Sentencing Law and Policy

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

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

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

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

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

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

What's in the Reports?

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

Understanding Prison Release Mechanisms 

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

Insights Into Decision-Making Power 

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

Why Is This Important? 

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

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

Read the Reports

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Investigations of various prisons and jails reveal various unsettling stories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Extraordinary Punishment: Conditions of Confinement and Compassionate Release"

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

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

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

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

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

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

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

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

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

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

• Criminal History Guidelines Going Retro By Narrowest of Margins
• Mr. Explainer’s “How-to” On Applying For Retroactivity

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

"State Constitutional Prohibitions of Slavery and Involuntary Servitude"

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

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

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

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

"#MeToo in Prison"

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

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

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

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

Noting the notable death toll in hot Texas prisons this summer

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

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

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

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

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

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

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

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

• Punishment Beyond Prisons: Incarceration and supervision by state -- The criminal punishment system is much bigger than jails and prisons. Our report shows that all states -- even those that consider themselves progressive leaders -- put significant numbers of their citizens on probation and parole, systems that often replicate prison conditions in the community. Two 50-state charts comparing states' rates of supervision and incarceration show that when probation and parole are taken into account, progressive states like Rhode Island don't appear too different than famously "tough" states like Louisiana.
• The aging prison population: Causes, costs, and consequences -- The share of people in prison aged 55 and older has skyrocketed over the last 30 years, from 3% in 1991 to 15% in 2021. What caused this huge shift in the prison population and what can be done about it? In a new briefing, we explain what has caused the national "greying" of prisons, highlight the harmful consequences of locking up so many older people, and point to solutions. (Includes 50-state data.)
• New data on HIV in prisons during the COVID-19 pandemic underscore links between HIV and incarceration -- Recent data from the Bureau of Justice Statistics show that the rate of HIV among people in prisons is three times higher than the general U.S. population. We break down the rates of HIV in all 50 state prison systems, exploring the root causes of this health disparity. We also discuss the criminalization of HIV across the U.S.: 35 states still have laws on the books criminalizing actions that can potentially expose another person to HIV, even if no transmission occurs.
• SMH: The rapid and unregulated growth of e-messaging in prisons -- With a growing number of incarcerated people and their families able to use e-messaging services to keep in touch, we examined how much these services cost in all 50 states and the federal Bureau of Prisons, finding that the cost per message ranges from being free (or just a few cents) in some states to a high of 50c in states like Arkansas. We also explore other concerns with electronic messaging, including privacy issues and "bulk pricing" schemes, and lay out our recommendations for how to make this service work for incarcerated people, their families, and even prisons.
• Heat, floods, pests, disease, and death: What climate change means for people in prison -- The summer of 2023 may be the mildest summer of the rest of our lives if governments do not take action to halt climate change. In this briefing, we discuss new research that proves the connection between extreme heat in prisons and higher mortality rates, with one surprising finding: During heat waves, incarcerated people in Northeast and Western states fare the worst. We also dive into how other aspects of climate change -- such as mosquito infestations and infectious diseases -- stand to impact people in prison.

"Prison Abolition Without the Ethic"

The title of this post is the title of this new article available via SSRN authored by Jacob Gordon. Here is its abstract:

Prison abolitionists stand for an “ethic.”   The ethic rejects punishment of all kinds, as well as capitalism broadly understood.  By focusing on their ethic, abolitionists mask strong arguments for prison abolition -- or at least something like it -- from within more common commitments.  The ethic therefore undermines actual abolition in the name of a distinct and contestable set of theories.

"Inside Out: Legacies of Attica and the Threat of Books to the Carceral State"

The title of this post is the title of this paper available via SSRN and authored by Jamie Jenkins. Here is its abstract:

The largest book ban in the United States takes place in this country’s prison system.  Prison officials can ban any book that threatens the security or operations of the facility.  Books about Black people in America and books about the history and politics of prisons are often targeted for their potential to be divisive or incite unrest.  The result is that Black people, who are already disproportionately victimized by the criminal punishment system, are prevented from reading their own history and the history of the institution imprisoning them.  This Note examines the legal backdrop enabling these draconian book bans to persist today.  As an example, it highlights the recent ban of Heather Ann Thompson’s “Blood in the Water: The Attica Prison Uprising of 1971 and its Legacy” in Attica Correctional Facility.  It situates book bans in prisons alongside the anti-CRT mania plaguing our school systems, and labels both practices as forms of “memory law” meant to stifle the democratic engagement of marginalized groups. Finally, this Note argues for a rebalancing of interests that centers the rights and needs of incarcerated people.

Intriguing accounting of Texas punishment numbers

The latest issues of Texas Monthly includes "a roundup of the many categories — both good and bad — in which Texas ranks number one. "  One notable part of the roundup is titled "When It Comes to People Behind Bars, Texas Is Way Ahead," and here is part of the discussion (with links from the original:  

For years our elected officials — sheriffs, district attorneys, judges, and governors — have won office by promising to be tough on crime.  The most infamous metric for this is that we’re the number one state in executions.  Since 1976, when the Supreme Court declared the death penalty was once again constitutional, we’ve killed nearly five times more convicts than Oklahoma, our nearest competitor.  (Our northern neighbor, however, executes more prisoners per capita than we do; we’re number two by that measure.) 

But we’re also the leader when it comes to living, breathing subjects of the criminal justice system: no state has more inmates than Texas.  (Though, again, on a per capita basis we don’t come out on top; we’re number ten, behind some much smaller states.) We weren’t always number one; California, with a far bigger population, used to outdo us.  Then in the nineties, Governor Ann Richards led an expansion of prisons and a tightening of parole rules that pushed us into the top spot.  Between 1993 and 1998 the population of our state prisons, state jails, and private facilities more than doubled, to 143,889 — more than the entire population of Waco.  Ten years later we reached 156,126 inmates.  Yet, as crime rates fell, so did those numbers, aided, to the surprise of many, by conservative politicians affiliated with the Texas Public Policy Foundation’s Right on Crime initiative, which framed prison issues as economic issues.  Texas began sending nonviolent inmates to community-based programs designed to divert them from future crimes, and it started closing prisons, not building new ones.  Then, during the pandemic, law enforcement curtailed arrests, the court system slowed down its processing, and TDCJ took fewer transfers from county lockups.  By April 2021 Texas had 116,926 inmates in its prisons.

But now, as society is getting back to normal, our numbers are climbing once again.  As of January, Texas had 124,893 inmates. California, with 10 million more residents, had about 29,300 fewer inmates.  And this is all part of a much larger web. Texas has more inmates in “administrative segregation” — solitary confinement in all but name — than any other state, more than 3,000.  And our numbers are shockingly high when it comes to prisons without air-conditioning, incidents of prison rape, and unpaid inmate labor.

None of these changes take into account our 252 county jails, where, by some accounts, on average more than 60,000 men and women await a trial, a plea bargain, or a transfer to state prison.

Deep dive into stores of juvenile LWOP sentences and their review

The New York Times has this lengthy new feature on extreme sentencing of juvenile offenders, with a focus particularly on happenings in Philadelphia.  I recommend the full article, which is headlined "Sentenced to Life as Boys, They Made Their Case for Release."  Here are some excerpts that highlight some of the data reported within broader story-telling:

Philadelphia lawyer named Bradley Bridge ... began the enormous undertaking of compiling a list of all the prisoners in Pennsylvania who were sentenced to life as minors. No one in the state had ever kept track of this group, who came to be called “juvenile lifers” in the courts and “child lifers” by some of the inmates themselves.

He expected the list to be long. He didn’t expect it to eventually include more than 500 names, nearly one-fifth of the more than 2,800 child lifers in the country. More than 300 of them had come through Philadelphia’s system, making a city with less than 1 percent of the country’s population responsible for more than 10 percent of all children sentenced to life in prison without parole in the United States. No other city compared.  Even more glaring: More than 80 percent of Philadelphia’s child lifers were Black. Nationally, that figure was roughly 60 percent....

In 2008, the Equal Justice Initiative found 73 children who had been given sentences of life without parole when they were 13 and 14 years old.  And all of the people who received those sentences for crimes other than homicide were children of color. “It just said something about the way in which race was a proxy for a presumption of dangerousness, this presumption of irredeemability,”[Bryan] Stevenson said....

The Supreme Court’s rulings in Miller and Montgomery marked an important rethinking of culpability when it comes to children who commit the most serious crimes.  But the practical implications of the rulings were limited: the court hadn’t abolished all life without parole sentences for children — only ones where state laws made the sentences mandatory. And while child lifers now had a chance to make a case for their release, prosecutors could still seek new life sentences.  In other states with high numbers of child lifers, including Michigan and Louisiana, as well as some parts of Pennsylvania, that’s just what they did.

Of the more than 300 child lifers who became eligible for resentencing in Philadelphia in 2016, all but about a dozen have been resentenced, and more than 220 have been released, the majority of them on lifetime parole.  That’s nearly a quarter of the roughly 1,000 total child lifers who have been released across the country.  These numbers make Philadelphia, once an outlier in imprisoning minors for life, now an outlier in letting them go.  By 2020, the city had resentenced more child lifers than Michigan and Louisiana combined. What set the city apart, said Mr. Stevenson, of the Equal Justice Initiative, was not just the buy-in from local officials and public defenders, but also the community of child lifers who became their own best argument for release....

Since the Supreme Court decisions, more than half of all states have outlawed life without parole sentences for children altogether, reducing the number of child lifers left in the country to fewer than 600, according to the Campaign for the Fair Sentencing of Youth, a national nonprofit.  Mr. Stevenson’s organization is now working to raise the minimum age at which children can be tried as adults in 11 states, including Pennsylvania, where there is no age floor.  Other states are considering abolishing mandatory life without parole sentences for people under 21.

"Beyond Bars: A Path Forward from 50 Years of Mass Incarceration in the United States"

The title of this post is the title of this new (open access) book editted by Kristen Budd, David Lane, Glenn Muschert and Jason Smith. Here is how it is described:  

The year 2023 marks 50 years of mass incarceration in the United States.  This timely volume highlights and addresses pressing social problems associated with the U.S.’s heavy reliance on mass imprisonment.  In an atmosphere of charged political debate, including “tough on crime” rhetoric, the editors bring together scholars and experts in the criminal justice field to provide the most up-to-date science on mass incarceration and its ramifications on justice-impacted people and our communities.

This book offers practical solutions for advocates, policy and lawmakers, and the wider public for addressing mass incarceration and its effects to create a more just, fair and safer society.

The Table of Contents lists 10 substantive chapters in this text, and here are just a few of the many chapters that may be of particular interest to sentencing fans:

Mass incarceration’s lifetime guarantee by Ashley Nellis

Mass incarceration and the collateral problems of parole by Kimberly D. Richman

The end of mass incarceration: opportunities for reform by Francis T. Cullen, Justin T. Pickett, and Cheryl Lero Jonson

The final chapter of this book, authored by Cullen et al., develops the thesis that the "era of mass incarceration has ended," and it concludes with this paragraph:

In closing, historical turning points are not always apparent to those in their midst but become evident only in retrospect some years later.  Thus, we trust we have been convincing in showing that mass incarceration has ended — both in terms of the growth of prison populations and the punitive logic that fueled the movement.  This good news, however, will be squandered if a collateral movement to transform American corrections lays dormant.  However, a shortcut may be possible.  It is insufficient to identify past mistakes; future choices must occur.  The opportunity for change is palpable.  Are we up to creating a new era of reform — a humanitarian revolution in corrections?

Prison Policy Initiative spotlights the "aging prison population"

The Prison Policy Initiative's by Emily Widra has produces this notable new briefing titled "The aging prison population: Causes, costs, and consequences." Here are some excerpts (click through for lots of helpful links and graphics):

New data from the Census Bureau reveals that the U.S. median age rose to a high of 38.9 years: an increase of three and half years in the last 23 years. The U.S. prison population is aging, too, and at a much faster rate than the nation as a whole — and older adults represent a growing portion of people who are arrested and incarcerated each year. The aging of the prison population is the result of a series of disastrous policy decisions in policing, sentencing, and reentry over roughly the last half-century. And while prisons and jails are unhealthy for people of all ages, older adults’ interactions with these systems are particularly dangerous, if not outright deadly....

According to the most recent available data on local jails across the U.S., from 2020 to 2021 — during the COVID-19 pandemic, which was particularly dangerous for older adults — the segment of the jail population aged 55 and older expanded by a greater proportion than any other age group, growing 24% compared to an average increase of 15% across all other age groups.

Meanwhile, older people make up five times as much of the prison population as they did three decades ago. From 1991 to 2021, the percentage of the state and federal prison population nationwide aged 55 or older swelled from 3% to a whopping 15%. This growth is seen even more acutely when looking at people serving life sentences: by 2020, 30% of people serving life sentences were at least 55 years old, with more than 61,400 older adults sentenced to die in prison....

State and federal sentencing policies from the 1970s to the 2000s resulted in what researchers have called “a prescription for an increase in older inmates: more prisoners, more prison beds, more lifers, and less parole.” State and federal laws enacted in this time period resulted in more incarcerated people serving longer sentences via policies that:

• Increased sentence lengths and established mandatory minimums,
• Mandated extremely long sentences for individuals convicted of three felony offenses (“three strikes” laws),
• Required people to serve upwards of 85% of their sentence in prison (“truth in sentencing” laws) before becoming parole eligible,
• Abolished parole,
• Reduced the allowed time earned for good conduct, and
• Instituted other “tough on crime” sentencing laws.

Longer and harsher sentences top the list of the most obvious mechanisms by which the national prison population exploded in the 1990s and 2000s, but they also created the problem of today’s aging prison population: many of the people who received these sentences are still behind bars now that they are twenty or thirty years older.

Another weekend round-up of all sorts of sentencing and punishment stories and commentaries

Another busy week means another really long list of press articles and commentary that caught my eye as blogworthy and yet that I did not find time to blog about.  I will seek to catch up with this round up, while hoping readers might flag any items from this list (or elsewhere) that they consider particularly important:

From CommonWealth, "It’s time to end eternal punishment for young adults: We should ban sentences of life without parole for young offenders"

From Fox News, "Dealer linked to Michael K Williams’ death sentenced to 30 months after ‘Wire’ creator’s call for leniency"

From The Guardian, "Struggling DeSantis and Pence attack criminal justice law they championed"

From The Hechinger Report, "‘A second prison’: People face hidden dead ends when they pursue a range of careers post-incarceration"

From The Hill, "Delayed justice is a hidden crisis in our federal justice system"

From the Los Angeles Times, "California’s free prison calls are repairing estranged relationships and aiding rehabilitation"

From NBC News, "Bill to ban solitary confinement in federal prisons introduced in House"

From the New York Daily News, "Advocates demand Schumer do more to end crack cocaine sentencing disparity"

From the New York Times, "We Know What Happens When We Prosecute Drug Dealers as Murderers"

From Politico, "Clarence Thomas Created a Confusing New Rule That’s Gutting Gun Laws"

From Reason, "Hunter Biden Shouldn't Go to Prison for Violating an Arbitrary Gun Law"

Ohio Supreme Court rejects myriad challenges to state's new indefinite sentencing system for most serous offenses

As reported via this official court press release, an Ohio "state law allowing prison officials to retain beyond their minimum terms offenders who violate laws or rules while incarcerated does not violate the constitutional rights of inmates, the Supreme Court of Ohio ruled today."  Here is more of the basics of the ruling:

In a 5-2 decision, the Supreme Court affirmed two appellate court decisions finding the “Reagan Tokes Law” to be constitutional. The Reagan Tokes law, which took effect in 2019, imposes an indefinite prison term on those who commit serious felonies. Under the law, the offender is expected to be released once the minimum sentence is served, but the Ohio Department of Rehabilitation and Correction (DRC) can maintain an inmate’s incarceration up to the maximum sentence imposed by the court for committing crimes or breaking rules.

The Reagan Tokes Law is named for a 21-year-old student who was abducted, raped, and murdered in 2017 by a man on parole. The Court consolidated the cases of two men, Christopher Hacker and Danan Simmons Jr., who were both sentenced under the new law in December 2019. The men were not involved in Reagan Tokes’ case.

Writing for the Court majority, Justice Joseph T. Deters stated the two men raised a “facial” challenge to the Reagan Tokes law and so had to prove that under no circumstances could the law be fairly applied. The pair failed to prove that was the case, raising only hypothetical situations in which an inmate might serve more than the minimum term for a minor prison rule infraction, the opinion noted.

Justice Deters wrote that at some point an inmate could possibly raise a claim that the DRC applied the law in an unconstitutional manner “should the facts of a specific case so warrant.” Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Melody Stewart joined Justice Deters’ opinion.

In a dissenting opinion, Justice Jennifer Brunner argued that the process for denying the inmates their release is constitutionally flawed. The law does not give inmates the appropriate means of challenging the DRC’s accusations that they have misbehaved, and the DRC under the law is both the prosecutor and the arbiter or judge of prison conduct, giving the DRC sole discretion to extend inmates’ time in prison, she wrote. Justice Michael P. Donnelly joined Justice Brunner’s dissent.

The full 53-page opinion in Ohio v. Hacker, No. 2023-Ohio-2535 (Ohio July 26, 2023), is available at this link.  Here is how the opinion for the court begins:

The “Reagan Tokes Law,” which became effective in March 2019, requires that for certain first- and second-degree felony offenses, a sentencing court impose on the offender an indefinite sentence consisting of a minimum and a maximum prison term.  There is a presumption that the offender will be released from incarceration after serving the minimum prison term.  But if that presumption is rebutted, the Ohio Department of Rehabilitation and Correction (“DRC”) may maintain the offender’s incarceration up to the maximum prison term set by the trial court.  In these appeals, which we have consolidated for decision, appellants, Christopher P. Hacker (case No. 2020-1496) and Danan Simmons Jr. (case No. 2021-0532), maintain that indefinite sentencing under the Reagan Tokes Law is unconstitutional because it violates the separation-of-powers doctrine, the offender’s right to a jury trial, and procedural due process.  We disagree and therefore affirm the judgments of the Third and Eighth District Courts of Appeals.

The dissenting opinion by Justice Brunner begins this way:

In both of these cases, we were asked to consider the facial constitutionality of the Reagan Tokes Law (“RTL”).  I agree with several of the majority’s determinations in its analysis.  Because the RTL is, in my view, akin to Ohio’s former indefinite-sentencing scheme, I agree that the law does not violate the separation-of-powers doctrine.  I also agree that appellants, Christopher P. Hacker and Danan Simmons Jr., lack standing to challenge the Adult Parole Authority’s (“APA”) exercise of its discretion to recommend a person’s release from prison before the presumptive minimum sentence has been served, because they are not aggrieved by that provision of the RTL.  I share the majority’s view that the RTL does not violate the right to a jury trial, because nothing about the law permits a fact-finder other than a jury to find facts that increase the range of sentencing exposure of the defendant.  With respect to the majority’s overall due-process analysis, I agree that appellants do have a protectable interest in their freedom after their presumptive minimum sentence has expired, and thus, I disagree with the contrary argument of appellee, the state of Ohio.  Similarly, I agree with the majority that a facial constitutional analysis involves a review of the law that is challenged, not the policies that may be adopted to enforce the law.

But I part ways with the majority in that I do not agree with its conclusions about procedural due process.  The procedures created by the RTL are insufficient in light of the gravity of the decision being made — whether to release a person from prison on his or her presumptive release date.  This imbalance facially violates offenders’ right to due process and is unconstitutional.  And because the unconstitutional portions of the RTL cannot be severed from the law without thwarting the intent of the legislature, I would invalidate as unconstitutional the entire RTL.

"The Prison Bust: Declining Carceral Capacity in an Era of Mass Incarceration"

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

While there is a growing literature investigating the causes and consequences of the US prison boom — the tripling of prison facilities between 1970 and 2000 — much less is known about current patterns of prison closures.  We use novel data capturing the universe of prison closures (N=188) from 2000 to 2022 to identify and characterize what we term “the prison bust” — the period since 2000 when prison closures began to climb and eventually eclipse new prison building.  We show that the prison bust is, in part, a consequence of development-oriented prison-building policies that aggressively used prisons to stimulate struggling local economies.  The bust is primarily concentrated in the counties that pursued prison building most aggressively, reflecting a highly cyclical and reactionary pattern of prison placement and closure.  We also show that, relative to counties with at least one prison but no closures, closures are concentrated in metro counties with stronger local economies and multiple prisons.  Overall, we highlight the prison bust as an important new era in the history of US punishment and provide a new dataset for investigating its causes and consequences.  We conclude by discussing the theoretical and policy implications of these findings.

New Prison Policy Initiative briefing on "Heat, floods, pests, disease, and death: What climate change means for people in prison"

Leah Wang has this new briefing for the Prison Policy Initiative titled "Heat, floods, pests, disease, and death: What climate change means for people in prison."  The piece's subheading summarizes its themes: "Without consistent access to relief or safer environments, incarcerated people are punished with deadly heat, increased biological threats, and flimsy emergency protocols. We explain new epidemiological evidence confirming that heat and death are linked in prisons nationwide, and explain why the climate-change-induced plight of people in prisons deserves swift action."

Here is how this timely new report gets started (links left out, head to PPI to see all the graphics and links):

Heatwaves and extreme weather events are now commonplace.  States across the South and Southwest are experiencing record high temperatures (during the day and at night, which is a big deal).  Meanwhile, the Northeast has been drenched in more frequent, torrential rainfall and flash flooding.  Prisons and jails nationwide aren’t insulated from these events, yet we rarely see how correctional staff ensure the safety of the millions of people locked within them.

Hopefully, readers have seen our prior work — or any of several other powerful essays — explaining the ways in which extreme heat, combined with a lack of air-conditioned spaces and cooling measures, is especially harmful to people behind bars.  Some have described the experience as being trapped in heat-retaining “convection ovens.”  We’ve also highlighted some of the environmentally disastrous ways prisons are sited and operated.

In this briefing, we present new findings from a nationwide, epidemiological study showing a strong relationship between extreme heat and deaths in prisons — especially in the Northeast.  We also explain why extreme heat isn’t an isolated danger — it’s wrapped up in other hazards like pests and diseases guaranteed to make prison life miserable, if not fatal.

BJS releases big report on "Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018"

I am very excited that the Bureau of Justice Statistics has released this new special report providing details on federal drug sentences for drug offenses, though it is something of a bummer that this report only covers fiscal yearends 2013–2018.  This official BJS press release about the report provides some of its highlights:

The number of people held in Federal Bureau of Prisons’ facilities on a drug offense fell 24% from fiscal yearend 2013 (94,613) to fiscal yearend 2018 (71,555), according to Sentencing Decisions for Persons in Federal Prison for Drug Offenses, 2013–2018, a new report from the Bureau of Justice Statistics. These persons accounted for 51% of the federal prison population in 2013 and 47% in 2018. “Although the number of people in federal prison for drug offenses decreased over this 5-year span, they still accounted for a large share — almost half — of the people in BOP custody in 2018,” said Dr. Alexis Piquero, Director of BJS. “At the same time, we saw differences by the type of drug involved, with more people incarcerated for heroin and methamphetamines and fewer for marijuana and cocaine.”

Between 2013 and 2018, there were large decreases in persons serving time in federal prison for marijuana (down 61%), crack cocaine (down 45%) and powder cocaine (down 35%), with a smaller (4%) decline in persons imprisoned for opioids. These reductions were partly offset by growth in the number of persons serving time for heroin (up 13%) and methamphetamine (up 12%)....

Persons who received [mandatory minimum] penalties had been sentenced to 184 months on average, while those who received relief from penalties had an average sentence of 76 months and those not subject to penalties had an average sentence of 89 months. “Additionally, and regardless of any penalties they received, 6 in 10 people in BOP custody in 2018 were serving long drug sentences of 10 years or more,” Dr. Piquero said. “As for those sentenced to at least 20 years, more than half of the males were black and over 40% of the females were white.”

"Associations in Prison"

The title of this post is the title of this interesting new article available via SSRN and authored by (my new colleague) Grace Y. Li. Here is its abstract:

Incarcerated people create, lead, and participate in a variety of associations in prison.  These associations educate and advocate for members, serve the broader prison population, cultivate social bonds, and promote the individual growth that happens in relationship with others.  The associations do so in the face of byzantine regulations that burden their formation, membership, and operations.  These rules go unchecked because the constitutional right of association is under-protected in prisons.  The deferential Turner v. Safley test for rights violations in prison prizes ease of prison administration over rights protection.  Thus, though the right of association is a fundamental constitutional right, in prison it does not enjoy the level of protection of a fundamental right.

This Article builds a conceptual framework of associations in prison.  It provides a typology of the organizations that exist in prisons today.  Most of these operate as they would on the outside, as part of civil society, which fills gaps in government provision.  The Article also explores the kinds of effects the associations have on members, which are democracy-enhancing in nature as well as communitarian and liberal.  The Article then maps the types of limitations imposed on the groups by regulations and rules.  By examining the unique challenges produced by and faced by these associations, the Article shows that broader associational jurisprudence can better protect fundamental aspects of associations by grappling with issues that arise in the unique context of incarceration.

Highlighting new research with encouraging news about incarceration trends

Writing in the Washington Post, Charles Lane has this great new opinion piece headlined "New data show a dire forecast about incarceration rates didn’t come true." I recommend the whole piece, and here are a few highlights:

Few data points have more dramatically illustrated the disparate racial impact of incarceration in the United States than this statistic, first calculated in a 2003 Justice Department-sponsored study: If imprisonment rates remained the same as they were in 2001, then 1 out of every 3 Black men born that year could expect to be put behind bars during his lifetime. The figure for White men, by contrast, was 1 of every 17.  Hammered home in political speeches, media coverage and activist websites, that projection did much to galvanize public opinion in favor of criminal justice reform.

And yet it did not actually materialize.  The overall U.S. incarceration rate peaked in the three-year period of 2006 to 2008, according to Pew Research, and it has been declining since then.  What’s more, the rate for Black men fell faster during the past two decades than that for White men (and other groups), contrary to expectations in 2003 — and to much conventional wisdom today.

Therefore, since the 2003 Justice Department study appeared, chances that Black men would not go to prison improved so much that the actual lifetime “incarceration risk” for those born in 2001 turned out to be fewer than 1 in 5 — about 40 percent lower than the oft-cited 1 in 3 figure.  This outcome connotes a modest, but real, reduction in racial inequality generally.  Amid a national criminal justice debate that often understandably focuses on the problems and injustices that still need to be solved, encouraging data deserve attention, too.

The hopeful findings about racially disparate incarceration rates emerge from a study to be published this week in the peer-reviewed journal Demography.  It includes such remarkable data as the fact that, whereas 5,159 out of every 100,000 Black men were imprisoned in 1999, the rate had fallen to 2,881 per 100,000 by 2019 — a 44 percent decrease. In that period, almost every state saw a decline in its incarceration rate for Black men....

The news gets better.  Partly as a result of these positive trends, Black men are now more likely to have earned a bachelor’s degree by age 25 than to have been in prison: The respective population shares, as of 2019, are 17.7 percent and 12 percent.  As recently as 2009, the opposite was the case, with 17.4 percent of 25-year-old Black men having gone to prison but only 12.8 percent having finished college. ...

Optimistically, but plausibly, the study argues that the generation of Black men — and, indeed, of all U.S. residents — born after 2001 “is facing a distinctly reduced risk of imprisonment.”  This is because rates of criminal behavior and arrest fell over the past two decades, relative to the 1980s and 1990s; the effects of this trend “will likely compound into even lower rates of incarceration as they age.”

The study acknowledges that U.S. crime and incarceration rates are still well above those of peer nations.  Although the Black-White ratio in male incarceration rates fell from 9.3 to 1 in 1999 to 6.1 to 1 in 2019, that unacceptable disparity “remains quite large,” the study notes.  “There is plenty more progress to be made,” the study’s lead author, sociologist Jason P. Robey of the University at Albany’s School of Criminal Justice, told me.

It might help to achieve that progress if the new Demography study, co-authored by sociologists Michael Massoglia and Michael T. Light, both of the University of Wisconsin at Madison, had provided an account of exactly why incarceration generally, and Black male incarceration in particular, has declined, but such explanations lie beyond the scope of their research.  Less punitive enforcement policies on nonviolent drug offenses, as well as other recent reforms intended to limit racially disparate incarceration, are undoubtedly part of the story.  And of course continued downward trends in imprisonment depend on preventing crime itself from spiraling upward.  The Demography study warns, appropriately, that positive trends are “reversible.”...

Alarming data on what the study labels the “incarceration boom” supplied one necessary ingredient to the criminal justice reform movement: urgency.  Statistical evidence of progress can provide another: hope.

The research article referenced in this opinion piece is authored by Jason P. Robey, Michael Massoglia & Michael T. Light and is titled "A Generational Shift: Race and the Declining Lifetime Risk of Imprisonment."

Lots of notable prison news and notes as a busy month winds down

The month of June (and really all of the first half of 2023) have felt especially busy and dynamic, and I am hoping for a bit of a break as a holiday weekend and week mark the start of July.  But, before the calendar turns, I thought a big round up of some notable prison stories I noticed recently — some good, some bad, some ugly — was in order.   And so:

From Al Jazeera, "Solitary confinement is still widespread in US prisons and jails"

From the Alabama Political Reporter, "Another incarcerated person dies in ADOC Facility, death numbers continue to rise"

From Alaska Public Media, "Smuggling cases point to need for better drug treatment in Alaska prisons, advocates say"

From the AP, "Thousands more prisoners across the US will get free college paid for by the government"

From the Detroit News, "Michigan prisons ordered to allow faith group that believes in race separation"

From Forbes, "Bureau Of Prisons Changes In Works To Comply With First Step Act"

From GBH News, "In 'historic' moment, MCI-Framingham prisoners testify live at moratorium hearing"

From The Hill, "Around 760,000 people in prison will be eligible for free college with Pell Grant expansion"

From the Los Angeles Times, "California promises better care for thousands of inmates as they leave prison"

From the New York Times, "‘Man Down!’: Surviving the Texas Heat in Prisons Without Air-Conditioning"

From the Post and Courier, "‘More respectful living conditions’: Initiative at SC prisons found to reduce violence"

From the Tampa Bay Times, "People in Florida prisons will get free calls for good behavior in new program"

From the Urban Institute, "Debunking Four Myths about the Prison Building Boom Supporting Mass Incarceration"

From VTDigger, "The Deeper Dig: A spate of deaths focuses attention on Vermont prisons and the Department of Corrections"

From Wired, "Inmates Need Internet to Prepare for Life After Prison"

New report highlights the "promise of targeted home confinement with electronic monitoring"

The Niskanen Center today released this short new report, title "Safer, Smarter, and Cheaper: The promise of targeted home confinement with electronic monitoring," authored by Greg Newburn, Richard Hahn and Matthew Bulger.  Here is its summary:

Under the CARES Act, signed into law in March 2020, Congress temporarily expanded the authority of the federal Bureau of Prisons to place prisoners in home confinement.  As of May 27, 2023, BOP had placed 13,204 individuals into home confinement under that authority.  As of May 1, just 22 of those people had been returned to prison for committing a new crime.

Congress should pass legislation to establish a program modeled after CARES Act home confinement.  This legislation should make home confinement a default sentence for offenders who meet certain criteria and provide sentence enhancements for crimes committed while on home confinement.  Additionally, Congress should empower BOP to modify supervision and behavioral expectations; adopt swift and certain sanctions for non-criminal rule violations; test different eligibility criteria; and incorporate graduated reintegration to ease the transition from supervision to freedom.

Research evidence from both the U.S. and abroad suggests home confinement is an effective and appropriate alternative to imprisonment for lower-risk offenders.  A modified home confinement program would lead to substantial savings that could be reinvested in police to arrest, prosecute, and incarcerate dangerous criminals who would otherwise remain free, and help BOP better manage the population of prisoners housed in federal facilities.

Some prior recent related posts:

• Senator Booker releases policy brief highlighting CARES Act home confinement program 
• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  
• Spotlighting again the decarceral success of the CARES Act 
• With pandemic legally winding down, should Congress build in CARES Act success to greatly expand BOP home confinement authority? 

Bureau of Justice Statistics releases "Juveniles Incarcerated in U.S. Adult Jails and Prisons, 2002–2021"

The Bureau of Justice Statistics today released a short "Just the Stats" document reporting data on juveniles held in adult correctional facilities over the last two decades.  This report, titled "Juveniles Incarcerated in U.S. Adult Jails and Prisons, 2002–2021," starts this way:

Juveniles (persons age 17 or younger) arrested or convicted for a criminal offense may be housed in juvenile residential facilities or in adult jails and prisons, depending on state statute, judicial discretion, and federal law. This report details trends for juveniles who are held in adult facilities.

Key Findings

• The number of juveniles incarcerated in all U.S. adult prisons or jails declined from a peak of 10,420 in 2008 to a low of 2,250 in 2021 (figure 1).
• In 2021, local jails had custody of 1,960 juveniles while state and federal adult prisons held 290.
• The percent of the total jail population who were juveniles declined from 0.9% in 2002 to 0.3% in 2021 (figure 2).
• The percent of the total prison population who were juveniles declined from 0.2% in 2002 to 0.02% in 2021.
• In 2021, 87% of juveniles in adult correctional facilities were held in local jails and 13% were held in prisons, compared to 66% in local jails and 34% in prisons in 2002, the earliest year for which comparable data are available for both populations (table 1).

New report from Human Rights Watch highlights people released from LWOP sentences in California

This press release from Human Rights Watch notes a new report that focuses on individuals who have been released from prison in California after having once been given a life without parole sentence. The press release starts this way:

People formerly sentenced to life without parole (LWOP) in the state of California have flourished since they have had an opportunity to return home, Human Rights Watch said in a report released today. As changes in legislation and executive power have allowed new pathways for release, the vast majority of people who have been released after serving these sentences are volunteering in their communities, caring for family members, and mentoring youth.

The 53-page report, “‘I Just Want to Give Back’: The Reintegration of People Sentenced to Life Without Parole,” details what people who were once sentenced to die in California prisons have done with their second chances.  Human Rights Watch surveyed more than three-quarters of those released since 2013 and found that 94 percent reported volunteering regularly, 84 percent said they financially assisted others, and 90 percent worked full or part-time, with 43 percent working in the nonprofit sector.  Based on these findings, the report recommends that California government officials take steps toward eliminating the use of LWOP sentences.

Here is a snippet from the report's summary:

In recent years, less than 4 percent of people sentenced to life without parole in California have been released due to changes in state law and executive power.  At the time research began, there were only 143 people who fit this description.  This report focuses on the historic release of these individuals and examines the positive contributions they have made with their second chances.

Using statistical data from the California Department of Corrections and Rehabilitation and qualitative data from a series of interviews conducted with individuals formerly sentenced to LWOP in the state of California, this report sheds light on the positive impact these people can have on society.  Notably, the interviews were conducted with 110 out of the 143 individuals who had been released, representing approximately 77 percent of the total population.  This comprehensive sample reinforces empirical research suggesting that LWOP sentences are unnecessary when it comes to promoting public safety.  Moreover, it contends that LWOP sentences are counterproductive to public safety because they deprive communities of the unique and valuable contributions individuals with the sentence can make.

Four years after Jeffrey Epstein's death, DOJ's Inspector General says mismanagement led to suicide

The four years since notorious sex offender Jeffrey Epstein was found dead in his jail cell in summer 2019 certainly have been quite eventful, though I fear not all that much has changed when it comes to federal jail and prison conditions.  Thus, I suspect there are still lessons to learn from this big new report released today by the Department of Justice's Office of the Inspector General titled "Investigation and Review of the Federal Bureau of Prisons’ Custody, Care, and Supervision of Jeffrey Epstein at the Metropolitan Correctional Center in New York, New York."  This New York Times article about the report starts this way:

Jeffrey Epstein, who was found dead in a cell with a bedsheet tied around his neck in 2019, died by suicide, not foul play — following a cascade of negligence and mismanagement at the now-shuttered federal jail in Manhattan where he was housed, according to the Justice Department’s inspector general.

The inspector general, who released a report on Tuesday after a yearslong investigation, found that the leadership and staff members at the jail, the federal Metropolitan Correctional Center, created an environment in which Mr. Epstein, a financier charged with sex trafficking, had every opportunity to kill himself.

The inspector general, Michael Horowitz, referred two supervisors at the facility responsible for ensuring Mr. Epstein’s safety for criminal prosecution by the U.S. attorney for the Southern District of New York after they were caught falsifying records and lying to investigators. But prosecutors declined to bring charges.

While the inspector general concluded the jail’s staff members “engaged in significant misconduct and dereliction of their duties,” investigators — who combed through 100,000 records and conducted dozens of interviews — “did not uncover evidence” that contradicted the Federal Bureau of Investigation’s finding that Mr. Epstein had died by his own hand, with a homemade noose.

Here is how the 128-page report's executive summary gets started:

According to its website, the Federal Bureau of Prisons (BOP)’s current mission statement is “Corrections professionals who foster a humane and secure environment and ensure public safety by preparing individuals for successful reentry into our communities.” However, the Department of Justice (DOJ) Office of the Inspector General (OIG) has repeatedly identified long-standing operational challenges that negatively affect the BOP’s ability to operate its institutions safely and securely. Many of those same operational challenges, including staffing shortages, managing inmates at risk for suicide, functional security camera systems, and management failures and widespread disregard of BOP policies and procedures, were again identified by the OIG during this investigation and review into the custody, care, and supervision of one of the BOP’s most notorious inmates, Jeffrey Epstein.

The OIG initiated this investigation upon receipt of information from the BOP that on August 10, 2019, in the Metropolitan Correctional Center in New York, New York (MCC New York), Epstein was found hanged in his assigned cell within the Special Housing Unit (SHU). The Office of the Chief Medical Examiner, City of New York, determined that Epstein had died by suicide.

The OIG conducted this investigation jointly with the Federal Bureau of Investigation (FBI), with the OIG’s investigative focus being the conduct of BOP personnel. Among other things, the FBI investigated the cause of Epstein’s death and determined there was no criminality pertaining to how Epstein had died.

This report concerns the OIG’s findings regarding MCC New York personnel’s custody, care, and supervision of Epstein while detained at the facility from his arrest on federal sex trafficking charges on July 6, 2019, until his death on August 10.

"For Health Equity, We Must End Mass Incarceration"

The title of this post is the title of this recent "Viewpoint" piece published in the Journal of the American Medical Association and authored by Emily A. Wang and Shira Shavit. Here is an excerpt:

As primary care physicians, we have seen the harms of mass incarceration extend across 3 generations of a family (grandparents, parents, and children) and how the harms may be transmitted biologically.  There is increasing evidence that psychosocial stress from the conditions of confinement; the challenges obtaining housing, food, and employment for individuals with criminal records; and the increased caregiving duties, costs of visitation, and stigma for family members are drivers of worse health outcomes.  Individuals with histories of incarceration and their family members have altered physiological stress responses, including increased levels of C-reactive protein, cortisol, and epigenetic age acceleration that are associated with developing and accelerating chronic health conditions, even after adjusting for neighborhood environment.8 Mass incarceration is now encoded into the DNA of the US.  And yet, when health policy analysts decry structural racism, mass incarceration is rarely if ever mentioned.

Undoing the health harms of mass incarceration should not only be the concern of frontline clinicians, but that of the whole medical community (including health systems and payers).  Recognizing this in 2006, we created the Transitions Clinic Network model that transforms primary care systems to better care for patients who have been incarcerated and for their families by employing community health workers with the lived experience of incarceration.  Today, the Transitions Clinic Network is the largest example of the medical community’s capacity to address mass incarceration, with a consortium of 44 primary care programs in 14 states and Puerto Rico that provide health and social service support for individuals returning from incarceration.

Vera Institute of Justice reports on "People in Jail and Prison in 2022"

The Vera Institute of Justice is continuing to do terrific work on the challenging task of collecting (near-real-time) data on the number of people in state and federal jails and prisons. Vera's latest effort is this 30-page report titled simply "People in Jail and Prison in 2022," and here is some of text from the document's summary:

In the first years of the coronavirus pandemic, federal, state, and local governments reduced the number of people incarcerated in U.S. prisons and local jails from 2.1 million in 2019 to 1.8 million at midyear 2020.  By 2021, however, this decarceration trend appeared to have stalled, as further drops in prison populations were countered by large increases in jail numbers.  From mid-2021 to fall 2022, incarceration rose slightly, up by 4 percent.  Nonetheless, the number of people incarcerated is still near its 2020 level of 1.8 million.

The national increase seen during 2022 is the result of a patchwork of different state and local trends.  Between mid-2021 and fall 2022, a total of 34 states increased the number of people in prison, and some saw substantial growth: Mississippi and Montana both increased the number of people incarcerated in their prisons by about 9 percent. Colorado, Illinois, Iowa, Kentucky, and North Dakota saw prison population increases of 8 percent.

Nationally, jail populations have not fully rebounded to pre-pandemic levels and are still down 8.3 percent from 2019. (This is not universal: in 2022, Texas jail populations surpassed their 2019 level by more than 6 percent.)

Still, jail populations in many regions increased during the past year. Between mid-2021 and fall 2022, the fastest growth in jail populations was in the suburban counties of large metropolitan areas, followed by small and midsize metro counties.  Rural counties — which for some time have jailed people at rates double those of urban areas — had already come close to refilling their jails by mid-2021.

By fall 2022, jail incarceration rates in rural counties were 343 people per 100,000 working-age residents, compared to 159 per 100,000 in urban counties.  This growth brought rural jail incarceration rates to just 5 percent below mid-2019 levels in fall 2022, while urban counties’ jail incarceration rates were down 12 percent.

New Sentencing Project fact sheet with latest data on "Private Prisons in the United States"

The Sentencing project analyzes the latest data from Bureau of Justice Statistics on private prisons in this new fact sheet.  The full report should be reviewed for all the data, but here are snippets:

Twenty-seven states and the federal government incarcerated 96,370 people in private prisons in 2021, representing 8% of the total state and federal prison population.

Private for-profit prisons incarcerated 96,370 American residents in 2021, representing 8% of the total state and federal prison population. Since 2000, the number of people housed in private prisons has increased 10%....

States show significant variation in the use of private prisons. At one end of the spectrum, Montana incarcerates almost half of its prison population in privately run facilities, but in another 23 states, private prisons are not used at all. A total of 27 states and the federal government use private corporations like GEO Group, Core Civic, LaSalle Corrections, and Management and Training Corporation to run some of their corrections facilities.

Montana is not alone in its heavy reliance on private prisons. Arizona, Hawaii, New Mexico, Oklahoma, and Tennessee rely considerably on private prisons for housing imprisoned people. In these states, between 21% and 45% of the prison population resides in a for-profit prison...

The proportion of imprisoned people in private facilities compared to public facilities has not changed considerably in the past 20 years. In 2000, 8% of the imprisoned population was also in private facilities; but fluctuations in the total number of people imprisoned over 20 years translated to a 10% rise in the number of people in private prisons. Since 2012, however, the population in private prisons has decreased significantly.

"How Prisoners' Rights Lawyers do Vital Work Despite the Courts"

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

In the prison law context, even when civil rights claims are strong on the merits, incarcerated litigants will lose most of the time. And even when lawyers win on behalf of their incarcerated clients, conditions don’t tend to change on the ground as much as they should.  Regardless, prisoners’ rights lawyers do an enormous amount of good.  In this essay, I argue for the indispensability of legal advocacy on behalf of people in custody despite how unfriendly courts are to claims brought from prison.  Indeed, I suggest that, at this moment in the development of the carceral state, lawyering for the incarcerated is among the most impactful means we have to move our carceral system closer to consistency with the basic normative commitments of a constitutional democracy. In making this case, this essay describes (1) how lawyers help to lift the veil of secrecy that otherwise shrouds much of what happens in prison; (2) the work lawyers do as watchdogs, calling out and challenging the abuse and exploitation of the incarcerated; and (3) the way that, through their work, lawyers validate the humanity — and thus the dignity and self-respect — of their clients, who more typically exist in a systematically dehumanizing institutional environment.

"The Bureau of Prisons is beset by dysfunction. Here’s how to address it."

The title of this post is the title of this Washington Post editorial which was published over the weekend.  Here is how the editorial starts and ends:

The Federal Bureau of Prisons generally labors in obscurity, except when a high-profile inmate arrives, as Theranos founder Elizabeth Holmes did the other day, or when a notorious one passes away, most recently FBI-agent-turned-Russian-spy Robert Hanssen.  And yet its mission — housing roughly 159,000 people convicted of federal crimes humanely and securely, and then fostering their reentry to society — is crucial to the rule of law.  The BOP operates 122 facilities at a cost of about $8.4 billion in fiscal 2023, the second-biggest budget item, after the Federal Bureau of Investigation, in the Justice Department.  With more than 34,000 personnel, the BOP is the department’s largest employer.

It’s time for more attention to be paid to the BOP. A steady flow of reports has documented an agency beset by chronic problems — unsanitary kitchens, sexual assaults, an astonishing recidivism rate of around 43 percent — in urgent need of reform.

In April, the Government Accountability Office, Congress’s watchdog agency, declared management of federal prisons a “high-risk area.”  The BOP “faces significant, longstanding management challenges … which represent a serious threat to inmate and staff safety,” the GAO noted.  Last year, Senate hearings, chaired by Sen. Jon Ossoff (D-Ga.), exposed major failings at the 121-year-old federal penitentiary in Atlanta, including rampant smuggling of drugs and weapons, rodent infestation, malfunctioning sewage systems and — tragically — 12 inmate suicides between 2012 and 2020....

To be sure, there has been some recent progress.  The federal prison system has $290 million for modernization and repair in fiscal 2023, up significantly from the previous year.  Still, there’s a limit to what funding can achieve absent structural reform.  Bipartisan legislation, spearheaded by Mr. Ossoff and enacted in December, has produced the BOP’s first required inventory of its security cameras — albeit with the depressing finding that 80 percent of the roughly 25,000 devices are analog — and a plan for a systemwide upgrade.  More is needed.  A recently introduced bill, also bipartisan, would require [Inspector General] Mr. Horowitz’s office to inspect all BOP prisons and assign each a risk score, with higher-risk facilities required to face more frequent inspections. It would also establish an independent ombudsman to assess inmate and staff complaints.

The BOP’s new director, Colette S. Peters, took office in August 2022, tapped by Attorney General Merrick Garland after serving as director of Oregon’s prisons.  She is refreshingly open to legitimate criticism.  In a statement to The Post, she expressed “sincere appreciation for the valuable work” of the GAO and Mr. Horowitz.  What remains to be seen is whether her appointment will end the revolving door at the top of the BOP: She is the sixth director or acting director in the past six years.

Perhaps more than anything else, the BOP needs stable leadership, without which consistent policy cannot be sustained, let alone reformed. Its director should be nominated by the president for a single 10-year term, subject to Senate confirmation, like the director of the FBI.  A measure proposed in both houses last year would make this change, yet it languishes, despite bipartisan support from lawmakers including its initial sponsor in the Senate, Minority Leader Mitch McConnell (R-Ky.), and Mr. Ossoff. 

The need for structural change at the BOP is clear.  So are the costs of inaction.

I like both the themes and the particulars of this editorial, but it also should have stressed that the FIRST STEP Act created, directly and indirectly, a number of new responsibilities for BOP which provides even more of a need for structural reforms to massive federal prison systems.

Some of many prior recent related posts:

• DOJ's Inspector General reports on "aging and deteriorating" federal prison facilities 
• Making the case for independent oversight of the federal Bureau of Prisons 
• Another account of continuing struggles with FIRST STEP Act implementation 
• Highlighting the continuing challenges of calculating FIRST STEP Act earned time credits
• BOP chief from Trump Administration says "prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief" 
• New federal defender laments BOP's response to COVID and the FIRST STEP Act 

Spotlighting notable sentence reduction for prisoner sexually abused by multiple BOP guards

This new NPR piece, headlined "Prison sexual assault victims can now petition for compassionate release," highlights a recent grant of a sentence reduction under 3582(c)(1)(A) for a prisoner who was repeatedly sexually abused by federal prison guards.  Here are the particulars and some broader context:

For years, Aimee Chavira suffered sexual abuse in a Dublin, Calif., federal prison by the officers responsible for protecting her. Now, thanks to a program known as compassionate release, she is free. And her freedom could help pave a similar path for other people who experienced physical or sexual assault behind bars.

"We are very hopeful that this can lead to more women who were abused at Dublin getting out," said Erica Zunkel, Chavira's lawyer.

Chavira, 44, has been home for less than two weeks after learning her request for compassionate release had been granted by a federal judge. Those petitions allow people in prison the chance to convince a court they should be freed because of extraordinary and compelling circumstances.

Typically, those cases involve terminal illness or other dire medical conditions. In April, the U.S. Sentencing Commission, a federal body that sets advisory guidelines, voted to expand the bases for compassionate release to include sexual and physical assault by prison workers.

Chavira reported her abuse to a psychologist and a warden at the Federal Correctional Institution, Dublin. But they did nothing. The warden later was convicted of sexual abuse and lying to the FBI. Five other officials have been charged with sexually abusing women at the facility, in what became known as a so-called "Rape Club." One of them, John Bellhouse, was convicted this week on charges that include sexual abuse of an incarcerated person.

Chavira said she knows women from the Dublin prison who have been moved to other facilities, where they continue to suffer retaliation and face trauma. "This is just one prison that's coming out to the light," she said. "What's happening in all the rest of the prisons with the rest of the people that don't have any help or a voice?"

Last year, a bipartisan probe by the Senate Permanent Subcommittee on Investigations found widespread sexual abuse by officers in federal prisons with few consequences for those officers....

Zunkel, the associate director of the Federal Criminal Justice Clinic at the University of Chicago Law School, said it's important that Chavira and other survivors of assault get released as soon as possible. "The experts confirm it doesn't matter if you're moved to a different prison, it doesn't matter if they're offered the very best therapy possible, the Bureau of Prisons is a fundamentally unsafe place for a survivor of sexual violence to recover from," Zunkel said.

In Chavira's case, prosecutors did not object to her request for compassionate release....

Chavira said she's determined to speak out for all the people she met in prison who are still experiencing abuse and poor conditions behind bars. "There is no help, if you went in in one piece, you're coming back out in a million pieces, because you're beyond broken," she said. For now, she said she intends to get stronger emotionally and "show everybody, you know, I went through this, and I got out of it."

The short ruling granting compassionate release is available here and the detailed motion filed by Erica Zunkel on behalf of Aimee Chavira is available here.

Campaign for the Fair Sentencing of Youth reporting that "1,000 individuals who were sentenced to life in prison as children are now free"

I received an email this morning from The Campaign for the Fair Sentencing of Youth (CFSY) reporting in this way on what seems like a notable resentencing milestone:

As of June 6, 2023, we’ve reached an incredible milestone: 1,000 individuals who were sentenced to life in prison as children are now FREE! Since 2009, we have been fighting alongside family members, formerly incarcerated individuals, survivors of violence, lawyers, legislators, and advocates to reach this landmark. Today, we celebrate alongside each of you and affirm once again that “No Child Is Born Bad.”

The CFSY website also provides these notable particulars on the freed group:

What do you know about these 1000 individuals who were told as children they would die in prison serving life without parole and are now free? Their recidivism rates are exceedingly low, while the time they served is exceedingly high....

RECIDIVISM RATES OF FORMER JUVENILE LIFERS ARE EXTREMELY LOW: BETWEEN 0 AND 2%.  A study in Louisiana found the recidivism rate of those who were sentenced to juvenile life without parole to be 0% while a study in Pennsylvania found it to be 1.14%. the national recidivism rate is reported to be between 40% and 68%.

THE AVERAGE NUMBER OF YEARS THESE 1000 FORMER JUVENILE LIFERS SERVED IS EXTREMELY HIGH: 30 YEARS. The median time served for homicide in the U.S. is 17 years according to statistics from the federal bureau of justice – up from less than six years before the year 2000.

THE AVERAGE AGE UPON RELEASE: 47 YEARS OLD.  While teenagers are more prone to break the law, most who commit serious crimes mature out of a tendency to break laws around 25 years old, according to criminologists, biological brain researchers, and decades of experience.

AMERICANS OVERWHELMINGLY BELIEVE THESE 1000 HAVE A CAPACITY FOR POSITIVE CHANGE: 70%. Over two-thirds of Americans agree that children who receive lengthy sentences should have their sentences reviewed by a judge or parole board after no more than 15 years, with the opportunity for release. This majority holds across race, age, gender, political affiliation, and education.

THE LONGEST SERVING AND OLDEST TO BE FREED: JOE LIGON. Locked up at age 15, Joe Ligon became the nation’s longest-serving juvenile ‘lifer.’ at 83, he became the oldest to be freed.

"Left Behind, Again: Intellectual Disability and the Resentencing Movement"

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

This Article examines the exclusion of individuals with intellectual disability from much of the current resentencing movement.  Across the country, incarcerated individuals are filing motions in federal and state courts seeking release as part of a nationwide movement toward decarceration.  These motions are possible because new legislation and case law have been moving away from the “law and order” policies that permeated the criminal legal system for the last several decades.  Those eligible for release include individuals sentenced to long terms of imprisonment for non-violent drug offenses or offenses they committed as children.  In addition, elderly and very sick incarcerated individuals can seek review of their sentences in many jurisdictions.

Although the current resentencing movement has its roots in Atkins v. Virginia — in which the Supreme Court held that execution of individuals with intellectual disability violated the Eighth Amendment — individuals with intellectual disability have not been an explicit part of this movement.  The Article uniquely considers the role of practical concerns that impede incorporation of individuals with intellectual disability into the resentencing movement, such as difficulties identifying individuals with intellectual disability in the criminal legal system.  This Article also examines the Court’s opinions both on proportionality in sentencing and individuals with intellectual disability to argue that the Court’s delay in defining “intellectual disability,” history of discriminatory opinions, and failure to extend Atkins beyond the death penalty context have contributed to individuals with intellectual disability’s exclusion from resentencing.

Finally, this Article proposes both litigation and legislative strategies to more explicitly include individuals with intellectual disability in resentencing and early release efforts.  Relatively small changes can have a substantial impact on individuals with intellectual disability who are incarcerated and on the resentencing and criminal legal system reform movements.

Is it weird and worrisome or understandable and useful to have so much reporting about Elizabeth Holmes reporting to prison?

I was instinctively disinclined to blog about the news that former Theranos CEO Elizabeth Holmes was reporting today to federal prison.  But all my newsfeeds (which, admittedly, focus on criminal justice news) are ablaze with coverage.  Here are just a few of the new  pieces I have seen:

From the AP, "What's to know about the Texas prison where Elizabeth Holmes is starting her 11-year sentence?"

From CNN, "What Elizabeth Holmes’ life in prison could look like"

From Deadline, "Amanda Seyfried Says She 'Feels' For Children Of Jail-Bound Elizabeth Holmes"

From NPR, "Elizabeth Holmes has started her 11-year prison sentence. Here's what to know"

From the New York Times, "Elizabeth Holmes Reports to Prison to Begin More Than 11-Year Sentence"

From the Washington Post, "Elizabeth Holmes, disgraced Theranos founder, reports to prison"

As the title of this post suggests, I am genuinely unsure what to make of all the media coverage.  Because I found various documentaries and docu-dramas about Holmes and Theranos quite interesting, I can understand why there is so much media attention.  But I would sincerely be interested in various perspectives on whether all this media attention is sound or silly.

"Calculating Torture: Analysis of Federal, State, and Local Data Showing More Than 122,000 People in Solitary Confinement in U.S. Prisons and Jails"

The title of this post is the title of this notable new report from the group Solitary Watch.  Here is the report's introduction (with cites removed):

Solitary confinement is a torturous and deadly practice.  Prisons, jails, and detention centers inflict solitary confinement disproportionately on Black people, Latino/a/x people, Native people, and other people of color.  Decades of research have attested to the lived experience of people who have been incarcerated and their loved ones, corroborating that solitary causes devastating harm to physical, mental, and behavioral health and is counterproductive to any goals of safety.  Any length of time in solitary confinement — days, or even hours at a time —can have severe consequences.

While there has been a growing recognition of the need to end solitary confinement, and some groundbreaking policy changes have shown movement in that direction, the use of solitary confinement in prisons, jails, and detention centers across the United States remains common and widespread.

This report provides the first ever comprehensive accounting of the total use of solitary confinement in both prisons and jails across the United States.  Analysis of data recently released by the federal Bureau of Justice Statistics (BJS) and by two state prison systems that did not report to BJS, as well as data from a survey of local jails conducted by the Vera Institute of Justice, reveals that state and federal prisons and local and federal jails in the U.S. have reported on a given day locking a combined total of more than 122,000 people in solitary confinement for 22 or more hours.

These newly available numbers come closer than have any previously published figures in accounting for the number of people in solitary confinement. Yet they still undoubtedly undercount the number of individuals who experience solitary and the number impacted by it.

To begin with, the numbers are self-reported by correctional systems.  Further, they cover only solitary confinement that involves being locked in a cell 22 or more hours a day.  They do not include various informal or transient forms of solitary confinement such as group lockdowns or quarantines, nor do they include so-called alternatives that amount to solitary by another name.

In addition, the figures represent a snapshot of the number of people in solitary confinement at a given moment in time, while many times that number are locked in solitary during the course of a year.

Moreover, the numbers include only people in prisons and jails. Immigration detention facilities lock people in solitary confinement nearly 9,000 times a year, and children and other young people in youth facilities continue to be subjected to solitary. 

Even given all these excluded factors, the numbers far exceed those of other recent counts, which, in the absence of more comprehensive figures, have been widely quoted by media outlets and even scholars and advocates. 

Solitary Watch has been investigating and documenting the widespread use of solitary confinement for more than a dozen years to increase awareness of and accountability for this humanitarian crisis.  The Unlock the Box Campaign and activists across the country have been urging policy makers at the local, state, and federal levels to build on recent efforts to end or limit the use of solitary and to take much more substantial action to significantly reduce or eliminate its use.  Together, we believe that accurate information — including the most comprehensive possible count of the numbers of people in solitary confinement — is critical to creating change.

"Risk Averse and Disinclined: What COVID Prison Releases Demonstrate About the Availability of the United States to Reduce Mass Incarceration"

The title of this post is the title of this notable new report authored by Julia Laskorunsky, Kelly Lyn Mitchell and Sandy Felkey Mullins released today by the Robina Institute of Criminal Law and Criminal Justice. Here is the Executive Summary from the 70+ page report:

This report examines the challenges and opportunities that states faced in deciding whether to release people from prison during the COVID-19 pandemic.  It focuses on the legal mechanisms available to jurisdictions and the factors that influenced whether they were willing or able to use those mechanisms to release people from prison.

Our goal is to illuminate whether back-end release mechanisms can be used to reduce prison populations that have been bloated by the policies of the mass-incarceration era or whether relief from mass incarceration must take some other form.

The report presents case studies of six states — Alabama, Illinois, Kansas, Minnesota, Pennsylvania, and Washington — to gain a more in-depth view of how events unfolded during the pandemic.  Overall, our study found that the number of individuals released early from prisons during the pandemic was limited due to a variety of factors, including politics, risk-averse decision-making, shifting external pressures, the limited scope of compassionate and medical release statutes and the use of discretion to deny release.  In addition, few changes to policy or practice that occurred during the pandemic had a lasting impact on back-end release practices.

We conclude that the back-end release mechanisms offer only a modest opportunity to reduce mass incarceration, and the current system is unlikely to make a substantial difference in addressing mass incarceration due primarily to risk aversion.  Instead, state-level carceral policies that focus on diffusing responsibility for back-end release and that reduce incarceration in the first place have the greatest chance of achieving long-term reductions in prison populations.

Prison Policy Initiative shines light on "shadowy form of incarceration" known as civil commitment

The folks at the Prison Policy Initiative have released yet another new effective and informative data report. This new report is titled "What is civil commitment? Recent report raises visibility of this shadowy form of incarceration" and is authored by Emma Peyton Williams.  Here is part of the starting text:

As if serving a prison sentence wasn’t punishment enough, 20 states and the federal Bureau of Prisons detain over 6,000 people, mostly men, who have been convicted of sex offenses in prison-like “civil commitment” facilities beyond the terms of their criminal sentence.  Around the turn of the millennium, 20 states, Washington D.C., and the federal government passed “Sexually Violent Persons” legislation that created a new way for these jurisdictions to keep people locked up — even indefinitely — who have already served a criminal sentence for a “sex offense.”  In some states, people are transferred directly from prison to a civil commitment facility at the end of their sentence.  In Texas, formerly incarcerated people who had already come home from prison were rounded up in the middle of the night and relocated to civil commitment facilities without prior notice.  This practice, though seldom reported on, made some news in 2017 when the U.S. Supreme Court declined to hear a case from Minnesota after a federal judge deemed the practice unconstitutional.  The Prison Policy Initiative has included civil commitment in our Whole Pie reports on U.S. systems of confinement, but here we offer a deeper dive, including recently-published data from a survey of individuals confined in an Illinois facility under these laws.

Some advocates call civil commitment facilities “shadow prisons,” in part because of how little news coverage they receive and how murky their practices are.  In Illinois, for example, the Department of Corrections (DOC) facilities are overseen by the John Howard Association, an independent prison watchdog organization.  But Rushville Treatment and Detention Facility, a civil commitment center that opened after Illinois enacted its own Sexually Violent Persons Commitment Act in 1998, is not subject to the same kind of oversight because it is housed under the Department of Human Services and is not technically classified as a prison.  This is true in many states that have “Sexually Violent Persons” laws on their books, and consequently, horrific medical neglect and abuse proliferate in these shadowy facilities. For instance, a New Jersey civil commitment facility was one of the deadliest facilities at the beginning of the COVID-19 pandemic....

A second critique of this system is reflected in another term advocates use to describe it: “pre-crime preventative detention.”  Civil commitment (unlike other involuntary commitment practices, such as for the treatment of serious mental illness) can be seen as “double jeopardy” repeat punishment for an initial crime, or preventative detention for a theoretical future crime that has not occurred.  Advocates rightly critique the fact that one of the primary justifications for civil commitment is the predicted risk that detained individuals will “re-offend,” even though people who have been convicted of sex offenses are less likely to be re-arrested than other people reentering society after incarceration.

Regardless, in many states, people who have been convicted of sex offenses are transferred from DOC facilities to civil commitment facilities at the end of their sentence and held pretrial, then re-sentenced by the civil courts.  The length of these sentences is often indeterminate, as release depends on progress through mandated “treatment.”  But neither “risk assessment” nor “progress through treatment” are objective measures.  In fact, advocates and people who have experienced these systems argue that risk assessment tools are used to rationalize the indefinite confinement of identity-specific groups, and that assessing progress through treatment is a highly subjective process determined by a rotating cast of “therapeutic” staff.

The Sentencing Project releases new report covering “Youth Justice By The Numbers”

The Sentencing Project released today this notable new report titled, “Youth Justice By The Numbers.”  The very first page of this nine-page report spotlights that from "2000 (the peak year) and 2020, the number of youth held in juvenile justice facilities on a typical day fell from 108,800 to 25,000, a 77% decline." Here is how the start of this report contextualizes this finding and others presented in this report:

Youth arrests and incarceration increased in the closing decades of the 20th century but have fallen sharply since that time. Public opinion often lags behind these realities, wrongly assuming both that crime is perpetually increasing and that youth offending is routinely violent.  In fact, youth offending is predominantly low-level, and the 21st century has seen significant declines in youth arrests and incarceration.  Between 2000 and 2020, the number of youth held in juvenile justice facilities fell from 109,000 to 25,000 — a 77% decline.

As The Sentencing Project marks 50 years since the era of mass incarceration began, states working to end this overly punitive era can learn important lessons from both the rise and then the sustained fall in youth arrests and placements.

New Human Rights for Kids report documents those imprisoned for crimes committed as children

The group Human Rights for Kids has released this big new report titled "Crimes Against Humanity: The Mass Incarceration of Children in the US." Here is part of the report's executive summary:

The extensive negative impact on children from our practice of transferring them into the adult criminal justice system and treating them as if they were adults has been well-documented by state and federal government agencies, researchers, advocates and the press. What has not been documented to date, is the extent of the impact of these policies. This report provides the first ever snapshot and national estimate of the number of people in our prisons who have been there since they were children.

We gathered data from 45 states on every individual currently incarcerated who was under the age of 18 at the time of their offense. Our findings revealed that U.S. prisons are filled with at least 32,359 individuals whose crimes were committed as children....

Beginning in the summer of 2021, we requested data from departments of corrections in all 50 states and the District of Columbia on individuals who are currently incarcerated in adult prisons who committed their offense when they were under the age of 18. We received data from 45 states. Our analysis surfaced trends and findings across sentence length, decade of incarceration, gender, race and ethnicity. In addition to aggregating the data, we also conducted a comparative analysis to highlight which state practices constituted the worst human rights violations across categories.

We are currently incarcerating approximately 32,359 individuals in ourprisons for crimes they committed as children.  Some were so young they were still subject to truancy laws, and an astonishing number weren’t even teenagers.  They comprise a full 3.1% of the United States’ overall state prison population –- the equivalent of an entire prison full of children in every state in the country.  Notably, this is close to the total number of children in youth prisons of 36,469.  We incarcerate more children as adults in our prison system than the total combined prison populations of Denmark, Iceland, Ireland, Northern Ireland, Norway, Sweden and Scotland.  In fact,there are more people in our prisons for crimes they committed as children than people in prison who committed their crimes as adults in 76.68% of the countries and independent territories in the world.

DOJ's Inspector General reports on "aging and deteriorating" federal prison facilities

As detailed in this official press release, "Department of Justice (DOJ) Inspector General Michael E. Horowitz [has] announced ... the release of a report evaluating the Federal Bureau of Prisons’ (BOP) efforts to maintain and construct correctional institutions. The DOJ Office of the Inspector General (OIG) also launched a web page with photos and videos documenting the condition of prison cells, cell blocks, and kitchen, dining, and other areas at five BOP institutions (FCI Terminal Island, USP Atlanta, FTC Oklahoma City, CI Taft, and MCC New York)."  Here is more:

As described in today’s report, the BOP’s institutions are aging and deteriorating: all 123 of the BOP’s institutions require maintenance, with a large and growing list of unfunded modernization and repair needs, and three of these institutions are in such critical stages of disrepair that they are fully or partially closed.  The DOJ OIG found that the BOP’s efforts to address these issues were negatively impacted by two major factors: a mismatch between available and needed funding, and the absence of a well-defined infrastructure strategy.

As of May 2022, the BOP’s estimated cost for needed, major repairs was approaching $2 billion. However, our audit found that the BOP’s budget requests have been far below its own estimates of resource needs: for example, BOP sought less than $200 million for its infrastructure needs from Congress in FY 2022, and Congress appropriated $59 million.  Consequently, the resources available to address BOP’s maintenance needs are limited, and in many cases, necessary repairs cannot be completed in a timely manner due to a lack of funding.  This results in increasingly costly maintenance and, in the most extreme circumstances, having to shutter institutions and relocate inmates due to unsafe conditions.

At the same time, we found that Congress has set aside over $1 billion for the BOP to construct two new institutions, but these funds remain largely unspent, the projects have been in the planning stages for over a decade, and the BOP’s requests each year that Congress cancel one of these projects and rescind the funds — made at the direction of the Department of Justice and the Office of Management and Budget — have not been acted on.

National Institute of Corrections releases report on "Effects of COVID-19 on Prison Operations"

A new email alerted me to this relatively short report from the National Institute of Corrections titled "Effects of COVID-19 on Prison Operations."  This NIC webpage provides this accounting of the report:

The COVID-19 pandemic has posed a significant challenge for correctional agencies in our country. However, practical information on how to respond to this crisis has been scarce. As a result, correctional leadership has had to be innovative in keeping their staff and populations safe while maintaining operations.  To complicate matters, many state departments of corrections have faced reduced budgets, making these challenges even more difficult to overcome.  This report, produced by the National Institute of Corrections (NIC), CNA, the Correctional Leaders Association (CLA), and the National Sheriffs' Association (NSA), sheds light on the modifications made by correctional facilities across all 50 states in response to the pandemic. The report includes an overview of these modifications, their impact on operations, and the innovative responses taken by correctional facilities.  The report's key findings will be discussed in detail.

Key Takeaways include:

• Staffing shortages: 
  Respondents noted that correctional agencies need expanded capacity, staffing, supplies, and resources to operate effectively both during public health emergencies and under nonemergency conditions.

• Community trust: 
  According to the respondents, it was crucial to develop policies to address vaccine hesitancy, especially during the pandemic. This included creating policies to address hesitancy among incarcerated individuals to receive vaccines and follow COVID-19 protocols that further limited their freedoms. Establishing peer ambassadors and monitors was an effective strategy to encourage policy buy-in and information sharing.

• Implementing public health guidelines:
  Effective collaboration among personnel, institutions, agencies, and community partners was considered crucial for the success of operations during the pandemic, according to respondents. They believe that such collaboration must be nurtured and expanded in the future. To achieve this, agencies should be committed to expanding information-sharing capabilities and fostering a culture of interdisciplinary collaboration and networking.

• Disruptions to programming and services: 
  Respondents used technology to adapt to the pandemic, such as video visits and remote court hearings. Expanding technology use should continue as it demonstrated value. Despite the stress, the pandemic was seen as an opportunity for growth. The report captures the effects of COVID-19 on correctional operations and provides innovative approaches. Correctional leaders can use the findings to improve operational readiness for future outbreaks and emergencies.

Another weekend round-up of various (mostly prison) stories

Last weekend, I used this round-up to catch up on a number of capital punishment stories.  After another busy week, I am catching up again with a round-up of stories; this week are mostly various prison-related pieces: 

From the AP, "Inmate stuck on US death row despite vacated death sentence"

From The Brennan Center for Justice, "America’s Dystopian Incarceration System of Pay to Stay Behind Bars"

From CNN, "He was released after decades in prison, now a court says he must go back"

From Government Executive, "Management of the Federal Prisons System Is Added to GAO’s High-Risk List"

From the Los Angeles Times, "California Politics: The prison reform that divides California Democrats"

From the Los Angeles Times, "A California lawyer cashed in on criminal justice reform by fanning the hopes of inmates’ families"

From Michigan Advance, "Convictions cleared for nearly 850K Michiganders as ‘Clean Slate’ program takes effect"

From Penn Live, "Despite 5 years of mail scanning to keep drugs from Pa. prisons, problems remain"

From Reuters, "U.S. Supreme Court turns away suit by Texas inmate held 27 years in solitary confinement"

From the Spokesman-Review, "Inslee signs bill officially repealing death penalty in Washington"

From the St. Louis Post-Dispatch, "Missouri becomes first state to join national reentry program for people leaving prison"