Tuesday, December 01, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, November 30, 2020

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

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

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

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

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

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

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

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

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

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

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

Saturday, November 28, 2020

"Misaligned incentives and the scale of incarceration in the United States"

Thanks to twitter, I just saw this notable recent article, which I use for the title of this post, published in the November 2020 issues of the Journal of Public Economics. The article is authored by Aurélie Ouss and here is its "highlights" and "abstract":

Highlights
  • In the US, states typically pay for prison, while county employees (judges, prosecutors, probation officers…) determine time spent in custody.
  • When the cost of incarceration is internalized by the entity choosing punishment, incarceration is lower, without detectable effects on crime.
  • Misaligned incentives in criminal justice may have contributed to the growth of incarceration in the United States

Abstract

The incarceration rate has increased substantially in the United States between the 1980s and the 2000s.  In this paper, I explore an institutional explanation for this growth: the fact that costs of incarceration are not fully internalized.  Typically, prison is paid for at the state level, but county employees (such as judges, prosecutors or probation officers) determine time spent in custody.  I exploit a natural experiment that shifted the cost burden of juvenile incarceration from state to counties, keeping overall costs and responsibilities unchanged.  This resulted in a stark drop in incarceration, and no increase in arrests, suggesting an over-use of prison when costs are not internalized.  The large magnitude of the change suggests that misaligned incentives in criminal justice may be a significant contributor to the current levels of incarceration in the United States.

November 28, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, November 27, 2020

Thankful the federal prison population is at lowest level in two decades

4o1xpnI am always thankful to have a good reason to express thanks, and this holiday period seems like a fitting time to be thankful about the federal prison population declining to modern lows.  Of course, it is sad that a global pandemic in part accounts for recent declines, but the COVID era was an accerant that continued positive trends which began after the federal prison population hit historic highs in 2013.

In 2013, the federal prison population reach a peak of around 220,000 total prisoners.  As we close out 2020, the latest BOP numbers at this webpage report "Total Federal Inmates" at only 154,125.  A 30% decline in the federal prison poplation in less than a decade strikes me as something to be thankful for, and the last time the federal prison population was this low was way back in the year 2000.  (That said, any celebration of positive federal carceral trends should be tempered the fact that BOP still reports that more than 30,000 federal prisoners are over age 50, and that nearly 50% of persons in federal prison are servng time for drug offenses despite widespread acknowledgement of the many failings of the war on drugs.)

The latest federal prison population numbers represents a small population decline from the numbers noted in this post last month, which suggests that there may still be small continued COVID-era federal prison population declines.  As noted in this post last month, the US Sentencing Commission released some early COVID-era sentencing data showing that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.  I suspect the pace of federal sentencings increased in the summer and fall, but the latest surge of COVID cases might yet again impact federal criminal case processing.  

A few of many prior related posts:

November 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Monday, November 16, 2020

Justice Sotomayor dissents at length from SCOTUS refusal to reinstate order for Texas prison to implement COVID protections

As reported in this SCOTUSblog post, the "Supreme Court on Monday afternoon rejected a request from two inmates at high risk for complications from COVID-19 to reinstate an order by a federal district court that would require Texas prison officials to take basic safety precautions to combat the virus."  Justice Sotomayor issued a lengthy dissent from the ruling, which was joined by Justice Kagan, and here are parts from the start and end of this 11-page opinion:

I write again about the Wallace Pack Unit (Pack Unit), a geriatric prison in southeast Texas that has been ravaged by COVID–19.  See Valentine v. Collier, 590 U.S. ___ (2020) (statement respecting denial of application to vacate stay).  The Pack Unit is a “‘tinderbox’” for COVID–19, not only because it is a dormitory-style facility, “making social distancing in the living quarters impossible,” but also because the vast majority of its inmates are at least 65 years old, and many suffer from chronic health conditions and disabilities....

In July, the District Court held a weeks-long trial that revealed rampant failures by the prison to protect its inmates from COVID–19.  In September, the District Court entered a permanent injunction requiring prison officials to implement basic safety procedures.  The Fifth Circuit, however, stayed the injunction pending appeal.  Now, two inmates, Laddy Valentine and Richard King, ask this Court to vacate the stay.  Because they have met their burden to justify such relief, I would grant the application....

The people incarcerated in the Pack Unit are some of our most vulnerable citizens.  They face severe risks of serious illness and death from COVID–19, but are unable to take even the most basic precautions against the virus on their own. If the prison fails to enforce social distancing and mask wearing, perform regular testing, and take other essential steps, the inmates can do nothing but wait for the virus to take its toll.  Twenty lives have been lost already. I fear the stay will lead to further, needless suffering.

November 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Federal judge orders Missouri to improve its parole process

As reported in this local piece, headlined "Judge orders revamp of Missouri’s ‘unconstitutional’ parole system," a notable new federal district court ruling last week "spurred by a class-action lawsuit in 2017 by state prison inmates, requires the state’s Department of Corrections to implement over two dozen reforms related to the agency’s unconstitutional handling of parole revocation proceedings."  Here is more:

The lawsuit alleged that the current practices resulted in the unlawful reincarceration of thousands of people each year. “These reforms should result in fewer people thrown back behind bars, and slow the churn at prison reception centers,” said Amy Breihan, co-director of the MacArthur Justice Center.

The 55-page order from U.S. District Judge Stephen R. Bough found the Department of Corrections has been intentionally failing to provide state-funded counsel to eligible parolees. The court ordered the department to ensure all eligible parolees have an attorney appointed for any proceeding to move forward.  The judge also ordered several other changes. While the agency previously would not disclose evidence against an individual until the hearing, officials are now required to provide evidence at least five days prior to a revocation hearing.

The court also wants the state to move faster on revocation hearings that have previously resulted in parolees waiting hundreds of days in detention. “Having reviewed the evidence presented at the hearing and in the parties’ briefing on the matter, the court finds constitutional deficiencies in the current parole revocation process remain and issues this order to remedy such due process violations,” Bough wrote.

November 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, November 13, 2020

The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

I am sad to report that we have passed yet another milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage of deaths from coronavirus reported among prisoners, and as of Thursday, November 12, this accounting had tabulated "at least 1412 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1990 to 2020.  According to DPIC data, there were a total of 1406 executions from the start of 1990 through today.

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

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 93 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

November 13, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (7)

Thursday, November 12, 2020

Detailing the continued public health catastrophe of COVID in incarceration nation

Sadly, I have been blogging for the better part of a year now about the catastrophe of COVID in the United States for persons who are incarcerated persons, prison staff, their families, and the general public.  We have seen some political, legal and social responses, but this new Washington Post article, headlined "Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say," highlights how bad things have been and still are.  Here is the start of a lengthy piece worth reading in full:

Nobody knows how the ­novel coronavirus sneaked through the barbed wire and imposing gates of Ohio’s Pickaway Correctional Institution, where visitors and volunteers were barred from entering in March.  But the first case showed up April 4.  Within a week, 23 inmates and 17 staff members were found to be infected.  One inmate, Charles Viney Jr., a 66-year-old with a collapsed lung, died hours after testing positive.  Within a month, more than three-quarters of Pickaway’s roughly 2,000 inmates were confirmed positive.  By the end of May, 35 were dead.

Pickaway, where officials acknowledged that efforts to control viral spread were hectic and hindered by imperfect testing, exemplifies the broad challenges facing the nation’s jail and prison systems in the grip of the pandemic. Conditions long considered degrading — including overcrowded, unsanitary housing and inadequate inmate health care — have, in many places, become deadly.

“A prison is now a public health threat,” said Armen Henderson, an assistant professor of medicine at the University of Miami.  He and other criminal justice reform advocates have called for massive reductions in incarceration because of the pandemic.  They argue that measures such as distributing masks or allowing access to hand sanitizer do little to stop the spread of the virus in facilities where people live so close together.

More than 173,000 inmates nationwide have contracted the coronavirus, and almost 1,300 have died, according to the UCLA Law Covid-19 Behind Bars Data Project.  At least 37,000 corrections workers have tested positive and 78 have died.  A study prepared for the National Commission on Covid-19 and Criminal Justice reports that the rate of coronavirus cases in federal and state prisons is more than four times the national rate.  When adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.

In at least 39 states and D.C., governors, local officials or ­sheriff’s departments have taken steps to reduce prison and jail populations since the beginning of the pandemic.  The measures varied widely, from releasing some nonviolent inmates or those who are medically vulnerable to accepting only the most-violent offenders.

Between March and May, prison populations dropped an average of 8 percent and jail populations decreased about 30 percent, according to data reviewed by Sharon Dolovich, a UCLA law professor who directs the Behind Bars Data Project.  The American Civil Liberties Union has filed more than 50 cases aimed at freeing people from prisons, jails and immigration detention facilities, with limited success largely because a 1996 law limits inmates’ ability to sue.

Now, advocates say, those gains are being eroded, leading to fears about additional outbreaks and mounting death tolls.  A recent overview by the Covid, Corrections, and Oversight Project at the University of Texas at Austin found that the death curve in Texas prisons remains “stubbornly high”; in one East Texas prison, the Duncan Unit, nearly 6 percent of inmates have died.  “The truth is, there is really only one way to meaningfully reduce the risk of spread, and that is to release enough people to make it possible for those who remain to socially distance,” Dolovich said.

UPDATE: Here are is just a smattering of additional depressing recent headlines in this space:

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

Thursday, November 05, 2020

New Jersey COVID-related prison releases results in single-day 15% drop of state's prison population

As detailed in this local article, headlined "'It's over, baby': NJ begins releasing inmates who survived COVID spread in prisons," there was a big reform story in New Jersey that became an especially tangible reality yesterday.  Here are some of the details:

"I'm coming out!" Lissette Cardoso shouted through a second-floor window of a beige, nondescript halfway house in Paterson.  Four family members stood on the street in the cold outside.  They'd been waiting for more than 10 years.

Cardoso walked out of the halfway house just before 8:30 a.m. Wednesday, after a decade-long prison term for a string of convenience store robberies.  Her sentence ended three months early and with a kiss to her boyfriend — through their masks — amid a flood of hugs and tears.  "It's over, baby," Luz Salamanca, Cardoso's sister, said as Salamanca's daughter kissed Cardoso's cheeks.  "It's over, you hear me?"

Cardoso was one of thousands of people expected to leave state prisons and halfway houses on Wednesday under a first-in-the-nation law reducing sentences for inmates who served time during the coronavirus pandemic.  State officials said 2,261 inmates would be released throughout the day, marking a single-day drop of 15% in the state prison population.

The drastic decline was lawmakers' response to the coronavirus's devastation in New Jersey prisons.  The death rate inside Garden State prisons was the highest in the nation, according to the nonprofit criminal justice newsroom The Marshall Project....

While Gov. Phil Murphy has scored high marks with the public for his handling of the virus overall, prisons remained a trouble spot.  Murphy and his administration were criticized for moving too slowly to test the incarcerated population and reduce the number of people locked up, both efforts seen as key ways to slow the contagious virus's spread in a setting where social distancing is nearly impossible.

In fact, all but one of the 52 COVID-related deaths in state prisons were reported after Murphy in April created a framework for people to be released.  Lawmakers and prisoner advocacy groups said Murphy's plan allowed the corrections commissioner, Marcus Hicks, too much discretion and that more people should have gotten out.

Ultimately lawmakers put forward a bill, S2519, that reduced sentences by up to eight months for inmates who served during the public health emergency.  According to the American Civil Liberties Union and Prison Policy Initiative, the effort is unique in the nation because it changed state law instead of leaving action up to the executive branch.

Only inmates who are within a year of release are eligible for time off their sentences, and those convicted of murder and some sexual offenses are not allowed to get out early. The law will also give inmates time off if there is another public health emergency.  "We now have a system in place that allows us to be prepared the next time there is an infectious disease that causes pandemonium in our prison systems," said Alexander Shalom, senior supervising attorney and director of Supreme Court advocacy for the ACLU in New Jersey. "And that puts us really far ahead.”

But the law wasn't easily passed.  It was delayed for weeks in Trenton because of concerns that the state cut funding for reentry programs just as it was about to embark on an unprecedented release effort.  Ultimately that state aid was replenished, and Murphy signed the bill into law last month, greenlighting up to 3,000 releases over the next three months. The bulk of those inmates were to get out Wednesday....

While many New Jerseyans were awaiting election results early Wednesday, an informal army of advocates, religious leaders and reentry professionals flooded transit centers, hoping to catch people as they were released.  Each inmate met with a social services worker before being released to connect them with resources, according to Department of Corrections spokeswoman Liz Velez.  The department also gave people with a financial need a food stipend, packages of food or "an emergency supportive stipend to those who have indicated the greatest hardship," she said.

Velez said on Tuesday afternoon, the eve of the releases, that she did not have numbers of how many people had been given identification cards or enrolled in benefits like food stamps or Medicaid.  Releasing a large number of people all at once has prompted concern among some reentry groups and officials, who said the Murphy administration was not providing them enough information to identify who needs help.

November 5, 2020 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Monday, November 02, 2020

No new cert grants from SCOTUS, but order lists includes interesting per curiam reversals including one on prison conditions and qualified immunity

This morning's Supreme Court order list starts by noting that "Justice Barrett took no part in the consideration or decision of the motions or petitions appearing on this Order List." That fact may in part explain why the Court did not grant certiorari in any cases. But the order list is still an interesting read because it included two per curiam opinions, in McKesson v. Doe and Taylor v. Riojas, summarily reversing lower court opinion to order further proceedings in the Fifth Circuit. 

The fed courts nerd in me really likes Mckesson decision because it orders the Fifth Circuit to certify a fascinating questions of Louisiana tort law to the Louisiana Supreme Court in an effort to potentially avoid having to resolve a challenging First Amendment question.  But the Taylor decision gets to the issue of prison conditions and qualified immunity because "Petitioner Trent Taylor is an inmate in the custody of the Texas Department of Criminal Justice [who alleged] that, for six full days in September 2013, correctional officers confined him in a pair of shockingly unsanitary cells."  Here is how SCOTUS kept his lawsuit going:

The Fifth Circuit erred in granting the officers qualified immunity on this basis.  “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.”  Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam).  But no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.  See Hope, 536 U.S., at 741 (explaining that “‘a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question’” (quoting United States v. Lanier, 520 U.S. 259, 271 (1997))); 536 U.S., at 745 (holding that “[t]he obvious cruelty inherent” in putting inmates in certain wantonly “degrading and dangerous” situations provides officers “with some notice that their alleged conduct violate[s]” the Eighth Amendment).  The Fifth Circuit identified no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency.  Nor does the summary-judgment record reveal any reason to suspect that the conditions of Taylor’s confinement could not have been mitigated, either in degree or duration.  And although an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Notably, only Justice Thomas dissented from the Taylor ruling in favor of the prisoner in Taylor, although Justice Alito wrote an extended "concurring in the judgment" statement to explain why he thoughts the "petition [was] ill-suited for review."

November 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Saturday, October 31, 2020

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Thursday, October 29, 2020

Federal prison population, per BOP report of "Total Federal Inmates," drops below 155,000

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start of the COVID era, the reported federal prison population was around 175,000.  As detailed in a series of prior posts, BOP's weekly reporting showed that most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  In early September, as reported in this post, the BOP reported that the "Total Federal Inmates" count was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

In recent weeks the total population seemed to be creeping down again, and checking today the new BOP numbers at this webpage report "Total Federal Inmates" at a new modern low of 154,894.  Though weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it now seems quite that we have not yet hit "the bottom" as to COVID-era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  Helpfully, as noted in this post, the US Sentencing Commission finally released some COVID-era sentencing data, and these data showed that the number of federal sentences imposed between April and June 2020 dropped about 40% from the usual rate.  The reduction in number of sentences imposed surely accounts in part for fewer persons entering federal prisons during the COVID era, though I suspect a lot of other factors have also contributed to the overall prison population declines.  

A few of many prior related posts:

October 29, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

"The Right to Medication-Assisted Treatment in Jails and Prisons"

The title of this post is the title of this new article just posted to SSRN authored by Samuel Macomber. Here is its abstract:

Opioid withdrawal is a grueling physical ordeal.  Fortunately, the effects of withdrawal — physical suffering, mental distress, and mortality — can be mitigated by proper medical care. In most jails and prisons, however, individuals with opioid use disorder are denied access to proper medical care and are forced to endure involuntary withdrawal.  The refusal to provide adequate medical care for the serious health condition of opioid use disorder is unnecessary, unlawful, and deadly. 

This article argues that correctional facilities have an affirmative obligation to provide medication-assisted treatment to all incarcerated individuals with opioid use disorder, regardless of whether the patient was using legal prescriptions or illicit substances prior to incarceration.  Providing medication-assisted treatment will reduce suffering, save lives, and uphold the state’s promise of human dignity to those whose liberty is restricted by incarceration.  Further, this article argues that the Supreme Court should modify the legal standard for adequate medical care in correctional facilities so that courts need only consider the objective medical need of incarcerated individuals.

October 29, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, October 22, 2020

Bureau of Justice Statistics reporting that, as of end of 2019, "US imprisonment rate at its lowest since 1995."

I was pleased this morning to get see this press release from the Bureau of Justice Statistics with this ALL CAPS heading: "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1995." Here are the details from the press release, which are drawn from this latest BJS report titled "Prisoners in 2019":

The combined state and federal imprisonment rate of 419 sentenced prisoners per 100,000 U.S. residents in 2019 was the lowest imprisonment rate since 1995, the Bureau of Justice Statistics announced today.   The imprisonment rate in 2019 marked a 17% decrease from 2009 and a 3% decrease from 2018, and it marked the 11th consecutive annual decrease.  The imprisonment rate — the portion of U.S. residents who are in prison — is based on prisoners sentenced to more than one year.

The imprisonment rate rose 23% from 1995 to its peak in 2007 and 2008 (506 sentenced prisoners per 100,000 residents in both years).  It then fell back below the 1996 level (which was 427 sentenced prisoners per 100,000 residents) in 2019.  Across the decade from 2009 to 2019, the imprisonment rate fell 29% among black residents, 24% among Hispanic residents and 12% among white residents.  In 2019, the imprisonment rate of black residents was the lowest it has been in 30 years, since 1989.

At year-end 2019, there were 1,096 sentenced black prisoners per 100,000 black residents, 525 sentenced Hispanic prisoners per 100,000 Hispanic residents and 214 sentenced white prisoners per 100,000 white residents in the U.S.  Among sentenced state prisoners at year-end 2018 (the most recent data available), a larger percentage of black (62%) and Hispanic (62%) prisoners than white prisoners (48%) were serving time for a violent offense.

An estimated 14% of sentenced state prisoners were serving time for murder or non-negligent manslaughter at year-end 2018, and 13% were serving time for rape or sexual assault.  At the end of fiscal-year 2019, 46% of sentenced federal prisoners were serving time for a drug offense (99% for drug trafficking), and 8% were serving time for a violent offense.

The total prison population in the U.S. declined from 1,464,400 at year-end 2018 to 1,430,800 at year-end 2019, a 2% decrease.  This marked the fifth consecutive annual decrease of at least 1% in the prison population.  At year-end 2019, the prison population had declined 11% from its peak of 1,615,500 prisoners in 2009.

In 2019, privately operated facilities held 7% of state prisoners and 16% of federal prisoners. Public and private adult prisons held 653 prisoners age 17 or younger at year-end 2019, down 11% from the 730 held at year-end 2018.

This news and the broader trends represented are good news for those who care about human liberty, though I am disinclined to celebrate too much given that the US incarceration rate remains the highest in the world and still reflects worrisome disparities.  Still, progress is worth appreciating, and so I am today appreciative of this latest reporting of (modest) good news.

October 22, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 21, 2020

"Decarcerating Correctional Facilities during COVID-19: Advancing Health, Equity, and Safety"

The title of this post is the title of this notable new report released yesterday by the National Academies of Sciences, Engineering, and Medicine.  This press release about the report provides a helpful summary, and here is the start of the press release:

Where needed to adhere to public health guidelines and mitigate the spread of COVID-19, authorities should use their discretion to minimize incarceration in prisons and jails — and facilitate testing, quarantine, social supports, and individualized reentry plans for those released, according to a new report from the National Academies of Sciences, Engineering, and Medicine.  The report recommends corrections officials and public health authorities work together to determine the optimal population for jails and prisons to adhere to public health guidelines, considering characteristics that facilitate viral transmission, such as overcrowding, population turnover, health care capacity, and the overall health of individuals living in the facility.

Decarcerating Correctional Facilities During COVID-19: Advancing Health, Equity, and Safety says as of August 2020, COVID-19 case rates among incarcerated people were nearly five times higher than in the general population, and three times higher among correctional staff.  Jails and prisons in the U.S. are often overcrowded, dense, poorly ventilated, and disconnected from public health systems, making COVID-19 prevention among incarcerated people and staff exceedingly difficult.

Decarceration — reducing the population of prisons and jails by releasing and diverting people away from incarceration as they enter the criminal justice system — can lower the risk of infection for older and other high-risk incarcerated persons, and allow correctional facilities to more easily implement other COVID-19 prevention strategies such as physical distancing.  The report says that while some jurisdictions have taken steps to decarcerate since the onset of the pandemic, these efforts have so far been insufficient to reduce the risk of COVID-19 in jails and prisons.

The report recommends correctional officials identify candidates for release in a fair and equitable manner.  Individuals who are medically vulnerable, nearing the end of their sentence, or who present a low risk of committing serious crime will likely be suitable candidates.  Research on recidivism suggests that decarceration can be done with minimal risk to public safety.  The report points to data from New York City and California that show large reductions in prison populations were followed by crime rates that either fell or remained at low levels.  Research also shows that most returns to a correctional facility are driven by technical violations of parole or release, rather than new crimes.

Additional helpful related resources appear in this Report Highlights and in this Interactive Report Overview.

October 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, October 20, 2020

Rounding up yet another important round of recent COVID-19 prison and jail stories

One sign of COVID fatigue for me is my tendency now to just keep scrolling past new press stories about the ugly (new and old) realities of prisons and jails during this persistent pandemic.  But, especially because COVID fear and not just fatigue is a felt reality for many millions of incarcerated persons and corrections staff and their families every day, I still should keep rounding up prison-COVID press pieces on a regular basis.  And, as I have said before, we should be regularly thankful that the press and commentators keep reporting and discussing these stories that keep emerging from prisons and jails:

From the Appleton Post-Crescent, "COVID-19 has infected more than 2,600 people in Wisconsin’s prisons. Should certain inmates be released to stop the spread?"

From BBC News, "Prisoners locked up for 23 hours due to Covid rules is 'dangerous'"

From the (NC) News & Observer, "‘I signed up for a jail sentence, not a death sentence.’ Escapee now seeks leniency."

From the New York Times, "As Coronavirus Cases Soar, One Montana Town Reels: In the Mountain West, an outbreak has revealed the danger that the virus poses to jails and rural communities"

From NJ.com, "Murphy signs bill to release thousands of N.J. prisoners early beginning the day after Election Day"

From PBS News Hour, "Inside the COVID unit at the world’s largest women’s prison"

From Slate, "The Right to Escape From Prison: A 1974 ruling bears revisiting as prisoners flee the COVID-19 pandemic."

From the Washington Post, "Two Baltimore correctional officers died of covid-19 just months apart"

October 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (1)

Saturday, October 17, 2020

"Punishment in Prison: Constituting the 'Normal' and the 'Atypical' in Solitary and Other Forms of Confinement"

The title of this post is the title of this new lengthy article by multiple authors now available via SSRN.  Here is its abstract:

What aspects of human liberty does incarceration impinge?  A remarkable group of Black and white prisoners, most of whom had little formal education and no resources, raised that question in the 1960s and 1970s.  Incarcerated individuals asked judges for relief from corporal punishment; radical food deprivations; strip cells; solitary confinement in dark cells; prohibitions on bringing these claims to courts, on religious observance, and on receiving reading materials; and from transfers to long-term isolation and to higher security levels.

Judges concluded that some facets of prison that were once ordinary features of incarceration, such as racial segregation, rampant violence, and filth, violated the Constitution. Today, even as implementation is erratic and at times abysmal, correctional departments no longer claim they have unfettered authority to do what they want inside prisons walls.  And, even as the courts have continued to tolerate the punishment of solitary confinement in the last decade, a few lower courts have held unconstitutional the profound sensory deprivations such isolation has entailed.

Prisoners have also sought procedural protections to constrain arbitrary decision-making about placements in solitary confinement and transfers to adverse settings.  In response, the Supreme Court has required that, to state a Fourteenth Amendment claim that their liberty had been infringed, prisoners have to demonstrate that a specific practice imposed an “atypical” and “significant hardship.”

What is typical in prisons?  What are the sources of knowledge and the baselines used by Justices to decide?  How did isolation come to be seen as an ordinary incident of prison life?  We answer these questions through analyzing debates in both the U.S. Supreme Court and lower courts about what deprivations in prison are “normal.”  After excavating the conflicts within the Court about the kinds of liberty interests prisoners retained, we mined hundreds of lower court opinions to learn how judges determine when constrictions on human movement meet the test of atypicality and hardship.  By documenting the high tolerance many federal judges have for periods of isolation lasting months, years, and decades, we demonstrate the central role judges play in constructing the “normal” of prisons.

October 17, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, October 16, 2020

Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends?

The question in the title of this post is prompted by this new Walter Palvo piece at Forbes headlined "US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once 'Pandemic Is Declared Over'."  Here are excerpts:

It is a fact that the Federal Bureau of Prisons (BOP) has had a difficult time controlling the spread of COVID-19 within its 122 prison facilities located across the country.  As of October 13, 2020, there are over 1,600 active COVID-19 cases among inmates and another 14,000 who were infected but have recovered .... 126 have died.  Prison staff have also been hurt by the virus with 736 currently infected and over 1,200 who have recovered....

On March 26, 2020, Attorney General William Barr’s memo to Bureau of Prisons (BOP) Director Michael Carvajal stated that even more needed to be done and noted that one of the most effective “tools to manage prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances.” Since then, the BOP has transitioned over 7,700 inmates to home confinement from prison to complete their sentence. While many of those had under a year remaining on their sentence, some have years to go with release dates of 2024 and beyond.  The expectation of those placed on home confinement was that their sentence would be served under these same conditions, but a case out of the District of Columbia sheds light on what may lie ahead for some who are on home confinement ... that could include a return to prison....

[In litigation over a compassionate release motion] Michael P. McCarthy of the Department of Justice’s Criminal Division Fraud Section [stated in court] ... "the BOP's program [home confinement under the Barr memo], it's a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over."...

While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison ... or they could be asked to be immunized in order to return .... or the inmate could refuse immunization .... or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.  If people think the courts are bogged down with compassionate release cases now, wait until a return to prison is announced for those on home confinement.

I asked Jack Donson, a retired BOP corrections specialist, about the prospect of such an action.  Donson told me, “Before COVID-19, home confinement was limited to the lesser of 6 months or 10% of the sentence, aside from the Elderly Offender program but the CARES Act removed that cap so we have never had a situation where people were potentially on home confinement for years.  Nobody knows how this will play out but it has been taxing to the BOP to get people out of prison, I can only imagine that it would be even more taxing to get them back in, especially in light of the June 2020, target population reductions in the Low and Minimum security facilities.

Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.  Sadly, I fear we are still many, many months away from returning to anything we might call post-pandemic normal prison operations, and so the need to start answering the question in the title of this post may still be a long way off.  But, as this Forbes piece highlights, it is probably not too early to start thinking about some of the legal and practical challenges that will come whenever we are "lucky" enough to return to "normal" in the federal prison section of incarceration nation.

October 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, October 15, 2020

"COVID-19 and the US Criminal Justice System: Evidence for Public Health Measures to Reduce Risk"

The title of this post is the title of this notable new report authored by a bunch of experts at Johns Hopkins.  Here is the report's introduction:

Since its recognition as a pandemic in early 2020, novel coronavirus disease 2019 (COVID-19) has touched nearly every corner of US society.  However, some populations and environments have been affected far more severely than others. Vulnerable populations — especially those subject to structural racism, discrimination due to disability, and financial insecurity — tend also to be particularly susceptible to the economic consequences of and severe disease and death from COVID-19.  In addition, the institutions, industries, and systems that are fundamentally important to our lives and our democracy have, in some cases, become places where severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) spreads readily if allowed to gain a foothold.  In these places, it can be difficult to prevent the introduction of the virus or control the spread of SARS-CoV-2 once it is introduced.

The US criminal justice system is highly susceptible to the spread of COVID-19 because of the structure of carceral facilities, which propagates the spread of respiratory infections, and the comorbidities of many incarcerated individuals. The criminal justice system in the United States is not unique in its vulnerability to COVID-19; other systems and industries — like nursing homes and long-term care facilities, manufacturing and meat processing facilities, and dormitories — are similarly affected. However, many factors converge in the criminal justice system that make viral transmission both more possible and, in some cases, more dangerous than in many other environments.

This report, from scholars at the Johns Hopkins Bloomberg School of Public Health and the Johns Hopkins School of Medicine, is intended to summarize the current state and future projections of the COVID-19 pandemic in the United States, detail the impact that the pandemic has already had on the US criminal justice system, and provide evidence-based recommendations on how to reduce COVID-19 risks to people in the system.  This document was requested by the National Commission on COVID-19 and the Criminal Justice System to inform their discussion and deliberation on this topic.

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

Spotlighting new research detailing increased post-release deaths for those placed in solitary confinement

I sense that we have known for many decades about the profound harms that solitary confinement can created for mental and physical health, and yet there are still tens of thousands of persons subject to this extreme form of imprisonment. And thanks to this new Prison Policy Initiative piece, titled "New data: Solitary confinement increases risk of premature death after release," I learned of new research documenting how time spent in solitary confinement increases the risk of deaths by suicide, homicide, and opioid overdose.  This research was published in a medical journal late last year under the title "Association of Restrictive Housing During Incarceration With Mortality After Release."  Here is part of a summary of the research by Andrea Fenster of PPI :

A recently published study of people released from North Carolina prisons confirms what many have long suspected: solitary confinement increases the risk of premature death, even after release.  Personal stories, like those of Kalief Browder’s isolation and subsequent suicide, are canaries in the coal mine.  Underneath seemingly isolated events, researchers now find that solitary confinement is linked to more deaths after release from prison.  These preventable deaths aren’t outliers; in the U.S., where the use of solitary confinement is widespread, an estimated 80,000 people are held in some form of isolation on any given day, and in a single year, over 10,000 people were released to the community directly from solitary.

The new study shows that the effects of solitary confinement go well beyond the immediate psychological consequences identified by previous research, like anxiety, depression, and hallucinations.  The authors, from the University of North Carolina, Emory University, and the North Carolina Departments of Public Safety and Public Health, find that any amount of time spent in solitary confinement increases the risk of death in the first year after individuals return to the community, including deaths by suicide, homicide, and opioid overdose....

The study identifies two additional factors correlated with a heightened risk of death after release: race and the amount (length and frequency) of solitary confinement.  All incarcerated people of color are more likely to die within a year of release, and the experience of solitary confinement only amplifies this racial disparity.  A previous study found that, compared to their share of the total prison population, Black men and women are overrepresented in solitary confinement, exposing them disproportionately to its harms. And unsurprisingly, more frequent placements in solitary confinement — as well as longer stays — are associated with worse outcomes across both white and nonwhite populations.

October 15, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (1)

Friday, October 09, 2020

"Addressing Trauma and Victimization in Women’s Prisons"

The title of this post is the title of this notable new research report from folks at the Urban Institute. The full 58-page report is available here, and here is the abstract from this report page:

Women are the fastest-growing incarcerated population in the United States.  Despite this drastic increase, correctional institutions often lack awareness and understanding of the victimization that many — if not most — incarcerated women experience before incarceration (Bloom 2015).  Many women bring past trauma into prison settings, where they often experience similar violence, abuse, and trauma.  In 2017, the National Institute of Justice funded the Urban Institute — and its partners the Center for Effective Public Policy, the Correctional Leaders Association, and the National Center for Victims of Crime — to conduct a national scan of practice to examine the extent to which correctional facilities provide services and programming that address incarcerated women’s prior and current trauma and victimization experiences.

The scan of practice drew on data from semi-structured interviews with leaders in 41 state departments of corrections (DOCs), 15 women’s prisons using innovative and/or comprehensive approaches to address trauma, case studies of three women’s facilities and a national survey of state domestic violence (DV) and sexual assault (SA) coalitions. Analyses suggest wide variation in how DOCs address women’s past victimization and trauma with most DOCs relying on programming and partnerships with local victim services providers or other community-based organizations to address women’s trauma; few provide robust victim services to incarcerated women.  We discuss these and other findings in the report along with the challenges DOCs face in addressing women’s prior trauma and victimization, and recommendations for how to make correctional facilities more trauma responsive.

October 9, 2020 in Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

The new death penalty: COVID has now killed as many US prisoners as has a quarter century of capital punishment

I am sad to report that we are approaching yet another stunning milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project is continuing with the critical job of keeping an updated count via this webpage of deaths from coronavirus reported among prisoners, and as of the morning of Thursday, October 8, this accounting had tabulated "at least 1211 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to roughly the same number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1996 to 2020.  According to DPIC data, there were a total of 1213 executions from the start of 1996 through today.

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

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 85 deaths from coronavirus reported among prison staff."  I remain pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

October 9, 2020 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (1)

Thursday, October 08, 2020

Federal prison population hits new modern law at 155,197 according to BOP reporting

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  Roughly a month ago, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483; but then, as noted here, the BOP reported federal prison population ticked up a few hundred persons the following week for first time in COVID era.

Today, checking the new BOP numbers at this webpage report "Total Federal Inmates" shows seemingly a new modern population low at 155,197.  So, though it seems weekly federal prison population declines are no longer consistent or dramatic, we still seem to be experiencing small decreases many weeks and thus it is possible we have not yet hit "the bottom" as to COVID era federal prison population declines.   

I have wondered repeatedly in these posts whether COVID-delayed sentencings or stalled federal prison transfers or any number of other factors may largely account for these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these weekly reported population numbers represent.  I remain hopeful that we may eventually get some timely sentencing data from the USSC, but I am not optimistic it will ever be easy to fully understand and account for all the ways the the federal criminal process and prison populations have been impacted by and are adjusting to the COVID era.

A few of many prior related posts:

October 8, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, October 07, 2020

Documenting the (unsurprising) lack of compassion from federal prison officials when considering COVID-era compassionate release requests

The Marshall Project has this lengthy new piece reporting on an old story, namely the utter failure of federal prison officials to discharge effectively their "compassionate release" responsibilities by helping to identify prisoners who ought to have their prison sentences reduced due to serious illness or other compelling factors.  The full piece is worth a full read; it is fully headlined: "Thousands of Sick Federal Prisoners Sought Compassionate Release.  98 Percent Were Denied.  Wardens blocked bids for freedom as COVID-19 spread behind bars, data shows."  Here are a few excerpts, with commentary to follow:

Data recently obtained by The Marshall Project underscores what attorneys, advocates and experts have long suspected: As the pandemic ramped up, federal prison wardens denied or ignored more than 98 percent of compassionate release requests, including many from medically vulnerable prisoners like Neba.  Wardens are the first line of review; ultimately, compassionate release petitions must be approved by a judge.  Though the Bureau of Prisons has previously posted information about the number of people let out on compassionate release, it wasn’t clear until now just how many prisoners applied for it or how frequently wardens denied these requests despite widespread calls to reduce the prison population in the face of the pandemic....

Of the 10,940 federal prisoners who applied for compassionate release from March through May, wardens approved 156.  Some wardens, including those at Seagoville in Texas and Oakdale in Louisiana, did not respond to any request in that time frame, according to the data, while others responded only to deny them all.  Higher-ups in Washington, D.C., reviewed 84 of the warden approvals and overturned all but 11.  Time and again, the only way prisoners were able to win compassionate release was to take the bureau to court to fight the wardens' denials.

For dozens of people stuck behind bars, the virus has proved fatal; so far, 134 federal prisoners have died of COVID-19, and more than 15,800 have fallen ill. A statement from the Bureau of Prisons did not address specific questions, including why some wardens failed to respond to release requests. The wardens referred questions to the bureau.

At Elkton, an early hot spot in Ohio where nine prisoners died of COVID-19 and more than 900 got sick beginning in March, the warden denied 866 out of 867 requests for compassionate release between March 1 and May 31.

In California, the prison at Terminal Island became the site of a major outbreak, with 694 prisoners testing positive by the end of May. But the warden only approved five of the 256 compassionate release requests filed by that time.  At Butner, a four-prison complex in North Carolina where 25 prisoners and one correctional officer died in May and June, officials approved 29 of 524 requests by the end of May.

At some prisons, the low number of requests raised questions about the bureau’s recordkeeping.  For example, at the Oakdale complex, an early hot spot in Louisiana where eight prisoners have died, officials reported just 95 compassionate release applications by the end of May out of a population of more than 1,700. The warden took action on none of them. At the same time, the prison racked up 191 positive cases.  Likewise at Forrest City, a two-prison complex in Arkansas where more than 700 men fell ill, officials reported only three applications by the end of May.  All three were approved.

For more than a dozen institutions, including all 11 of the privately run federal prisons, the bureau listed no compassionate release requests at all.  “The numbers seem incorrect,” said Somil Trivedi, a senior staff attorney with the American Civil Liberties Union, who has helped coordinate lawsuits against federal prisons. “I just don’t feel like they’re counting them all.  This has to be an undercount because of the informal nature of the process.”

I am very pleased to see the Marshall Project seek to marshal this data, and I would have been shocked if the data showed anything else about how federal prison officials responded to compassionate release requests.  Congress through the FIRST STEP Act wisely altered the process for these requests to authorize prisoners to directly motion courts for a sentence reduction (often called "compassionate release") because federal prison officials had so badly failed for decades to effectively discharge their "compassionate release" responsibilities.   In the past, many hundreds of inmates had died before prison officials would even respond to requests, and Congress should be widely praises for its wise decision to now allow prisoners to motion courts directly after first making the request to prison officials.

That said, the challenges of collecting these data and keeping them updated serves as a reminder that the FIRST STEP Act did not fix everything.  As long known by those involved in this system, the federal BOP still needs to be subject to considerably more independent oversight and reporting requirements.  BOP's overall lack of accountability and transparency was bad enough in normal times, especially since the BOP has been the nation's largest incarcerator for the better part of two decades.  In the COVID era, the federal prisons bureau should be doing a whole lot better and that really seem to now require significant structural change.

That all said, any doom and gloom about federal prison officials can and should be tempered by the broader success stories in the arena of sentence reductions (often called "compassionate release") under 3582(c), and this overall success is usefully documented in real time by the BOP.  Though the BOP does not discuss motions denied of any particulars, the BOP does helpfully report at this FSA page the total number of granted post-FIRST STEP Act "Compassionate Releases / Reduction in Sentences."  As of this writing, that number stands at 1752 (and is up over 250 in just the last month since I blogged on this topic here). 

As detailed in this post, the US Sentencing Commission has reported that in the year before FIRST STEP only 24 persons got their sentenced reduced; in the year after FIRST STEP became law, that number of sentence reductions rose to 145.  Doing the math, this all means that in the COVID era there have already been over 1600 sentence reduction motions granted (meaning roughly 80 times as many as pre-FIRST STEP and 11 times as many as post FIRST STEP/Pre-COVID)!  

A few of many prior related posts:

October 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, October 05, 2020

"Decarceration and community re-entry in the COVID-19 era"

The title of this post is the title of this new piece by multiple authors published in The Lancet Infectious Diseases.  Here is its "Summary":

Jails and prisons are exceptionally susceptible to viral outbreaks, such as severe acute respiratory syndrome coronavirus 2.  The USA has extremely high rates of incarceration and COVID-19 is causing an urgent health crisis in correctional facilities and detention centres.  Epidemics happening in prisons are compounding the elevated risks that COVID-19 poses to people of colour, older people, and those with comorbidities.  Intersectoral community re-entry efforts in the USA and other countries have shown that releasing people from correctional facilities as a pandemic-era public health intervention is safe and can support both public safety and community rebuilding.  Therefore, substantial decarceration in the USA should be initiated.  A point of focus for such efforts is that many people in prison are serving excessively long sentences and pose acceptable safety risks for release.  Properly managed, correctional depopulation will prevent considerable COVID-19 morbidity and mortality and reduce prevailing socioeconomic and health inequities.

October 5, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, October 04, 2020

"Eligible, but excluded: A guide to removing the barriers to jail voting"

The title of this post is the title of this notable new report released on Friday by the Prison Policy Initiative and the Rainbow PUSH Coalition.  Here is its starting paragraph: 

Most people in jail are legally eligible to vote, but in practice, they can’t.  This “de facto disenfranchisement” stems from numerous factors, including widespread misinformation about eligibility, myriad barriers to voter registration, and challenges to casting a ballot.  Below, we explain who in jail is eligible to vote (state by state), discuss the barriers that keep them from voting, and offer recommendations for advocates, policymakers, election officials, and sheriffs to ensure that people in jail are able to vote.

This AP article discusses the report and provides additional context under the headline "Voting nearly impossible for eligible voters behind bars." Here is an excerpt from the AP piece:

Most of the three-quarters of a million people held in U.S. jails have the right to vote. But many of them are unable to, stymied by misinformation, limited access to registration and ballots and confusion from the officials in charge. The result is widespread voter disenfranchisement, say experts with the Prison Policy Initiative. The advocacy organization released a report detailing voting access for jail inmates with Rainbow PUSH Coalition, a civil rights advocacy group formed by the Rev. Jesse Jackson, on Friday....

[M]ost people in jail haven’t been convicted, but instead are awaiting trial on the charges for which they are being held. While those convicted of a felony lose their right to vote in most states for at least the time they are incarcerated, many of the people serving time in jail are serving time for misdemeanors, and most states allow people with misdemeanor convictions to vote. Very few get to actually exercise that right, the study found. Confusion, logistical barriers and timing issues abound.

October 4, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Wednesday, September 30, 2020

"Youth Justice Under the Coronavirus: Linking Public Health Protections with the Movement for Youth Decarceration"

The title of this post is the title of this notable new report written by Josh Rovner at The Sentencing Project.  Here is the start of its executive summary:

The novel coronavirus, COVID-19, has infected more than 1,800 incarcerated youth and more than 2,500 staff working in the detention centers, residential treatment facilities, and other settings that comprise the deep end of the juvenile justice system.  More than six months after the first infections emerged, the emergency is not over.

According to data collected by The Sentencing Project, COVID-19 cases have been reported among incarcerated youth in 35 states, the District of Columbia and Puerto Rico.  In five states, more than 100 incarcerated youth have tested positive.  Four staff members working in juvenile facilities have died from the virus.

In congregate care settings, this contagious pathogen’s spread was inevitable.  States and localities have taken steps to mitigate COVID-19’s impact, including releasing confined youth, curtailing admissions, limiting visitation and programming, and isolating youth in a manner that mimics solitary confinement.  Given the persistent racial and ethnic disparities in juvenile justice, there is little doubt that youth of color are suffering disproportionately from the virus and the changes within facilities that it has brought.

This report summarizes lessons learned through the first months of the pandemic, focusing on system responses, both positive and negative, to slow the virus’s spread and to protect the safety and wellbeing of youth in the juvenile justice system while keeping the public informed.  Drops in admissions during the pandemic, alongside decisions to release youth at a higher rate than during ordinary times, buttress the long-standing case that youth incarceration is largely unnecessary.  Jurisdictions must limit the virus’s damage by further reducing the number of incarcerated youth.

September 30, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, September 25, 2020

Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise"

I am very pleased to see the first of what may soon be many circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.  COVID realities, of course, raised the need for and stakes of this important provision of federal sentencing law.

The first significant circuit ruling on the reach and application of this statute is a great one, coming from a Second Circuit panel in US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here).  Though I may be a bit biased because this opinion was penned by a former boss of mine (Judge Guido Calabresi), I suspect others will share my view that this ruling is a great accounting of applicable law and a great outcome.  Here are just a few excerpts from the 21-page opinion (some analysis may follow in future posts):

The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), was simultaneously monumental and incremental.  Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated.  Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency.

This case reflects that dichotomy.  The First Step Act provision we analyze overturned over 30 years of history, but at the same time it often did no more than shift discretion from the Bureau of Prisons (“BOP”) to the courts.  We must today decide whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D) (“Application Note 1(D)”), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.  Because we hold that Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....

For all of these reasons, the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion....

Nor can we say, as a matter of law, that a court would abuse its discretion by granting someone compassionate release on this record.  It bears remembering that compassionate release is a misnomer.  18 U.S.C. § 3582(c)(1)(A) in fact speaks of sentence reductions.  A district court could, for instance, reduce but not eliminate a defendant’s prison sentence, or end the term of imprisonment but impose a significant term of probation or supervised release in its place. Id.  Beyond this, a district court’s discretion in this area — as in all sentencing matters — is broad.  See United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc) (noting a district court’s “very wide latitude” in sentencing). The only statutory limit on what a court may consider to be extraordinary and compelling is that “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason.”  28 U.S.C. § 994(t) (emphasis added).

In the instant case, Zullo does not rely solely on his (apparently extensive) rehabilitation.  Zullo’s age at the time of his crime and the sentencing court’s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction.  Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984.  See S. Rep. No. 98-225, at 55-56 (1984) (noting that reduction may be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence” (emphasis added)); see also United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *6-*7 (D. Utah Feb. 18, 2020) (further discussing this history and collecting cases where district courts have reduced sentences in part because they were overly long).

September 25, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Thursday, September 17, 2020

BOP reported federal prison population ticks up for first time in COVID era

Regular readers know that I have been closely watching COVID-era changes in the federal prison population because of dramatic declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers.  At the start if the COVID era, the reported federal prison population was around 175,000.  But, as I highlighted in a series of prior posts, according to BOP's reporting, most weeks through much of the spring the federal prison population shrunk around or over 1,000 persons per week.  Into and through the summer months, weekly declines continued but at a rate closer to about 500.  As of last week, as reported in this post, the BOP reported "Total Federal Inmates" was down to 155,483. 

Today, on the cusp of fall 2020, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,741.  In other words, there is reason to wonder whether we may have hit "the bottom" as to COVID era federal population declines, as this week we see an increase in the reported population of just ver 250 persons.  

I have wondered repeatedly in these posts whether COVID-delayed sentencings and stalled federal prison transfers may account for most of these declines.  But a persistent lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard for me to be sure just what these reported population numbers represent.  As I have said before, I am hopeful we may eventually get some timely sentencing data from the USSC.  But we are now well over six months into the pandemic, and the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted by and adjusting to the COVID era.

A few of many prior related posts:

September 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, September 14, 2020

Making the case for independent oversight of the federal Bureau of Prisons

Kevin Ring has this effective new Hill commentary headlined "Congress should support independent oversight of federal prisons." I recommend the full piece, and here are excerpts:

If the federal Bureau of Prisons (BOP) can ignore a United States senator with impunity, what chance does an average citizen with a loved one in prison have of getting their concerns addressed?  The answer is likely none.  It’s time for Congress to address the BOP’s lack of accountability and transparency by creating an independent body to oversee the agency.

Nine months ago, Sen. Marco Rubio (R-Fla.) learned of allegations that women were being sexually assaulted by corrections staff at the Coleman federal prison complex in his state.  He also had heard reports that Legionnaire’s disease was spreading throughout the complex.  He wrote to Attorney General William Barr to ask what the BOP, which the Justice Department oversees, was doing to protect women and stop the disease’s spread.  Nine months later, Rubio still had not gotten a response.

What Rubio experienced is what nearly 160,000 families with people in the BOP’s custody experience every day: maddening silence or, if they’re lucky, getting the run-around in response to inquiries about a loved one’s health, safety, or sometimes even their location.  If a U.S. senator cannot get answers from the BOP, imagine what doing so is like for an average person with no political connections.

The media, lawmakers, taxpayers and families are left in the dark about how the BOP runs its 122 prison facilities.  Prisoners and their families regularly must resolve problems small, large and life-threatening with the agency, for the years or decades that a sentence lasts.  Congress’s judiciary committees hold BOP oversight hearings, but they are rarely in-depth or revealing.  At a recent Senate Judiciary Committee hearing, committee members were unable to get data from the BOP about basic issues such as coronavirus testing, demographics of people released, and the agency’s response to ongoing federal litigation.  An agency that is constitutionally required to maintain the health, safety, and rehabilitation of 160,000 people deserves continuous oversight, not a hearing once or twice a year....

Several states have established effective prison oversight offices to great success. These offices, sometimes called “ombudsmen,” typically are independent from state Departments of Corrections.  Their powers include the ability to enter and inspect prisons without notice, conduct confidential interviews with incarcerated people and prison staff, recommend improvements and monitor their implementation, access data and records, and even help resolve complaints from families and prisoners.

Oversight such as this helps identify and prevent problems (and costly lawsuits) and makes prisons safer places for those who reside and work there.  This year, New Jersey Gov. Phil Murphy signed a law greatly expanding the powers of the state’s oversight office.  Washington State, Pennsylvania and New York also have prison oversight bodies, and Texas has a statewide jail oversight body.

September 14, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, September 13, 2020

The new death penalty: The Marshall Project reporting COVID prisoner deaths exceed 1000

In this post back in May, I started what became a series of posts in which I noted what might be called a new kind of death penalty for prison and jail inmates in the United States: by killing many hundreds of incarcerated persons, COVID-19 has turned all sorts of other sentences into functional death sentences.  In prior postings, I have often flagged the death data from the UCLA Covid-19 Behind Bars Data Project, but today I see that The Marshall Project has updated data here showing that prisoner deaths have hit another grim milestone:

Deaths

The first known COVID-19 death of a prisoner was in Georgia when Anthony Cheek died on March 26. Cheek, who was 49 years old, had been held in Lee State Prison near Albany, a hotspot for the disease.  Since then, at least 1,016 other prisoners have died of coronavirus-related causes.  By Sept. 8, the total number of deaths had risen by 5 percent in a week.

There have been at least 1,017 deaths from coronavirus reported among prisoners.

Of course, 1000 is just a round number and every single COVID death is individually sad and disconcerting.  I continue to hope that, somehow, we might be getting past the worst of this pandemic that has (predictably) already been so lethal for persons in and around prisons and jails. 

A few of many prior related posts:

September 13, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Thursday, September 10, 2020

Federal prison population now down to 155,483 according to BOP reporting

Regular readers likely realize that I am no longer providing weekly updates on COVID-era changes in the federal prison population because declines in the federal Bureau of Prisons' weekly updated "Total Federal Inmates" numbers has slowed considerably.  But I am continuing to notice that the BOP population is still declining and this story seems worth watching closely amidst  continuing efforts to return to some form of new normal.

As I have noted before via this post, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; through June, as detailed here, declines continued at a slightly reduced rate of about 950 fewer persons reported in all federal facilities on average per week.  But by the tail end of July, as noted here, weekly reported population declines were trending under 500.

My post on July 30 noted that the federal population was at a another new historic low with the new BOP reported "Total Federal Inmates" at 157,862.  Three weeks later, on August 20, I reported here that we were down to 156,415.  Today, three more weeks on, the new BOP numbers at this webpage report "Total Federal Inmates" at 155,483

As I have said repeatedly before, I still suspect that COVID-delayed sentencings and stalled federal prison transfers continued to account for mot of these declines; but the lack of any real-time sentencing data from the US Sentencing Commission and the opaque nature of BOP data make it hard to be sure just what the reported population numbers represent.  I am hopeful that we will eventually get some sentencing data from the USSC that can help us better understand these prison data, but now well over six months into the pandemic, the USSC still seems in no rush to provide any inkling of how the federal criminal sentencing process has been impacted. Grrr.

A few of many prior related posts:

September 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Wednesday, September 09, 2020

Ugly details from federal defenders' latest fact sheet on COVID-19 and federal detention

Sentencing Resource Counsel for the Federal Public Community Defenders has just released this new two-page fact sheet dense with information and links on "The COVID-19 Crisis in Federal Detention."  I recommend the full document, and here are some of the details (absent the links):

COVID-19 is ripping through the Federal Bureau of Prisons (BOP), infecting incarcerated individuals at a rate 4 times the general population, and causing deaths at nearly twice the national rate. BOP is “making it worse,” said Joe Rojas, the regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.”

There have now been 126 reported deaths of incarcerated individuals, an incalculable loss.  They were parents, siblings, and children.  They were us.  Some of their deaths were surely preventable.  BOP’s press releases reveal that the majority — 93 — were at higher risk of complications from COVID-19 and BOP knew it.  At least a quarter of those who have died in BOP’s care were seventy or older.  Last month, BOP told the Washington Post that at least 18 individuals died while their requests for compassionate release were pending.  To date, we have identified 19 individuals who died in BOP custody after filing — and in some cases, even after being granted — requests for release....

BOP and DOJ have ignored the tools Congress gave them to lower prison populations safely.  The bipartisan CARES Act authorized AG Barr to dramatically expand the use of home confinement to protect the most vulnerable from COVID-19.  But in response, AG Barr and BOP have issued restrictive guidance and memos, each “more confusing than the next,” that together establish a “complex set of procedural and logistical hurdles to home confinement.”  To date, BOP has approved for transfer to home confinement only 4.4% of the 174,923 who were in custody on February 20.  The DOJ OIG examined BOP’s response to COVID-19 at one of BOP’s hardest-hit facilities, Lompoc Federal Correctional Complex, and found that BOP’s use of home confinement at FCC Lompoc was “extremely limited.”  The Department of Justice (DOJ) has not released demographic data on the individuals BOP has approved for home confinement, despite congressional demands.  At a time when transparency is more important than ever, the federal incarceration system is a black box. “The problem is that prisons in the U.S. are not accustomed to oversight and transparency.”

Thanks to the First Step Act of 2018, individuals no longer must depend on BOP to initiate a motion for compassionate release. Post-FSA, defendants may file a motion directly with the court 30 days after the warden’s receipt of a request.  But during the COVID-19 crisis, this 30-day delay, coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.  At FMC Carswell, a medical facility that houses the most medically vulnerable women in BOP, “fewer than 20 women” have reportedly received compassionate release.  Based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.

September 9, 2020 in FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Sunday, September 06, 2020

"Lives on the Line: Women with Incarcerated Loved Ones and the Impact of COVID-19 Behind Bars"

The title of this post is the title of this interesting recent report I just came across from the "Lives on the Line Campaign." Here is part of the start of the report's executive summary:

Incarceration has always posed a grave threat to public health. Jails, prisons, and detention centers subject people to dangerous, unhealthy, inhumane conditions and experiences by design.  So, when COVID-19 became a pandemic, we knew that our loved ones’ lives were on the line. We knew that the crowded, unsanitary conditions behind bars and a lack of access to medical care would mean that incarcerated people would be among those hit hardest by the virus.  We knew that the patriarchal, punitive values embedded into the prison industrial complex would prevent incarcerated people from receiving the kind of care they need to survive a pandemic.  And we knew that this harm would ripple out to cause profound physical, emotional, and economic harm for the communities that mass incarceration targets: historically marginalized people, especially Black and Brown communities and women.

In response, Essie Justice Group, in partnership with Color of Change, created the Lives on the Line survey for people with incarcerated loved ones.  Knowing that carceral spaces are designed to obscure their own violence, the survey sought out concrete data that could illustrate what was happening behind bars and buoy the efforts of advocates across the country fighting to free incarcerated people amidst the COVID-19 pandemic.  Carceral facilities are using COVID-19 as poor justification to further isolate incarcerated women, men, and people of all genders from the outside.  Therefore, we put out a public call to people with incarcerated loved ones to share information and testimonies, acknowledging that women with family members behind bars are uniquely material witnesses to what is happening in prisons, jails and detention centers during COVID-19. Our survey ran over a four-week period from May 5th to June 7th, 2020.  We received 709 responses.

The data we collected makes clear that what is happening with COVID-19 behind bars is a humanitarian and public health disaster.  Jails, prisons, and detention centers are callously failing to take bare minimum measures to mitigate the spread of COVID-19, such as instating distancing protocols or providing adequate supplies of free soap, disinfectant, or masks to incarcerated people.  Facilities have exploited the virus as an opportunity to further sever connections between incarcerated people and their support networks, including their lawyers and their loved ones.  In a moment when people need to be released faster than ever, court dates, hearings, and release dates are being delayed.  As a result, incarcerated people are suffering and dying from COVID-19 at alarmingly high rates.  They and their loved ones live with fear, extraordinary anxiety, and extreme isolation.  Incarceration is fundamentally incompatible with human dignity and human health; COVID-19 makes that undeniable.

A key objective of this report is to highlight the disparate impact of COVID-19 behind bars on Black people and Black women, uplifting the crisis as a gender and racial justice issue.

September 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, September 04, 2020

Plenty more COVID headlines and stories in incarceration nation

I am now generally rounding up prison-COVID press pieces every few weeks, even though the ugliness of American prisons and jails during a pandemic is a felt reality for millions of incarcerated persons and their families every day.  As I have said before, we should be thankful that the press and commentators keep reporting and discussing these stories that keep emerging from our prisons and jails:

From the Appalachian Media Institute, "A Call for Help (from Prison During COVID)"

From Cal Matters, "COVID-19 hotspots revealed the need for prison reform and better rehabilitation"

From Carolina Public Press, "Are NC prisons in contempt? Punishing sick, misleading information alleged as judge weighs action"

From CNN, "Prison inmates are twice as likely to die of Covid-19 than those on the outside, new report finds"

From Cowboy State Daily, "Due to Coronavirus, Wyoming Penitentiary Prisoners Let Out Of Cells 15 Minutes A Day"

From Governing, "COVID Prison Disaster Prompts Reform Bills: Legislative Watch"

From Montana Public Radio, "'It’s Like Sardines:' Advocates Call For Health Protections For Inmates"

From STAT, "As Covid-19 cases in prisons climb, data on race remain largely obscured"

From WBUR, "Medical Experts Raise Questions About COVID-19 Data From Mass. Jails And Prisons"

In this round-up, I have left out stories about continued increases in positive COIVD cases and deaths among prisoners not because there aren't any, but because there are too many to cover them all effectively.

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

Wednesday, September 02, 2020

CCJ releases new "Impact Reports" on "COVID-19 and Prisons" and "COVID-19 and Jails"

Earlier today I was praising the work of the Council on Criminal Justice (CCJ) for launching an important and impressive new commission to assess the impacts of COVID-19 on the criminal justice system (basic details here).  Not more than a few minutes later, I received an email about two new important reports from the commission.  Here is the heart of the email with links to the reports:

New research released today by the National Commission on COVID-19 and Criminal Justice found wide disparities among states in rates of COVID-related deaths and cases in prisons.  Five states — Arkansas, New Mexico, Kentucky, Ohio, and Delaware — reported prison mortality rates more than eight times higher than rates for their general state populations, while some states — including New York and Pennsylvania — reported prison death rates below those for the non-incarcerated.

Overall, after adjusting for the age, sex, and race/ethnicity of incarcerated individuals, the study found that theCOVID-19 mortality rate in state and federal prisons is twice that of the death rate for the general population.  Without those demographic adjustments, the rate of COVID-19 cases in prisons is more than four times the national rate. 

The Commission also released a separate analysis of the pandemic’s impact on jail populations, based on more than 14 million daily jail population records collected between January 1 and July 20.  Reflecting data from 375 facilities in 39 states, it found that jail numbers declined by an average of 31% between the issuance of the White House Coronavirus Guidelines on March 16 and mid-May.

The declines were accompanied by changes in the composition of jail populations.  After pandemic responses began in March, data showed that those released from jails were on average 34% more likely to have been booked on felony charges, and had been detained for 71% longer, compared to pre-pandemic releases.  The shares of people in jail who were booked on only misdemeanor charges, who were female, and who were white all decreased, while the proportions of those who were black, male, age 25 or younger, and booked on felonies increased.  These compositional changes have persisted even as the jail population trend reversed, growing 12% between mid-May and July 20. 

The jails study, by  Anna Harvey and Orion Taylor of New York University’s Public Safety Lab, also showed that rebooking rates for people released after March 16 remained at or below pre-pandemic rates.  These findings suggest the population reduction did not negatively affect public safety during the first three months of the COVID-19 outbreak, but the authors caution that this could change as the pandemic wears on....

The prisons report was prepared by economist  Kevin T. Schnepel of Simon Fraser University. Analyzing data through August 19, it also found that:

  • Among large correctional systems, Ohio reported 86 COVID-related deaths and a prison death rate more than 11 times the state rate; Texas had 112 deaths and a mortality rate about three times the state rate; and California, with 53 deaths, had a death rate about twice the state rate.
  • The highest prison mortality rate was reported by Arkansas. With 34 deaths and a prison population of about 15,500, its mortality rate of 218 deaths per 100,000 people in prison was nearly 20 times the state rate.
  • Fourteen states reported zero COVID-19 deaths within their prisons, and six reported COVID-19 death rates below adjusted state mortality rates.
  • The Federal Bureau of Prisons – the largest single prison system in the nation with about 179,000 people held in facilities – reported 116 deaths and a mortality rate nearly twice the national rate.
  • Overall, the highest mortality rates were reported in large prisons (over 1,000 people), which accounted for 83% of total confirmed coronavirus infections and 87% of total deaths.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Notable new tool for tracking COVID-19 risk in state prisons

I just was altered to this notable new tool coming from the Litmus Program at the NYU Marron Institute, which is described via this posting titled "State Prison Covid-19 Risk Tracker":

Correctional and detention facilities have proven to be hotspots for COVID-19, with the ten largest outbreak clusters in the United States occurring in prisons or jails.  Staff and visitors come and go from correctional institutions, potentially bringing infection in and out.  As facility administrators and health officials shift from immediate crisis response to managing a dynamic and long-term event, data-tracking tools can guide proactive steps to manage outbreaks and improve conditions of confinement.

The Litmus team generated a census of state adult correctional and detention facilities and created an interactive mapping tool that uses publicly available, county-level data from the New York Times on numbers of confirmed cases and deaths, updated daily, to indicate which facilities are located in or near counties that appear to be at high risk for community transmission.  Community risk is calculated using three alternative metrics: recent deaths, recent death rates per 100k, and current case-doubling time.

With support from Unorthodox Philanthropy, the NYU Marron Institute interactive mapping tool is created as a resource for families and advocacy groups and to assist decision-makers in prioritizing PPE, staff and resident testing, increased social distancing (e.g., dorm closures), more stringent cleaning procedures, and adapting policies, including early release, in response to COVID-19 outbreaks.  It can guide intra-system transfers, indicating facilities between which it may be safe to transfer residents and facilities that should restrict new transfers and keep vacancies as people release, to allow for greater social distancing.  The tool is also intended to make community-risk information more accessible so that it can be used to improve conditions of confinement.  Community-risk data can help prioritize lower-risk facilities for relaxing restrictions on external service providers and allowing more congregant time or outside visitors, improving upon the stark conditions in which many incarcerated people currently reside.  It can inform release protocols, allowing for prioritization of quarantine housing, testing, and other support for people returning to their communities from high-risk facilities and serve as a mechanism to target community partnerships between facilities, local health departments, and community-serving organizations.

September 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

FAMM announces notable new campaign focused on a "Second Chances Agenda"

Long-time readers are surely aware that I have long advocated for, and written a lot about, revisiting problematic sentences and expanding the means and manner of doing so.  (I have written numerous articles related to this topic, some of which I have linked below.)  Consequently, I was very pleased to see this press release from FAMM discussing its new campaign:

FAMM announces a new “Second Chances Agenda“ campaign aimed at urging state and federal policymakers to increase their use of compassionate release and clemency, and to encourage the introduction of more second look legislation.

“One of the things we’ve learned during the COVID-19 pandemic is that every state knows to impose lengthy mandatory sentences, but very few have ways to revisit those sentences when the person or circumstances have changed,” said FAMM President Kevin Ring. “There are people languishing in prison who do not need to be there – and we are no safer for it.

“There are also people who have made remarkable changes in their lives since entering prison, and should be considered for a second chance. If people have served a significant sentence, and they have succeeded in rehabilitating themselves, we should give them an opportunity to go home.”

FAMM’s Second Chances Agenda campaign calls for the following:

  1. Pass “second look” laws. FAMM is urging the creation of laws in every state that direct courts to reconsider a person’s sentence after 10 or 15 years to determine whether a shorter sentence is appropriate. Learn more about second look laws.
  2. Expand compassionate releases. Sometimes referred to as medical or geriatric parole or release, compassionate release programs at the state level are failing to allow early release for elderly and sick people who pose no risk to public safety. Learn more about how these systems work around the country and how FAMM is working to improve them.
  3. Expand clemency. The president and most governors have the authority to shorten excessive prison terms but often fail to use their clemency power to its fullest extent. FAMM is committed to working with governors and the White House to expand the use of executive clemency and to identify people who deserve a second chance.

FAMM also supports other reforms that prosecutors and lawmakers could use to provide second chances.

  • Eliminate extreme mandatory sentences and make the reforms retroactive – When lawmakers pass smart reforms, they rarely apply them retroactively, leaving people to serve unjust sentences that are no longer in the law.
  • Parole reform – Some states have parole, but rules and red tape make it too difficult for people to get it.
  • Sentence integrity units – Prosecutors can promote second chances by reviewing sentences periodically to see if they are appropriate.

FAMM has also launched similar campaigns in ArizonaFlorida and Pennsylvania today.

As even newer readers should also realize, perhaps from this initial posting or this more recent one, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center have been working together on a writing competition for law students and recent graduates to propose a "second-look statute" for Ohio (which is discussed more fully on this DEPC webpage).

Here are just a few of my writing on these kinds of topics (which I might now call my own "Second Chances Agenda"):

September 2, 2020 in Clemency and Pardons, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, September 01, 2020

Making the case for post-secondary education for people in prison

Emily Mooney has this effective new commentary at Politico headlined "We Already Have a Tool That Lowers Crime, Saves Money and Shrinks the Prison Population."  Here are excerpts:

In America, individuals released from prison often return to crime.  One study published in 2018, which analyzed data from 23 states, found that 37 percent of those released in 2012 returned to prison within three years.  Of those released in 2010, 46 percent returned to prison within five years.

But the recidivism rate is far lower for prisoners who are able to get some postsecondary education while in prison.  Fewer than 3 percent of graduates of [the Bard Prison Initiative], which is based in New York, return to prison.  In contrast, well over 30 percent of individuals released from the New York Department of Corrections and Community Supervision return to custody within just three years.  Other colleges with similar postsecondary education programs for prisoners also boast lower recidivism statistics than their state averages.

Providing education to the incarcerated is a win-win — it reduces future crime rates and saves public funds that otherwise would be spent keeping people in jail or prison. Unfortunately ... the 1994 Violent Crime Control and Law Enforcement Act rendered anyone behind bars ineligible to receive federal Pell Grants.  These grants, which give impoverished students financial aid for postsecondary education, had long been a critical funding mechanism for in-prison college programs.  The Pell Grant ban put a virtual end to postsecondary education for prisoners who weren’t able to take advantage of privately funded programs like Bard’s or who didn’t have greater familial financial support.

This situation remained largely unchanged until the announcement of the Department of Education’s Second Chance Pell Pilot Program in 2015.  By expanding educational opportunities for some people behind bars, the program aimed to help individuals returning home acquire work, financially support their families and claim a second chance for a better life.  The Pell Pilot Program currently allows around 10,000 students at selected institutions to receive Pell Grant funding each year to attend classes.  While better than nothing, there would be hundreds of thousands of individuals who would be eligible to receive Pell Grant funding if the ban was lifted.

While at least part of the improved recidivism rates depends on personal characteristics of the people who seek out educational opportunities, the findings of multiple studies that attempt to account for these differences reinforce the conclusion that investing in postsecondary education for prisoners is one of the smartest ways to increase safety in our communities....

[F]ailing to invest in postsecondary education for prisoners means a lost opportunity to save taxpayer dollars at a time when state and local budgets are reeling from lost revenue due to the Covid-19 pandemic.  Incarcerating someone usually costs tens of thousands of dollars a year. If Pell Grant eligibility for prisoners was reinstated, according to a report by the Vera Institute of Justice and the Georgetown Center on Poverty and Inequality, the savings to states is estimated to be approximately $365.8 million per year in incarceration costs alone.  This is likely an underestimate, since it does not include other direct and indirect costs of crime or potential benefits of educating prisoners, such as increased economic output.

This is forfeited money that could otherwise be available for investing in other taxpayer priorities. A 2016 brief by the Department of Education found that while per capita spending on corrections increased by almost half from the late 1990s to the early 2010s, the amount of state and local postsecondary education funding per full-time student plummeted.

On account of the potential cost-savings and public safety benefits, it is clear that federal policymakers of both parties should support reinstating Pell Grants. State policymakers, too, should look for ways to expand educational offerings within state and local correctional systems.  Luckily, lawmakers are beginning to introduce legislation to support these goals. A repeal of the Pell Grant ban was included in an appropriations “minibus” bill passed out of the House at the end of July; it currently is waiting for action by the Senate. If successful, this measure promises a new era of learning — and safety.

September 1, 2020 in Prisons and prisoners | Permalink | Comments (0)

Monday, August 31, 2020

"Locking up my generation: Cohort differences in prison spells over the life course"

The title of this post is the title of this new Criminology article authored by Yinzhi Shen, Shawn D. Bushway, Lucy C. Sorensen and Herbert L. Smith.  Here is its abstract:

Crime rates have dropped substantially in the United States, but incarceration rates have remained high.  The standard explanation for the lasting trend in incarceration is that the policy choices from the 1980s and 1990s were part of a secular increase in punitiveness that has kept rates of incarceration high.  Our study highlights a heretofore overlooked perspective: that the crime–punishment wave in the 1980s and 1990s created cohort differences in incarceration over the life course that changed the level of incarceration even decades after the wave. 
With individual‐level longitudinal sentencing data from 1972 to 2016 in North Carolina, we show that cohort effects — the lingering impacts of having reached young adulthood at particular times in the history of crime and punishment — are at least as large (and likely much larger) than annual variation in incarceration rates attributable to period‐specific events and proclivities.  The birth cohorts that reach prime age of crime during the 1980s and 1990s crime–punishment wave have elevated rates of incarceration throughout their observed life course.  The key mechanism for their elevated incarceration rates decades after the crime–punishment wave is the accumulation of extended criminal history under a sentencing structure that systematically escalates punishment for those with priors.

August 31, 2020 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, August 29, 2020

"Does Prison Work? A Comparative Analysis of Contemporary Prison Systems in England and Wales and Finland, 2000 to Present"

The title of this post is the title of this recent paper now available via SSRN and authored by Joseph Hale. Here is its abstract:

The prison systems in Scandinavian countries have become regarded by many as some of the best in the world, with low incarceration and recidivism rates.  Conversely, riots, overcrowding, inadequate staffing numbers, and high recidivism rates surround the prison system in England and Wales; such failures raise questions on what the role of prison in society is: the prevention and reduction of crime or, the social control and marginalisation of the most vulnerable members in our community?

By focusing on the prison systems in both England and Wales and Finland, this article will argue 1) that prison system in England and Wales has in recent years developed in becoming more focused towards rehabilitation but, still faces numerous challenges including working within predominantly Victorian-era carceral spaces, limited funding, lack of vocational training opportunities and the perception within a significant sector of the public that they have become ‘holiday camps’. 2) The Finnish prison system appears to encompass much higher regard for both prisoners’ welfare and a greater emphasis on rehabilitation building upon changes throughout the twentieth and twenty-first centuries. 3) By addressing stigmas and ensuring that opportunities are actively encourage and made more available, the English system, like Finland, could become a world-leading example; reducing recidivism and incarceration rates, and demonstrating that prison can work.

August 29, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (0)

Thursday, August 27, 2020

"The Scale of the COVID-19-Related Jail Population Decline"

The title of this post is the title of this new short "evidence brief" from the Vera Institute.  Here is its summary:

From mid-March to mid-April 2020 — the first month of rapid spread of COVID-19 in the United States — there was an unprecedented reduction in the number of people held in local jails.  Analysis conducted by the Vera Institute of Justice (Vera) of the most comprehensive jail data available shows that the number of people in jail in the United States fell by one quarter, mainly over the course of that month.  Jail bookings dropped as people who would otherwise have been arrested stayed home, and police and sheriffs made fewer arrests they deemed unnecessary.

Simultaneously, many judges and prosecutors used their broad discretion to facilitate the release of people they deemed safe, while public defenders filed thousands of motions to secure the release of their clients.  Although some highly visible judges and prosecutors continued to stand in the way of decarceration — even while the deadly virus spread quickly through jails and prisons — the overall impact was a rapid reduction in the sizable population of jailed people whose incarceration had no clear public safety rationale.

But as the United States faces continued outbreaks of COVID-19, it is crucial to recognize that decarceration has still been inadequate, from both a public safety and a public health perspective.  Future COVID-19 responsive policies should focus on facilitating the release of much broader categories of people and avoiding arrests and bookings that would refill jails.  In the immediate term, further reducing jail populations would help to slow or stop the continued spread of the virus inside and outside jail facilities, and it could also help reduce correctional spending as state and local budgets shrink.  In the long-term, this could enable an enduring shift of resources away from law enforcement and punishment and toward public services and responses. Such a policy approach would move the country toward ending both mass incarceration and the social and economic harms it inflicts on poor, Black, and brown communities.

August 27, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Bureau of Justice Statistics releases report on "Correctional Populations in the United States, 2017-2018"

Though I am sad that data in reports from the Bureau of Justice Statistics is often a bit dated, I am always grateful for the work BJS does to assemble and detail criminal justice data. And I am especially pleased to see this latest BJS report, titled "Correctional Populations in the United States, 2017-2018," in part because it details the continued decline in correctional populations for now more than a decade (which I certainly believe has continued into 2019 and 2020). This BJS webpage provides this context and highlights:

This report is the 23rd in a series that began in 1985. It provides statistics on populations supervised by adult correctional systems in the United States, including persons held in prisons or jails and those supervised in the community on probation or parole. It provides statistics on the size of the correctional populations at year-end 2017 and year-end 2018, and changes in populations over time.

Highlights:

  • The adult correctional-supervision rate (adults supervised per 100,000 adult U.S. residents) decreased 21% from 2008 to 2018, from 3,160 to 2,510 per 100,000 adult U.S. residents.
  • The percentage of adult U.S. residents under correctional supervision was lower in 2018 than at any time since 1992.
  • The adult incarceration rate (adults in prison or jail per 100,000 adult U.S. residents) has declined every year since 2008, and the rate in 2018 was the lowest since 1996.
  • The portion of adult U.S. residents in prison or jails fell 17% from 2008 to 2018.
  • The correctional population declined 2.1% from 2017 to 2018, due to decreases in both the community-supervision (down 2.4%) and incarcerated (down 1.4%) populations.

August 27, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, August 25, 2020

Spotlighting the still sorry state of federal prisons six months into a COVID pandemic

It has now be almost a full six months since my first post here flagging concerns about the intersection of incarceration and coronavirus, and since then I have covered this challenging story in dozens more posts. But the Washington Post has this notable new piece highlights that prison nation still has big COVID problems, and that matters seem to be even worse in federal prisons than in state systems. The piece is headlined "Prisoners and guards agree about federal coronavirus response: ‘We do not feel safe’," and here are excerpts:

Kareen “Troy” Troitino spent all of July working in a prison medical facility just as the coronavirus was surging through Miami’s Federal Correctional Institution, where the number of confirmed cases ballooned from a handful of prisoners to nearly 100 in a matter of days.  When he returned to work at FCI Miami in August, he was caught off guard when the prisoners welcomed him back with a laudatory uproar he said “sounded like the Super Bowl.”

Word had circulated among prisoners in the 1,000-person low-security facility that Troitino, a corrections officer and union president, was telling reporters, lawmakers and managers that despite assurances, the Bureau of Prisons’ response to the coronavirus pandemic was endangering the lives of federal employees and prisoners alike.  Troitino, who spoke to The Washington Post as a representative of his union, acknowledged that prisoners and guards don’t always find themselves on the same team; but in a pandemic, everyone’s fates are intertwined.  “All of us are trying to survive,” Troitino said.  “Your health affects me, and vice versa. Inmates and staff, we do not feel safe.”

Troitino is among the federal workers suing the government for hazard pay over what they say are risky conditions they’re forced to work under during the pandemic — but he’s hardly a disgruntled worker.  When the BOP announced Aug. 5 it had moved into Phase 9 of its covid-19 action plan, prisoners and their advocates panned the news as the bureau’s attempt to create the impression that the virus is under control in facilities while papering over a deepening health and safety crisis.

BOP Director Michael Carvajal has dismissed scrutiny of the bureau as “misinformation.” During a June Senate Judiciary Committee hearing on covid-19 best practices for prisons and jails, Carvajal testified that the bureau was well-prepared and that the Centers for Disease Control and Prevention had praised the bureau after evaluating unspecified facilities in the early months of the pandemic.  As of June 1, Carvajal said 1,650 federal inmates and 171 bureau staff had tested positive.  Less than 12 weeks later, those numbers grew to 11,953 prisoners and 1,436 staff, with more than 120 combined deaths, according to UCLA’s Covid-19 Behind Bars Data Project.

Covid-19 cases are proportionally higher and have spread faster in prisons than in the outside population, said Brendan Saloner, an associate professor at Johns Hopkins Bloomberg School of Public Health who is studying the issue. Saloner told The Post federal public defenders contacted his team with troubling details from clients. “Their contention is that it’s worse in the BOP than in the state prisons,” he said....

Interviews with a dozen federal prison employees, prisoners, lawyers and health and legal experts who monitor correctional facilities, as well as reviews of lawsuits and petitions filed by prisoners and collected from the UCLA data project, show the ways by which the pandemic has exacerbated existing problems in federal prisons; they range from overcrowding and staff shortages to a lack of transparency around policies for personal protective equipment (PPE) and testing.

“It’s a complete disaster,” said Rob Norcross, an inmate at the minimum-security satellite camp at FCI Jesup in Georgia. The bureau’s stated guidelines about sanitization and social distancing don’t comport with reality, Norcross said: Prison camp inmates are barred from using hand sanitizer, lack cleaning supplies and have nowhere they can move to to create space....

Norcross’s complaints mirror those in a July report by the DOJ’s Office of Inspector General about conditions at a federal prison in Lompoc, Calif.: The OIG reported several issues, including a shortage of medical staffers to address prisoner health concerns and instances where prisoners who clearly exhibited covid-19 symptoms were not tested.  The areas where the Lompoc facility scored the lowest were related to adequate PPE supply for staff and prisoners, and adequate soap or hand sanitizer for prisoners.

Sen. Elizabeth Warren (D-Mass.) ... sent Carvajal letters demanding answers on testing and transparency. Warren and several congressional Democrats introduced a bill Aug. 6 that would require federal and local corrections facilities to collect and report comprehensive data on covid-19 infections and deaths. “Covid-19 is out of control in prisons and jails across the country — and the Trump Administration has failed to effectively manage this pandemic and protect the health and safety of incarcerated people, correctional staff, and the general public,” Warren said in the past week in a statement to The Post.

UCLA Law’s Sharon Dolovich, who leads the Covid-19 Behind Bars Data Project, echoed Warren’s criticism of the bureau, noting the data it does publish on coronavirus cases and deaths is non-comprehensive and opaque.  “The culture of secrecy that’s been allowed to develop in the nation’s prisons and jails over the past 40 years is antithetical to these institutions’ status in a democratic society,” she said.  “We have government officials who act as if this is their private information.”

August 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Monday, August 24, 2020

"Climate Change and the Criminal Justice System"

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

The past decade has been the warmest decade in history. But while there has been a great deal of attention paid to issues of infrastructure sustainability, less attention has been focused on the impact of climate change on our criminal justice system.  This paper identifies how we can anticipate climate change will affect and create new challenges for law enforcement, prisons, prosecutorial and defense agencies, government offices, and communities.  This article first examines three ways climate change is challenging our criminal justice system — from altering the types of crimes committed, to detrimentally impacting prisons, jails, and other criminal justice institutions, to challenging traditional doctrines of criminal law such as the necessity and duress defenses and causation.  Drawing in part on lessons from the response to the COVID-19 pandemic, this article makes ten recommendations on how such challenges can be met.

August 24, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Sunday, August 23, 2020

"Incarceration and the Law: Cases and Materials (Table of Contents and Ch. 1 Excerpt)"

The title of this post is the title of this SSRN posting with a part of the latest new edition of the casebook Incarceration and the Law: Cases and Materials.  Here is the abstract:

This posts a table of contents and much of the first chapter to a fully overhauled, updated, and expanded edition of the leading case book on incarceration.  The case book examines the complex legal regime that defines prisoners’ rights. Mass incarceration in America creates a host of controversies at the crossroads of constitutional liberty, legislation, public policy, and prison management.  It considers those issues from diverse perspectives by presenting an array of materials: Supreme Court and leading lower court caselaw, statutes, litigation materials, professional standards, academic commentary, prisoner writing, and more.  (There is also an associated website, http://incarcerationlaw.com, which offers additional open sources, supplementing the book for those who own it and providing a freestanding repository of materials for those who do not.)

Chapter 1 provides background on American jails and prisons (What’s the difference between a jail and a prison?  What is incarceration supposed to accomplish?  How do prison abolitionists conceptualize and justify their goals?  How did American incarceration develop?)  It provides longitudinal and contemporary statistics.  Finally, it offers narrative and case law background on the development of the modern conception of prisoners’ rights.

August 23, 2020 in Prisons and prisoners, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (0)

The new death penalty: COVID has now killed more US prisoners in months than the US death penalty has in the last two decades

The UCLA Covid-19 Behind Bars Data Project has been doing a terrific job keeping an updated count, via this spreadsheet, of confirmed COVID deaths of persons serving time in state and federal facilities.  As of the morning of Sunday, August 23, this UCLA accounting had tabulated 858 "Confirmed Deaths (Residents)." 

This considerable number is sad and disconcerting on its own terms, but it is even more remarkable given that it amounts to more prisoner deaths than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020.  According to DPIC data, there were a total of 839 executions from the start of 2001 through today.

Of course, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The majority of prisoners to die of COVID were not responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few prior posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  Another such offender died just last week according to this BOP press release: Luis A. Velez contracted COVID in FCI Coleman this summer and died on August 18; he was only 58-year-old and had been in federal prison for five years (of a 13-year sentence) after his conviction of possession with intent to distribute meth.

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The UCLA spreadsheet currently reports "only" 72 "Confirmed Deaths (Staff).  I am pleasantly surprised that this number is not bigger, but I will be ever troubled by the thought it could have been much lower along with the prisoner death number if more aggressive depopulation efforts were taken to more the most vulnerable and least risky offenders out of the super-spreader environment that prisons represent.

A few of many prior related posts:

August 23, 2020 in Death Penalty Reforms, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (10)

Friday, August 21, 2020

Ugly COVID headlines and stories not stopping in incarceration nation

It has now been a couple of weeks since I did a round-up of prison-COVID press pieces.  Thankfully, the press and commentators keeping reporting and discussing the discouraging tales that keep emerging from our prisons and jails, and here is a round-up of just a few recent headlines and pieces:

From ABC News, "'Who is going to man the prison if everyone tests positive?' Corrections officer union warns of dual threat facing federal prisons"

From the Detroit Free Press, "Nearly half the population at Michigan prison tests positive for COVID-19"

From Forbes, "A Look Inside A Federal Prison With Covid-19: FCI Seagoville"

From The Guardian, "'Severe inhumanity': California prisons overwhelmed by Covid outbreaks and approaching fires"

From MarketWatch, "U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more"

From the Miami Herald, "Rubio demands answers from Barr on sexual abuse, COVID response at Florida prison"

From the Phoenix New Times, "'We Are Not Animals': Prisoner Slams State Response to COVID-19 Outbreak"

From the Sacramento Bee, "Folsom Prison COVID-19 cases double, now California’s largest active inmate outbreak"

From the Seattle Times, "Virus outbreak at Washington State Penitentiary, and the response, alarm inmates’ friends and family"

From STLtoday.com, "COVID-19 cases in Missouri prison system increase 50% in less than a month"

August 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)