crediting time served is a destructive practice on egalitarian, economic, expressive, and retributive grounds.  Time served should be abandoned.  Detainees should be financially compensated instead.  Given that many detentions are premised upon a theory similar to a Fifth Amendment taking, compensation is warranted for all defendants — both the innocent and the guilty — and can lead to positive reforms.  Only by abandoning credit for time served can the link between prevention and punishment be severed, such that detention will be more limited and more humane.

April 2, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3)

Thursday, March 31, 2022

BJS releases new report on "Correctional Populations in the United States, 2020 – Statistical Tables"

I just noticed that last week the Bureau of Justice Statistics released a new accounting of correctional populations in this document titled ""Correctional Populations in the United States, 2020 – Statistical Tables." The first page of the 14-page document provides this overview and "highlights":

At yearend 2020, an estimated 5,500,600 persons were under the supervision of adult correctional systems in the United States, 11% fewer than at the same time the previous year.  This was the first time since 1996 that the total correctional population dropped to less than 5.6 million.  About 1 in 47 adult U.S. residents (2.1%) were under some form of correctional supervision at the end of 2020, a decrease from 1 in 40 (2.5%) at the end of 2019.  This report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails. 

  • About 7 in 10 persons under correctional supervision were supervised in the community (3,890,400) at yearend 2020, while about 3 in 10 (1,691,600) were incarcerated in a state or federal prison or local jail.
  • The decline in the correctional population during 2020 was due to decreases in both the community supervision population (down 276,700 or 6.6%) and the incarcerated population (down 294,400 or 18.9%).
  • From 2010 to 2020, the correctional population decreased 22.4% (down 1,588,400 persons).
  • From 2010 to 2020, the decrease in the probation population accounted for 63.1% of the total decline in the correctional population.
  • Among persons under community supervision at yearend 2020, the majority were on probation (3,053,700), while a smaller portion were on parole (862,100).
  • During the past decade, the parole population was the only segment of the correctional population to increase, growing from 11.9% of those under correctional supervision in 2010 to 15.7% in 2020.
  • At yearend 2020, about 2,140 per 100,000 adult U.S. residents were under correctional supervision.
  • The incarceration rate dropped each year during the last decade, from 960 per 100,000 adult U.S. residents at yearend 2010 to 660 per 100,000 at yearend 2020.

March 31, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners | Permalink | Comments (4)

Wednesday, March 30, 2022

New report claims many successes attributable to Proposition 47's sentencing reductions in California

The Center for Juvenile and Criminal Justice has this notable new report on developments in California titled "Proposition 47: A $600 Million Lifeline to California Communities." Here is the 10-page report's introduction (with cites preserved):

Proposition 47 (Prop 47), one of the most significant criminal justice reforms in California history, has now been in effect for more than seven years.  The initiative, which passed with nearly 60 percent of the vote in 2014, sought to interrupt cycles of frequent incarceration and redress decades of overly punitive sentencing by reclassifying several low-level drug and property offenses from potential felonies to misdemeanors (SOS, 2014; 2014a).  The result has been a marked decline in California’s incarcerated population (Bird et al., 2016; 2018; Graves, 2020).

A key provision of Prop 47 was the reinvestment of state dollars from prisons into community-based prevention programs.  This year, as part of his Fiscal Year (FY) 2022-23 budget proposal, Governor Gavin Newsom announced an additional $150 million in prison savings attributed to Prop 47 (DOF, 2022).  This latest investment would increase total funding to nearly $600 million.

Proposition 47 has been a lifeline to vulnerable Californians. This support has proved critical as California now faces an unprecedented set of challenges.  These include significant disruption and loss of life due to COVID-19, a reckoning over police violence against people of color, sharp increases in the cost of living, and rising rates of homelessness and drug overdose.  Most recently, there are changing public narratives around crime and the impacts of justice reform.  To date, Prop 47 has:

1. Coincided with a period of record-low crime in California (CJCJ, 2020; 2020a; 2021; 2021a).

2. Reduced unconstitutional overcrowding in state prisons (Graves, 2020).

3. Offered resentencing, release, and/or record change opportunities to thousands of Californians.

4. Lessened racial disparities in California’s criminal justice system (Lofstrom et al., 2020).

5. Reinvested more than half a billion dollars into local programs that address the root causes of incarceration for as many as 40,000 people by reducing homelessness and boosting employment.

March 30, 2022 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

"Free-World Law Behind Bars"

The title of this post is the title of this new article authored by Aaron Littman just published in the Yal Law Journal.  Here is its abstract:

What law governs American prisons and jails, and what does it matter?  This Article offers new answers to both questions.

To many scholars and advocates, “prison law” means the constitutional limits that the Eighth Amendment and Due Process Clauses impose on permissible punishment.  Yet, as I show, “free-world” regulatory law also shapes incarceration, determining the safety of the food imprisoned people eat, the credentials of their health-care providers, the costs of communicating with their family members, and whether they are exposed to wildfire smoke or rising floodwaters.

Unfortunately, regulatory law’s protections often recede at the prison gate.  Sanitation inspectors visit correctional kitchens, find coolers smeared with blood and sinks without soap — and give passing grades.  Medical licensure boards permit suspended doctors to practice — but only on incarcerated people.  Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor.

But were it robustly applied, I argue, free-world regulatory law would have a lot to offer those challenging carceral conditions that constitutional prison law lacks.  Whether you think that criminal-justice policy’s problem is its lack of empirical grounding or you want to shift power and resources from systems of punishment to systems of care, I contend that you should take a close look at free-world regulatory law behind bars, and work to strengthen it.

March 30, 2022 in Prisons and prisoners | Permalink | Comments (2)

Monday, March 28, 2022

"Decarceration’s Inside Partners"

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

This Article examines a hidden phenomenon in criminal punishment.  People in prison, during their incarceration, have made important, sometimes extraordinary, strides toward reducing prison populations.  In fact, stakeholders in many corners, from policymakers to researchers to abolitionists, have harnessed the legal and conceptual strategies generated inside the walls to pursue decarceral strategies outside the walls that were once considered impossible.  Despite this outside use of inside moves, legal scholars and reform-minded actors have disregarded the potential of looking to people on the inside as partners in the long-term project of decarceration.

Building on the change-making agency and revolutionary ideation inside the walls, this Article points the way to a new, alternative approach to decarceration: thinking alongside people banished from the polity.  Criminal law scholars routinely recount their stories but rarely do we consider people held in prison as thought leaders, let alone equal partners, to progress toward a noncarceral state.  Despite conducting extensive research on prisons and those held inside them, legal scholars know — and wonder — tremendously little about the decarceral work, decarceral ideas and “think tanks” that surge behind bars.  The absence of our curiosity reflects and reproduces the ideological work of carceral punishment.

This Article demonstrates that an alternative vision of decarceration that resists this ideological work opens up more promising paths to create the legal and social change that our current moment demands.  It calls on law scholars to find ways to discover, ignite and emancipate more decarceral visions on the inside.  And it argues that, unless we make this challenging shift, we suppress innovative, effective and more conceivable possibilities to radically transform our carceral state.

March 28, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Varying perspectives on Illinois's new prosecutor-initiated resentencing law

A helpful colleague made sure I did not miss some notable recent stories about the implementation of Illinois's new prosecutor-initiated resentencing law (and some noable resistance thereto).  Here are headlines and links:

From Injustice Watch, "Man walks out of prison 28 years early — with the help of a prosecutor"

From the Chicago Sun-Times, "Judge questions constitutionality of resentencing law as prosecutors ask him to reconsider case of convicted burglar"

From the Chicago Tribune, "Questions remain as resentencing initiative championed by Kim Foxx is slow out of the gate in Cook County"

Here is the start of the Tribune piece that highlights just some of the terms of the Illinois resentencing debate:

Cook County prosecutors’ new effort to reduce sentences for some longtime inmates — hailed by State’s Attorney Kim Foxx and other reform advocates as a way to right the wrongs of the tough-on-crime era — will have an uphill climb before some judges, if its first week in court is any indication.

Associate Judge Stanley Sacks sat on the bench with a scowl Thursday as prosecutors presented their request to resentence Charles Miles, who was given a total of 25 years in two burglary cases. “I’ve been doing this for 30-plus years. I make up my own mind, not Gov. (J.B.) Pritzker, not Kimberly Foxx, either,” he said.

Miles is one of three people initially identified by prosecutors as a candidate for resentencing under a new state law allowing prosecutors to proactively request more lenient sentences for people, though the ultimate decision is still up to a judge.

On the bench Thursday, Sacks insisted he had not yet made any decisions about whether Miles deserved a new sentence and said he would not weigh in on the statute’s constitutionality.

But he could not disguise his contempt for the idea in general. He repeatedly questioned why Miles had a pro bono attorney in the courtroom if prosecutors were also advocating for his release, and wondered openly if he had jurisdiction to determine a new sentence. “It’s constitutional? Takes away the governor’s only right? What he does is resentence people through clemency,” Sacks said. “Isn’t that something for the governor to do?”

“That’s one avenue, but that’s mercy. There’s also justice,” said Assistant State’s Attorney Nancy Adduci, who explained the new law simply “re-vest(s) jurisdiction” back to the courts so a judge can consider a new sentence.

March 28, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (20)

Sunday, March 27, 2022

"Charging Time"

The title of this post is the title of this new paper now available via SSRN authored by Pamela Metzger and Janet Hoeffel. Here is its abstract:

On the day William Haymon turned 16, it was his 511th day in jail in Mississippi and a prosecutor had yet to formally charge him with a crime.  William is one of thousands of people across the country arrested and jailed for weeks, months, and even years without charges.  In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them.  Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for their incarceration, fear, lost wages, shame and distress. Yet this violates no laws; it circumvents no constitutional protections.

To date, there has been no study of the necessity of the extended time period between arrest and charging.  Until a prosecutor decides to accept or decline charges, the arrestee is in a procedural abyss.  In this Article, we explore the equities at stake and the realities at play in this dark period. State statutes give prosecutors extended or indefinite time periods to make the formal charging decision and prosecutors appear to take that time.

A recent original study reveals that prosecutors’ crushing caseloads, shoddy and inadequate investigative work by police officers, and a lack of training or written policies on charging contribute to the delay. From the detained defendants’ perspective, the consequences of delayed charging are steep.  Extended time in jail risks lives, health, jobs and case outcomes.  Yet we explain how neither the constitutional protections granted to criminal defendants nor statutory provisions provide any remedy at this uncharged stage.  After exposing this disturbing state of affairs, we offer practical, subconstitutional solutions to minimize needless delay in the charging decisions of prosecutors across the country.

March 27, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Friday, March 25, 2022

Prison Policy Initiative provides terrific accounting of COVID pandemic's early impact on prison and jail populations

Wendy Sawyer at the Prison Policy Initiative has authored this great new report that effectively explores the various forces that contributed to declining incarcerated populations in the early COVID period. The report, which merits a full and careful read, is fully titled "Untangling why prison & jail populations dropped early in the pandemic: Reductions in prison and jail populations were due to COVID-related slowdowns in the gears of the criminal legal system. Without intentional action, these reductions will be erased." Here is how it gets started (with links from the original):

Last week, we released the latest edition of our Mass Incarceration: The Whole Pie report, in which we showed about 1.9 million people locked up by various U.S. systems of confinement, according to the most recent data available.  Out of context, that number would be cause for celebration among those of us fighting to end mass incarceration: it’s almost 400,000 fewer people than were locked up before the pandemic.  Unfortunately, this reduction in the incarcerated population is unlikely to last very long without more lasting policy change.  In fact, fear-mongering about upticks in certain specific crimes may make this work even harder and lead to policy changes that make mass incarceration even more intractable.

It’s important, therefore, to understand what changes — intentional or not — led to the prison and jail population drops in 2020 and 2021. This briefing offers the context needed to temper expectations about sustaining those population drops and to maintain focus on the policy changes needed to permanently reduce the use of confinement. Without those needed changes, we can expect prison and jail populations to return to pre-pandemic “normal” (extreme by any other measure) as the criminal legal system returns to “business as usual.”

The changes that have had the most impact on incarceration since the start of the pandemic include:

  • 24% fewer arrests in 2020 compared to 2019, largely due to changes in everyday behaviors under widespread “stay at home orders,” as well as short-term guidance issued by some police departments to limit unnecessary contact and jail bookings;
  • 21% fewer criminal cases filed in state courts in 2020 compared to 2019 — the result of fewer arrests and changes in some prosecutorial practices;
  • 36% fewer criminal cases resolved in state courts from 2019 to 2020, attributable to court closures, operational changes, and delays in case processing;
  • A 17 percentage point net drop in criminal case clearance rates in state courts, indicating a growing backlog of pending cases;
  • 40% fewer admissions to state and federal prisons in 2020 compared to 2019, largely the result of court slowdowns but also partly due to the refusal of some prisons to accept transfers from local jails to prevent the spread of the virus.

March 25, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, March 23, 2022

Nebraska having a bad time sorting through how to apply good-time credits

I just came across this interesting recent local article from Nebraska, headlined "Prison officials wrote a bill to release prisoners earlier. They’re applying the law in a way that doesn’t." The story it tells is yet another reminder of the myriad challenges that can attend effectively reforming and effectively administering our sentencing and corrections systems. Here is part of the story:

In 2011, the Nebraska Department of Correctional Services wrote a bill that would allow well-behaved prisoners the chance to shorten their time behind bars.  Eleven years later, that same department is applying the resulting law in a way neither the state senator who sponsored the bill nor the then-director of Nebraska’s prisons intended.

Prison officials now shorten a prisoner’s final release date, but never change the day that prisoner becomes eligible for parole.  The result: Thousands of prisoners sentenced under the law have potentially stayed in prison days, weeks or months longer than the law’s authors intended.

The debate over semantics — namely, the meaning of three dozen words buried in a state law — has made its way to the Nebraska Supreme Court, whose decision could shorten the stays of thousands of people in the state’s chronically overcrowded prisons....

On one side: The department argues that it’s properly following the 11-year-old law when it comes to calculating when a prisoner is eligible for parole. If there’s a flaw, it’s in the language of the law itself, state lawyers have argued in court.

On the other: Robert Heist II, who has been imprisoned since 2016, argues that the department is misreading the law and delaying parole eligibility.

In some cases, prisoners end up being released with no supervision — “jamming out” in prison-speak — before they even become parole eligible....

The question now before the Nebraska Supreme Court: Should the three days a month earned for good behavior be applied to the date when a prisoner first becomes eligible for parole? The state senator who sponsored the bill and the former head of prisons say yes.  Making prisoners parole eligible sooner was an intended result of the bill, both Council and Houston told the Flatwater Free Press.  “I introduced this bill as a means of providing additional ways to reduce the prison population and get people parole eligible,” Council said in an interview....

But the state is simply following the letter of the law, state lawyers have argued to the Nebraska Supreme Court.  That law as written, they say, doesn’t allow for the extra good time days to go toward parole eligibility....

This interpretation of the law has potentially affected thousands of prisoners who could have had at least a little time shaved off their sentences. But the most egregious cases are those prisoners who “jam out” before even becoming parole eligible.

In 2019, the department told Heist that 62 prisoners at the time had tentative release dates that preceded their parole eligibility because of their earned good time.  As of March 2022, the prison’s roster listed as many as 306 individuals sentenced since 2011 who were released before they became eligible for parole.

“When you become parole eligible after you’ve done your sentence, that doesn’t make any sense,” Heist said in an interview.  Those prisoners — whose sentences should have included a shot at parole — become “guaranteed jam outs,” Heist said.

Under questioning at the Nebraska Supreme Court, the state’s lawyers didn’t dispute that inverted sentences — when mandatory release actually comes before parole eligibility — can and do happen.  “Yes, it is possible that [inverted sentences] can occur,” Scott Straus, assistant attorney general for the state, said during oral arguments.  “However, the plain language of the statute does not let us even get to whether that result is absurd or not.”

March 23, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, March 18, 2022

Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month

In this post last month, I suggested it may be foolish to be obsessed with weekly federal prison population data.  But, I cannot help myself in light of the roller-coaster story of recent times: after historic federal prison population declines over the last two presidential terms (for a wide variety of reasons), the federal prison population slowly climbed through 2021 before another big drop in early 2022 with the implementation of FIRST STEP earned-time credits.

Checking in this week at the federal Bureau of Prisons updated reporting of "Total Federal Inmates," I see that we are back to the up-slope of this roller-coaster ride.  Specifically, "Total Federal Inmates," now clocks in at 154,194, nearly 1150 more prisoners than the total number of federal inmates as of just four weeks ago, February 17, 2022, when the number stood at of 153,053.  

I continue to suspect and assume this new data reflects some "return to normal" operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth.  But, whatever the particulars, I will not forget that candidate Joe Biden promised to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."  Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

March 18, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (11)

Tuesday, March 15, 2022

Brennan Center reviews "The Landscape of Recent State and County Correctional Oversight Efforts"

The Brennan Center has this notable new resource on prison oversight efforts with themes captured in this subtitle: "Since 2018, many jurisdictions have tried to strengthen transparency and accountability in their correctional systems with mixed results."  Here is part of its start (with links from the original):

Correc­tional insti­tu­tions — pris­ons and jails — are considered closed facil­it­ies. Few visit­ors gain access to these institutions, even though they house people for months, years, decades, and, some­times, entire life­times. As Justice Kennedy wrote in his 2015 concurrence to the Court’s opin­ion in Davis v. Ayala, “Pris­on­ers are shut away — out of sight, out of mind,” while their condi­tions of confine­ment are “too easily ignored” by the public and the legal academy.

These insti­tu­tions are also coer­cive envir­on­ments with marked power differ­en­tials between correc­tions staff and incarcer­ated people that make facil­it­ies ripe for abuse. Because jails and pris­ons exert total author­ity over indi­vidu­als’ bodies and liberty, trans­par­ency and account­ab­il­ity are neces­sary to ensure that facil­it­ies uphold their duty of care to respect the dignity of people who are imprisoned and ensure that pris­ons are safe and secure.

One way to achieve the goals of trans­par­ency and account­ab­il­ity, while ensur­ing safe and humane condi­tions of confinement, is a formal and inde­pend­ent system of over­sight of jail and prison oper­a­tions. As the Bren­nan Center has noted before, although the U.S. has more people behind bars than any other coun­try on the planet, “it lacks a cohes­ive or integ­rated system of over­sight for its vast network of pris­ons and jails.”

The coun­try currently has about 18 entit­ies over­see­ing pris­ons, such as the Correc­tional Asso­ci­ation of New York, the John Howard Asso­ci­ation in Illinois, and the Pennsylvania Prison Soci­ety. There are also a number of inde­pend­ent agen­cies that conduct prison over­sight housed within the exec­ut­ive branch of state govern­ments, such as the Office of the Inspector General in Cali­for­nia. Addi­tion­ally, a hand­ful of inde­pend­ent entit­ies over­see local jails, such as the New York City Board of Correc­tions and the Texas Commis­sion on Jail Stand­ards. Mean­while, most state pris­ons — through their own internal account­ab­il­ity mech­an­isms — rely on monit­ors who work for the very state correc­tional agen­cies that manage these facil­it­ies. The inher­ent prob­lem in this setup is that such internal account­ab­il­ity mech­an­isms lack inde­pend­ence.

This patch­work of over­sight provides insuf­fi­cient cover­age. And the public health crisis result­ing from the highly contagious and deadly Covid-19 virus has shone a spot­light on the preval­ence of inhu­mane condi­tions of confine­ment in America’s correc­tional facil­it­ies. These condi­tions pred­ated the pandemic but worsened in many jails and pris­ons after March 2020....

Inhu­mane condi­tions of confine­ment in Amer­ica’s pris­ons and jails continue to persist, and the nation is in dire need of more prevent­at­ive and inde­pend­ent correc­tional over­sight to rein these abuses in. This resource explores the land­scape of prison and jail over­sight reform since 2018. It high­lights both progress in strength­en­ing correc­tional over­sight and failed attempts to improve monit­or­ing of condi­tions inside these insti­tu­tions.

March 15, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Monday, March 14, 2022

Prison Policy Initiative releases "Mass Incarceration: The Whole Pie 2022"

Wholepie22_twittercard_800x418Many folks like calling March 14 "Pi Day," and for sentencing fans today is especially worth celebrating because the amazing folks at the Prison Policy Initiative have today posted their latest, greatest version of PPI's amazing incarceration "pie" graphic and associated report. "Mass Incarceration: The Whole Pie 2022" provides a spectacular accounting of the particulars of who and how people are incarcerated in the United States.  As I have said in the past, the extraordinary "pies" produced by PPI impart more information in one image than just about any other single resource.  Here is part of the report's introductory text and the concluding discussion:

Can it really be true that most people in jail are legally innocent? How much of mass incarceration is a result of the war on drugs, or the profit motives of private prisons? How has the COVID-19 pandemic changed decisions about how people are punished when they break the law? These essential questions are harder to answer than you might expect. The various government agencies involved in the criminal legal system collect a lot of data, but very little is designed to help policymakers or the public understand what’s going on. As public support for criminal justice reform continues to build — and as the pandemic raises the stakes higher — it’s more important than ever that we get the facts straight and understand the big picture.

Further complicating matters is the fact that the U.S. doesn’t have one “criminal justice system;” instead, we have thousands of federal, state, local, and tribal systems. Together, these systems hold almost 2 million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.

This report offers some much-needed clarity by piecing together the data about this country’s disparate systems of confinement. It provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration and overlooked issues that call for reform....

The United States has the dubious distinction of having the highest incarceration rate in the world. Looking at the big picture of the 1.9 million people locked up in the United States on any given day, we can see that something needs to change. Both policymakers and the public have the responsibility to carefully consider each individual slice of the carceral pie and ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

Even narrow policy changes, like reforms to bail, can meaningfully reduce our society’s use of incarceration. At the same time, we should be wary of proposed reforms that seem promising but will have only minimal effect, because they simply transfer people from one slice of the correctional “pie” to another or needlessly exclude broad swaths of people. Keeping the big picture in mind is critical if we hope to develop strategies that actually shrink the “whole pie.”

March 14, 2022 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, March 11, 2022

"Orange Is the News Blackout: The First Amendment and Media Access to Jails"

The title of this post in the title of this article recently posted to SSRN authored by Frank LoMonte and Jessica Terkovich.  Here is its abstract:

County jails are hotspots for the spread of COVID-19 infection, overlaid on top of already-existing inadequacies in medical care, overcrowding, and other substandard conditions. Yet despite the intense public interest and concern in the safe and humane operation of jails, they are among the most impenetrable places for news coverage.  A fractured U.S. Supreme Court decision, Houchins v. KQED, has left widespread uncertainty about what — if any — First Amendment right journalists and jail detainees have to speak with each other.

This Article examines and critiques the dubious constitutional logic that has left jail inmates without assurance of any practically effective method of enlisting help from the press and public to blow the whistle on unsafe jail conditions.  The Article calls for the Supreme Court to revisit its unhelpful, decades-old precedent that has emboldened jails to enact highly restrictive policies that deny detainees, many of whom have been convicted of nothing and are being held on petty “poverty charges” — any meaningful ability to speak to the news media.  The Article reports on the results of a nationwide survey of jail policies uncovering several with bizarre and constitutionally indefensible constraints, including one big-city jail that openly forbids jail inmates from discussing jail conditions with the news media.

The authors view the restrictive climate for inmate/media communications in light of contemporary developments, both legal and factual, that support comprehensively revisiting and clarifying the unhelpful Houchins standard. Legally, the landscape has changed because (1) the Court has recognized a First Amendment right to observe every critical phase of the criminal trial process, and (2) an evolving body of caselaw recognizes the right to record government employees (especially law enforcement officers) doing official business on public property.  Factually, the landscape has changed because of the well-documented problem of misuse of law enforcement authority against people of color, including within jails, which has shaken public confidence in the justice system and provoked calls for greater transparency and accountability.  These developments, the Article concludes, call for revisiting seemingly settled assumptions that prevent journalists and inmates from invoking the First Amendment to challenge even grossly overreaching jail policies that suppress whistleblowing speech.

March 11, 2022 in Prisons and prisoners | Permalink | Comments (0)

Thursday, March 10, 2022

Vera Institute of Justice provides very latest prison data with "People in Prison in Winter 2021-2022"

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (close-to-real-time) data on the number of people in state and federal prisons.  Vera is now regularly reporting much more timely information on incarceration than the Bureau of Justice Statistics, which often releases data that lags a full year or more behind.  Vera's latest effort is "People in Prison in Winter 2021-22," and this press release provide context and an overview: 

Despite continued calls to release people from prisons in response to COVID-19, the total number of people in prisons declined by a mere 1.1% between December 2020 and December 2021 according to People in Prison in Winter 2021-2022, a report released today by the Vera Institute of Justice.  The winter iteration of this report highlights that, in contrast to the uniform declines of 2020, the number of people incarcerated in two out of five of the nation’s prison systems are trending upward....

While prison incarceration remains 16 percent lower than pre-pandemic levels, data shows a troubling reversal in many states.  By year-end 2021, 19 states and the federal government increased the number of people incarcerated in prisons.  Two states with large declines in their prison populations in 2020 had the largest increases in 2021 – North Dakota’s prison population declined 21.9 percent in 2020 but increased 20.6 percent in 2021, and West Virginia saw a 43.6 percent decline in 2020, then 12.9 percent growth in 2021.  The nation has not seen this kind of growth in decades: The single-year increase in North Dakota is higher than any state’s single-year increase since 1997, and the number of states with increases of more than 5 percent is the largest since 1999.

In contrast, other states continued to decrease their prison populations – Washington State’s total prison population declined 14 percent in 2021, after declining 18 percent the previous year. New York was down 10.7 percent after declining 20.8 percent in 2020, Arizona was down 10.2 percent in 2021 after a 11.1 percent decrease in 2020.

The overall number of people incarcerated by federal agencies also rose 5 percent between December 2020 and December 2021.  The number of people in Bureau of Prisons (BOP) custody rose 3.6 percent, the number of people detained for the United States Marshals Service (USMS) rose 1 percent, and Immigration and Customs Enforcement (ICE) detention jumped 33.7 percent.

“While some states made policy choices to reduce prison populations during the pandemic, the data show unmistakable backsliding by many U.S. states and the federal government,” wrote Jacob Kang-Brown, Senior Research Associate for Vera and author of the report. “The best evidence demonstrates that releasing more people from prison can help mitigate the public health harms of incarceration without jeopardizing public safety.”

March 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, March 08, 2022

A deep dive into federal prison struggles in response to the COVID pandemic

NPR has this lengthy new piece headlined "As COVID spread in federal prisons, many at-risk inmates tried and failed to get out," that effectively chronicles some of the ineffectiveness of the federal response as COVID worked its way through its massive prison systems.  Here are just a few snippets from the piece:

As of early March, officials at the Federal Bureau of Prisons (BOP) say 287 federal inmates have died from COVID-19, a count that does not include deaths in privately managed prisons.  Bureau officials have been saying since the beginning of the pandemic that they have a plan to keep the situation under control, but an NPR analysis of federal prison death records suggests a far different story.

The federal prison system has seen a significant rise in deaths during the pandemic years. In 2020, the death rate in prisons run by the BOP was 50% higher than the five years before the pandemic.  Last year, it was 20% higher, according to the NPR analysis of age-adjusted death rates.

Of those who died from COVID-19, nearly all were elderly or had a medical condition that put them at a higher risk of dying from the virus, NPR found.  Many of them seemed to sense their fate — and had tried to get out.  And those who made their case in court often faced a slow and complicated process that was unable to meet the pace of a rapidly spreading virus....

It's difficult to get a full view of how the federal prison system has responded to the pandemic at each of its 122 prisons nationwide, but NPR spoke with several current bureau employees who described issues that went against that plan, including the transfer of COVID-positive inmates between prisons and units.  "Our agency is reactive and not proactive. You know, they waited until it got out of hand and then tried to fix things, but by then it was too late," said Aaron McGlothin, a warehouse worker foreman and local union president at the federal prison in Mendota, Calif....

The determination for who can be sent home — and who cannot — is solely up to the BOP, and by the middle of November 2020, individual wardens became the final authority.  After [then Attorney General] Barr urged the use of home confinement, the BOP added its own criteria to the attorney general's list.

Home confinement existed before the pandemic, for certain inmates in the final six months or 10% of their sentence, whichever was less. And those inmates kept going home in this way during the pandemic.  As of early March of this year, more than 38,000 people had been released to home confinement during the pandemic. Of those, about 9,000 — or about 6% of the current federal prison population — were transferred directly because of the CARES Act.

It's unclear how many more people might have been eligible for CARES Act home confinement yet were not released. "CARES Act home confinement is, frankly, a black box," [Allison] Guernsey, of the University of Iowa, said. But she feels certain "we could have been releasing so many more people during the pandemic and we just chose not to."

March 8, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 03, 2022

Prison Policy Initiative releases "new toolkit for advocates working to end mass incarceration"

Regular readers are familiar with my regular postings about the great work by Prison Policy Initiative on many topics related to prison policies and broader criminal justice practices. This is another such post flagging this PPI post noting its new "toolkit" sharing tips and lessons "learned over two decades of using data, visuals, and narratives to expose the harms of mass incarceration."  Here is how the post starts with links from the original:

we’re launching our new Advocacy Toolkit, a collection of guides and training materials that advocates can use to strengthen their campaigns to end mass incarceration.  The toolkit builds on lessons we’ve learned from our two decades of work to improve our criminal legal system. It provides skills-based guides on accessing public recordssecuring and organizing data, crafting persuasive narratives, and creating impactful visuals. It also includes issue-based guides on protecting in-person visits in prisons and jails, opposing jail expansion, and ending prison gerrymandering. We plan to add additional resources in the future.

Our new advocacy department created this toolkit as part of our expanded effort to support the people and groups on the ground doing the hard work to end mass incarceration.

While most advocacy departments organize campaigns, mobilize volunteers, and pressure decision-makers for change, ours is a bit different. We’re not looking to replicate the amazing work that thousands of people and hundreds of organizations are already doing to reform the criminal legal system. Instead, as a research organization known for using data visualizations and easy-to-understand narratives, our advocacy work aims to help these organizations leverage our expertise to strengthen their campaigns. 

March 3, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, February 22, 2022

Are all three defendants who murdered Ahmaud Arbery now sure to get federal LWOP sentences following federal convictions?

The question in the title of this post is prompted by the federal court news this morning that three Georgia men, after having been tried, convicted and sentenced for 1murdering Ahmaud Arbery in state court, were found guilty on all (factually related but legally distinct) federal charges.  This USA Today piece, headlined "Ahmaud Arbery's killers found guilty of federal hate crimes, may face additional life sentence cover the basics:

A jury found three white men guilty of hate crimes and attempted kidnapping for the 2020 murder of Ahmaud Arbery after determining they targeted him because he was Black.

Father and son Gregory and Travis McMichael and their neighbor William "Roddie" Bryan — all already serving life in prison for Arbery's murder — could each face an additional life sentence. A sentencing date was not set.

The jury found each man guilty of one count of interference with rights and attempted kidnapping. The McMichaels were also convicted of using, carrying and brandishing – and in Travis McMichael’s case, firing – a gun during a crime of violence.

Shortly after the verdict was announced, Arbery’s parents emerged from the courthouse holding hands with attorney Ben Crump. They raised their clasped hands to cheers from supporters....  In a statement, Crump said he and Arbery's family "hope and demand that the severity of their crimes are reflected in the sentencing, as well."

Experts have said the federal convictions are not just a symbolic victory but ensure the defendants will serve prison time even if their state convictions are overturned on appeal. The three men were sentenced in January to life in prison after being convicted on the state murder charges; the McMichaels will not have the possibility for parole.

Hate crimes are rarely prosecuted. In Georgia, just two people were convicted of federal hate crimes from 2005 to 2019, according to the Bureau of Justice Statistics. The state did not have its own hate crime legislation until after Arbery's death.

The jury deliberated for about four hours Monday before announcing the verdict, one day before the second anniversary of Arbery's killing....

A plea deal for the McMichaels fell apart days before jury selection began. The McMichaels withdrew their pleas after the judge rejected the initial terms of the deal, under which Travis would have been sentenced to 30 years in federal prison to be served concurrently with his state sentence. Arbery's family strongly opposed the deal in court.

Because the federal judge who rejected the plea deal for the McMichaels, US District Court Judge Lisa Godbey Wood, seemed to indicate that she was troubled that the deal set a 30-year cap on her sentencing authority, I suspect she will now be inclined to give all three defendants life sentences.  In the federal system, of course, there is no parole and so all life sentences are life without parole sentences.  This would be especially significant for William "Roddie" Bryan, who is only serving life with parole as a result of his Georgia state conviction.

I believe that one notable aspect of the now-rejected plea deal was the opportunity for the McMichaels to serve their time in federal prison, which is often viewed as less awful that most state prisons.  I am unsure if these convictions after trial or future sentencing determinations will enable these defendants to serve their time in the federal pen, but I suspect they are still seeking that outcome.

Prior recent related posts:

February 22, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners | Permalink | Comments (1)

Friday, February 18, 2022

Federal prison population dips down a bit and is now reported at 153,053

Just as it is likely foolish for persons with long-term investment plans to spend too much time looking at daily stock market numbers, it is likely foolish that I have become obsessed again with weekly federal prison population data ever since the Department of Justice last month, as noted here, announced its rules for implementing "the Time Credits program required by the First Step Act."  As regular readers may recall, the retroactive implementation of those credits led to the reduction of the federal prison population by about 3% in just a few weeks.  But then, as noted here, the federal Bureau of Prisons' weekly updated report revealed a return to increasing prison population numbers in early February.  And, since the federal prison population slowly climbed through 2021 (after big drops in the early pandemic days), I have been speculating that slow and steady prison population growth in 2022 would reflect a bit of "returning to normal."

But, just to ensure nobody thinks there are predictable trends here, the newest latest BOP report of the federal prison population, this on-line report of "Total Federal Inmates," now clocks in at 153,053 as of February 17, 2022.  That number is roughly 250 inmates lower than two weeks ago.  I suspect there is no simple explanation for the recent ups and downs, but this new date now (foolishly?) makes me a bit less pessimistic that the Biden era is destined to be marked by a steady increase in the federal prison population absent FIRST STEP Act events.

That all said, as we approach the President's Day weekend, it is worth recalling that the Joe Biden campaign includes promises to "take bold action to reduce our prison population" and to "broadly use his clemency power for certain non-violent and drug crimes."  Thirteen months into this administration, I am unaware of any bold action taken by Prez Biden in this arena and he has yet to use his clemency power a single time, let alone broadly.

Prior recent related posts:

February 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, February 16, 2022

Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists?

The question in the title of this post is prompted by this New York Times article discussing this notable recent Supreme Court petition raising an Eighth Amendment challenge to extreme solitary confinement.  The headline of the NYTimes piece sets the table: "27 Years in Solitary Confinement, Then Another Plea for Help in Texas: Dennis Hope, who has been held in solitary confinement in a Texas prison for more than half his life, asked the Supreme Court to set limits on prolonged isolation."  I recommend the full NY Times piece, and here are excerpts (with links from the original):

Dennis Hope has spent 27 years in solitary confinement in a Texas prison, in a cell that is 9 feet long and 6 feet wide — smaller than a compact parking space.  “It’s three steps to the door and then turn around and three steps back,” Mr. Hope, 53, wrote in a recent letter to his lawyers.

His only human contact is with the guards who strip-search and handcuff him before taking him to another enclosure to exercise, alone.  He has had one personal phone call since 1994, when his mother died in 2013.  He suffers from depression and paranoia and fears he is going insane.

Last month, Mr. Hope asked the Supreme Court to consider whether such prolonged isolation can violate the Eighth Amendment, which bars cruel and unusual punishments.

Prison officials in Texas do not seem concerned about Mr. Hope’s lawsuit. Last week, they told the Supreme Court that they waived their right to respond to his petition seeking review in his case, Hope v. Harris, No. 21-1065.  In their appeals court brief, the officials wrote that “Hope has no plausible Eighth Amendment claim.”...

[I]t is quite rare for prisoners to spend decades in isolation.  “We’ve only identified 12 prisoners outside of Texas who have spent more than 20 years in solitary confinement and who aren’t on death row,” said Easha Anand, one of the lawyers from the Roderick & Solange MacArthur Justice Center representing Mr. Hope.  She acknowledged, however, that complete data are hard to come by.

Mr. Hope was sentenced to 80 years in 1990 for a series of armed robberies and landed in solitary after he escaped from prison in 1994.  He eluded capture for about two months, during which he stole a car at knife point from an 83-year-old man and robbed four grocery stores.  In 2005, after 11 years in solitary confinement, a committee of prison security personnel concluded that Mr. Hope was no longer an “escape risk,” according to court papers.  But prison authorities have kept him isolated....

As the court has grown more conservative, the arguments against prolonged solitary confinement have shifted. Mr. Hope’s lawyers at the MacArthur Justice Center told the justices in his petition seeking review that the practice was inconsistent with the original understanding of the Eighth Amendment.

Solitary confinement was, they wrote, “unheard-of at the founding, attempted and quickly aborted in the following centuries, and resurrected only with Mr. Hope’s generation of prisoners.”  The petition drew on the work of John F. Stinneford, a law professor at the University of Florida whose work on the original meaning of the Eighth Amendment has been cited with approval by the court’s conservative majority in cases on methods of execution.

As a matter of text, I have quite a hard time coming up with a better set of adjectives than "cruel and unusual" to describe the decision of Texas prison officials to keep Mr. Hope punished with solitary confinement for nearly two decades after concluding he was no longer an escape risk.  So, though I might be just a simple-minded textualist, I would think most true textualists would see real strength in the argument that Texas is violating Mr. Hope's Eighth Amendment right to not have "cruel and unusual punishments inflicted."  Notably, the text of the Eighth Amendment speaks to punishments "inflicted" and not just those "imposed" (which is the term used for the prohibition of excessive fines).  This precise text of the Eighth Amendment has always led me to see all of actual punishment administration, and not just formal punishment imposition, to be of constitutional concern and part of what is constitutionally limited by the  text of the Eighth Amendment.

As a matter of original meaning, I have long been a fan of Prof Stinneford's effort to unpack and understand what an originalist approach to the Eighth Amendment might mean for modern constitutional law and limits on the infliction of modern punishment.  Critically, though, whether one fully embraces or questions Prof. Stinneford's Eighth Amendment analysis, I am not aware of any originalist arguments that the Eighth Amendment does not place some judicially cognizable limits on way defendants get punished.  Justice Scalia, in his 1991 originalist opinion assailing Eighth Amendment proportionality review in Harmelin v. Michigan, repeatedly noted that "the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment" and that "the Clause disables the Legislature from authorizing particular forms or 'modes' of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed" and that it "was designed to outlaw particular modes of punishment."  In other words, the O.G. originalist on the Supreme Court was quite clear that the kind of extreme punishment administration Eighth Amendment claim raised by Mr. Hope is exactly the type of constitutional claim that the Framers wrote the Eighth Amendment to be cognizable by courts.

I suspect there could and likely will be some advocates for extreme solitary confinement who develop textualist and originalist arguments to defend how Texas has been punishing Mr. Hope.  But, I still think any true textualists and/or any true originalists would still be quite inclined to grant certiorari on this significant claim so that the textualist and originalist arguments on these important matters could be developed through full briefing and thoughtful reflection.  But if these strong claims are just rejected entirely and summarily at the cert stage, I will be incline to think "fair-weather" textualism and originalism defines the work of many justices.  I want to believe strict fidelity to the text of the Constitution means more than reaching policy conclusions that a judge finds appealing, and maybe this case will restore my faith that some of the talk of textualism and originalism is not just about getting to certain results in certain cases.

February 16, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (11)

Monday, February 14, 2022

New Intercept series explores "the effects of the climate crisis on incarcerated people"

Via email I learned of an interesting new project looking at the intersection of mass incarceration and climate change in the United States.  Here is how the project is described at the start of the email sent my way:

The Intercept has launched “Climate and Punishment,” a data-driven investigation by reporter Alleen Brown on the effects of the climate crisis on incarcerated people.  The project harnesses datasets for heat risk, wildfire risk, and flood risk and juxtaposes them against a federal government index of facilities from across the United States’s sprawling mass incarceration system. Our findings reveal dire conditions in prisons across the country – conditions that are set to deteriorate as the climate crisis worsens – and highlights the political figures and institutional morass that are leaving these communities at risk.

The Intercept is publishing an initial suite of three stories and one short film, with a collection to follow for continuing coverage. Each of the first three stories highlight the impact of heat, wildfires, and floods on incarcerated people, respectively, and the 10-minute documentary follows several individuals whose lives have been impacted by extreme heat and wildfires while they or their loved ones were incarcerated.  A project-specific webpage shepherds readers to our original reporting, searchable interactive features with visual representations of detention facilities mapped against climate risks, and videos that tell the stories of families and facilities that have been affected by worsening environmental conditions.
 
In “Trapped in the Floods,” Brown details the flooding events at a detention facility in Dixie County, Florida, where prisoners became trapped in ankle-deep water contaminated with human feces. According to The Intercept's analysis, 621 facilities across the U.S. have major- to extreme- flood risk. 
 
"Boiling Behind Bars" focuses on the effects of extreme heat on incarcerated people and on the alarming conditions at Coffield Unit, a state prison near Palestine, Texas. Coffield is among the hottest places in the nation for incarcerated people, and temperatures are expected to rise in the coming years. As of 2020, Coffield was one of 21 Texas state prisons with no air conditioning, according to public records obtained by the Texas Prisons Air-Conditioning Advocates, an organization founded by Casey Phillips. (By the end of the century, thousands of U.S. detention facilities will see sustained dangerous temperatures — sometimes running more than 50 days a year.) 
 
Dark, Smoky Cells” highlights the consequences of the 2021 Dixie fire on a prison in Susanville, CA, where inmates were without lights for nearly a month after the facility’s backup generator failed. No power meant no cooking, no televisions to furnish a distraction. Time in the communal day room was scrapped. Prisoners could only rarely call their loved ones. Toilets stopped working for hours at a time and the ventilation systems would go down as smoke wafted into the facility. (A California prisons official said the facility was “running full-power operations.”) 

February 14, 2022 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Two former Attorneys General recap criminal justice challenges two years into the pandemic

Two notable former US Attorneys General, Alberto Gonzales and Loretta Lynch, who are co-chairs of the CCJ National Commission on COVID-19 and Criminal Justice. have this notable new Hill commentary under the headline "Omicron is creating new havoc in our criminal justice system."  The piece is worth a full read because it is not all doom and gloom, and here is how it starts:

Just over a year ago, a national commission we led put forth a sweeping set of solutions for a criminal justice system wracked by COVID-19.  Today, with the Omicron variant spreading nationwide, we believe those recommendations are more urgent than ever — and can help rebalance public health and safety to forge a better post-pandemic future.

In the months that have passed since the report from our National Commission on COVID-19 and Criminal Justice, many justice system leaders have continued to make laudable progress in mitigating the pandemic’s effects, using technology, innovation and their own talents to adapt and adjust policies and practices for the better. 

The Biden administration’s decision to allow thousands of nonviolent offenders released from federal prisons because of the COVID threat to remain on home confinement is one recent and sensible example, especially because many of those affected were near the end of their sentences.

In another low-profile but high-impact development, leaders in the nation’s probation and parole agencies tell us that the pandemic switch to mostly remote supervision has improved the human connection between officers and the hundreds of thousands of people they oversee, who, by and large, have not absconded as some had feared.  In many states, this is a positive change that’s here to stay.

Yet major problems persist across the criminal justice system, and in some ways have intensified.  Omicron is causing renewed disruptions, with detainees at New York’s Rikers Island jail protesting what they call dangerous conditions, and California prisons reporting a “staggering rise” in infections among employees.  Systemwide, prison and jail populations that had been safely reduced to contain the virus are rebounding, posing renewed risks to incarcerated people and staff.

And in our courts, operations have been slowed by crushing case backlogs.  In Fulton County, Ga., home of Atlanta, the number of backlogged cases surpassed 11,000 — in a state with a backlog of 206,000 — including approximately 600 murder cases awaiting trial.  In Seattle, a judge estimated that even excluding nonviolent cases, it would take 13 years to clear the logjam.

These and other ongoing challenges are clear signals that we must do more to meet this moment — and ensure our post-pandemic system is better equipped to balance health, safety and justice for all.

February 14, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, February 10, 2022

Prison Policy Initiative provides latest update on incarceration populations two years into the COVID pandemic

The folks at the Prison Policy Initiative always impress me with cutting-edge research and analysis in the form of "Briefings," and the latest report here provides a particularly interesting account what we know about prison and jail populations in the US two years into the pandemic.  The full briefing should be read in full, and the full title provide a bit of a summary of the themes: "State prisons and local jails appear indifferent to COVID outbreaks, refuse to depopulate dangerous facilities; While some prison systems and local jails have maintained historically low populations, others have returned to pre-pandemic levels, despite the ongoing dangers of COVID-19 and new, more transmissible variants."

I cannot readily summarize all the insights and data covered in this new PPI report, but here are excerpts (with links from the original):

In state and federal prisons, over 2,900 people have died of COVID-19, almost 476,000 people have been infected, and thousands of additional cases are linked to individual county jails. Even now, when more than 75% of people in the U.S. have received at least one dose of the vaccine, correctional staff are hesitant to get vaccinated or receive boosters, and prison systems are slow to roll out boosters to incarcerated people.  As the more contagious Omicron variant ravages parts of the nation and renders hospitals completely overrun, nearly three quarters of prisons are experiencing COVID-19 outbreaks; public health officials continue to recommend reducing prison populations as a primary method of risk reduction.  In fact, in October 2021, the American Public Health Association adopted a policy in support of decarceration as a public health matter and new research shows the detrimental effect of COVID-19 on all-cause mortality in state prisons.  Despite the clear need for smaller confined populations, the data show that with just a few exceptions, state and local authorities are allowing their prison and jail populations to return to dangerous, pre-pandemic levels.

The federal Bureau of Prisons, state governments and departments of corrections, and local justice system officials have a responsibility to protect the health and lives of those who are incarcerated. After almost two years of outbreak after outbreak in prisons and jails, correctional authorities must be held accountable for their repeated failure to reduce populations enough to prevent the illness and death of those who are incarcerated and in surrounding communities.

Prisons

Even in states where prison populations have dropped, there are still too many people behind bars to accommodate social distancing, effective isolation and quarantine, and the increased health care needs of incarcerated people. For example, although California has reduced the state prison population by about 18% since the start of the pandemic, it has not been enough to prevent large COVID-19 outbreaks in the state’s prisons, and the prison system has witnessed a 300% increase in infections among incarcerated people over the past few weeks and a 212% increase in cases among staff.  In fact, as of December 15th, 2021, California’s prisons were still holding more people than they were designed for, at 113% of their design capacity (and up from 103% in January 2021).  Considering the continued overcrowding in the California prison system, it’s not surprising that the state is responsible for eight out of the ten largest COVID-19 prison clusters....

Many states’ prison populations are the lowest they’ve been in decades, but this is not because more people are being released from prisons; in fact, fewer people are. Data from 2020, recently released by the Bureau of Justice Statistics, shows that prisons nationwide released 10% fewer people in 2020 than in 2019. Instead, data suggest most of the population drops we’ve seen over the past 20 months are due to reduced prison admissions, not increasing releases....

Jails

Jail populations, like prison populations, are lower now than they were pre-pandemic. Initially, many local officials — including sheriffs, prosecutors, and judges — responded quickly to COVID-19 and reduced their jail populations. In a national sample of 415 county jails of varying sizes, almost all (98%) decreased their populations from March to May of 2020, resulting in an average change of a 33% population decrease across all 415 jails at the start of COVID-19. These population reductions came as the result of various policy changes, including police issuing citations in lieu of arrests, prosecutors declining to charge people for “low-level offenses,” courts reducing cash bail amounts, and jail administrators releasing people detained pretrial or those serving short sentences for “nonviolent” offenses.

But those early-pandemic, common-sense policy changes didn’t last long. Between May 2020 and February 2021, the populations of 83% of the jails in our sample increased, reversing course from the earlier months of the pandemic. As of December 2021, 28% of the jails in our sample have higher populations now than they did in March 2020.  Overall, the average population change across these 415 jails from March 2020 to December 2021 has diminished to only a 10% decrease, while the average population change from July 2021 to December 2021 has dropped to 0%, suggesting that the early reforms instituted to mitigate COVID-19 have largely been abandoned.

February 10, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, February 08, 2022

"Prison Medical Deaths and Qualified Immunity"

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

The defense of qualified immunity for claims seeking monetary damages for constitutionally inadequate medical care for people who are incarcerated is misguided.  According to the U.S. Department of Justice, medical illness is the leading cause of death of people incarcerated in prisons and jails across the United States.  Qualified immunity in these cases limits accountability for carceral actors, thereby limiting incentives for improvements in the delivery of constitutionally adequate medical care.  The qualified immunity defense also compounds other existing barriers, such as higher subjective intent standards and the Prison Litigation Reform Act, to asserting legal accountability of prison and jail administrators. In addition, the defense is not appropriate because medical care decisions by carceral actors are fundamentally different than traditional qualified immunity cases.  Traditional qualified immunity cases usually involve discretionary decisions that are one-off, emergency, binary choices made by a single actor or unit of actors.  In contrast, medical decisions in carceral settings are often serial, ongoing, and usually involve multiple decision makers, sometimes acting beyond their area of expertise.  These significant differences between medical decisions in carceral settings and traditional qualified immunity decisions illustrate the practical difficulties for incarcerated plaintiffs and their families in holding prisons accountable for violating the U.S. Constitution.  Recent developments refining the doctrine may lessen the negative impact of the defense on these civil rights claims, but they also do not address the core disconnect between the rationales justifying qualified immunity and its application in cases of severe injury or death from inadequate carceral healthcare.

February 8, 2022 in Prisons and prisoners | Permalink | Comments (1)

Monday, February 07, 2022

Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort

Data from the US Sentencing Commission indicates that roughly 1 in 4 persons who serve time in federal prison gets rearrested within the first two years after release (see Table 2 in this 2016 USSC report), though some rearrests are for a violation of supervision conditions rather than a new crime.  Though I dislike when recidivism is broadly defined to included just "technical" violations, these USSC data provide useful and needed context for this Washington Times article headlined "320 federal inmates reoffended while on pandemic-related home confinement."  Here are excerpts (with emphasis added):

More than 300 federal inmates who were transferred to home confinement as a pandemic mitigation strategy reoffended and were sent back to prison, a top federal official said Thursday. Bureau of Prisons Director Michael Carvajal told the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security that substance abuse was the “most common” offense that landed inmates back behind bars.

“About 160 of those 320 were for abuse of alcohol or drugs,” Mr. Carvajal said. “Some of them were escapes – they weren’t where they were supposed to be – most of them were violations of that nature. Some was misconduct, eight of those were new crimes committed, the rest of those were technical violations.”

A bureau spokesperson told The Washington Times that six of the eight new crimes were drug-related, one was for escape with prosecution and one was for smuggling non-citizens....

During Thursday’s hearing, he said the 320 reoffending inmates are among more than 37,000 who were transferred to home confinement since Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES) in March 2020 to address threats posed by the pandemic.

The CARES Act allows the bureau to transfer certain low-level inmates convicted of nonviolent crimes to home confinement if they meet the COVID-19 risk factors identified by the U.S. Centers for Disease Control and Prevention. While some transfers have been put back in prison, others have completed their sentences and 5,485 inmates are still in home confinement.

In other words, it seems that not one single violent crime has been committed by more than 37,000 persons released early to home confinement under the CARES Act authority.  This is an amazing reality to be robustly celebrated, in part because it reveals that our federal system can effectively identify low-risk offenders who can be released early at essentially no risk to public safety.  

This great new Inquest piece by Jessica Morton & Samara Spence, titled "Home Rule: In weighing the future of thousands placed on home confinement during the pandemic, the government should prioritize where they are now: in their communities," places these data in another bit of telling context:

BOP’s own numbers show that people placed on home confinement pursuant to the CARES Act do not need to be returned to prison to prevent them from committing crimes. According to BOP data, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct.  By way of comparison, more than 100 BOP employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that BOP has 36,739 employees, BOP employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period.

This Inquest piece should be read in full because it has a number of additional great points beyond the remarkable reality that BOP employees are apparently more of a public safety threat than the CARES home confinement cohort.  But the broader point is that federal experience over the last two years shows that is is possible to decarcerate a certain prison population without posing any real threats to public safety; indeed, done the right way and at the right time it may be possible to have more freedom and less crime.  That is in part the premise driving various elements of the FIRST STEP Act, and the CARES home confinement cohort has, in essense, demonstrated "proof of concept."

Of course, home confinement release with constant risk of reconfinement during a pandemic is not "normal" in any respect and so I do not think it fair to try to extrapolate too far from these encouraging recidivism data.  Nevertheless, whether a fan or a foe of modern criminal justice reform efforts, the impressively good behavior of the CARES home confinement cohort should be something that everyone can celebrate.

February 7, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (7)

Friday, February 04, 2022

Federal prison population creeping up again after initial application of FIRST STEP earned-time credits

As noted in this prior post, the Department of Justice last month announced its rules for implementing "the Time Credits program required by the First Step Act."  DOJ provided for retroactive application of these credits, which produced a notable decline in the overall federal prison population.  Specifically, as indicated in this post, over the last two full weeks of January, the federal inmate population dropped nearly 3% down to 153,293 "Total Federal Inmates" on January 27 from a count of 157,596 on January 13.  

But on February 3, 2022, the federal Bureau of Prisons updated here its report of "Total Federal Inmates," and that number now reads at 153,316.  In other words, after the initial implementation of FIRST STEP earned-time credits dropped the federal prison population, this population total now is starting to creeping up again slightly.  And because the federal prison population was steadily creeping up throughout most of 2021 — an increase of nearly 6000 from a low of 151,646 inmates as of January 21, 2021 — I will be continuing to keep a close watch on where the federal prison population might be headed the rest of this year.  

Prior recent related posts:

February 4, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Thursday, February 03, 2022

Another congressional hearing on federal prisons, this time with testimony from out-going BOP director

As noted in this prior post, a couple weeks ago the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee held a hearing with multiple witnesses on "The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?".  This morning, as detailed here, another similar hearing was conducted, though with only one witness, Michael Carvajal, the Director of the Federal Bureau of Prisons.  Carvajal has already resigned, though is serving until his replacement in place.  And in that role, he submitted this written testimony which is worth a full read.  Here are some excerpts:

We have begun awarding inmates FSA earned time credits for successful participation in FSA programs and moving eligible inmates to supervised release or pre-release custody. These credits are governed by a new regulation that the Bureau issued in January 2022. Working closely with other Department of Justice components, we are exercising our discretion to apply time credits towards supervised release for the sentences of over 4,900 inmates and anticipate moving over 2,500 inmates to Home Confinement or a Residential Reentry Center based on the published final rule governing the awarding of FSA earned time credits....

Based on the March 26, 2020 and April 3, 2020 guidance issued by Attorney General Barr, the Bureau began and continues to migrate eligible inmates to Home Confinement. I am pleased to report that since March 26, 2020, the Bureau has transferred more than 37,000 inmates to community custody, with more than 9,000 transferred directly pursuant to the authority granted by the CARES Act. Review of medically vulnerable inmates for potential placement in home confinement remains ongoing and will continue for the duration of the pandemic....

As the Committee is aware, the Department’s Office of Legal Counsel recently issued an opinion indicating that the Bureau may use its preexisting authorities and discretion to permit prisoners granted CARES Act Home Confinement to continue such placements after declaration of the end of the COVID-19 Emergency. The Department of Justice is preparing regulations to implement this decision....

[T]he First Step Act of 2018 paved the way for an inmate to file directly with the sentencing court, after the inmate has fully exhausted the internal appeals process, or 30 days after the warden received the inmate’s compassionate release request. Since the enactment of the FSA, we are aware of 4,025 compassionate releases regardless of the tens of thousands which have been sought. Since the passage of the CARES Act, 3,851 inmates have been released via compassionate release. The Bureau cannot track inmate-filed motions, as the Bureau is not a party to those cases....

The Elderly Offender Home Detention Program was reauthorized by the FSA, and it allows certain elderly federal inmates to seek placement on home confinement before the expiration of their prison sentence. Since passage of the FSA, the Bureau has approved 1,177 inmates to home confinement under this program.

February 3, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, January 30, 2022

In week two of implementation of FIRST STEP earned-time credits, federal prison population drops another 550

As noted in this prior post from two week ago, the Department of Justice earlier this month announced its new rule for implementing "the Time Credits program required by the First Step Act."  I noted that, with DOJ providing for retroactive application of these credits, we could expect to see a decline in the overall federal prison population.  A week later, as noted here, on the first day the federal Bureau of Prisons updated it total inmate count, there was reported a roughly 2.5% drop in the federal inmate population (down to 153,855 "Total Federal Inmates" on January 20, from a count of 157,596 on January 13).  

On January 27, 2022, BOP updated here its report of "Total Federal Inmates," and that number now reads at 153,293.  So, during what might be called week two of implementation of FIRST STEP earned-time credits, the federal prison population dropped more than an additional 550 prisoners.  That is a big drop, though also a big drop off from the week one decline of nearly 4000 inmates.  Because the federal prison population was steadily creeping up throughout most of 2021 — from a low of 151,646 inmates as of January 21, 2021 — it will be interesting to watch just where the federal prison population might be headed the rest of this year.  

Prior recent related posts:

January 30, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (0)

Friday, January 28, 2022

"Private Prison Companies and Sentencing"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Pratt, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)  Here is this paper's abstract:

The use of private prisons in the United States to house federal and state inmates has added a voice to sentencing practice.  This voice is unnecessary and should not exist as a concern in sentencing law and policy.  Private prisons affect sentencing at the policy level through lobbying, networking, and by influence over judges’ sentencing decisions in individual cases.  These methods of influencing sentencing are not always blatant, but they do exist.  The United States should end the use of private prisons or adopt a hybrid model similar to that used in Europe to help quiet this unnecessary voice. However, eliminating the use of private prisons will not end the United States’ mass incarceration problem.  Policy makers must address other causes of mass incarceration along with ending the use of private prisons. 

This paper will explore the history of private prisons in the United States, how private prisons influence sentencing, and potential solutions to end or improve the use of private prisons, while addressing the larger causes of mass incarceration.  The suggested solution explored at the end of this paper is for the United States to develop and implement a hybrid model similar to that used in France, which eliminates completely private prisons, but still uses some private entities in the prison system.  Eliminating private interests from the prison system entirely is unrealistic and unlikely given their long history of presence in the United States criminal justice system.

January 28, 2022 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (1)

Wednesday, January 26, 2022

Some notable recent commentary on modern carceral stories

I have seen a variety of great new commentary on a number of notable carceral fronts.  Here is a quick round-up:

From The Hill by Jason Pye, "New head of prisons must embrace criminal justice reform"

From Inquest by Judah Schept, "Cages in the Coalfields: A growing carceral state has slowly replaced the coal industry in large swaths of Central Appalachia. But even here, a different future is possible."  

Also from Inquest, "Abolition Is Public Health: The largest public health professional organization in the U.S. took a stand against carceral systems as fundamentally antithetical to our nation's health. Here's why that matters."

From Slate by Eric Reinhart, "How Joe Biden Launched a New Prison Boom"

January 26, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Articulating concerns while celebrating implementation of FIRST STEP earned-time credits

As first discussed in this post, the Department of Justice a few weeks ago officially announced its new rule for "implementing the Time Credits program required by the First Step Act"; as noted in this follow-up post, the process of awarding retroactive credits to prisoners who were eligible and had already done the work to earn credits resulted in an immediate significant reduction of the federal prison population.  And though there is much to celebrate about this stage of implementation of a huge part of the FIRST STEP Act — which was enacted with overwhelming bipartisan support in Congress and signed by President Trump way back in late 2018 — I have noticed a number of new commentaries and other press pieces flagging concerns to watch.

This CNN opinion piece, by Michael Cohen, E. Danya Perry and Joshua Perry, carries a headline that is most celebratory: "This is an unmistakable win for incarcerated people."  But, after an effective review of the positives of the new DOJ rules on earned-time credits, it closes with these sentiments:

There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.  While unquestionably impactful, the act was indeed only a "first step" towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration.  And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress' intent.

This Forbes piece by Walter Palvo picks up these themes with even more concern for the implementation particulars under the headline "Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody":

One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution.  Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated.  As one man told me, “I was just happy to be released and don’t care how they calculated it.”  However, for the man or woman sitting in prison, it makes a huge difference.  Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. 

And this new NPR piece from Carrie Johnson spotlights long-standing concerns about the PATTERN risk-assessment tool central to these new prison policies.  The lengthy piece is headline "Flaws plague a tool meant to help low-risk federal prisoners win early release," and here are excerpts:

Thousands of people are leaving federal prison this month thanks to a law called the First Step Act, which allowed them to win early release by participating in programs aimed at easing their return to society. But thousands of others may still remain behind bars because of fundamental flaws in the Justice Department's method for deciding who can take the early-release track. The biggest flaw: persistent racial disparities that put Black and brown people at a disadvantage.

In a report issued days before Christmas in 2021, the department said its algorithmic tool for assessing the risk a person in prison would return to crime produced uneven results. The algorithm, known as Pattern, overpredicted the risk that many Black, Hispanic and Asian people would commit new crimes or violate rules after leaving prison. At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime....

Risk assessment tools are common in many states. But critics said Pattern is the first time the federal justice system is using an algorithm with such high stakes. Congress passed the First Step Act in 2018 with huge bipartisan majorities. It's designed to prepare people in prison for life afterwards, by offering credits toward early release for working or taking life skills and other classes while behind bars....

Only inmates who pose a low or minimal risk of returning to crime can qualify for the programs, with that risk level determined using the Pattern algorithm.... The implementation has been rocky. The Justice Department finished the first version of Pattern in a rush because of a tight deadline from Congress. It then had to make tweaks after finding Pattern suffered from math and human errors. About 14,000 men and women in federal prison still wound up in the wrong risk categories. There were big disparities for people of color.

Prior recent related posts:

January 26, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, January 25, 2022

Notable new report on juve LWOP reviews "Montgomery v. Louisiana Six Years Later: Progress and Outliers"

This morning I received this email from the folks at the Campaign for the Fair Sentencing of Youth that highlighting this new report "Montgomery v. Louisiana Six Years Later: Progress and Outliers." The full short report is worth a full read, and the emails provides this brief accounting of the report's coverage:

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive and offering new hope to thousands of people who had been sentenced to life without parole as children.  For many, that hope has led to shorter prison sentences, and for hundreds of others, it’s meant freedom.  At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children.  In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child.  While we celebrate this inspiring progress, we recognize that far too many others have not yet received the relief they rightfully deserve.  Thus, we are pressing forward in the fight for these individuals across all areas of our work, with a particular focus on state legislatures and advocacy in outlier states. You can read more about how far we have come and the challenges we still face in this report authored by Rebecca Turner, the CFSY’s Senior Litigation Counsel.  

The full report gives particular attention to developments in Pennsylvania, Michigan, and Louisiana, which "each had more children sentenced to life without parole than any other state in the country" when Montgomery was handed down.  Here is how the report describes subsequent developments in those states and nationwide:

A majority of the 2,800 individuals serving juvenile life without parole (JLWOP) following Miller have been resentenced in court or had their sentences amended via legislation, depending on the jurisdiction in which they were convicted.

Yet despite the 80% reduction in people serving JLWOP, jurisdictions have varied significantly in their implementation of Miller. As a result, relief afforded to individuals serving JLWOP is based more on jurisdiction than on whether the individual has demonstrated positive growth and maturation.

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population....

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

January 25, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, January 23, 2022

Guest post #2 on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

6a00d83451574769e202788010ea87200d-320wiAs explained in this post from last week, Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, wrote to me to highlight a big Seventh Circuit ruling on the Bail Reform Act (BRA).  I suggested that she do a guest post series on this Wilks ruling (as she previously did a series of guest posts on her stash-house sting litigation).  Alison  prepared two  posts on the topic; the first is at this link, the second is here:

The Wilks opinion is groundbreaking not only for its clarification of the BRA’s presumption of detention, but also because it is the first opinion from the Seventh Circuit to address the standard of review for a revocation decision under 18 U.S.C. § 3148.  The court sets the same standard of review for both an initial detention decision under 18 U.S.C. § 3142 and a revocation decision under § 3148: “‘independent review’ of the decision below, though with deference to the judge’s findings of historical fact and his greater familiarity with the defendant and the case.” United States v. Wilks, 15 F.4th 842, 847 (7th Cir. 2021); id. (“We conclude that the same standard of review governs an appeal from an initial detention decision and a decision to revoke pretrial release.” (emphasis in original)).

Moreover, Wilks is also the first Seventh Circuit case to address the legal standard for revocation of pretrial release in 18 U.S.C § 3148 (a different issue from the standard of review).  The court holds, in relevant part: “A finding that the defendant violated a release condition does not alone permit revocation; the judge must make findings under both § 3148(b)(1) and (b)(2) before he may revoke release” and must also “weigh the factors listed in § 3142(g).” Id. at 848.

The court ultimately determines that the judge’s findings were insufficient to satisfy the legal standard: “[T]he judge did not find by clear and convincing evidence that Wilks violated a condition of release. See § 3148(b)(1)(B).” Id.  The court finds fault for two reasons.

First, as a factual matter, the judge did not focus on the correct alleged bond violations and did not give the defense an opportunity to respond to new allegations: “Though it was not improper for the judge to reframe the inquiry, the fact remains that Wilks’s counsel did not have an opportunity to address the specific issue that the judge was concerned about.” Id. For the judge to permissibly order detention, the defense must have an opportunity to meaningfully rebut the court’s justification for detention, especially if the court orders detention on the basis of an argument not raised by the government.

Second, the judge did not make sufficient factual findings or properly apply the legal standard to the facts: “A recitation of the statutory language ‘devoid of any discussion, analysis, or explanation as to why the district court concluded that the criteria for release had not been met’ cannot justify detention even after conviction, when the presumption of innocence has been extinguished.” Id. (emphasis in original) (citation omitted).  In other words, before revoking pretrial release, the judge must provide detailed factual findings that are connected to the relevant legal standard — notably, even if the accused has already been convicted and is pending sentencing.

Finally, Wilks reminds us that “the government’s interest in ensuring the safety of the community and securing the defendant’s appearance in court” must be balanced against “the defendant’s interest in his personal liberty.” Id. at 847. As the Supreme Court has emphasized, “[f]reedom from bodily restraint has always been [ ] the core liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 90 (1992). And in the pretrial detention context, “the individual[ ] [has a] strong interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987).  Too often, the government’s interests are treated as paramount, despite the fact that the BRA and precedent require a meaningful consideration of an accused’s “importan[t] and fundamental” interest in liberty. Id.

Federal practitioners seeking to obtain their clients’ release on bond should file written bond motions incorporating the foregoing arguments and applying § 3142(g) to the facts of their case.  My Federal Criminal Justice Clinic at the University of Chicago Law School has written a template motion for pretrial release in presumption cases and other bond motions that are available on fd.org at this link (click on “Bail Handout”) and via NACDL at this link.  If you do not have access to these websites you can obtain the FCJC’s template bond motions by emailing the clinic’s assistant, Kyla Norcross, knorcross @ uchicago.edu. For more tips for getting federal clients released on bond, see Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 OHIO STATE JOURNAL OF CRIMINAL LAW 238 (2020).

January 23, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, January 21, 2022

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

January 21, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, January 20, 2022

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

January 20, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Wednesday, January 19, 2022

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

6a00d83451574769e202788010ea87200d-320wiI hope readers recall the series of guest posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

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GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

Fourth, once the presumption is rebutted, it carries a lot less weight.

January 19, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, January 18, 2022

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

  • People in BOP custody (including those in a halfway house or on home confinement);
  • who are serving a federal sentence;
  • who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
  • who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
  • who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

  • People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
  • People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

  • Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
  • Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

January 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Monday, January 17, 2022

"The Paid Jailer: How Sheriff Campaign Dollars Shape Mass Incarceration"

The title of this post is the title of this new report published by Common Cause and Communities for Sheriff Accountability. Here is part of the report's introduction:

In the criminal legal system, the patterns are clear and striking.  Business interests can establish a relationship with sheriffs by sending even small contributions.  Construction companies provide backing to sheriffs who proceed to build new jails.  Health care companies fund campaigns, and then receive multimillion-dollar contracts, with no criteria for results or the health of incarcerated people.  The list of donors with direct conflicts is striking and includes employed deputies, bail bonds companies, weapons dealers, and gun ranges.  It is a system incentivized to jail more people and cast a blind eye to any harm suffered by those within the jails.

Our research, conducted in 11 states, in less than 3 percent of sheriffs offices, documents approximately 13,000 apparent conflicts of interest, primarily between 2010 and 2021.  We have identified upward of $6 million, approximately 40% of all examined contributions, that create potential conflicts of interest.  We have selected these sheriffs using a combination of public interest, and random selection, so these sheriffs are more likely to represent a pattern than exceptional cases....

Sheriffs are politicians who make major decisions about health and safety for millions of Americans — and they shouldn’t be up for sale to the highest bidder.  Alongside carceral reforms and community investment, small-dollar democracy programs can amplify the voices of those most impacted by overincarceration and can help to reenvision a justice system that works for everyone and not just a wealthy few.

January 17, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Sunday, January 16, 2022

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

January 16, 2022 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin

Under California law, the Governor reviews any recommendation of parole by a convicted murderer.  As explained in this new Los Angeles Tomes op-ed, California Governor Gavin Newsom has decided to reverse a parole decision in the high-profile case of Sirhan Sirhan.  Here is how the op-ed starts:

In 1968, Sirhan Sirhan assassinated Sen. Robert F. Kennedy just moments after Kennedy won the California presidential primary.  Sirhan also shot and injured five bystanders. Decades later, Sirhan refuses to accept responsibility for the crimes.

California’s Board of Parole Hearings recently found that Sirhan is suitable for parole. I disagree. After carefully reviewing the case, including records in the California State Archives, I have determined that Sirhan has not developed the accountability and insight required to support his safe release into the community. I must reverse Sirhan’s parole grant.

A copy of the Governor’s parole reversal decision can be found here.  Interestingly, and surely not coincidentally, Gov Newsom also decided today to announce a large number of clemency grants, as this press release details: "Governor Gavin Newsom today announced that he has granted 24 pardons, 18 commutations and 5 reprieves."

Prior related posts:

January 13, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)