Tuesday, August 16, 2022

"Youth Incarceration & Abolition"

The title of this post is the title of this new article authored by Subini Annamma and Jamelia Morgan.  Here is its abstract:

The COVID-19 pandemic has laid bare the dangers of the juvenile legal system; this should make it harder to look away from the societal inequities that are exacerbated by youth incarceration.  Indeed, the current moment, including the unprecedented nationwide protests in response to the murders of George Floyd and Breonna Taylor in summer 2020, has illuminated the power of social movements working to abolish the prison industrial complex, and, as legal scholars have argued, lawyers and law professors should engage with these movements and their calls for abolition and transformative change.  Yet conversations on abolition are mainly centered on adult prisons.  While appreciating and supporting the call for abolishing adult prisons, the absence of youth incarceration from abolitionist movements and discourse is concerning given the violence and disparities that are reflected in youth incarceration.  Furthermore, despite earlier calls to consider abolishing the juvenile legal system, a sustained engagement with abolitionist theory and the juvenile punishment system has not featured in the legal scholarship.  This Article discusses the urgent need to abolish youth incarceration in the context of a global pandemic, surveys arguments for abolition generally, and sets forth an abolitionist critique of youth incarceration using Disability Critical Race Theory (DisCrit) as a lens for analysis.  Applying a DisCrit lens, we discuss how COVID-19 demonstrates the urgency of addressing the harms facing incarcerated youth, particularly Youth of Color and disabled Youth of Color.

August 16, 2022 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Notable new polling on prison oversight and criminal justice reform attitudes

Via email I learned this morning that the organization FAMM released the results of a new national poll on various criminal justice questions.  The polling explored most fully prison oversight issues and the FAMM email about the poll stressed that "among other findings, an overwhelming 82% of respondents said they believe 'that states and the federal government should have a system of independent oversight for their prisons'."  Here are a couple of other key broader criminal justice findings from the poll:

-- 79% of respondents said that they think the criminal justice system "needs significant improvements"

-- 74% of respondents generally support "reforming the nation's criminal justice system"

The detailed poll findings about prison oversight are not easily summarized here, but they are discussed a bit more in this FAMM press release. (Notably and valuably, this survey was completed before last week's search of Mar-a-Lago.)

August 16, 2022 in Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, August 10, 2022

Visiting "The Visiting Room Project"

This week brought the launch of "The Visiting Room Project," a great new oral history project and website.  This new Guardian article provides an overview under the headline "An extraordinary story of forgiveness: from life without parole to finding grace; A new project gives a voice to people serving life sentences in Louisiana – and brought together two men whose lives collided in tragedy." Here is how the site itself describes the project at this link:

The Visiting Room Project is a digital experience that invites the public to sit face-to-face with people serving life without the possibility of parole to hear them tell their stories, in their own words.  More than five years in the making, the site is the only collection of its kind, containing over 100 filmed interviews with people currently serving life without parole.  The interviews were filmed at Angola, the Louisiana State Penitentiary, which is, in many ways, the epicenter of life without parole sentences worldwide.  As of 2022, more than 55,000 Americans are living in prisons serving life without parole, their lives largely hidden from public view.

Marcus Kondkar and Calvin Duncan created The Visiting Room Project.  Marcus is chair of the sociology department at Loyola University New Orleans, where he researches incarceration and sentencing patterns.  Calvin is an expert in post-conviction law. After being wrongfully convicted and sentenced to life without parole, he served 28½ years in Louisiana prisons before winning his freedom in 2011.  Originally, Marcus and Calvin gathered information on life sentences for an academic audience, but, due to their shared belief that the public needs to hear directly from people who had served decades in prison, their collaboration became The Visiting Room Project, documenting stories of growth behind prison walls.  Arthur Carter, who has served more than 30 years of a life sentence, captured the meaning of The Visiting Room Project during his interview, stating, “If I have to die here, I appreciate this opportunity to be able to let my voice be heard.”

This is a living project that didn’t conclude when the last interview was filmed. Instead, the project team and the men who were interviewed together created The Visiting Room Collaborative to share and document the continuing impact of these life stories.  The Visiting Room Collaborative has two missions.  First, to ensure that the participants’ loved ones and communities have access to their interviews.  Secondly, to create opportunities for public audiences to engage with the project material through exhibits, screenings, and collaborations with artists.  As The Visiting Room Project continues to evolve, this site will be updated with new information.

August 10, 2022 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (0)

Saturday, August 06, 2022

Lots of news and notes about federal prisons as leadership transitions

This official posting by the federal Bureau of Prisons, headlined "Attorney General Swears in Colette S. Peters," reports on the official transition of leadership for our national prisons agency.  Here is how it starts:

On Tuesday morning, August 2, 2022, Attorney General Garland officiated the Investiture of Colette S. Peters as the 12th Director of the Federal Bureau of Prisons. In his opening remarks, the Attorney General said the mission of the Department of Justice is to "uphold the rule of law, keep our country safe and protect civil rights. And that mission depends on an effective, safe and humane correctional system."

As highlighted by the news and commentary about various federal prisons matters from various outlets, there are plenty of old problems for a new BOP leader to deal with both short- and long-term:

From the AP, "US keeping ex-prison chief as top adviser after rocky tenure"

Also from the AP, "Senate to hold hearing on crisis-plagued federal prisons"

From The Marshall Project, "She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System?"

From Reason.com, "Biden's New Bureau of Prisons Director Won't be Able To Run Away From the Agency's Corruption"

Also from Reason.com, "Federal Government Under Fire Over Conditions at Atlanta Federal Prison"

From the Washington Post, "U.S. prison officials resist making inmates pay court-ordered victim fees"

August 6, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, July 30, 2022

Federal judge orders Mississippi jail into receivership

As reported in this AP article, a "federal judge has seized control of a Mississippi jail after citing 'severely deficient' conditions at the facility." Here is more about a notable ruling:

In a Friday ruling, U.S. Southern District of Mississippi Judge Carlton Reeves placed Hinds County’s Raymond Detention Center in Raymond into receivership. The judge will soon appoint an expert, known as a “receiver,” to temporarily manage the facility in hopes of improving its conditions.

“After ample time and opportunity, regretfully, it is clear that the county is incapable, or unwilling, to handle its affairs,” the judge wrote. “Additional intervention is required. It is time to appoint a receiver.” Reeves said that deficiencies in supervision and staffing lead to “a stunning array of assaults, as well as deaths.” Seven individuals died last year while detained at the jail, he said.

County officials said they’re still digesting the order and are determining whether they will appeal, WLBT-TV reported.

Federal and state judges have ordered receiv­er­ships or a similar trans­fer of control for pris­ons and jails only about eight times, according to Hernandez Stroud, an attorney at the Brennan Center for Justice at NYU School of Law. “What this receivership order looks like is totally within the court’s discretion,” Stroud said. “What powers to give the receiver, how long the receivership should last — those are matters that Judge Reeves will figure out.”

Judge Reeves's 26-page opinion in this matter is available at this link, and here is a portion of its conclusion:

Nearly six years ago, the County entered into a Consent Decree, and later, a Stipulated Order, with the United States to ameliorate the unconstitutional conditions of confinement in its jail system.  Its efforts succeeded at the Work Center. That facility is no longer under federal supervision.  At RDC, however, the dire circumstances that drove this settlement persist.

The County refuses to take responsibility. Instead, it offers a litany of excuses.  But each of these excuses ultimately boils down to the same argument: conditions at RDC are out of the defendants’ hands.  The County wishes to abdicate responsibility for ensuring the health and safety of detainees in its custody.  The Court is compelled to grant that wish. We can’t wait for continued destruction of the facilities.  We can’t wait for the proliferation of more contraband.  We can’t wait for more assaults.  We can’t wait for another death.  The time to act is now.  There is no other choice, unfortunately.

Upon appointment of a receiver, RDC shall no longer languish in the County’s inadequate grip.  The Court will appoint a federal receiver to oversee operations at RDC, who shall begin work as soon as possible, but no later than November 1, 2022.

Though not directly relevant to this ruling, I still think it worth reminding everyone that Judge Reeves is Prez Biden's nominee to be the Chair of the US Sentencing Commission.

July 30, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Friday, July 29, 2022

Another ugly report on the ugly implementation of the FIRST STEP Act

NBC News has another notable and depressing report on the implementation (or lack thereof) of the prison reform aspects of the FIRST STEP Act.  The full headline provides a summary: "Staffing shortages and deficient training leave First Step Act floundering, federal prison employees say: 'This is the biggest failure I've seen of something that's a law. It's pathetic,' one prison counselor said."  I recommend the piece in full, and here are excerpts:

Chronic staffing shortages in federal prisons and a lack of training have impeded implementation of a Trump-era law designed to give nonviolent inmates the opportunity for early release, locking some up longer and contributing to eroding morale, union leaders and rank-and-file staff members said in interviews....

Staff members at some of the country's largest federal prisons said carrying out the First Step Act, a bipartisan law signed in 2018 by then-President Donald Trump, has been taxing, if not impossible. "It's not going at all," Joe Rojas, the literacy coordinator at the Coleman Federal Corrections Complex in Florida, said of the First Step Act's implementation. "I'm the education department, and we're never open, and if we are, it's barely," said Rojas, who is also the president of the American Federation of Government Employees' Local 506 at Coleman....

Bureau officials say they have worked to identify inmates who qualify for early release and "have no data which suggests inmates had their release dates delayed."

Rojas said employees like him who should be operating programs that can help inmates earn time credits aren't able to do so because they're being diverted to other correctional officer-type duties during the staffing shortage — a practice known as augmentation. "Most of us are augmented," Rojas said. "There's no programming. If there's no programming, you can't do the First Step Act."

Some prior related posts:

July 29, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (1)

Wednesday, July 27, 2022

Great new Robina Institute report on "Examining Prison Releases in Response to COVID"

I was so pleased to see this week that the Robina Institute of Criminal Law and Criminal Justice has this great big new report titled "Examining Prison Releases in Response to COVID: Lessons Learned for Reducing the Effects of Mass Incarceration."  The full 86-page report is a must read and it so rich and intricate, I can only here excerpt a portion of the executive summary:

In response to the global pandemic in 2020, states and the federal government began to make non-routine releases from prison in order to reduce prison populations to allow for social distancing in prison facilities. This report is aimed at describing where such prison releases occurred, the legal mechanisms used to achieve these releases, and the factors within jurisdictions that made non-routine prison releases more or less likely to occur. We write this report, not to examine the national response to the pandemic, but to better understand when and how extraordinary measures may be used to effect prison release, and to determine whether there are lessons from this experience that can be applied to reducing the effects of mass incarceration.

Prevalence of Release:

  • We estimate that a total of 80,658 people were released from prisons in 35 jurisdictions (34 states and the federal prison system) due to COVID-related policies, which was equivalent to about 5-1/2% of the total state and federal prison population in 2019.
  • Most COVID-related releases were quite modest, amounting to the equivalent of less than 10% of the 2019 prison populations in 27 of the 35 jurisdictions in which releases occurred (Figure 2).

Legal Mechanisms:

  • The legal mechanisms used most frequently to release people from prison during the pandemic were parole (11 jurisdictions), compassionate release (10 instances in 9 jurisdictions), home confinement (8 jurisdictions), commutation (7 jurisdictions), and good time or earned time credits (6 jurisdictions) (Figure 3).

Criteria for Release:

  • Type of crime, COVID health risk, and time left to serve on one’s sentence were the criteria most frequently used — either alone or in combination — to determine eligibility for release due to COVID-related policies.
  • Most release groups (39 of 73) required that a person had to have been convicted of a non-violent offense (Figure 4).
  • COVID health risks — addressing both medical vulnerability and age — were used as criteria in 38 of 73 release groups (Figure 6).
  • Most release groups (37 of 73) required that a person have a short time left to serve on their sentence (Figure 7). Though the amount of time varied from 30 days in New Mexico to 5 years in Kentucky, the average was 9 months, and the most frequently used time period was 12 months.

Political and Structural Influences:

  • Gubernatorial leadership played a larger role in whether the jurisdictions made releases, with fewer jurisdictions with Republican leadership making releases. However, determinacy may have affected how many releases were possible, with indeterminate jurisdictions making larger releases than determinate jurisdictions regardless of political leadership.
  • All but three Democratic-led jurisdictions (21 of 24) made COVID-related prison releases while only about half of Republic-led jurisdictions (14 of 27) did so (Table 4).
  • Nearly all of the jurisdictions (7 of 8) with the largest COVID-related releases — those greater than 10% of the 2019 prison population — were indeterminate in structure.

July 27, 2022 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

New Sentencing Project paper explores "Voting in Jails: Advocacy Strategies to #UnlocktheVote"

The Sentencing Project just released a new briefing paper, available here, focused on voting from jails.  Here is how the short paper is described by The Sentencing Project:

Each new election cycle presents an opportunity to improve voter access for persons who are legally eligible to vote among the approximately 549,000 individuals in U.S. jails. The vast majority of persons in jails are eligible to vote because they are not currently serving a sentence for a felony conviction, but are incarcerated pretrial or sentenced to a misdemeanor offense.  However, incarcerated voters often experience significant barriers to voting because of misinformation, institutional bureaucracy that varies from one county/city to another, and deprioritization among government officials.

In most states there are underdeveloped practices for people incarcerated in prisons and jails to register or access absentee ballots and/or polling locations.  Many incarcerated residents cannot freely communicate via phone or email with election officials to monitor their voter registration or ballot applications.  Voter education for justice-impacted citizens is often limited and varies across states and results in too many Americans being left behind each election season.

Recent reforms and a growing civic infrastructure offer opportunities to strengthen voting access and ensure the franchise for every individual, regardless of their incarceration status.  This briefing paper provides cases that support expansion of voting access and can inform state and local advocacy efforts.

July 27, 2022 in Prisons and prisoners | Permalink | Comments (0)

Recapping some notable Senate hearings on prisons and pot

Yesterday saw two notable hearing on Capitol Hill on criminal justice concerns, and here is some press coverage providing a partial summary of some of what transpired:

From the AP, "Prisons chief deflects blame for failures, angering senators":

With just days left in his tenure, the embattled director of the federal prison system faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.

Bureau of Prisons Director Michael Carvajal, testifying before the Senate’s Permanent Subcommittee on Investigations, insisted he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.

Carvajal, who resigned in January and is set to be replaced next week by Oregon’s state prison director Colette Peters, blamed the size and structure of the Bureau of Prisons for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the agency’s 122 facilities.

From Courthouse News Service, "Marijuana decriminalization takes center stage at Senate hearing":

[Senator Cory] Booker, chairman of the subcommittee and the only Black senator on the Senate Judiciary Committee, said that the federal criminalization of cannabis has “miserably failed” and has led to a “festering injustice” of selectively enforced drug laws disproportionately targeting Black and brown communities.  Nationally, according to a 2020 report by the ACLU, a Black person is nearly four times more likely to be arrested for possession of marijuana than a white person, despite the fact that marijuana use is equally common among racial groups. “Cannabis laws are unevenly enforced and devastate the lives of those most vulnerable,” Booker said during the Tuesday hearing....

Republican Senator Tom Cotton of Missouri hit out against the legislation, alleging it “would wipe clean the criminal records of illegal alien traffickers.”  “When these criminals trafficked marijuana, they broke the law. Whether some find that law unfashionable or even unfair, what they did was illegal,” Cotton said.

Weldon Angelos, who was sentenced to 55 years in prison for possessing several pounds of marijuana as well as a firearm and was later pardoned by former President Donald Trump, told the committee that expungement is a critical part of the legislation in order to address what he sees as a racially motivated ban on marijuana.  “Each arrest, prosecution, conviction and sentence makes the world a little bit smaller for those bearing the modern scarlet letter,” Angelos said, referring to what it’s like to live with a drug conviction....

Edward Jackson, chief of the Annapolis Police Department, testified in support of the bill, saying “there is nothing inherently violent” about cannabis.  Jackson asserted that decriminalization would both improve community trust in police and allow officers to focus on higher priority and violent crimes.  “I have spent far too much time arresting people for selling and possessing cannabis,” Jackson said.

July 27, 2022 in Pot Prohibition Issues, Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Tuesday, July 26, 2022

"Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System"

The title of this post is the title of this new paper now available via SSRN and authored by Murat C. Mungan, Erkmen Giray Aslim and Yijia Lu.  Here is its abstract:

High recidivism rates in the United States are a well-known and disturbing problem.  In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states.  Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems.  IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for income as well as reducing their likelihood of committing crimes impulsively under the influence of substances and mental disturbances.  However, those who oppose IAPs quickly point out that they involve significant costs, and may reduce the general deterrence effects of criminal punishment.  These objections are based on simple economic theories which suggest that IAPs can reduce general deterrence by providing inmates with benefits that partially off-set the expected costs of punishment.  Thus, whether IAPs can be used in a cost-effective manner is an empirical question, whose answer depends on the trade-off between its recidivism reducing effects on the one hand, and its financial and general deterrence costs on the other.

Here, we provide the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; and loss aversion.  Our empirical analysis focuses on the impact of increased welfare benefits provided to certain inmates by states which chose to opt out of the 1996 federal ban under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA).  This act prevented drug offenders from using welfare benefits and food stamps.  Consistent with our theoretical predictions, and using a difference-in-differences design, we find no statistically significant impact of states’ decisions to opt out of the PRWORA bans on the general deterrence of drug crimes.

Subsequently, we build on prior economic theories as well as our empirical observations to explain how the criminal justice reforms that use shorter imprisonment sentences and more frequent use of IAPs can reduce crimes as well as the costs of administering the criminal justice system.  The cost savings from reducing sentences for repeat offenders can be used to finance IAPs without significantly affecting deterrence due to the ineffectiveness of lengthy imprisonment sentences.  Thus, our analysis suggests IAPs can, in fact, be used in a cost-effective manner to reduce crime, and are valuable and humane tools that policy makers ought to consider as alternatives to punitive measures.

July 26, 2022 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

US Sentencing Commission reports on "Life Sentences in the Federal System"

Cover_life-sentencesI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

  • During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
  • Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
  • Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
  • Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
  • The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.
Offenders Sentenced to De Facto Life Imprisonment
  • There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
  • One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
  • More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
  • Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
  • The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 25, 2022

Spotlighting the "unheard-of decline in Black incarceration"

Keith Humphreys and Ekow Yankah have this notable new Chicago Tribune commentary headlined "The unheard-of decline in Black incarceration." This piece should be read in full, and here are excerpts:

Two years after George Floyd’s murder, protest-filled streets and countless invocations of a “racial reckoning,” public backlash and boredom have led many people to despair that the criminal justice system will never change.  But that dispiriting illusion is false, maybe even dangerous.  After generations of soul-crushing mass incarceration, African Americans have cause for hope: The Black imprisonment rate is at a 33-year low, having fallen to about half its level of a generation ago. But an inadvertent collaboration of ideological adversaries makes the decline of Black incarceration unspeakable.

On the one hand, the good news is hidden by racism. The narrative of inherent Black violence and immorality has been used to terrify white people and justify the oppression of Black people for centuries. As a Media Matters study demonstrated, if a criminal suspect is Black, the case is more likely to be covered on television news. Social media platforms greatly magnify the distortion. Within the narrative of inherent Black criminality, the decline in Black incarceration seems an impossibility: Black people must be in prison because that is where they belong. And even the racists who are aware of the decline in Black imprisonment may decide to keep silent — the truth is less important than the social or political gain offered by continual whispers of the Black boogeyman.

Anti-racist advocates oppose this narrative, emphasizing instead the structural forces that use fear of Black Americans to feed the fire of mass incarceration. But anti-racists may share racists’ unawareness or discomfort with declining Black incarceration. Black hopes have been dashed too many times to trust a change in their oppressor’s character. Other anti-racists are aware of the change but have fears of acknowledging it. White concern for racial justice has a history of evaporating. Two years after police murdered George Floyd, it is disheartening to see how quickly earnest proclamations of a “racial reckoning” withered into a commitment to abolish a pancake mix logo.

To be sure, the disproportionate incarceration of Black Americans remains a national tragedy that cannot be consigned to history if white people become complacent. Reformers understandably fear that focusing on the decline in Black incarceration (or positive comparison with white people) will further slow the dismantling of a system that still destroys countless lives. Still, assuming American racism is intractable creates a narrative that also cannot account for the decline in Black imprisonment.

Despite their competing premises, the racist and anti-racist narratives accidentally reinforce each other. They share a code of silence about Black de-incarceration that misleads Americans about the current racial realities of mass incarceration. In the absence of corrective information from journalists and activists, most people assume incorrectly that prisons continue to gobble up the lives of an increasing number of African Americans.

No matter our politics, we should care about what is true — the Black imprisonment rate has been dropping for a generation.  Hundreds of thousands of African Americans who would have been behind bars are now free.  Callous actors will claim this is too many, and anti-racists will argue it’s too few.  But would anyone argue with a straight face that such a dramatic change in the fate of hundreds of thousands of people warrants no discussion at all?...

In a country where so many — particularly people of color — long to see images of Black excellence celebrated, stories of Black progress should be highlighted rather than buried. Without ever forgetting the work still to be done, Americans of all races should be told of the progress that has and can be won.

I am always glad to see important data about modern incarceration emphasized, though I think op-eds could be written about all sorts of data realities going largely ignored or being misunderstood in many era.  There was precious little public discourse about mass increases in US incarceration for decades, and still very few talk about the remarkable increases and decreases in federal incarceration (and caseloads) over the last 25 years.  Though there is often discourse around private prisons, relatively few highlight what a small part they play in the national incarceration map.  Demographics such as gender and age and class (often combining with racial dynamics) can vary dramatically in incarcerated populations depending on crimes and jurisdictions, and dynamic recent modern changes in urban and rural incarceration rates have also often been overlooked or underexamined.  And, of course, data lags and other factors make it hard to even know how profoundly the COVID pandemic has reshaped our incarceration levels or whether any changes brought by COVID may prove enduring.

Put slightly differently, in this context, I do not see all that many thought-out "narratives" seeking to hide or obscure key data.  Instead, I see many advocates and media with relatively little interest in data combining with a general paucity of clear and effective data resources.  That said, given the considerable attention given to racial issues in broader criminal justice narratives and elsewhere in policy debates, I am still eager to praise Professors Humphreys and Yankah for this important commentary.  But, for me, it is just one small part of a much bigger story of political rhetoric often having little interest in complicated policy data.

A few of many older and newer related prior posts:

July 25, 2022 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (17)

Thursday, July 21, 2022

Spotlighting legal fight over revocation of CARES Act releases to home confinement

USA Today has this lengthy article discussing the revocation of home confinement for hundreds of persons released under the CARES Act. The piece is headlined "They were released from prison because of COVID. Their freedom didn't last long." Here are excerpts:

[Eva] Cardoza and two other women are at the center of federal lawsuits saying that people released from prison because of COVID-19 are now being sent back over minor infractions, such as not picking up a call from staffers overseeing their home confinement. The lawsuits come as the Bureau of Prisons is facing scrutiny for re-incarcerating people in home confinement over minor offenses, even as the agency has increasingly relied on the program to help reduce recidivism and prison populations....

During the pandemic, Cardoza was one of more than 43,000 people nationwide who were released from prison to home confinement during the COVID-19 pandemic. The BOP website said around 50,000 people incarcerated at its facilities had recovered from coronavirus and around 300 had died.

The massive CARES ACT granted then-Attorney General Bill Barr the option to broaden the use of the home confinement program, which had previously only been allowed to be used at the very end of a person's sentence. Barr opted to allow thousands of people to receive home confinement much earlier, shaving off years from a person's sentence in some cases....

Last year, more than 3,000 people were released to CARES ACT home confinement, according to a records request put in by the Prison Policy Initiative, a nonpartisan public think tank.

Those who were released to home confinement were told they must follow specific rules. They have to keep re-entry professionals — specialists who are often working for companies contracted by the BOP — updated on their whereabouts. They often wear electronic monitoring and receive special permission to visit stores or other locations. They can go to work or school. But if someone on home confinement was found to have an infraction, such as missing a check-in or a failed drug test, they could be returned to prison.

The Bureau of Prisons told USA TODAY that 407 people had their home confinement revoked. Of those, 212 were returned due to misconduct in violation of program rules, such as alcohol use and drug use; 69 were returned after an escape, such as an unauthorized absence from custody; and 11 were for new criminal conduct and other violations.

The Bureau of Prison's Inmate Discipline Program requires several steps before returning a person in home confinement to prison, including a disciplinary hearing, written notice of the allegations and the ability to present evidence. The BOP told USA TODAY its Administrative Remedy Program allows people to have "any issue related to their incarceration formally reviewed by high-level" officials.

But lawyers involved in the lawsuits said their clients did not have hearings, written notice or the ability to present evidence. They said their pleas for review were ignored and noted that the cumbersome, months-long process can lead to collateral damage, such as a child going back into foster care while the parent is in prison.

July 21, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

"Cruel and Unusual Youth Confinement"

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

In a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be taken into consideration at sentencing.  Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole (“LWOP”) terms.  Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner’s need for “hope” and “reconciliation with society.”  While scholars have grappled with the implementation of these cases for nearly a decade, there has been no comprehensive analysis of what these cases mean for conditions of confinement.  That is, if children are different for constitutional purposes at the moment of sentencing, surely, they are still different when transported to a correctional facility and confined by the state. This Paper seeks to close that gap in the literature by making two specific contributions: first, by arguing that the Court’s juvenile sentencing decisions impose affirmative obligations upon states regarding youth conditions of confinement; and second, by articulating a standard for measuring when youth conditions of confinement violate the Eighth Amendment.  As long as the United States persists in its extreme juvenile sentencing practices, the project of articulating what constitutes cruel and unusual youth confinement remains crucial.

July 21, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Tuesday, July 19, 2022

"Carceral Intent"

The title of this post is the title of this new article authored by Danielle C. Jefferis and now available via SSRN. Here is its abstract:

For decades, scholars across disciplines have examined the stark injustice of American carceralism.  Among that body of work are analyses of the various intent requirements embedded in the constitutional doctrine that governs the state’s power to incarcerate.  These intent requirements include the “deliberate indifference” standard of the Eighth Amendment, which regulates prison conditions, and the “punitive intent” standard of due process jurisprudence, which regulates the scope of confinement.  This Article coins the term “carceral intent” to refer collectively to those legal intent requirements and examines critically the role of carceral intent in shaping and maintaining the deep-rooted structural racism and sweeping harms of America’s system of confinement.

This Article begins by tracing the origins of American carceralism, focusing on the modern prison’s relationship to white supremacy and the post-Emancipation period in U.S. history.  The Article then turns to the constitutional doctrine of incarceration, synthesizing and categorizing the law of carceral intent.  Then, drawing upon critical race scholarship that examines anti-discrimination doctrine and the concept of “white innocence,” the Article compares the law’s reliance on carceral intent with the law’s reliance on discriminatory intent in equal protection jurisprudence.  Critical race theorists have long critiqued the intent-focused anti-discrimination doctrine as incapable of remedying structural racism and inequities.  The same can be said of the doctrine of incarceration.  The law’s preoccupation with an alleged wrongdoer’s “bad intent” in challenges to the scope and conditions of incarceration makes it ill-suited to remedying the U.S. prison system’s profoundly unjust and harmful features.  A curative approach, this Article asserts, is one in which the law focuses on carceral effect rather than carceral intent, as others have argued in the context of equal protection.

July 19, 2022 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, July 13, 2022

Some news and notes regarding new director of the federal Bureau of Prisons

As first noted in this prior post, Colette Peters, who has served as Director of the Oregon Department of Corrections for more than a decade, this week was selected to lead the federal Bureau of Prisons by Attorney General Merrick Garland.  The official announcement from DOJ is at this link, and it reports that she "will assume her duties on Tuesday, August 2."  The announcement prompted some notable press releases and coverage.  For example:

From a press release from Senate Dick Durbin's office, this quote from Senator Durbin:

It’s no secret that BOP has been plagued by misconduct.  One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels.  In light of those reports, I called for former BOP Director Michael Carvajal’s resignation last November.  So it was welcome news when six weeks later, he announced his resignation.  I am hopeful that with Colette Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the bureaucratic rot and reform BOP.  It is a tall order, and I look forward to working with Ms. Peters to help her succeed in this new role.

From a press release from FAMM, this quote from FAMM President Kevin Ring:

Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change. During Caravajal’s tenure, the BOP has been a black box. When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.

The most thorough reporting I have seen regarding Peters' professional track record comes from this entry at Chris Geidner's substack LawDork.  I recommend the full entry, and here is a portion (with links from the original):

DOJ pointed to ODOC’s development of the “Oregon Way” under her leadership.  As ODOC describes it, the goal of the “Oregon Way” is to “improve employee health and wellness, and reduce the use of segregation, by transforming environments inside correctional facilities to be more normal and humane.”

Bobbin Singh, the executive director of the Oregon Justice Resource Center, however, expressed significant concerns about the appointment given his experience with her work in Oregon — including in ongoing litigation.

“This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told Law Dork on Tuesday.

Less than a month ago, his organization sent a new report to state lawmakers, detailing ongoing problems in the department. In the letter to lawmakers accompanying the report, which was provided to Law Dork, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

July 13, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Monday, July 11, 2022

Colette Peters selected to lead federal Bureau of Prisons

Government officials who run prison and jail systems at the local, state and federal level will often have a huge impact not only on the lives of incarcerated persons, but also on broader criminal justice realities. In the federal system, thanks especially to the FIRST STEP Act's emphasis on an array of new prison-focused reforms, the head of the Bureau of Prisons is now an especially important position. As this new New York Times article details, the BOP is about to have a new leader:

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead the chronically mismanaged and understaffed federal Bureau of Prisons, according to two people familiar with the decision.

The Justice Department, which oversees the bureau, is expected to announce her appointment this week, perhaps as early as Tuesday.  The bureau, a sprawling network of 122 facilities with an annual budget of around $10 billion, houses about 158,000 inmates.

The appointment comes after a long search to replace the current director, Michael Carvajal, who announced his intention to retire in January, under pressure from Senate Democrats who questioned his management.

Ms. Peters, who began her career as an administrator in Oregon’s juvenile justice system, rose to national prominence after instituting changes in the state’s 14-facility system to improve the health and treatment of its 15,000 inmates. She was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.

The federal prisons bureau has long been plagued by health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks.  Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an investigation by The Associated Press last year, which uncovered a wide array of other shortcomings....

Under the Trump administration, the bureau was the subject of turf battles and ideological disagreements, even as the White House negotiated the bipartisan criminal justice legislation known as the First Step Act.  The measure was devised to reduce the size of the federal prison system and to provide lower-level offenders with greater access to alternatives to incarceration.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

"FAMM challenges policymakers nationwide to #VisitAPrison"

FAMM, an advocacy organization which describes itself as promoting "fair and effective criminal justice policies that safely reduce incarceration, save taxpayer dollars, and keep families together," has launched today what is now an annual campaign that encourages local, state, and national policymakers to visit a prison or jail in their states or districts.  The title of this post is the subject line of an email I just received from the FAMM folks, and here is more its text:

“Laws are written for prisons and jails across the country and voted on by people who’ve never set foot inside them,” Ring said.  “This is such a simple step for policymakers to take, and anyone who visits will learn something by talking to the people who live and work in these facilities.  Our message is simple: You don’t know if you don’t go.”

Our nation’s prisons and jails are in crisis.  Staff shortages, poor healthcare, crumbling infrastructure, and other chronic problems have resulted in prisons that are unsafe to live and work in for prisoners and correctional officers alike. 

To assist in the effort, FAMM has mobilized families, advocates, allies, and public figures to share their stories via video using the #VisitAPrison hashtag and to challenge policymakers to educate themselves about the conditions of confinement in federal and state prisons and jails.

For more information, including a tracker of lawmakers who have visited a prison, visit FAMM.org/visitaprison.

I robustly endorse this effort to encourage lawmakers and other public officials.  Especially amid considerable political discourse about crime and punishment, I hope political candidates and voters will, in this significant election year, make efforts to advance and inform discussions regarding the goals and the realities of incarceration in America circa 2022.

UPDATE: The organization Fair and Just Prosecution today released this notable letter in support of the FAMM campaign which starts this way:

Today, 65 elected prosecutors pledged to personally visit the correctional facilities in which individuals prosecuted by their offices are placed and to require all prosecutors in their offices to do the same.  The signatories — who represent over 50 million people across 28 states and territories and the District of Columbia — emphasize that “it is vital for prosecutors to understand the true impact of their decisions and to see firsthand the jails, prisons, and juvenile facilities in their jurisdiction.”  The pledge is part of FAMM’s #VisitAPrison challenge, which encourages all state and federal policymakers to visit a prison or jail.

July 11, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Thursday, July 07, 2022

Still more discussion of the BOP's failings with FIRST STEP Act

At Forbes, Walter Pavlo has this new piece under the headline "Bureau Of Prisons Holding Inmates For Longer Than Law Allows." The piece provides another account of the difficulties the BOP is having in giving persons in federal prison the credits set forth in the FIRST STEP Act. Here is an excerpt:

The FSA, signed into law by President Donald Trump in December 2018, allows many prisoners to earn additional time off of their sentence, up to a year, and also earn extensive time in pre-release custody (halfway house and home confinement). Those credits, up to 15 days for every 30 days of holding a job and participating in programs/education, can be significant. It means the difference between rejoining one’s family a year or more earlier than before the FSA. However, there are reports from around the country that the BOP is not providing accurate information to prisoners about their FSA credits and some are staying in prison longer than necessary....

A declaration by BOP’s Susan Giddings in a federal civil case (Northern District of Alabama, 1:22-cv-00294, Stewart v Warden) provides a glimpse of the challenges the BOP faces in trying to implement FSA. Giddings is the Chief of the Unit Management Section of the Correctional Programs Branch at the BOP’s Central Office in Washington DC. In addition to her role overseeing Correctional Systems, she has been involved in the development and implementation of the BOP’s FSA procedures. As part of Giddings’ declaration for the Petitioner, inmate Robert Stewart, she noted that “... for reasons that are not apparent to me, Petitioner’s FSA credits were in fact incorrectly calculated.” If one person’s is wrong, many others are as well. One of the reasons might be that the BOP is currently calculating these FSAs manually....

Thousands of inmates are in the position to be freed under FSA but many will be held longer than necessary as the BOP tries to get its computer system up to speed. As one family told me about waiting for the BOP’s new sentence calculator, “it can’t come soon enough.”

Some prior related posts:

July 7, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, July 03, 2022

Another account of continuing struggles with FIRST STEP Act implementation

NBC News has this lengthy new piece under the headline "Thousands of federal inmates still await early release under Trump-era First Step Act." Here are excerpts:

Thousands of nonviolent federal prisoners eligible for early release under a promising Trump-era law remain locked up nearly four years later because of inadequate implementation, confusion and bureaucratic delays, prisoner advocacy groups, affected inmates and former federal prison officials say.

Even the Biden administration’s attempt to provide clarity to the First Step Act by identifying qualified inmates and then transferring them to home confinement or another form of supervised release appears to be falling short, according to prisoner advocates familiar with the law.

The Department of Justice was tasked with carrying out the law through the federal Bureau of Prisons, but the bureau director, Michael Carvajal, a Trump administration holdover, announced his retirement in January amid criticism of a crisis-filled tenure marked by agency scandals.  No replacement for Carvajal has been named, and criminal justice advocates contend that for the bureau to allow even one person to be incarcerated beyond what is permitted under the First Step Act exposes ongoing failures.

“It shouldn’t be this complicated and it shouldn’t take this long,” said Kevin Ring, president of the nonprofit advocacy group Families Against Mandatory Minimums, or FAMM.  “Here we are, four years later, and it’s maddening.”

The Justice Department published a final rule in January that implements an integral feature of the law in which inmates can earn so-called time credits, which are obtained through participation in prison and work programs and calculated as part of the process of getting out early.  The problem, advocates say: They are identifying inmates whose time credits aren’t getting applied, and in some cases, the inmates aren’t getting released as early as they should be....

Data provided by the Bureau of Prisons shows that as of June 18, more than 8,600 inmates have had their sentences recalculated and are slated for release with the application of their time credits.  But it’s unclear how many qualified inmates are entitled to have been released early but remain incarcerated. In a response, bureau officials said, “We have no data which suggests inmates had their release dates delayed.”

But with the bureau’s own data identifying about 66,600 inmates who are eligible to earn time credits, some industry experts disagree. “We estimate that there are thousands of inmates who will not receive the full benefit — days off of their federal prison sentence — of the First Step Act simply because the agency is uncertain how to calculate these benefits,” said Walter Pavlo, president of the consulting firm Prisonology LLC....

Pavlo said the Bureau of Prisons never had the mechanisms in place to adequately track inmates’ participation and he is concerned the agency “is not facilitating the timely calculation and application of time credits in accordance with the final rule, forcing inmates to serve custodial terms longer than required.”  In the cases he’s reviewed, he said he has seen inmates in prison from six months up to a year who could have had either an earlier release or time in pre-release custody.  “The biggest problem is nobody on the front lines seems to understand the new rule,” Pavlo said. “There needs to be a task force on this now.”

Some prior related posts:

July 3, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Tuesday, June 28, 2022

"The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future"

The title of this post is the title of this new article authored by Rabia Belt now available via SSRN. Here is its abstract:

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however.  It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously — and how complicated taking disability seriously is.  Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism.  Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism.  This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereotyping to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments.  This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.”  Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments.  Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

June 28, 2022 in Prisons and prisoners | Permalink | Comments (4)

Thursday, June 23, 2022

"Nothing but Time: Elderly Americans Serving Life Without Parole"

The title of this post is the title of this new report from The Sentencing Project. Here is most of the executive summary and recommendations from the start of the report:

Prisons are a particularly hazardous place to grow old.  The carceral system is largely unprepared to handle the medical, social, physical, and mental health needs for older people in prison.  Nearly half of prisons lack an established plan for the care of the elderly incarcerated....

Warnings by corrections budget analysts of the crushing costs of incarcerating people who are older have gone almost entirely unheeded. Indeed, sociologist and legal scholar Christopher Seeds accurately described a transformation of life without parole “from a rare sanction and marginal practice of last resort into a routine punishment in the United States” over the last four decades.  And in the contemporary moment of rising concerns around crime, there are reasons to be concerned that ineffective, racially disproportionate, and costly tough-on-crime measures such as increasing sentence lengths will proliferate, leading to even higher numbers of incarcerated people who will grow old in prison.  In this, as in many other aspects of its carceral system, the United States is an outlier; in many Western democracies those in their final decades of life are viewed as a protected class from the harsh prison climate.

Older incarcerated people describe sentences of life without the possibility of parole (LWOP) — with the expectation that they will die in prison — as particularly cruel, involving a devastating loss of human dignity.  Considering the consistent observation across dozens of studies that people “age out” of criminal conduct, the dedication of resources toward a group that is of extremely low risk is a foolish investment.  Yet people serving LWOP are a growing share of the overall life-sentenced population and the number of people in prison serving LWOP is at an all-time high.  While LWOP sentences have been a sentencing component of the American punishment spectrum for much of its existence, recent mandatory and preferential imposition of life sentences with no chance for parole are a more prominent feature than ever.  In 2020, The Sentencing Project produced a 50-state survey of departments of corrections that revealed that more than 55,000 Americans are incarcerated in state and federal prisons with no chance of parole, reflecting a 66% rise in people serving LWOP since 2003.

Because compassionate release, whether based on chronological age (geriatric parole) or diagnosis of a terminal illness (medical parole), typically excludes people serving life sentences by statute, the only option for an early release for people serving LWOP is executive clemency.  While clemency was common for older people serving life sentences sixty years ago, it was nearly terminated by the 1970s, and is still rarely used today.

This report explores the features of the LWOP population in more detail, focusing on the aging demographic in particular.  The data presented in this report reflect the patterns of 40,000 people serving LWOP sentences across 20 states.  These 20 states reflect three quarters of the LWOP population nationwide. The main findings in this report are the following:

• Almost half (47%) of the people serving LWOP are 50 years old or more and one in four is at least 60 years old.

• In ten years, even if no additional LWOP sentences were added in these states, 30,000 people currently serving LWOP will be 50 or older.

• 60% of the elderly imprisoned serving LWOP have already served at least 20 years....

• Half of aging people serving LWOP are Black and nearly 60% are people of color....

• The majority of people serving LWOP have been convicted of murder, but a growing share of the overall LWOP population has been convicted of less serious crimes, reflecting an over-expansion of LWOP.

We make a series of recommendations for reform based on the research presented in this report:

• Reinstate parole or resentencing opportunities for those currently ineligible.

• Give added weight to advanced age at review hearings. Advanced age considerations should begin at age 50 in light of the accelerating aging process that accompanies imprisonment.

• Allow immediate sentence review with presumption of release for people who are 50 and older and have served 10 years of their LWOP sentence.

• Revise medical parole release statutes to include all incarcerated people regardless of crime of conviction and age.

• Upon release, transition elderly persons, including those who have been convicted of a violent crime and those who are serving LWOP and other life sentences, to well-supported systems of community care if they are too frail to live independently.

• Require states to disclose the cost of incarcerating elderly people, including the cost of all medical care, as well as projections for future costs. Failing in such fiscal transparency keeps taxpayers in the dark about the true cost of mass incarceration.

• Expand clemency release opportunities to reflect their higher usage in earlier eras.

June 23, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (8)

Wednesday, June 22, 2022

"Chronic Punishment: The unmet health needs of people in state prisons"

The title of this post is the title of this new report from the Prison Policy Initiative authored by Leah Wang.  Here is how the report gets started (with some original links retained):

Over 1 million people sit in U.S. state prisons on any given day.  These individuals are overwhelmingly poor, disproportionately Black, Native, Hispanic, and/or LGBTQ, and often targeted by law enforcement from a young age, as we detailed recently in our report Beyond the Count.  And all too often, they are also suffering from physical and mental illnesses, or navigating prison life with disabilities or even pregnancy.  In this, the second installment of our analysis of a unique, large-scale survey of people in state prisons, we add to the existing research showing that state prisons fall far short of their constitutional duty to meet the essential health needs of people in their custody.  As a result, people in state prison are kept in a constant state of illness and despair.

Instead of “rehabilitating” people in prison (physically, mentally or otherwise), or at the very least, serving as a de facto health system for people failed by other parts of the U.S. social safety net, data from the most recent national  Survey of Prison Inmates show that state prisons are full of ill and neglected people.  Paired with the fact that almost all of these individuals are eventually released, bad prison policy is an issue for all of us — not just those who are behind bars.

This report covers a lot of ground, so we’ve divided it into sections that can be accessed directly here:

Physical health problems: Chronic conditions and infectious disease

Access to healthcare: People in state prison disproportionately lacked health insurance

Mental health problems: Exceptionally high rates among incarcerated people

Disabilities: Disproportionate rates of physical, cognitive, and learning disabilities

Pregnancy and reproductive health: Expectant mothers are underserved in prison

Conclusions and recommendations: How do we begin to address unmet needs in prisons?

Methodology: Details about the data and our analysis

Appendix tables: Explore the data yourself

June 22, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, June 17, 2022

"Free-World Law Behind Bars"

The title of this post is the title of this notable new article authored by Aaron Littman now available via SSRN. 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.

June 17, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (10)

Wednesday, June 15, 2022

Notable new ACLU report on prison labor in the United States

This ACLU press release provides a summary of this notable new report from the ACLU and the University of Chicago Law School Global Human Rights Clinic concerning prison labor in the US.  Here is a excerpt:

The first-of-its-kind report, Captive Labor: Exploitation of Incarcerated Workers, examines the use of prison labor throughout state and federal prisons in the U.S. and highlights how incarcerated workers’ labor helps maintain prisons and provides vital public services.  Captive Labor also calls for far-reaching reforms to ensure prison labor is truly voluntary and that incarcerated workers are paid fairly, properly trained, and able to gain transferable skills. 

“The United States has a long, problematic history of using incarcerated workers as a source of cheap labor and to subsidize the costs of our bloated prison system,” said Jennifer Turner, principal human rights researcher with the ACLU’s Human Rights Program and primary author of the report. “Incarcerated workers are stripped of even the most minimal protections against labor exploitation and abuse. They are paid pennies for their work in often unsafe working conditions even as they produce billions of dollars for states and the federal government. It’s past time we treat incarcerated workers with dignity. If states and the federal government can afford to incarcerate 1.2 million people in prisons, they can afford to pay them fairly for their work.”

Key findings include:

  • Nearly two thirds (65 percent) of incarcerated people report working behind bars — amounting to roughly 800,000 workers incarcerated in prisons.
  • More than three quarters of incarcerated workers surveyed (76 percent) report facing punishment — such as solitary confinementdenial of sentence reductions, or loss of family visitation — if they decline or are unable to work. 
  • Prison laborers are at the mercy of their employers.  They have no control over their work assignments, are excluded from minimum wage and overtime protections, are unable to unionize, do not receive adequate training and equipment, and are denied workplace safety guarantees despite often dangerous working conditions.
  • As a result, 64 percent of incarcerated workers surveyed report worrying about their safety while working; 70 percent say they received no formal job training; and 70 percent report not being able to afford basic necessities like soap and phone calls with prison labor wages. 
  • Incarcerated workers produce at least $2 billion in goods and $9 billion worth of prison maintenance services annually, but this number is not closely tracked and is likely much higher. 
  • Yet, most states pay incarcerated workers pennies per hour for their work. Seven state prison systems (Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas) pay nothing for the vast majority of prison work.  Other states pay on average between 15 and 52 cents per hour for non-industry jobs.  Prison laborers often see up to 80 percent of their paycheck withheld for taxes, “room and board” expenses, and court costs.
  • More than 80 percent of prison laborers do general prison maintenance, which subsidizes the cost of our bloated prison system. Other tasks represent less than 10 percent of work assignments, including: public works projects (like road repair, natural disaster assistance, forestry work, and maintenance of parks, schools, and government offices); state prison industries, agricultural work, and coveted private company work assignments. 

June 15, 2022 in Prisons and prisoners | Permalink | Comments (1)

Tuesday, June 14, 2022

"Recidivism And Federal Bureau Of Prisons Programs Vocational Program Participants Released In 2010"

The title of this post is the title of this new report form the US Sentencing Commission.  This USSC webpage provides this basic overview and "Key Findings":

This report is the sixth in a series continuing the Commission’s study of the recidivism of federal offenders released in 2010. In this report, the Commission provides an analysis of data on the recidivism of federal offenders who participated in Federal Bureau of Prisons (BOP) vocational programs while incarcerated.  The study examines whether completion of vocational programs offered by the BOP impacted recidivism among a cohort of federal offenders who were released from prison in calendar year 2010.  The report combines data regularly collected by the Commission, Federal Bureau of Investigation (FBI) criminal history records, and data on program completion and participation provided by the BOP.

In this report, Vocational Program Participants were offenders who participated in one of the following programs:

Occupational Education Program (OEP)

  • The first group comprises 7,310 offenders who participated in at least one OEP vocational or technical training course.
  • OEP offers a variety of programs where participants can take courses in vocational and occupationally oriented areas for the purpose of obtaining marketable skills.

Federal Prison Industries (FPI)

  • The second group comprises 5,082 offenders who participated in FPI.
  • FPI provides offenders with work simulation programs and training opportunities through the factories it operates at BOP facilities.

Occupational Education Programs (OEP)

  • Although the recidivism rate for offenders who completed an OEP course was lower than that of offenders who did not participate in an OEP course (48.3% compared to 54.1%), the difference in their recidivism rates was not statistically significant after controlling for key offender and offense characteristics such as criminal history category, age at release, gender, and crime type.

Federal Prison Industries (FPI)

  • Although the recidivism rate for offenders who participated in FPI was higher than that of offenders who did not participate in FPI (55.0% compared to 52.0%), the difference in recidivism rates was not statistically significant after controlling for key offender and offense characteristics, such as criminal history category, age at release, gender, and crime type.

NOTE: This study focuses solely on recidivism reduction and is not meant to analyze whether other program goals were achieved.

June 14, 2022 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Saturday, June 11, 2022

"The Dangerous Few: Taking Seriously Prison Abolition and Its Skeptics"

The title of this post is the title of this new essay by Thomas Ward Frampton just published in the Harvard Law Review.  Here is its abstract:

Prison abolition, in the span of just a few short years, has established a foothold in elite criminal legal discourse.  But the basic question of how abolitionists would address “the dangerous few” often receives superficial treatment; the problem constitutes a “spectral force haunting abolitionist thought . . . as soon as abolitionist discourses navigate towards the programmatic and enter the public arena.”  This Essay offers two main contributions: it (1) maps the diverse ways in which prison abolitionists most frequently respond to the challenge of “the dangerous few,” highlighting strengths and infirmities of each stance, and (2) proposes alternative, hopefully more productive, responses that interrogate and probe the implicit premises (empirical, ideological, or moral) embedded in and animating questions concerning “the dangerous few.”

June 11, 2022 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Thursday, June 09, 2022

"Incarcerated LGBTQ+ Adults and Youth"

The title of this post is the title of this new report from The Sentencing Project. Here is how the document starts:

This fact sheet examines the criminalization and over-incarceration of LGBTQ+ adults and youth.  The LGBTQ+ population is comprised of people with non-heterosexual identities — those who are lesbian, gay, bisexual, and others — and people with non-cisgender identities — those who are trans and gender non-conforming.  LGBTQ+ adults are incarcerated at three times the rate of the total adult population.  LGBTQ+ youth’s representation among the incarcerated population is double their share of the general population.

LGBTQ+ people experience high rates of homelessness, poverty, unemployment, discrimination, and violence — factors which drive their overrepresentation in the criminal legal system. In both adult and youth facilities, imprisoned LGBTQ+ people face physical, sexual, and verbal harassment and abuse, as well as a lack of gender-affirming housing, clothing, personal hygiene products, medical care, and mental health treatment.  To help alleviate these harms, states and the federal government should repeal laws that criminalize LGBTQ+ people, limit the use of solitary confinement, mandate access to gender-affirming health care in correctional facilities, and invest in drug and mental health treatment and reentry programs for LGBTQ+ youth and adults

June 9, 2022 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Notable coverage of supposed "new breed" of prison consultants

I have been following the federal criminal justice system for the better part of 30 years, and throughout there have always been various types of experts who seek to help defendants with sentence mitigation and preparation for prison (especially in the white-collar universe where greater resources are available to pay for these kinds of services).  Still, every now and again, the press seems eager to make much of the phenomenon of so-called "prison consultants" as, for example, in a 2020 Town & Country  piece, "Inside the World of Prison Consultants Who Prepare White Collar Criminals to Do Time." 

The New York Times has long been keen on the prison consultant beat as evidenced by older articles like a 2009 piece headlined "Consultants Are Providing High-Profile Inmates a Game Plan for Coping" and a 2012 piece headlined "Making Crime Pay."  This week, the Gray Lady has this very long piece in this genre appearing in its magazine under this full headline "Want to Do Less Time? A Prison Consultant Might Be Able to Help. For a price, a new breed of fixer is teaching convicts how to reduce their sentence, get placed in a better facility — and make the most of their months behind bars."  Though I am not sure why prison consultants are now described as a "new breed of fixer," I am sure this lengthy article is still worth a full read.  Here are excerpts: 

After a prominent felon is sentenced, a spate of stories often appear about these backstage fixers for the wealthy, consultants who can help get a client into prisons that one might prefer — say, a prison that has superior schooling or CrossFit-level gyms or lenient furlough policies or better-paying jobs or other refined specialties.  The federal prison in Otisville, N.Y., for example, is also known as “federal Jewish heaven” because of its good kosher food (decent gefilte fish, they say, and the rugelach’s not bad).  When those Varsity Blues parents were busted for paying backdoor operatives to engineer their kids’ college admissions, it was also reported that many hired prison consultants to game out the aftermath.

[Justin] Paperny’s business is a natural market outgrowth of a continuing and profound shift in America’s judicial system.  Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial).  In 2021, 98.3 percent of federal cases ended up as plea bargains.  It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses.  What people like [Hugo] Mejia have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn.  So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame....

On television, the journey to prison is nearly instantaneous: a jump cut to a slamming cell door. But in the real world, it’s a set of steps, routine bureaucratic actions that involve interviews, numerous forms to complete and dates with officials. A lawyer is your legal guide to staying out of prison, but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed....

One of the first things Paperny advises a client like Mejia to do is to stop [minimizing the offense], especially before sentencing.  You pleaded guilty already.  You did it.  Own it — because the vamping will almost certainly annoy any judge or civil servant who hears it, and you’ll wind up with a much longer sentence.  That’s arguably the most crucial piece of advice that Paperny provides to his clients, for the simple reason that when you’re going to prison, you have to formally tell your story to all kinds of people.

The storytelling officially begins a few weeks after a guilty plea (or a conviction by trial) in a sit-down interview with a law-enforcement officer whose specialty is writing up a pre-sentencing report, which will be given to the presiding judge.  The descriptions of the crime come largely from the plea agreement, which is, naturally, centered on the proposition that you are a heinous criminal and a moral fugitive.  Think of a Wikipedia biography that tells the story of the worst moment of your life, with everything else about you salted away in footnotes.  This is what the sentencing judge will read before deciding precisely how long you will be confined — and it’s a story that will follow you throughout your stay with the state.

“They call the pre-sentencing report the Bible in prison, because it is one of the first things a case manager or counselor will rely upon,” Paperny said. “It will influence early release, your half-house time, your bunk, your job and so on.”

June 9, 2022 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Monday, May 30, 2022

Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits

In this post from the start of this year, I flagged Walter Pavlo's discussion of nettlesome issues surrounding implementation of various parts of the FIRST STEP Act. Issues raised in that prior piece are reviewed anew in this new Palvo piece in Forbes headlined "First Step Act Inaction Keeps Federal Inmates In Prison." Here is how the piece gets started:

The First Step Act (FSA), which among other things, provided federal prisoners a way to effectively lower their prison terms through participation in programs and productive activities. The law, signed by President Donald Trump in December 2018, meant that some prisoners could reduce their prison terms by up to one year. However, the rollout of the program has resulted in men and women remaining in prison well beyond what their release dates would be under FSA.

When the Federal Register published the final FSA rule on January 19, 2022, it also included comments from congressmen who expressed the need for clarity of the law. One such comment was “The Bureau does not have the resources to implement the FSA Time Credits program appropriately.” Over four months since that statement, it has proven to be true.

According to insiders at the BOP, prisoners and former executive staff with connections to the current state of the BOP as it relates to the FSA, there is “mass confusion at every institution,” and that the Designation and Sentence Computation Center, the entity ultimately responsible for calculating sentence duration, is backed up and the programming is not in place for FSA. The result is that thousands of prisoners are incarcerated beyond their legal release date.

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

Wednesday, May 25, 2022

New Executive Order from Prez Biden, though mostly on policing, includes some sentencing and corrections matters

This new "FACT SHEET" from the White House, titled "President Biden to Sign Historic Executive Order to Advance Effective, Accountable Policing and Strengthen Public Safety," provides an overview of what the latest presidential EO will cover in the criminal justice space. Though focused mostly on policing issues, I was intrigued to see this passage at the very end of the fact sheet:

Reforms Our Broader Criminal Justice System

Directs a government-wide strategic plan to propose interventions to reform our criminal justice system.  A new committee with representatives from agencies across the federal government will produce a strategic plan that advances front-end diversion, alternatives to incarceration, rehabilitation, and reentry.  The Attorney General will also publish an annual report on resources available to support the needs of persons on probation or supervised release.

Improves conditions of confinement. The Attorney General, in consultation with the Secretary of Health and Human Services, will update procedures as necessary to increase mitigation of Covid-19 in correctional facilities; expand the publication and sharing of vaccination, testing, infection, and fatality data disaggregated by race, ethnicity, age, sex, disability, and facility; and to identify alternatives to facility-wide lockdowns and restrictive housing to reduce the risk of transmission.  The Attorney General will also report to the President on steps to limit the use of restrictive housing and improve conditions of confinement, including with respect to the incarceration of women, juveniles, and persons in recovery.

Requires full implementation of the FIRST STEP Act. The Attorney General will update DOJ policy as necessary to fully implement the FIRST STEP Act and to report annually on implementation metrics, including an assessment of any disparate impact of the PATTERN risk assessment tool and steps to correct any such disparities.

UPDATE: Here is the full detailed "Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety" from the Biden White House.

May 25, 2022 in Criminal justice in the Biden Administration, Criminal Sentences Alternatives, FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Tuesday, May 24, 2022

"A Catholic Perspective on Prison Conditions and Human Dignity"

The title of this post is the title of this new article authored by Meghan J. Ryan now available via SSRN. Here is its abstract:

Criminal offenders in the United States are often reviled. Instead of viewing them as individuals who need help, many view them as “irredeemable,” “dirt,” “slime,” “scum,” “animal[s],” “sewer rats.”  As Catholics, though, we are taught to resist such impulses.  We are called to put aside our overwhelming grief and fear when facing offenders and resist seeking revenge.  We are instead asked to reach out our hands to sinners and offer them our forgiveness.  This may be difficult to do, but walking in the steps of Christ requires just that.

In following Jesus’ path not only are we working against our natural instincts of fear and revenge, but we are also working against the mass machinery of the American criminal justice system.  Today, in the United States, there is often the mentality of locking up an offender and throwing away the key.  Out of sight, out of mind.  We generally keep offenders behind closed doors and, as measured against the practices in other countries, we keep them there for very long periods of time.  Indeed, with nearly two million people, or approximately 0.6% of our population, behind bars, we incarcerate more individuals per capita than any other country in the world.  Further, prisons are often located out of town, in remote locations; prison visits are relatively rare, and there is often little mainstream reporting of what goes on behind prison walls; and some incarceration facilities have even claimed trade-secret protection over their policies.  Once an individual has been accused, convicted, and sentenced, he is often erased from most of society’s consciousness.

Behind the tall prison walls topped with razor wire, there is much that Catholics should be concerned about.  Some prisons lack air conditioning and adequate plumbing, leaving inmates suffering in blistering conditions and wading through sewage.  Many prisons suffer from severe overcrowding, contributing to unlivable conditions where vulnerable inmates are neglected and left in unsanitary conditions.  Most prisons offer insufficient healthy food and inadequate medical care.  Prison violence, including sexual assault, is a frequent occurrence. And prisons regularly place inmates in solitary confinement even though the practice is known to cause severe and permanent physical and mental health problems.

In his recent encyclical letter Fratelli Tutti, Pope Francis suggested that Catholics should work to traverse the wall of secrecy surrounding prison conditions and push to improve them: "All Christians and people of good will are today called to work not only for the abolition of the death penalty, legal or illegal, in all its forms, but also to work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom." Today’s prison conditions are often abhorrent, and we have much work to do.

May 24, 2022 in Prisons and prisoners, Religion | Permalink | Comments (6)

Monday, May 23, 2022

Notable (pandemic-impacted) justice data in "Federal Justice Statistics, 2020"

The Bureau of Justice Statistics has this new publication full of notable federal statistics under the title ""Federal Justice Statistics, 2020."  Here is how the 30-page document is briefly introduced:

Federal arrests declined 42% from fiscal year (FY) 2019 to FY 2020, reaching their lowest level since FY 2001. Of the 346,681 persons under federal correctional control at fiscal year-end 2020, about 56% were in secure confinement and 44% were on community supervision. This was a decline from fiscal year-end 2010, when 401,198 persons were under federal correctional control.

This report describes cases processed by the federal criminal justice system. Data are from the Federal Justice Statistics Program, which collects, standardizes, and reports on administrative data received from six federal justice agencies: the U.S. Marshals Service, Drug Enforcement Administration, Administrative Office of the U.S. Courts (AOUSC), Executive Office for U.S. Attorneys, Federal Bureau of Prisons (BOP), and U.S. Sentencing Commission.

There is way too much data in this document to summarize, though the impact of the pandemic is clear in a lot of the 2020 data points. Here are some sentencing/prison passages of note concerning fiscal year 2020 data:

Convicted males (69%) were sentenced to prison more often than convicted females (58%). Twenty-one percent of convicted females received a probation-only sentence, compared to 6% of convicted males. Convicted black defendants (85%) were the most likely to receive a prison sentence, followed by convicted American Indian or Alaska Native (79%); white (76%); Asian, Native Hawaiian, or Other Pacific Islander (67%); and Hispanic (60%) defendants.  Among those sentenced to prison, white and black defendants were both sentenced to a median of 60 months....

In FY 2020, a total of 36,914 federally sentenced persons were admitted to federal prison. Of these, 28,747 persons entered federal prison on U.S. district court commitments.  Another 8,167 persons were returned to federal prison for violating conditions of probation, parole, or supervised release or were admitted to federal prison for any reason other than a U.S. district court commitment.  Thirty-seven percent (21,972) fewer admissions occurred in FY 2020 than in FY 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  In FY 2020, a total of 13,619 persons entered federal prison for a drug offense, most of whom (10,415 or 76%) had been sentenced to more than 1 year.

A total of 59,044 persons were released from federal prison in FY 2020.  Most (45,694) were being released for the first time since their U.S. district court commitment.  Ten percent (6,537) fewer releases occurred in 2020 than in 2019. (See Federal Justice Statistics, 2019 (NCJ 301158, BJS, October 2021).)  There were 22,130 fewer persons in federal prison at the end of FY 2020 (September 30, 2020) than at the start of FY 2020 (October 1, 2019), a much larger drop than in previous years due in part to the federal response to the coronavirus pandemic.  The last time the year-end federal prison population was this low (132,291) was in 2000 (129,329).  From the start to the end of FY 2020, 8,039 fewer persons were in prison for a drug offense and 5,492 fewer were in prison for an immigration offense.

May 23, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

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 (6)

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)