Sunday, July 14, 2019

"Torture and Respect"

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

There are two well-worn arguments against a severe punishment like long-term incarceration: it is disproportionate to the offender’s wrongdoing and an inefficient use of state resources.  This Article considers a third response, one which penal reformers and theorists have radically neglected, even though it is recognized in the law: the punishment is degrading.  In considering penal degradation, this Article examines what judges and scholars have deemed the exemplar of degrading treatment — torture.  What is torture, and why is it wrong to torture people?  If we can answer this question, this Article maintains, then we can understand when and why certain punishments — like perhaps long-term incarceration — are impermissibly degrading, regardless of their proportionality or social utility otherwise.

This Article develops an original theory of torture.  It argues that torture is the intentional infliction of a suffusive panic and that its central wrongness is the extreme disrespect it demonstrates toward a victim’s capacity to realize value. Humans realize value diachronically, stitching moments together through time to construct a good life as a whole. Torture takes such a being, one with a past and a future, and via the infliction of a make it stop right now panic, converts her into a “shrilly squealing piglet at slaughter,” in Jean Améry’s words, restricting her awareness to a maximally terrible present.

The Article then considers what this theory of torture means for our understanding of degradation more generally.  It argues that punishment is impermissibly degrading, regardless of our other penal considerations, when it rejects an offender’s status as a human.  Punishment reaches this threshold by demonstrating that the offender’s life-building capacity — the very basis of his humanity — is completely absent or fundamentally worthless.  To so thoroughly deny someone’s value, even someone who has committed a heinous crime, violates the liberal commitment to human inviolability.  The Article closes by suggesting that long-term incarceration rejects an offender’s status as a human, and is therefore on a par with penal torture, given that removing someone from free society for decades makes it exceedingly difficult for him to construct a good life as a whole.

July 14, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Wednesday, July 10, 2019

Compassionate Release Training in DC (and online) next week

This NACDL tweet flags an important training opportunity taking place in DC and online next week for folks interested in getting in on some of the most exciting legal change brought about by the FIRST STEP Act.  Here is an image with the details:

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If that image does not do the trick, here is the text of a tweet from Mary Price of FAMM with the essentials:  "Calling all pro bono lawyers!  Want to learn how to help prisoners seeking Compassionate Release? We are training (live and by webinar) on Monday, July 15!  RSVP to agprobono @ akingump.com"

July 10, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 09, 2019

More coverage prisoner reentry issues as FIRST STEP Act's "good time" fix approaches

Prior FIRST STEP Act implementation posts (linked below) noted the delayed application of the Act's "good time" fix, which provides that well-behaved prisoners now get a full 15% credit for good behavior amounting to up to 54 days (not just 47 days) per year in "good time."   And in this post last month, I noted press coverage and efforts surrounding this "good time" fix as it gets closer to kicking in this month (assuming the Attorney General complies with a key deadline in the Act).  This press coverage continues with this Fox News piece headlined "Thousands of ex-prisoners to reunite with their families this month as part of First Step Act," and here are excerpts therefrom:

More than 2,200 federal inmates are returning to their families this month from behind bars under the bipartisan prison reform bill President Trump signed into law last year, according to policy experts and prisoner advocates involved in the effort.

This month will see the largest group to be freed so far under a clause in the First Step Act that reduces sentences due to "earned good time."  In addition to family reunification, the formerly incarcerated citizens, 90 percent of whom have been African-American, hope to get employment opportunities touted by Trump last month at the White House as part of the "Second Chance" hiring program.

"We’re a nation that believes in redemption," the president said, noting Americans with criminal backgrounds are unemployed at rates up to five times the national average, which was around 3.8 percent earlier this year. "You're gonna have an incredible future."

The Trump Administration has asked the private sector to help the ex-prisoners reacclimate to their newfound freedom with jobs and housing in one of the largest criminal justice public-private-partnerships ever assembled.

Kim Kardashian West, who successfully lobbied President Trump to free Alice Johnson, a great-grandmother who was serving a life sentence convicted of drug trafficking for a first-time, non-violent drug offense, announced a partnership with rideshare organization Lyft to hand out gift cards for reformed criminals to get to and from job interviews as transportation can be a barrier. "I just want to thank the president for really standing behind this issue and seeing the compassion that he's had for criminal justice has been really remarkable," the "Keeping Up with the Kardashians" star said during a Second Chance Hiring and Re-entry event at the White House in June....

Matthew Charles, the first inmate released from the program and recognized by Trump for being a “model citizen,” told “America’s Newsroom” barriers to employment and housing need to be “eliminated” so former inmates don’t find themselves back in prison.  The Trump Administration has a broad amount of support across governmental departments from labor to DOJ to DOE, as well as governors across the country streamlining state services in order to reduce the barriers Charles mentioned.

This article seems to imply that ninety percent of those who will be released from prison soon thanks to the "good time" fix are African-American, but that racial statistic actually relates to the distinct group of prisoners who have received reductions in their crack sentences due to a different provision in the FIRST STEP Act.  The group getting relief thanks to the operation of the "good time" fix later this month is likely to be more closely representative of the entire federal prison population (which is, very roughly speaking, about 1/3 white, 1/3 black, and 1/3 Latino).  And, as noted in another recent press article, a good number of non-citizen offenders will be deported upon their release from prison.

Prior related posts:

July 9, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 08, 2019

A critical perspective on the Lone Star State's experiences with criminal justice reform

A few months ago, as noted in this post, Marie Gottschalk had published a critical review of the achievements of the federal FIRST STEP Act.  Now, in this notable new commentary in The Baffler about the Texas experience with criminal justice reform, she provides a critical perspective on how little has changed in a big state that seems to get a lot of reform credit.  The extended piece is headlined "The Prisoner Dilemma: Texas fails to confront mass incarceration," and here are some excerpts:

The origin story of the latter-day turnaround in Texas’s criminal justice system dates back to 2007, when legislators decided against spending an estimated $2 billion on new prison construction to accommodate projections that the state would need an additional seventeen thousand prison beds by 2012.  Instead, they enacted some modest changes in probation and parole to redirect people to community supervision; they also restored some funding for substance abuse and mental health treatment.  The attempt to slow down prison construction was, in fact, a big change from the post-Ruiz era, when the state attempted to build its way out of the overcrowding problem.  And yet, even though Texas was required to face up to certain realities — first by the Ruiz case and later by budget constraints — the Texas penal system, after all these years, has not really changed its stripes.

For all the hype, Texas remains “more or less the epicenter of mass incarceration on the planet,” according to Scott Henson, author of Grits for Breakfast, the indispensable blog on criminal justice and law enforcement in Texas.  Other states have far surpassed Texas in reducing the size of their incarcerated populations and in providing safer and more humane lock-ups that are not such blatant affronts to the Eighth Amendment’s ban on cruel and unusual punishment.

Texas today incarcerates nearly one-quarter of a million people in its jails and prisons — more than the total number of prisoners in Germany, France, and the United Kingdom combined.  If Texas were a country, its incarceration rate would be seventh in the world, surpassed only by Oklahoma and five other Southern states.  Texas still operates some of the meanest and leanest prisons and jails in the country. Two meals a day on weekends during budget shortfalls.  Cellblocks without air-conditioning, fans, or even enough water to drink in triple-digit heat. Understaffed, overwhelmed, and unsafe lock-ups in isolated rural areas.

All the applause that Texas received for the prisons it did not build and the handful of prisons it closed has overshadowed the fact that the Lone Star State continues to be one of the most punitive in the country.  If you add the number of people in prison and jails to those on probation, parole, or some other form of community supervision in Texas, that quarter of a million number grows to about seven hundred thousand. This amounts to about one out of every twenty-five adults in the state.  That’s enough to fill a city the size of El Paso.

Between 2007 and 2018, the total number of people held in state prisons and county jails in Texas did fall somewhat — by about 6 percent. But while the number of incarcerated men in Texas prisons and jails has inched downward, the number of incarcerated women has continued to grow.  The state’s female incarceration rate ranks fifteenth nationwide.

Texas has yet to enact any landmark criminal justice reform legislation that would truly scale back the number of people in prisons and jails.  Meanwhile, it has created hundreds of new crimes and dozens of enhanced penalties. Unlike many other states, Texas has yet to reduce the penalties for even low-level drug crimes.  Last year, the number of new felony cases filed in Texas reached a near all-time high, “driven primarily by an increase in drug possession cases,” according to the annual report of the Texas Judiciary.

July 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Friday, July 05, 2019

"The rapid expansion of the US prison population since the 1970s might have contributed substantially to the ongoing increase in overdose deaths"

The quote in the title of this post is a line from this notable new Lancet Public Health study titled "Economic decline, incarceration, and mortality from drug use disorders in the USA between 1983 and 2014: an observational analysis."  This new study, authored by Elias Nosrati, Jacob Kang-Brown, Michael Ash, Martin McKee, Michael Marmot and Lawrence King, starts with this summary:

Background Drug use disorders are an increasing cause of disability and early death in the USA, with substantial geographical variation.  We aimed to investigate the associations between economic decline, incarceration rates, and age-standardised mortality from drug use disorders at the county level in the USA.

Methods In this observational analysis, we examined age-standardised mortality data from the US National Vital Statistics System and the Institute for Health Metrics and Evaluation, household income data from the US Census Bureau, and county-level jail and prison incarceration data from the Vera Institute of Justice for 2640 US counties between 1983 and 2014.  We also extracted data on county-level control variables from the US Census Bureau, the National Center for Health Statistics, and the US Centers for Disease Control and Prevention.  We used a two-way fixed-effects panel regression to examine the association between reduced household income, incarceration, and mortality from drug use disorders within counties over time.  To assess between-county variation, we used coarsened exact matching and a simulation-based modelling approach.

Findings After adjusting for key confounders, each 1 SD decrease in median household income was associated with an increase of 12·8% (95% CI 11·0–14·6; p<0·0001) in drug-related deaths within counties.  Each 1 SD increase in jail and prison incarceration rates was associated with an increase of 1·5% (95% CI 1·0–2·0; p<0·0001) and 2·6% (2·1–3·1; p<0·0001) in drug-related mortality, respectively.  The association between drug-related mortality and income and incarceration persisted after controlling for local opioid prescription rates.  Our model accounts for a large proportion of within-county variation in mortality from drug use disorders (R²=0·975).  Between counties, high rates of incarceration were associated with a more than 50% increase in drug-related deaths.

Interpretation Reduced household income and high incarceration rates are associated with poor health. T he rapid expansion of the prison and jail population in the USA over the past four decades might have contributed to the increasing number of deaths from drug use disorders.

UPDATE: I see now that this journal issue also has this related editorial titled "US mass incarceration damages health and shortens lives." Here is an excerpt:

The findings of this study support a plausible case that mass incarceration has added to the damaging effects of economic decline in increasing drug use and mortality. Incarceration can lead to drug addiction and death by feeding feelings of stigmatisation, by entrenching poor economic prospects, by breaking up families and communities, and by worsening individual mental health.

Over the past 40 years, US politicians of all stripes have sought to appear tough on crime, which has led to an over-reliance on incarceration across many types of offences and damaged public health.  Drastic changes to the justice system will be needed to seriously reduce the prison population.  Legislators need to repeal regressive sentencing laws that inflate the use of imprisonment (such as the three strikes law) and allow judges to pass sentences that are proportional to the crime.  Discriminatory policies and those that unfairly pull the poor into incarceration — such as money bail, plea bargaining, and arrests for crimes of poverty — must also be addressed.  Finally, chronic substance abuse should be confronted with treatment, not criminalisation.  As Natasa Gisev and colleagues' study shows, also in this issue, consistent opioid agonist treatment can reduce criminal involvement.  Drug misuse is a public health issue; more than a criminal one, and like many other petty crimes, it would be more effectively addressed by investment in social and community services, and not in steel bars.

July 5, 2019 in Data on sentencing, Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Friday, June 28, 2019

"Plus a Life Sentence? Incarceration’s Effects on Expected Lifetime Wage Growth"

The title of this post is the title of this interesting new empirical paper available via SSRN and authored by two economists, Theodore S. Corwin III and Daniel K. N. Johnson. Here is its abstract:

The United States incarcerates citizens at rates higher than those of any other developed nation, with impacts on not only government budgets but economic growth rates.  Using the National Longitudinal Survey of Youth for 1997, we model the effects of incarceration on wage growth rates using inverse probability weighted regression adjusted (IPWRA) propensity score matching to recognize the selection bias among the members of the sample who serve prison terms.  Results show that incarceration reduces average lifetime income growth by one-third even for a relatively short earning period, with that depth depending on length of sentence, employment history, and education level in some surprising ways.

June 28, 2019 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)

Wednesday, June 26, 2019

The Sentencing Project reports one of every 15 women in prison (nearly 7,000) serving life or virtual life sentence

Via email I received this morning this fact sheet from The Sentencing Project titled "Women and Girls Serving Life Sentences" (which lead me to see that, a few weeks ago, it also release this related fact sheet titled "Incarcerated Women and Girls"). Here is the start of this latest publication:

Nationwide one of every 15 women in prison — nearly 7,000 women — is serving a life or virtual life sentence.  One-third of them have no chance for parole, so their prospects for release are highly improbable.  The number of women serving life sentences has grown dramatically despite declining rates of violent crime among women.

As is the case with imprisonment generally, men comprise the overwhelming proportion of people in prison for life; 97% of lifers are men.  At the same time, the number of women serving life sentences is rising more quickly than it is for men.  The Sentencing Project collected life-imprisonment figures by gender in 2008 and 2016. W e find that during this nine-year period the number of women serving life sentences increased by 20%, compared to a 15% increase for men.

The rise in life imprisonment among women has also been far more rapid than the overall prison population increase among women for violent offenses.  Between 2008 and 2016 there was a 2% increase in the number of imprisoned women for a violent crime, but a 20% increase in the number of women serving a life sentence.  When analysis is limited to life-without-parole sentences, we see that the number of women serving these sentences increased by 41% compared to 29% for men.

June 26, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 19, 2019

"Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets"

The title of this post is the title of this notable new dynamic online report from the Council of State Governments Justice Center. Everyone should check out the link to the report to see the dynamic features built therein, and here is some of the text from the report (with all caps from the original):

Probation and parole are designed to lower prison populations and help people succeed in the community. New data show they are having the opposite effect. Until now, national data regarding the impact of probation violations on prison populations have been unavailable, resulting in a lopsided focus on parole. The Council of State Governments (CSG) Justice Center recently engaged corrections and community supervision leaders in 50 states to develop the first complete picture of how probation and parole violations make up states’ prison populations. The analysis revealed a startling reality.

45% OF STATE PRISON ADMISSIONS nationwide are due to violations of probation or parole for new offenses or technical violations.

Technical violations, such as missing appointments with supervision officers or failing drug tests, account for nearly 1/4 OF ALL STATE PRISON ADMISSIONS.

On any given day, 280,000 PEOPLE in prison — nearly 1 IN 4 — are incarcerated as a result of a supervision violation, costing states more than $9.3 BILLION ANNUALLY.

Technical supervision violations account for $2.8 BILLION of this total amount, and new offense supervision violations make up $6.5 BILLION. These figures do not account for the substantial local costs of keeping people in jail for supervision violations.

IN 13 STATES, MORE THAN 1 IN 3 PEOPLE in prison on any given day are there for a supervision violation.

IN 20 STATES, MORE THAN HALF OF PRISON ADMISSIONS are due to supervision violations.

Variation in these proportions across states is shaped by the overall size of each state’s supervision population, how violations are sanctioned, whether those sanctions are the result of incarceration paid for by the state or county, and how well state policy and funding enable probation and parole agencies to employ evidence-based practices to improve success on supervision.

June 19, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Thursday, June 13, 2019

White House promotes efforts to provide job opportunities for former prisoners

Continuing its energetic criminal justice reform efforts, the White House today held a public event to promote reentry support for former prisoners.  This AP piece provides these (celebrity) highlights:

Reality star-turned-criminal justice reform advocate Kim Kardashian West returned to the White House on Thursday to help President Donald Trump promote efforts to help those leaving prison get jobs and stay on track.

At an East Room event attended by Cabinet secretaries, activist and formerly incarcerated people, Kardashian West announced the creation of a new ride-sharing partnership that will give former prisoners gift cards to help them get to and from job interviews, work and family events....

Trump pronounced himself a fan of Kardashian West’s advocacy, praising her genes and declaring, “I guess she’s pretty popular.” And he marveled at the passage of the First Step Act, which he signed into law late last year....

The White House has since been working with various companies, advocacy groups and federal agencies to try to give prisoners released early the tools and jobs they need to successfully adjust to life outside prison so they don’t wind up behind bars again....

Trump has embraced the efforts originally pushed by his son-in-law and senior adviser Jared Kushner to make changes to the criminal justice system, using them to highlight the low unemployment rate and paint himself as a president focused “on lifting up all Americans.”  It’s a deeply personal issue for Kushner, whose father spent time in federal prison when he was younger.

In addition to the ride share vouchers, Trump announced several other measures, including stepped-up efforts by the Federal Bureau of Prisons to work with businesses to help line up jobs for those being released and additional funds for states to support companies that hire former inmates.  He said his administration hopes to cut the unemployment rate for formerly incarcerated people to single digits within five years.  “Now we much make sure that the Americans returning from prison get a true second chance,” he said.

In addition, the White House has released the following fact sheet and remarks:

June 13, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Is ‘Abolish Prisons’ the Next Frontier in Criminal Justice?"

The question in the title of this post is the headline of this effective Bloomberg commentary authored by Bill Keller.  Here are excerpts:

Five years ago, when the activist and cable TV host Van Jones launched the #cut50 campaign to reduce U.S. prison populations by half, many mainstream justice reform watchers rolled their eyes at what seemed to be a reckless overreach.... Now the campaign has attracted an A-list of celebrities, philanthropists and candidates pursuing the Democratic presidential nomination. These days, when Jones gets pilloried, it’s as likely to be for being too compromising: Why stop short of #cut100?

People who follow criminal justice policy for a living say the fastest growing subset of the reform movement consists of abolitionists who say a system that is inherently racist and based on retribution should be pulled up by the roots. Not just prisons and jails, but most of the institutions of law enforcement and criminal justice.

“Abolition has become a rallying cry for the progressive wing of the justice reform movement,” Jeremy Travis told me. “NO NEW JAILS. NO MORE MONEY FOR POLICE. ABOLISH ICE. ABOLISH PRISONS.” Travis, who oversees criminal justice issues for the Arnold Ventures philanthropy, has spent a career in the system, most recently as president of the John Jay College of Criminal Justice in New York. (Disclosure: Laura and John Arnold, the founders of Arnold Ventures, are donors to the Marshall Project, my former employer.) “There is lots of energy behind this reframing of the ‘reform’ agenda,” Travis said.

Prison abolition has decades of antecedents, led by once-fringe figures like Angela Davis, the 1960s communist firebrand, and Ruth Wilson Gilmore, the subject in April of a sympathetic profile in the New York Times Magazine. More recently abolition has been embraced by younger Americans who grew up after violent crime peaked in the early 1990s, and has helped kindle some fundamental rethinking in the mainstream.

Like other radical ideas — Medicare for All, the Green New Deal — abolition means different things to different people. Most of those who rally to the cause do not advocate a world where no one answers your 911 call and serial killers are set loose. Abolition is an ideal — like, say, “repeal and replace.” The real debate is what should replace the current institutions.

“There is always going to be some role for prisons, but maybe 10 percent of what we do now,” said Martin Horn, a former New York State parole director, now a professor at John Jay. “I think we need police. We may not need as many as we now have, and we want to use them differently.”

Abolitionists generally start the conversation with two immense objectives. The first is devolving responsibility for public safety to local communities. (“Civilianizing safety,” some experts call it.) One reason New York City has reduced its crime rate while simultaneously slashing arrests, incarceration and law-enforcement overreach is that the city has a nonprofit network on the ground, some of it subsidized by the city, to combat violence and to help the formerly incarcerated safely reenter society.

Abolitionists’ other aim is to redistribute government spending from police and prisons to narrowing the underlying, crime-breeding inequalities of wealth and opportunity. They would instead invest in housing, education, jobs and health — a goal that seems remote in the current political environment.

What is new, says Elizabeth Glazer, director of New York City’s criminal justice office, is that many of the ideas that animate the abolitionists “are now finding their way into established criminal justice structures” — not just scholars and activists but also prosecutors questioning what crimes should be prosecuted and judges seeking out-of-court remedies....

To reformists who work in or with the system, the abolitionists can be exasperating — a case of the ideal being the enemy of the good. DeAnna Hoskins, president of JustLeadershipUSA, which mobilizes former prisoners to press for reform, points to the campaign that persuaded New York to close the jail complex on Rikers Island. The plan depends on building smaller, more humane jails in four boroughs to house a much-reduced population of prisoners. Along with the inevitable resistance of prospective new neighbors, the city now faces vocal opposition from abolitionists who object to any new jails on principle. “That’s just not realistic,” Hoskins said. “We’re not going to close Rikers on Monday and not have any type of detainment.” She added, “When we talk about abolishing prisons and abolishing law enforcement, it’s actually reducing the power and the reach of those entities.”

One of the liveliest abolition debates concerns parole and probation, which get less attention than incarceration but regulate the lives of 4.5 million Americans, twice as many as are confined in prisons and jails. Because a parolee can be returned to prison for a technical infraction such as a missed appointment or a trace of drugs in a urine sample, the parole-to-prison pipeline is a major feeder of mass incarceration....

Although polling is scarce, it’s a fair bet that “abolition” is not a voter magnet. The electorate may want the system to be less cruel and more rehabilitative, but voters also want a professional answering that 911 call when their kid gets shot — and not a member of neighborhood watch. The bipartisan coalition that has found common ground on criminal justice would be severely strained by such a lurch to the left. The conservative attack ads write themselves.

But in recent years, with crime near historic lows, the iniquities and unintended consequences of American punishment have so captured public concern that even President Donald Trump coughs up an occasional platitude about “giving our fellow citizens a chance at redemption.”

There is a place for higher aspirations, if only to keep moving the middle. Closing Rikers was a radical idea, until it wasn’t. The #cut50 campaign was mocked as unrealistic until people realized that it was essentially restoring incarceration to 1980s levels.  “I don’t think that in my lifetime we’ll ever abolish prisons, but it’s a really important question, why we put people in prisons,” said Travis, adding that the abolition debate is “a healthy tension that is really challenging the pace of reform and the status quo.”

A few prior related posts:

June 13, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Tuesday, June 11, 2019

"Bail and Mass Incarceration"

The title of this post is the title of this paper recently posted to SSRN and authored by Samuel Wiseman.  Here is its abstract:

It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study.  It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive.  But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored.  Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost.  And, as shown by recent empirical work, the bail system, which results in high pretrial detention rates for indigent defendants, plays a significant role in incentivizing quick pleas, and leads to more convictions and longer sentences.

Releasing more defendants pretrial would generate more pretrial motions, lengthier plea negotiations, and more trials, and would thus raise the cost — in the form of prosecutors, public defenders, and judges — of convictions and imprisonment.  In other words, if we release significantly more defendants pretrial, we will have to either spend more on criminal justice or convict fewer people and punish them less severely.  In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining high incarceration rates.  Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism — politically weak low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain release and the increased access to more robust process that it affords.  If politically better-represented wealthy and middle-class defendants were detained, and thus subjected to at least some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform.

This Article explores the role of bail in mass incarceration, concluding that opponents of mass incarceration should pay increased attention to the pretrial process as a locus of reform.  Relatedly, it analyzes the likely impact of the bail–plea bargain link on future bail reform — which, of course, serves important interests beyond reducing the prison population, such as fairness and the avoidance of wrongful convictions.

June 11, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Educating everyone about the value of educating prisoners

I have noticed in the last few days and weeks a number of commentaries making the case for ensuring prisoners have access to educational opportunities while behind bars and explaining why Pell grants should be one way to help do so.  I recommend all of these pieces in full, and here I will just be content with a round up of headlines and links:

In addition, this local article from Utah -- headlined "Even violent inmates get out. Here’s why Utah’s Sen. Mike Lee and others think they should have access to college courses in prison." -- highlights why at least one notable Senator is eager to get prisoners access to Pell grants.

June 11, 2019 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, June 06, 2019

Spotlighting the enduring business of jails

Keith Humphreys has this notable new Washington Post piece headlined "How jails stay full even as crime falls."  Here are excerpts:

Crime has fallen dramatically in recent decades.  The number of people in jail for committing crimes hasn’t.

New Bureau of Justice Statistics data reveal that jails held 745,200 inmates in 2017, virtually identical to the 747,500 they held in 2005, and significantly higher than the 584,400 they held in 1998.  How does the correctional system keep jails full when there just aren’t as many crimes as there used to be?  By locking up an increasing number of people who are awaiting trial and could well be innocent.

The number of individuals held in jail while awaiting trial has soared 45.3 percent, from 331,800 in 1998 to 482,000 in 2017.  By contrast, the number of convicted inmates is almost the same as it was 20 years ago (252,600 in 1998 vs. 263,200 in 2017).  About 95 percent of the jail population’s growth is thus accounted for by people who haven’t been convicted of a crime.

By jailing more and more people who are awaiting trial, the criminal justice system can keep jails full no matter how much crime falls.  This may be seen as a good thing by the hundreds of thousands of people who work in jails, the companies that supply services to jails (i.e., food), and the communities that value correctional facilities as a form of economic stimulus.  But it’s a world-class bug from the point of view of innocent people who are jailed while awaiting trial, not to mention taxpayers.

Given the internal incentives to keep jails full, change will have to come from outside the criminal justice system.  The most obvious lever available, which is picking up steam in multiple states, is bail reform.  States could simply mandate that individuals accused of low-level crimes are automatically released on their own recognizance before trial. Jurisdictions that have experimented with this approach have found rates of appearing at trial in excess of 98 percent....

States, cities and counties should also consider closing or at least downsizing jails.  If the system is going to find ways to keep every bed full regardless of the crime rate, cutting the number of beds available may be the only way to prevent an increasing number of people accused of crimes from being punished as harshly as those who are actually convicted.

June 6, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 23, 2019

Making the case, now a quarter century after the 1994 Crime Bill, for the Reverse Mass Incarceration Act

Lauren-Brooke Eisen and Inimai Chettiar, who helped draft of the Reverse Mass Incarceration Act back in 2015 (first discussed here), have this new New York Daily News commentary making the case for this approach to prison reform under the headline "Joe Biden, Cory Booker, the 1994 Crime Bill and the future: How to unwind American mass incarceration."  I recommend the full piece, and here are excerpts:

As the 2020 field of candidates gets more crowded, Democrats have started weaponizing one of the most influential pieces of criminal justice legislation in the last 50 years — the 1994 Crime Bill.  Joe Biden, a key author of the bill when he served in the Senate, has doubled down, while his primary opponents correctly point to how it helped contribute to mass incarceration.

The debate is important, but an exclusive focus on the past underplays a crucial question: Moving forward, how will the country end mass incarceration that decades of federal funding helped create?  And what are presidential candidates’ plans to reverse failed policies?

The size of the U.S. prison system is unparalleled.  If each state were its own country, 23 states would have the highest incarceration rates in the world.  People of color are vastly overrepresented. African Americans make up 13% of the country’s population but almost 40% of the nation’s prisoners.

In response, Sens. Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), along with Rep. Tony Cárdenas (D-CA), have just reintroduced the Reverse Mass Incarceration Act.  The bill, which they first introduced last Congress, provides financial incentives to states (which house 88% of America’s prison population) to reduce imprisonment rates.  It starts to unwind the web of perverse incentives set in motion by the Crime Bill and other laws.

To receive federal funding awards under the Act, states must reduce the imprisonment rate by 7% every three years and keep crime at current record lows.  States can choose their own path to achieve those goals, since the legislation sets targets instead of dictating policy....

The federal government has a long history of using federal funds to shape the criminal justice landscape.  For example, a bill passed in 1968 — amid concerns over rising crime rates — set up grant programs that allocated money to states to be used for any purpose associated with reducing crime.  Over two years, it authorized $400 million (roughly $2.7 billion in today’s dollars) in grants.  Two decades later, the Anti-Drug Abuse Act of 1986 played a central role in government policy in the War on Drugs by reinstating mandatory minimum sentences for drug possession, establishing $230 million (nearly $500 million today) in grants to fund drug enforcement while not permitting funding of drug prevention programs.

The 1994 Crime Bill extended that trend. It promised $8 billion ($13 billion in today’s dollars) to states if they adopted “truth-in-sentencing” laws, which required incarcerated individuals to serve at least 85 percent of their sentences.  A study by the Urban Institute found that between 1995 and 1999, nine states adopted truth-in-sentencing laws for the first time, and 15 states reported the Crime Bill was a key or partial factor in changing their truth-in-sentencing laws.  By 1999, a total of 42 states had such laws on the books....

Over the past decade, states have taken steps to move away from harsh sentencing laws. And Congress has made reforms to sentencing at the federal level, including the FIRST STEP Act, passed last year.

Certainly, one piece of federal legislation alone will not end mass incarceration, just as the 1994 Crime Bill was not solely responsible for causing it. Innovative changes at the local level must continue....  But the Reverse Mass Incarceration Act is one of the strongest steps the federal government can take to end mass incarceration.  By providing financial incentives to help power important changes at the local level, it’s a national bill that would help set a tone across the country.  It will encourage states to orient criminal justice strategies across the country toward more just and fair outcomes.

A few prior related posts:

May 23, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (7)

Tuesday, May 21, 2019

Shouldn't it now constitutional problematic for extreme LWOP sentences to be preserved after legislative changes to three-strikes laws?

The question in the title of this post might be directed to some important federal cases in the wake of the FIRST STEP Act.  But this morning the question comes to mind due to this new AP article discussing state sentencing changes not made retroactive in Washington.  The article is headlined "‘3 strikes’ sentencing reform leaves out Washington inmates," and here are the disconcerting details:

A small group of inmates, disproportionately black, are set to stay in Washington state prisons for life — left out of the latest in a multi-year wave of reforms easing tough-on-crime “three strikes” laws around the U.S.

At least 24 states including Washington passed such laws during the 1990s, embracing tough-on-crime rhetoric. But nearly half have since scaled them back amid concern that habitual but less-violent offenders were being stuck behind bars for life with hardcore felons.

Washington’s 1993 three-strikes law was among the first and stands out as among the nation’s strictest. But lawmakers targeted it for reform this year with legislation removing second-degree robbery — generally defined as a robbery without a deadly weapon or significant injury — from the list of crimes qualifying for cumulative life sentences.

But while the original reform included a retroactive clause, making inmates sentenced under the old law eligible for resentencing, an amendment pushed by a prosecutors’ group cut out retroactivity. Washington governor and Democratic presidential contender Jay Inslee signed the changes into law April 29.

That means about 62 inmates convicted of second-degree robbery will be left serving life sentences, according to state records, even after judges stop “striking out” new offenders convicted of the same crimes. About half are black, despite African Americans making up only 4% of Washington’s population.

Under the original bill, the inmates with a robbery “strike” would have had the opportunity to have their life sentences re-examined by judges — but now they won’t. Supporters of the amendment have said even less-serious robberies can leave emotional scars, and that prosecutors might have set aside more serious charges because they knew second-degree robbery convictions would mean life in prison for those offenders.

But inmates among the 62 described frustration that offenders with similar records may face drastically shorter sentences going forward. “It’s just wrong on its face, to make people rot in prison for the rest of their life on a sentence that doesn’t even exist anymore,” said John Letellier, 67, whose 1999 fast food restaurant robbery earned him his third strike.

The push to take out the reform’s retroactivity clause emerged from the Washington Association of Prosecuting Attorneys, a group that represents prosecutors. Russell Brown, the group’s director, said he reviewed most of the cases listing second-degree robbery as the third strike, and believed that prosecutors in many probably refrained from seeking more serious charges because of the guarantee the charge — known in legal circles as “Rob 2” — would count as a third strike. But he acknowledged that he never confirmed his suspicions with any of the prosecutors who handled the cases....

In Washington, second-degree robbery has one of the lowest seriousness levels of any crime on the three-strikes list, hypothetically encompassing anything from demanding money from a clerk to snatching a purse. At least 11 states including Washington have eased their three strikes laws since 2009, often removing property crimes from “strike” lists or restoring discretion to judges over previously mandatory life sentences.

But lawmakers have also often been reluctant to make the three-strikes reforms retroactive: Out of the 11 only California has included such a clause...

In phone and email interviews, inmates among the 62 in Washington described how the reform raised their hopes — and the amendment dashed them. Among them is Devon Laird, age 54 and serving life on a robbery third strike. Convicted of snatching a wallet from an elderly man outside a drugstore in 2007, Laird’s court records include convictions for violent crimes in his early 20s, but also testimony portraying him as attempting to escape a past that included being stabbed at 14 and shot twice before age 21. “When they said it wasn’t retroactive, it really set in on me that, man, I got life,” said Laird.

Cheryl Lidel, 60, is also serving life for a 2010 robbery after being convicted of other robberies and theft. She described her crimes as driven by substance abuse that began shortly after she was sexually assaulted as a young girl. In charging documents for her third-strike robbery, prosecutors said Lidel was going through heroin withdrawal when she robbed a Subway blocks from a police station, sticking her hand in her pocket to imitate a gun. She then asked a taxi to take her to an area known for drug dealing. “The first time I came here I was 23 years old, and in March of this year I turned 60,” Lidel said.

While it’s hard to say exactly how much time any of the 62 would have faced without their robbery charges counting as strikes, few would have faced life.... According to state guidelines, the maximum for second-degree robbery, given to the highest-level offenders, is less than seven years....

Some of the 62 might not have received shorter sentences because of other serious crimes on their record, including at least eight with early robbery convictions but a final strike for murder. But nearly half the inmates on the list received a third strike only for some form of robbery.

The bill’s sponsor, Democratic Sen. Jeannie Darneille, said before the state’s legislative session ended that she did not want to change her bill with the amendment killing retroactivity but that it would have been at risk of failing without support from law enforcement or prosecutors because lawmakers would have feared being labeled soft on crime.

The particulars of this story are all too familiar, and long-time readers know that I have long argued that the standard presumption in favor of finality for criminal judgments need not and should not be elevated over other critical criminal justice interests when a defendant seeks only to modify an ongoing prison sentence based on new legal developments.  (My full perspectives on "sentence finality" and retroactivity appear in a law review article, "Re-Balancing Fitness, Fairness, and Finality for Sentences", and in some prior posts reprinted below).   

Moreover, as the question in the title of this post highlights, I think these issues have constitutional implications when extreme sentences are in play.  Notably, many state courts have ruled that it would be unconstitutional to carry out a death sentence for a person long ago sentenced for murder after a state legislature prospectively abolished the death penalty.  Given that the Supreme Court has in the last decade applied my capital Eighth Amendment precedents to the application of LWOP sentences, it seems reasonable to argue that state courts should find it unconstitutional to not reconsider an extreme LWOP sentence for a person long ago sentenced to LWOP on a basis that a state legislature has prospectively abolished.

(Significantly, and in response to the concerns so often raised by prosecutors in this retroactivity setting, a narrow version of the constitutional claim here might be just that a past LWOP sentence needs to be reexamined, not automatically changed.  Under such an approach, prosecutors would be able to argue against a sentence change by bringing forward evidence that the defendant could and would have gotten an LWOP sentence on grounds other than those changed by the legislature.  But at the very least, I think the constitutional norm should be reexamination of now-changed sentences, rather than their harsh preservation. )

Some (of many) prior posts on sentencing finality:

May 21, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, May 13, 2019

Recent Harvard Law Review issue covers prison abolition

I managed to miss that the Development in the Law section of the April issue of the Harvard Law Review examined prison abolition from multiple angles.  Here are titles and links to the articles:

May 13, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Sunday, May 12, 2019

"Next Steps in Federal Corrections Reform: Implementing and Building on the First Step Act"

The title of this post is the title of this terrific new Urban Institute issue brief authored by Julie Samuels, Nancy La Vigne and Chelsea Thomson.  This webpage provides this abstract:

Advocates and legislators across the political spectrum celebrated the passage of the First Step Act in December of 2018, the first large federal prison reform bill in nearly a decade.  This research brief reviews key measures in First Step, describes the actions and oversight needed for faithful and vigorous implementation of the act, and highlights some of the law’s limitations.  Working from the original set of recommendations made by the Charles Colson Task Force on Federal Corrections, we then describe additional measures that represent the next logical — and evidence-based — steps in federal corrections reform.  These steps include expanding eligibility for earned time credits, making all sentencing provisions retroactive, further reducing mandatory minimum penalties, and creating a second look provision for people serving extremely long sentences to petition the court for sentence reductions.

May 12, 2019 in FIRST STEP Act and its implementation, Mandatory minimum sentencing statutes, Prisons and prisoners | Permalink | Comments (0)

Wednesday, May 08, 2019

"Does our county really need a bigger jail?"

Pretrial_detention_growth450x337The question in the title of this post is the title of a new Prison Policy Initiative report that seeks to provide cities and counties with a guide for preventing unnecessary jail expansion.  This press release about the report reviews the essentials (and provides a link):

The report, Does our county really need a bigger jail?, lays out 33 questions that local decision-makers should ask in evaluating proposals for new or bigger jails.  “It’s very common today for jails to be overcrowded, because the number of people in jails nationwide has tripled in the last 30 years,” said report author Alexi Jones. “But in too many counties, jail growth is rooted in known policy failures like an overreliance on money bail. Local policymakers owe it to their constituents to find out if there is a better fix to overcrowding than just building a new or bigger jail.”

The report’s 33 questions for policymakers include:

  • On a typical day, how many people are confined in the existing jail who have not been convicted?
  • How many people in the county are incarcerated because they cannot afford to pay fines and fees?
  • What specialized “diversion” courts and treatment programs is the county using to divert people struggling with substance use and mental illness into more effective treatments than jail?
  • Do official cost estimates for building new jail space include not only the cost of construction, but the cost of debt service on the loan, annual operation costs, and collateral costs such as adverse impacts on public health?

“Building new jail space typically costs tens of millions of dollars or more, even as other options that are both more cost-effective and more compassionate are ignored,” said Jones. “If policymakers can’t answer these questions about why more jail space is necessary, they should not be undertaking jail expansion.”

For all 33 questions, the report also offers a set of alternatives and best practices, including:

  • Releasing more pretrial defendants on their own recognizance, and investing in pretrial services to help them make their court dates;
  • Requiring judges to set fines and fees based on a defendant’s ability to pay;
  • Investing in specialized “problem-solving” courts for people with mental health or substance use disorders that serve as true alternatives to jail time.

The report’s recommendations are accompanied by helpful graphics, as well as examples of local and state governments successfully implementing alternatives to jail expansion. “We know that the answer to mass incarceration begins at the local level,” said Jones. “That’s why it’s critical to help cities and counties think beyond jail expansion when it comes to improving public safety.”

May 8, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, May 02, 2019

"Law, Prison, and Double-Double Consciousness: A Phenomenological View of the Black Prisoner’s Experience"

The title of this post is the title of this notable new Yale Law Review Forum piece authored by James Davis III. Here is its abstract:

This Essay introduces double-double consciousness as a new way of conceptualizing the psychological ramifications of being a black prisoner.  It begins by revisiting W.E.B. DuBois’s theory of double consciousness.  It then offers a phenomenological exposition of double-double consciousness — the double consciousness that the black prisoner came to prison with, coupled with the double consciousness that the black prisoner develops in prison.  Thought and feeling, time and space are all different in the prison.  This world relentlessly imposes the prisoner identity on all those who inhabit it, requiring them to reconcile their new status with their conceptions of self.  Based on my own experience as a black prisoner, I conclude that double-double consciousness is a mechanism through which the prisoner can maintain dignity despite living in captivity.

May 2, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (1)

Wednesday, May 01, 2019

Terrific vision and plans in "Beyond Guilt," a new project of the Ohio Justice & Policy Center

Cropped-bg_ojpc_gavelI am so very pleased to see the announcement of a great new project by a leading criminal justice reform group in the Buckeye State. Specifically, the Ohio Justice & Policy Center (OJPC) has just launched "Beyond Guilt," which its website says "aims to do for over-punished prisoners who admit guilt what innocence projects have for wrongfully convicted persons who claim actual innocence."  I am especially drawn to the "Strategies" discussion set out in the new project's "Our Mission" statement, which I will quote here:

Beyond Guilt will seek to do for over-punished prisoners who admit guilt what innocence projects have done for wrongfully convicted persons who claim actual innocence.  Beyond Guilt is OJPC’s answer to criminal legal system reform efforts that focus narrowly on a more palatable side of the reform movement — freeing innocent prisoners and people convicted of low-level, non-violent offenses.  Unfortunately, current reform efforts leave many behind, particularly individuals convicted of more serious offenses, including violent crimes. Beyond Guilt will advance reform initiatives to include people who have paid their debt to society for serious crimes and can safely be released.  The project will do so in four ways:

First, Beyond Guilt will identify unfairly sentenced Ohio prisoners who illustrate widespread problems in our criminal legal system (e.g. imposition of life sentences for felony-murder; life without parole sentences for youthful offenders; broken parole systems that refuse to provide a second chance) and then fight for their release.  The project will represent individuals who have served significant portions of their sentences and can demonstrate rehabilitation within the prison walls and who have the skills and support systems on the outside to continue the process of rehabilitation once they are released.  Whenever possible, Beyond Guilt will partner with prosecutors, law enforcement officers and crime survivors who can help convince courts to release prisoners through various avenues.

Second, Beyond Guilt will lift up the stories of the people it represents to humanize these individuals and other prisoners like them whom society writes off for committing violent crimes.  The project will tell their stories through a variety of means, including traditional media, social media, film and a blog hosted on a dedicated Beyond Guilt website.  The project will also facilitate in-person meetings between its incarcerated clients and legislators who can benefit from seeing, face to face, the impact of overly punitive sentencing laws.  The goal is to enable our clients to tell their own stories, to be living breathing testaments to the power of people to change, and to become disciples, who through their stories, can inspire others to care about those that they left behind in prison.

Third, Beyond Guilt will partner with its clients — both those who are freed and those who remain incarcerated — to push for reform of Ohio sentencing laws that overly punish people who have committed serious crimes and parole systems that keep offenders locked up for longer than they need to be.

Fourth, Beyond Guilt will seek to build a national network of similar projects that work to reform sentencing practices for people convicted of violent crimes and to promote evidence-based ways to reduce lengthy sentences without compromising public safety.  Beyond Guilt will partner with law schools and public defender offices to build this network and with community and faith-based groups who work with returning citizens who need assistance once released.

May 1, 2019 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, April 30, 2019

"The case for education in prison"

The title of this post is the title of this new Hill commentary authored by Arthur Rizer and Jesse Kelley.  Here is an excerpt:

As a nation, we are in desperate need of qualified workers and running out of places to look for them.  Yet we also have millions of individuals sitting idle in prisons, 95 percent of whom will eventually be released.  Sadly, our justice system has an abysmal record of preparing these individuals for life beyond concrete walls — especially when it comes to helping them enter the job market.  In fact, one year after their release, almost 60 percent of all formerly incarcerated individuals are still unemployed.

For the lucky few who do find employment, they are paid an average of 40 percent less than those with no criminal record.  These individuals represent a potential pool of untapped resources for employers looking to hire new workers. B ut in order to ensure that the formerly incarcerated are suited for the modern workforce, we need to increase opportunities for them to receive an education while behind bars.  Offering inmates postsecondary correctional education would provide a new world of opportunities for both these individuals and business owners....

Businesses thrive when they hire educated employees.  When employers have the option to hire from a larger pool of well-educated candidates, they can strengthen their productivity and competitiveness.  Investing in potential employees’ educational futures can add to the supply.  By investing in postsecondary correctional education in particular, employers can help meet their own demand for highly skilled employees....

For those formerly incarcerated who are re-entering the workforce, both the routine and the responsibility of employment offer financial support and the ability to build a life removed from past habits that might otherwise lead to reoffending. This is critical, especially considering that although recidivism rates have improved somewhat, they are still alarmingly high: An estimated three-fifths of those released from prison are convicted of a new offense within five years of their release....

By expanding the pool of hirable candidates to include more formerly incarcerated individuals with a postsecondary education, businesses can increase their market competitiveness and support returning citizens.  It is therefore in the business community’s best interest to support post-secondary education in prisons.

April 30, 2019 in Prisons and prisoners | Permalink | Comments (0)

Spotlighting that, within top incarceration nation, it is not quite clear which state tops the per capital incarceration list

A helpful reader sent me this notable little local article headlined "Is Louisiana still the incarceration capital of the U.S.?". The piece serves as a useful reminder that data on incarceration (like data on just about everything in criminal justice systems) is subject to some interpretation. Here are excerpts:

For close to a year, Gov. John Bel Edwards has championed that Louisiana has lost its title as the incarceration capital of the United States after law changes he backed got through the Louisiana Legislature in 2017.  “I made a promise that, by the end of my first term, Louisiana would not have the highest incarceration rate in the nation,” Edwards said last June at a press conference.  “We have fulfilled that promise to Louisiana.”

Yet a report released by the Vera Institute of Justice last week [blogged here] called that victory into question.  The nonprofit, a leader in criminal justice research, concluded that Louisiana still had the top of incarceration rate in the country at the end of 2018, five months after the governor announced the state had lost that title to Oklahoma.

The discrepancy appears to be not so much about Louisiana’s prison population, but how prisoners in Oklahoma are counted.  Those who believe Oklahoma has the highest incarceration rate count hundreds of people who have been sentenced to prison time -- but are still in county jails and haven’t become part of the prison system officially yet -- as part of that state’s prison population. Without those inmates included in the prison population count, Louisiana still has the highest incarceration rate.

As of the end of December 2018, the number of people waiting to enter the Oklahoma prison system at county jails totaled 753.  If they’re included in the state count, Oklahoma’s incarceration rate is 702 people per 100,000 residents, higher than Louisiana’s rate of 695. If they aren’t included, Oklahoma’s incarceration rate is 683.

Pew Charitable Trusts and the Edwards administration use the higher Oklahoma count, therefore concluding that Louisiana has fallen to second place. Vera Institute used the lower count. “It seems like right now, the two states are really close . If a statistician was handling this question, they would say something like they are tied,” Jacob Kang-Brown, one of the authors of the Vera Institute report, said in an interview Thursday (April 25)....

Another nonprofit organization, the Prison Policy Initiative, concluded that Oklahoma passed Louisiana as the state with the highest incarceration rate back in 2016, before Louisiana approved its package of criminal justice changes in 2017.  That analysis took a wider view of incarceration. It counted not just state prisoners but also juveniles in custody, people in local jails and people from Louisiana in federal custody.  That report came out last year, prompting the Tulsa World newspaper to declare Oklahoma the prison capital of the country.

April 30, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Saturday, April 27, 2019

Seventh Circuit finds Indiana approach to revoking good-time credits in sex offender program violates Fifth Amendment right against compelled self‐incrimination

A panel of the Seventh Circuit a few days ago issued a notable opinion in Lacy v. Butts, No. 17-3256 (7th Cir. April 25, 2019) (available here), which affirmed a lower court ruling that part of Indiana's Sex Offender Management and Monitoring program violates the Constitution. Here is how the court's opinion gets started:

When the state wants to encourage suspects, defendants, or incarcerated offenders to admit guilt, it has many tools at its disposal.  Before or during trial, prosecutors may hold out the prospect of a plea bargain. Judges may reward defendants with a sentence reduction for accepting responsibility.  Prison rehabilitation programs may offer benefits and incentives by conditioning visitation rights, work opportunities, housing in a lower‐security unit, and other privileges on an offender’s willingness to admit responsibility for the crime of conviction. McKune v. Lile, 536 U.S. 24, 40 (2002).

But the Fifth Amendment draws one sharp line in the sand: no person “shall be compelled in any criminal case to be a witness against himself.”  U.S. CONST. amend. V. (emphasis added).  This case requires us to decide whether Indiana’s Sex Offender Management and Monitoring (INSOMM) program crosses that line with its system of revoking good time credits and denying the opportunity to earn such credits for convicted sex offenders who refuse to confess their crimes.  In an action brought by a class led by Donald Lacy, an inmate subject to INSOMM, the district court ruled that Indiana’s system as currently operated impermissibly compels self‐incrimination and must be revised.   We affirm.

April 27, 2019 in Prisons and prisoners, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, April 25, 2019

BJS releases "Prisoners in 2016" and "Jail Inmates in 2017" reporting notable declines in incarcerated persons

As reported in this press release, "from 2007 to 2017, incarceration rates in both prisons and jails decreased by more than 10%, according to reports released today by the Bureau of Justice Statistics." Here is more from the release:

Over a decade, the incarceration rate among state and federal prisoners sentenced to more than a year dropped by 13%, from 506 prisoners per 100,000 U.S. residents in 2007 to 440 prisoners per 100,000 in 2017. The prison incarceration rate also dropped 2.1% from 2016 to 2017, bringing it to the lowest level since 1997. The jail incarceration rate decreased by 12% from 2007 to 2017, from 259 to 229 jail inmates per 100,000 U.S. residents, but did not decline from 2016 to 2017.

The U.S. prison population was 1.5 million prisoners at year-end 2017, and the population of jail inmates in the U.S. was 745,000 at midyear 2017. There were 1.3 million prisoners under state jurisdiction and 183,000 under federal jurisdiction. From the end of 2016 to the end of 2017, the number of prisoners under federal jurisdiction declined by 6,100 (down 3%), while the number of prisoners under state jurisdiction fell by 12,600 (down 1%).

By citizenship status, non-citizens made up roughly the same portion of the U.S. prison population (7.6%) as of the total U.S. population (7.0%, per the U.S. Census Bureau). This is based on prisoners held in the custody of publicly or privately operated state or federal prisons. Among racial groups, the imprisonment rate for sentenced black adults declined by 31% from 2007 to 2017 and by 4% from 2016 to 2017, the largest declines of any racial group.

However, the imprisonment rate for sentenced black males was more than twice the rate for sentenced Hispanic males and almost six times that for sentenced white males (2,336 per 100,000 black males compared to 1,054 per 100,000 Hispanic males and 397 per 100,000 white males). The rate for sentenced black females was almost double that for sentenced white females (92 per 100,000 black females compared to 49 per 100,000 white females).

Among state prisoners sentenced to more than one year, more than half (55%) were serving a sentence for a violent offense at year-end 2016, the most recent year for which state data are available. An estimated 60% of blacks and Hispanics in state prisons were serving a sentence for a violent offense, compared to 48% of whites. At the end of fiscal year 2017, nearly half of all federal prisoners were serving a sentence for drug trafficking.

Privately operated prison facilities held 121,400 prisoners, or 8% of all state and federal prisoners, at year-end 2017. Inmates in these facilities were under the jurisdiction of 27 states and the Bureau of Prisons. The number of federal prisoners held in private facilities decreased by 6,600 from 2016 to 2017 (down 19%).

In 2017, almost two-thirds (482,000) of jail inmates were unconvicted, awaiting court action on a charge, while the rest (263,200) were convicted and either serving a sentence or awaiting sentencing.

The demographic characteristics of persons incarcerated in jails shifted from 2005 to 2017. During this period, the percentage of the jail population that was white increased from 44% to 50%, while the percentage that was black decreased from 39% to 34%. Hispanics accounted for 15% of all jail inmates in 2017, the same as in 2005. Asians accounted for less than 1% of jail inmates in both years. In 2017, the jail incarceration rate for blacks was more than 3 times the rate for whites and Hispanics, and more than 20 times the rate for Asians.

Jails reported 10.6 million admissions in 2017, which represented no change from 2016 but a 19% decline from 13.1 million in 2007. The overall weekly inmate turnover rate was 54% in 2017, while the estimated average time spent in jail before release was 26 days.

The full BJS reports are chock full of additional important data points, and are excitingly titled "Prisoners in 2017" (running 44 pages) and "Jail Inmates in 2017" (running 18 pages).  Especially because I am busy with end-of-semester tasks, I would be grateful to hear from others about any particular data points within these documents that seem especially notable and important.  Helpfully, the Sentencing Project has this release about the data with these interesting observations:

Analysis of the new data by The Sentencing Project reveals that:

  • The United States remains as the world leader in its rate of incarceration, locking up its citizens at 5-10 times the rate of other industrialized nations. At the current rate of decline it will take 75 years to cut the prison population by 50%.
  • The population serving life sentences is now at a record high. One of every seven individuals in prison — 206,000 — is serving life. 
  • Six states have reduced their prison populations by at least 30% over the past two decades — Alaska, Connecticut, California, New Jersey, New York, and Vermont. 
  • The rate of women’s incarceration has been rising at a faster rate than men’s since the 1980s, and declines in recent years have been slower than among men. 
  • Racial disparities in women’s incarceration have changed dramatically since the start of the century.  Black women were incarcerated at 6 times the rate of white women in 2000, while the 2017 figure is now 1.8 times that rate. These changes have been a function of both a declining number of black women in prison and a rising number of white women. For Hispanic women, the ratio has changed from 1.6 times that of white women in 2000 to 1.4 times in 2017.

April 25, 2019 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, April 24, 2019

Vera Institute documents another drop in the US prison population in 2018

The Vera Institute of Justice today released this notable new "Evidence Brief" titled simply "People in Prison in 2018."  Here is part of this document's summary:

Effective advocacy and policy making require up-to-date information. V era Institute of Justice (Vera) researchers collected data on the number of people in state and federal prisons on December 31, 2018 to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its 2018 annual report — likely in early 2020 — which will include additional data, such as population breakdowns by race and sex.

At the end of 2018, there were an estimated 1,471,200 people in state and federal prisons, down 20,000 from year-end 2017 (1.3 percent decline).  There were 1,291,000 people under state prison jurisdiction, 16,600 fewer than in 2017 (1.3 percent decline); and 179,900 in the federal prison system, 3,200 fewer than in 2017 (1.7 percent decline).

The prison incarceration rate in the United States was 450 people in prison per 100,000 residents, down from 458 per 100,000 in the previous year, representing a 1.8 percent drop. This brings the rate of prison incarceration down 15.2 percent since its peak in 2007.

The overall decline in the national prison incarceration rate was driven by the large decrease in the number of people in federal prisons, as well as greater than 5 percent declines in incarceration rates in seven states.  Of those states, a few have large prison populations, such as Missouri, South Carolina, New York and North Carolina.  However, the declines were not universal.  Mass incarceration is still on the rise in some states, such as Indiana, Texas, and Wyoming.

Vera has some visualizations and other related materials at this webpage.  The Marshall Project has this article about Vera's findings providing a broader context for the data and including these important points:

Advocates for prison reform have come to rely on Vera’s data as the federal reports are increasingly outdated. The Bureau of Justice Statistics compiles a comprehensive data set on people in prison, which includes demographic information. But because of budget cuts the latest report, released in 2018, covers prisoners in 2016. The 2017 data is set to be released on Thursday.

Timely data on the people in prison helps analysts and legislators understand where criminal justice changes are having the biggest impact, said Jacob Kang-Brown, one of the study’s authors. “This report shows whether states are following through and reducing the number of people that are locked up in prison,” he said, and which are “bucking the trend.”

April 24, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, April 23, 2019

How could and how should a President push states to extend the franchise to all prisoners?

I have not been blogging all that much about some of the notable criminal justice positions and statements by the huge field of candidates seeking the Democratic Party's nomination to run for US President.  But this press piece about an exchange involving Senator Bernie Sanders at a town hall last night prompted the question that is the title of this post.  The headline of The Hill piece is catchy, "Sanders: Boston Marathon bomber should be able to vote from prison," and here is its account of the exchange:

Sen. Bernie Sanders (I-Vt.) argued Monday that all prisoners, including domestic terrorists such as the Boston Marathon bomber, should have the right to vote while they are incarcerated.

Speaking at a CNN town hall, Sanders was asked if he believes the right to vote should extend to serious criminals, such as Boston Marathon bomber Dzhokhar Tsarnaev, who is in prison and has been sentenced to death.  “If somebody commits a serious crime, sexual assault, murder, they’re going to be punished,” Sanders said.  “They may be in jail for 10 years, 20 years, 50 years, their whole lives.  That’s what happens when you commit a serious crime."

"But I think the right to vote is inherent to our democracy," he continued.  "Yes, even for terrible people, because once you start chipping away ... you’re running down a slippery slope. ... I do believe that even if they are in jail, they’re paying their price to society, but that should not take away their inherent American right to participate in our democracy.”

Earlier this month, Sanders called for more states to join Vermont and Maine in allowing imprisoned felons to vote.... “This is what I believe. Do you believe in democracy? Do you believe that every single American 18 years of age or older who is an American citizen has the right to vote?"

"Once you start chipping away at that ... that’s what our Republican governors all over this country are doing.  They come up with all kinds of excuses why people of color, young people, poor people can’t vote.  And I will do everything I can to resist that," he added.

Regular readers likely know that I see no good reason to disenfranchise categorically any class of competent voters (and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote").  But, in the context of discussions about the positions of potential candidates for President, anyone call for expanding suffrage ought to be asked about how the federal government can and should seek to push states into ensuring more people have the right to vote.  This can be done, of course, through a constitutional amendment or through various forms of federal legislation that might try to force or prod states into changing their voting eligibility rules. 

I would really like to know if Senator Sanders (or any other presidential contender) is prepared to move forward with a formal federal plan that would go beyond just "call[ing] for more states to join Vermont and Maine in allowing imprisoned felons to vote."   Because I am not a voting rights expert, I am not sure what might be the best ways, legally and politically, to make progress on this front.  But I hope the question in the title of this post might be further explored on the campaign trail over the next 18 months.

April 23, 2019 in Collateral consequences, Prisons and prisoners, Who Sentences | Permalink | Comments (4)

"Justice Denied: The Harmful and Lasting Effects of Pretrial Detention"

The title of this post is the title of this notable new "evidence brief" from the Vera Institute of Justice.  Here is its overview:

The pretrial population — the number of people who are detained while awaiting trial — increased 433 percent between 1970 and 2015.  This growth is in large part due to the increased use of monetary bail.  But pretrial detention has far-reaching negative consequences.  This evidence brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.  These studies call into question whether pretrial detention improves court appearance rates, suggests that people who are detained are more likely to be convicted and to receive harsher sentences, and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.  The brief concludes by highlighting strategies that some jurisdictions have employed to reduce the use of monetary bail and increase pretrial release.

April 23, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Monday, April 22, 2019

"The case against solitary confinement"

The title of this post is the headline of this lengthy and effective Vox piece from last week.  I call the piece effective in part because, in addition to being well-structured and well-written, it includes lots and lots of links.  Here is how the piece starts (with links retained):

Albert Woodfox was held in solitary confinement for more than 40 years in a Louisiana prison before being released in 2016, when he was 69 years old.  In his book Solitary, published last month, Woodfox writes that every morning, “I woke up with the same thought: will this be the day? Will this be the day I lose my sanity and discipline? Will I start screaming and never stop?”

Thousands of people — at least 61,000 on any given day and likely many thousands more than that — are in solitary confinement across the country, spending 23 hours per day in cells not much bigger than elevators.  They are disproportionately young men, and disproportionately Hispanic and African American.  The majority spend a few months in it, but at least a couple of thousand people have been in solitary confinement for six years or more. Some, like Woodfox, have been held for decades.

Solitary confinement causes extreme suffering, particularly over prolonged periods of months or years.  Effects include anxiety, panic, rage, paranoia, hallucinations, and, in some cases, suicide.

The United Nations special rapporteur on torture, Juan E. Méndez, deemed that prolonged solitary confinement is a form of torture, and the UN’s Mandela Rules dictate that it should never be used with youth and those with mental or physical disability or illness, or for anyone for more than 15 days.  Méndez, who inspected prisons in many countries, wrote, “[I]t is safe to say that the United States uses solitary confinement more extensively than any other country, for longer periods, and with fewer guarantees.”

Many practices in the US criminal justice system are harsh, ineffective, even absurd, from the widespread use of money bail to detain unconvicted people to extremely long sentences and parole terms, and a host of other outrages.  But placing people in solitary stands out as a violation of human rights.

Well over a century ago in the US, the practice fell out of favor, partly because of its capacity for psychological harm. Yet starting in the 1980s, its use in prisons and jails exploded again.

Over the past decade, there has been a movement to (again) stop the widespread use of solitary. There have been major steps forward in some states.  But there’s considerable need for more progress — and wider acknowledgment that this is something that we are all accountable for. As Laura Rovner, a law professor at the University of Denver, put it in a recent talk, “We torture people here in America, tens of thousands of them every day … it’s done in our names, with our tax dollars, behind closed doors.”

April 22, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Saturday, April 20, 2019

Thoughtful look into prison abolitionism (and prison history) in theory and practice

The New York Times magazine has this week's must read under the headline "Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind."  The piece is a profile of a noted prison abolitionist along with a broader discussion of prison history and prison abolitionism.  I heartily recommend the terrific lengthy piece in full, and here is an extended excerpt:

Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding.  For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack.  Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”...

In the wake of the Enlightenment, European reformers gradually moved away from corporal punishment tout court; people would go to prison for a set period of time, rather than to wait for the punishment to come.  The penitentiary movement in both England and the United States in the early 19th century was motivated in part by the demand for more humanitarian punishment. Prison was the reform.

If prison, in its philosophical origin, was meant as a humane alternative to beatings or torture or death, it has transformed into a fixed feature of modern life, one that is not known, even by its supporters and administrators, for its humanity.  In the United States, we now have more than two million incarcerated people, a majority of them black or brown, virtually all of them from poor communities.  Prisons not only have violated human rights and failed at rehabilitation; it’s not even clear that prisons deter crime or increase public safety.

Following an incarceration boom that began all over the United States around 1980 and only recently started to level off, reform has become politically popular.  But abolitionists argue that many reforms have done little more than reinforce the system. In every state where the death penalty has been abolished, for example, it has been replaced by the sentence of life without parole — to many people a death sentence by other, more protracted means.  Another product of good intentions: campaigns to reform indeterminate sentencing, resulting in three-strike programs and mandatory-minimum sentencing, which traded one cruelty for another. Over all, reforms have not significantly reduced incarceration numbers, and no recent reform legislation has even aspired to do so.

For instance, the first federal prison reform in almost 10 years, the bipartisan First Step Act, which President Trump signed into law late last year, will result in the release of only some 7,000 of the 2.3 million people currently locked up when it goes into effect. Federal legislation pertains only to federal prisons, which hold less than 10 percent of the nation’s prison population, and of those, First Step applies to only a slim subset.  As Gilmore said to me, noting an outsize public enthusiasm after the act passed the Senate, “There are people who behave as though the origin and cure are federal.  So many are unaware of how the country is juridically organized, and that there are at least 52 criminal-legal jurisdictions in the U.S.”

Which isn’t to say that Gilmore and other abolitionists are opposed to all reforms. “It’s obvious that the system won’t disappear overnight,” Gilmore told me.  “No abolitionist thinks that will be the case.”  But she finds First Step, like many state reforms it mimics, not just minor but exclusionary, on account of wording in the bill that will make it even harder for some to get relief.  (Those convicted of most higher-level offenses, for example, are ineligible for earned-time credits, a new category created under First Step.)  “So many of these proposed remedies don’t end up diminishing the system.  They regard the system as something that can be fixed by removing and replacing a few elements.”  For Gilmore, debates over which individuals to let out of prison accept prison as a given.  To her, this is not just a moral error but a practical one, if the goal is to actually end mass incarceration. Instead of trying to fix the carceral system, she is focused on policy work to reduce its scope and footprint by stopping new prison construction and closing prisons and jails one facility at a time, with painstaking grass-roots organizing and demands that state funding benefit, rather than punish, vulnerable communities.

“What I love about abolition,” the legal scholar and author James Forman Jr. told me, “and now use in my own thinking — and when I identify myself as an abolitionist, this is what I have in mind — is the idea that you imagine a world without prisons, and then you work to try to build that world.”  Forman came late, he said, to abolitionist thinking. He was on tour for his 2017 Pulitzer Prize-winning book, “Locking Up Our Own,” which documents the history of mass incarceration and the inadvertent roles that black political leaders played, when a woman asked him why he didn’t use the word “abolition” in his arguments, which, to her, sounded so abolitionist.  The question led Forman to engage seriously with the concept.  “I feel like a movement to end mass incarceration and replace it with a system that actually restores and protects communities will never succeed without abolitionists. Because people will make compromises and sacrifices, and they’ll lose the vision.  They’ll start to think things are huge victories, when they’re tiny. And so, to me, abolition is essential.”

The A.C.L.U.’s Smart Justice campaign, the largest in the organization’s history, has been started with a goal of reducing the prison population by 50 percent through local, state and federal initiatives to reform bail, prosecution, sentencing, parole and re-entry.  “Incarceration does not work,” said the A.C.L.U. campaign director Udi Ofer.  The A.C.L.U., he told me, wants to “defund the prison system and reinvest in communities.” In our conversation, I found myself wondering if Ofer, and the A.C.L.U., had been influenced by abolitionist thinking and Gilmore. Ofer even seemed to quote Gilmore’s mantra that “prisons are catchall solutions to social problems.”  When I asked him, Ofer said, “There’s no question.  She’s made tremendous contributions, even just in helping to bring about a conversation on what this work really is, and the constant struggle not to replace one oppressive system with another.”

April 20, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Thursday, April 18, 2019

"Quelling the Silver Tsunami: Compassionate Release of Elderly Offenders"

The title of this post is the title of this 2018 article authored by Jalila Jefferson-Bullock recently posted to SSRN. Though authored before the passage of the FIRST STEP Act, the article is still particularly timely in light of that new law's various provisions enabling the moving certain defendants out of prison and into home confinement.  Here is the article's abstract:

Sentencing reform appears resurrected.  Following a brief hiatus and an expectedly unwelcoming recent federal response, sentencing reform is again reemerging as a major initiative.  Congress and the several states are poised to immediately accomplish major reform of the United States criminal sentencing structure.  Proposals that would, among other initiatives, drastically reduce criminal sentences, restore rehabilitative programs to inmates, generate sentencing parity, normalize probation for low-level offenses, and shrink the overall prison footprint are ambling through various legislative processes throughout the country.  Though groundbreaking and certainly welcome, these reforms largely ignore the special needs of the imprisoned elderly.  One of the most foreseeable, yet ironically ignored, consequences of 1980's and 1990's harsh sentencing laws, is the dramatic upsurge in prison population through the predictable process of human aging.  Coined the prison “silver tsunami” phenomenon, surging numbers of elderly inmates raises significant moral, health, and fiscal implications deserving keen scrutiny.  It is imperative, then, that any overhaul of criminal sentencing focuses on how to meaningfully address the graying of America's prisons.

April 18, 2019 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, April 15, 2019

Extended letter from criminal justice groups calling for robust implementation of the FIRST STEP Act's prison reforms

Via email today, I learned of this notable lengthy letter signed by an array of criminal justice groups addressing key issues related to the implementation of the prison reform components of the FIRST STEP Act.  Because the full letter runs seven pages, I will provide the summary that appeared in the email that I received:

[T]his sign-on letter call[s] for the implementation of the First Step Act in a manner that is consistent with Congressional intent and the text of the statute.  The letter, led by The Leadership Conference on Civil and Human Rights, ACLU, and Justice Rountable, was addressed to the Department of Justice’s National Institute of Justice Director David Muhlhausen, and makes the following three arguments:

(1) DOJ must appoint an appropriate “non-partisan non-profit” host organization with expertise in the study and development of risk and needs assessment tools to select and convene the members of the Independent Review Committee as required by the statute;

     a. NIJ appointed The Hudson Institute — a conservative think tank with no visible expertise or experience in the study and development of risk and needs assessment systems — to host the IRC.

     b. The Hudson Institute has selected at least three members for the IRC whom may not meet the stated criteria outlined in the statute.

(2) Neither the Bureau of Prisons (BOP) security classification system nor the current version of the Post Conviction Risk Assessment (PCRA) should be adopted as a substitute for the Risk and Needs Assessment System required by the statute;

     a. The BOP security classification and the PCRA were not designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.

(3) The Bureau of Prisons must immediately begin providing rehabilitative programming.

Some of many prior related posts on FIRST STEP Act implementation:

April 15, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, April 13, 2019

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

April 13, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0)

Friday, April 12, 2019

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"There Is No Good Reason Prisoners Can’t Vote"

The title of this post is the headline of this New York Times commentary authored by Jamelle Bouie.  Here are excerpts:

Americans may see it as common sense that you lose your right to vote when you’re imprisoned, but in many democracies prisoners retain the right to vote.  When that right is revoked, it’s only for particular crimes (in Germany, it’s for “targeting” the “democratic order”), and often there is a good deal of judicial discretion.  Mandatory disenfranchisement is unusual, and permanent disenfranchisement is even rarer....

As it stands, incarcerated people retain a variety of rights, some of which touch on the political rights and responsibilities of citizenship.  Prisoners have freedom of worship. They can protest mistreatment and poor conditions.  They can exercise some free speech rights, like writing for newspapers, magazines and other publications.  To that point, there is a rich literature of work by incarcerated people tackling complex social and political issues.  Voting would be a natural extension of these activities.

An obvious objection is that criminal transgressions render prisoners unfit for participation in democratic society.  But there’s nothing about committing a crime, even a serious one, that renders someone incapable of making a considered political choice.  Losing your liberty doesn’t mean you’ve lost your capacity to reason.  Prisoners are neither more nor less rational than anyone else who is allowed to vote.

If anything, the political system needs the perspectives of prisoners, with their intimate experience of this otherwise opaque part of the state.  Their votes might force lawmakers to take a closer look at what happens in these institutions before they spiral into unaccountable violence and abuse.

There are practical benefits as well.  Racial disparities in criminal enforcement and sentencing means disenfranchisement falls heaviest on black communities.  This is not just a direct blow to prisoners’ electoral power; it also ripples outward, depressing political participation among their friends, families and acquaintances.  On the other end, suffrage in prison may help incarcerated people maintain valuable links to their communities, which might smooth the transition process once they’re released.

“Citizenship is not a right that expires upon misbehavior,” Chief Justice Earl Warren wrote for the majority in Trop v. Dulles, a 1958 case dealing with the rights of a military deserter.  And, he continued, “citizenship is not lost every time a duty of citizenship is shirked.”  Yes, prisoners have committed crimes, and yes, some of those are egregious. But depriving any citizen of the right to vote should be the grave exception, not a routine part of national life.  Universal suffrage means universal suffrage.

April 12, 2019 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Monday, April 08, 2019

"Department of Justice Announces First Step Act Implementation Progress"

The title of this post is the heading of this notable and lengthy press release from the US Department of Justice this afternoon.  The full release (and its links) are must reads for anyone and everyone following closely the early implementation of the FIRST STEP Act.  I may need a few posts to fully unpack all the particulars, but I will start here with the start of the release and a few choice specifics:

Today, the Department of Justice’s National Institute of Justice (NIJ), in accordance with the First Step Act, has announced the selection of the nonprofit and nonpartisan Hudson Institute to host the Independent Review Committee. The Committee, whose members will be appointed by Hudson Institute in accordance with the Act’s requirements, will assist the Department as it develops and implements risk and needs assessment tools and evidence-based recidivism reduction programs.

“The Department of Justice is committed to implementing the First Step Act,” said Attorney General William Barr. “The Independent Review Committee plays an important role in that effort by assisting in the development of a new risk and needs assessment system and improvements to our recidivism reduction programming.  I am grateful to Hudson Institute for hosting this important Committee, which will lead to better policies at the Department and, ultimately, better outcomes for prisoners reentering society.”

NIJ also announced today that it is contracting with outside experts and leading researchers, including Dr. Grant Duwe Ph.D., Dr. Zachary Hamilton Ph.D., and Dr. Angela Hawken Ph.D., for assistance and consultation as the Department develops the Risk and Needs Assessment System under the Act.  Dr. Duwe is the Director of Research for the Minnesota Department of Corrections, and a nationally recognized expert on the development of recidivism risk assessment systems. Dr. Hamilton is an Associate Professor of Criminal Justice and Criminology and the Director of the Washington State Institute for Criminal Justice, and focuses on treatment matching through risk and needs assessment systems.  Dr. Hawken is a Professor of Public Policy at the New York University Marron Institute, and is the founder and director of New York University’s Litmus/BetaGov program, which assists in the development and validation of data-driven policies. Each of these experts will bring unique expertise as they augment NIJ and the Bureau of Prisons’ (BOP) efforts to implement the Act.

Today’s announcements by NIJ are the latest in a growing list of accomplishments as the Department works diligently to implement the Act, signed into law in December 2018. Some other highlights of the Department’s ongoing implementation efforts include...

The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 826 sentence reductions and 643 early releases....

BOP has issued procedures for “compassionate release” sentence reductions under 18 U.S.C. §§ 3582 and 4205(g) (BOP Policy Number 5050.50), and 22 inmates have already received sentence reductions under this program.

BOP has issued procedures providing for participation in the Second Chance Act home confinement pilot program under 34 U.S.C. 65401(g) (BOP Operations Memorandum 001-2019), and 23 inmates are currently participating, with additional inmates currently being screened for program inclusion.

April 8, 2019 in Criminal justice in the Trump Administration, FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, April 07, 2019

Shouldn't every criminal justice institution include leaders with past criminal justice involvement?

XO63XMY22BDO5P3YXLAZM4LLDMIn his landmark book, "Criminal Sentences: Law Without Order," Judge Marvin Frankel famously urged the creation of a "Commission on Sentencing" which would include "lawyers, judges, penologists, and criminologists, ... sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates."  As Judge Frankel goes on to explain, having such persons on a sentencing commission "merely recognizes what took too long to become obvious — that the recipients of penal 'treatment' must have relevant things to say about it."

Judge Frankel's astute comments from nearly half a century ago came to mind (along with the question that is the title of this post) on a lovely Sunday morning when I saw this lovely local article headlined "Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board."  Here are excerpts:

This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood — a bow-tied, bespectacled policy wonk with sartorial flair — as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds.  Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun.

But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons  — anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon.  What makes Flood’s appointment even more remarkable is that — to steal a phrase from TV infomercial lore — he’s not just Pennsylvania’s new top pardons administrator, he’s also a client.  Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary.

Taking a break last Monday during his first day on the job for a sit-down interview, the soft-spoken Flood said a number of new initiatives — to not only call attention to Pennsylvania’s pardon process but also to make it easier to apply for one — will hopefully show former inmates that the state is more focused on rewarding good post-prison behavior.  “If they see this [a pardon] as a viable option, they will continue to be productive citizens,” Flood said, who plans to use his own story as a powerful example of that. “They will see there’s a light at the end of the tunnel.”

Flood’s hiring was the brainchild of Pennsylvania’s new lieutenant governor, John Fetterman.  Policy-oriented, progressive and looking for areas where he can make a difference in the oft-neglected No. 2 slot, the burly, black-shirted Braddock ex-mayor has honed in on his designated role as chairman of the Board of Pardons.  Fetterman told me that Flood is “a singularly unique person to have in order help remake the process ... which is only the only remedy for anyone in Pennsylvania who wants to move forward with their lives in this way.”

Flood’s arrival helps mark the beginning of one era in Pennsylvania criminal justice and arguably the end of another.  It was exactly 25 years ago that a convicted murderer named Reginald McFadden was granted his freedom by a Board of Pardons led by then-Democratic Lt. Gov. Mark Singel, who was also running for governor that year.  McFadden almost immediately killed two people and raped a third, and the case, with its overtones of the infamous Willie Horton affair, was cited by experts as a reason for Singel’s defeat that fall.  The political fallout dramatically changed Pennsylvania’s pardon math. Critics (including the man Fetterman ousted in a 2018 primary, ex-Lt. Gov. Mike Stack) came to say that the state’s pardon system was “broken” in an era of skyrocketing mass incarceration.  Commutations of life sentences ground to a virtual halt, post-McFadden, while pardons for lesser crimes slowed as long backlogs and a confusing process discouraged applicants....

For Fetterman, who hails his close working relationship with Wolf on criminal justice reform, Flood’s hiring is symbolic of both down-to-earth pardon reforms — a $63 application fee was eliminated last month, and the board is looking to digitize the application process and possibly open satellite offices in Philadelphia and Pittsburgh and eventually elsewhere — and a bold new attitude.  In December, Wolf granted board-recommended clemency to three life-sentenced inmates — after only signing two in his first 47 months in office.  Fetterman, who’s currently on an all-67-county tour to discuss the possibility of legalizing marijuana, also said he wants a task force to look at granting widespread pardons for past pot-related convictions. “These are simple charges that are damning people’s career possibilities,” he said.

I am so very pleased to see these developments in the Keystone State, especially because I think having a robust parole, commutation and pardon system can play a key role in encouraging persons to return to a law-abiding life after a run-in with the law. Moreover, beyond whatever reforms or actions are led by Brandon Flood, his very appointment to this position serves as an important symbol of redemption and potential.

In line with this state development and with the question in the title of this post, it dawns on me that the US Sentencing Commission has likely never had, over its now 35-year history, any commissioners with any personal history with the criminal justice system. (I am not entirely certain of this assertion, as I do not know everything about the past of the 30 persons here listed as former commissioners.)  Judge Frankel's astute staffing suggestions have not been followed in various ways in the federal system — e.g., I cannot recall any business people or artists on the USSC — but I think the absence of a former offender is especially glaring.

With five(!) open spots on the USSC, and with Prez Trump talking up the importance of "successful reentry and reduced unemployment for Americans with past criminal records... starting right away," now would seem to be an especially opportune time for a USSC appointment of someone with a "past criminal record" in the federal system.  Names like Matthew Charles and Shon Hopwood and Alice Johnson and Kevin Ring immediately come (alphabetically) to mind, but I am sure there are many others who could serve admirably in this role as "recipients of penal 'treatment' [with] relevant things to say about it."  

April 7, 2019 in Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 05, 2019

In wake of gruesome DOJ report, Alabama Gov plans to build three large new prisons with taxpayer price tag of about a billion dollars

As detailed in this new piece, headlined "Torture, rape, murder: Details from investigation into Alabama’s prison crisis," a Justice Department report on Alabama's prisons released this week was truly brutal:

Sexually assaulted Alabama prison inmates fear reporting abuse, knowing they will be punished for what prison officials say is deliberately creating a safety hazard. Family members of inmates are extorted by other inmates who threaten their imprisoned loved ones -- unless the family pays a prisoner’s drug debt.

Understaffed prisons are overflowing with inmates who are armed with makeshift weapons and will kill officers over food and will kill fellow inmates for any number of reasons. Inmates are drugged, raped and tortured for days at a time, sometimes in retaliation for reporting sexual abuse.

These are the findings of a federal investigation of Alabama prisons, released Wednesday by the U.S. Department of Justice.

The full report is available at this link, and it highlights just some of the many harms of trying to do prison systems "on the cheap."  But, as this follow-up article highlights under the headline "Gov. Kay Ivey says new Alabama prisons part of fix for ‘major crisis’," the taxpayers in Alabama are probably going to now have to foot a big bill for a big prison population:

In the wake of a blistering report from the U.S. Department of Justice, Gov. Kay Ivey is moving ahead with her plan to build three large men’s prisons as a major part of her response to Alabama’s chronically crowded and understaffed correctional system.

The DOJ report released Wednesday acknowledged the “incredibly poor physical shape” of the state’s prisons but focused instead on the violence, sexual abuse, drug trade and extortion that led investigators to conclude that the prisons are so dangerous that there is reasonable cause to believe the state is in violation of the U.S. Constitution.

The report said new prisons might solve some problems but said “new facilities alone will not resolve the contributing factors to the overall unconstitutional conditions.”

Ivey said today she is committed to working with the DOJ to address the problems.  The governor said she is proceeding with plans to build prisons, expected to cost about a billion dollars.  Ivey said she expects a request for companies to make proposals to build the prisons will be released sometime this spring.

Attorneys with two advocacy groups with a history of shedding light on abuses in Alabama prisons said the DOJ report demands that the state move with urgency to make the existing prisons safer. “We have an emergency and we have to act immediately to protect the lives of the people who are incarcerated,” Charlotte Morrison, senior attorney at the Equal Justice Initiative, said. “So, the priority has to be a short-term plan to bring about immediate reform.”....

House Speaker Mac McCutcheon, R-Monrovia, said today the DOJ report called for immediate action.  McCutcheon said the House and Senate are putting together an emergency task force to address the issues raised in the report and help craft the state’s response.  He said that work cannot be delayed....

Lisa Graybill, deputy legal director for the Southern Poverty Law Center, said the DOJ report makes it clear that Alabama cannot build its way out of the prison crisis. The SPLC represents inmates in the federal lawsuit over health care.

“DOJ’s letter makes clear that the simple but incredibly expensive solution of construction isn’t going to address its problems,” Graybill said....

Sen. Cam Ward, R-Alabaster, who has led prison and criminal justice reform initiatives in the Legislature, said prison construction is one of multiple components in a comprehensive solution.  Ward said the Legislature could also consider sentencing reforms, including changing the penalties for some property crimes.  Lawmakers passed a reform package in 2015 that has helped reduce the prison population, although it is still at 180 percent of capacity in the major prisons, the DOJ said.

Ward called the DOJ report “deeply humiliating” and said the findings are at odds with Alabama’s posture as a state steeped in Christian ideals.  Ward said the nature of politics is at the root of the crisis.  “No one wants to fund prisons,” Ward said. “They’d rather fund schools or stuff that gets them votes back home. Nobody gets a vote back home supporting what’s going on in prisons. But as the complaint pointed out, you’re treating people like you wouldn’t treat dogs. And for a country of laws and obviously we have pushed up on the Eighth Amendment here.”

April 5, 2019 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Wednesday, April 03, 2019

"Limiting Identity in Criminal Law"

The title of this post is the title of this interesting new article recently posted to SSRN and authored by Mihailis Diamantis.  Here is its abstract:

People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person.  This transience of human identity has profound implications for criminal law.  Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects.  Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years.  However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed.

Criminal justice has not come to grips with this aspect of the human condition.  The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death.  If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed.

Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes.  Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear.  One-time felons should recover lost civil rights sooner.  And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize.  By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.

April 3, 2019 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

"Ghastly Signs and Tokens: A Constitutional Challenge to Solitary Confinement"

The title of this post is the title of this new paper authored by Christopher Logel recently posted to SSRN.  Here is its abstract:

Since its popular reemergence in the 1980s, courts have not placed significant restrictions on the use of solitary confinement.  One small exception has appeared.  Lower courts have held that placing prisoners with preexisting severe mental illness in solitary confinement violates the Cruel and Unusual Punishment Clause.  Can this relatively limited rule be expanded to abolish solitary confinement altogether?

This Comment argues that it can.  A large body of diverse research demonstrates that prolonged solitary confinement causes severe mental illness in most prisoners, regardless of their medical history.  And because there is no principled basis — in law or in fact — for distinguishing between preexisting and confinement-induced mental illness, solitary confinement must end for all prisoners.

April 3, 2019 in Prisons and prisoners, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 01, 2019

Seeing deeply discouraging and engagingly encouraging prison realities in incarceration nation

Two very different perspective on two prisons were covered by major media outlets over the weekend.  Here are links and snippets from the pieces:

From the New York Times, "Inside America’s Black Box: A Rare Look at the Violence of Incarceration":

Prisons are the black boxes of our society. With their vast complexes and razor wire barriers, everyone knows where they are, but few know what goes on inside.  Prisoner communication is sharply curtailed — it is monitored, censored and costly. Visitation rules are strict.  Office inspections are often announced in advance.

So when prisoners go on hunger strikes or work strikes, or engage in deadly riots, the public rarely understands exactly why.  How could they?  Many people harbor a vague belief that whatever treatment prisoners get, they surely must deserve.  It is a view perpetuated by a lack of detail.

But some weeks ago, The New York Times received more than 2,000 photographs that evidence suggests were taken inside the St. Clair Correctional Facility in Alabama.  Some show inmates as they are being treated in a cramped, cluttered examination room.  Others are clinical: frontal portraits, close-ups of wounds.

It is hard to imagine a cache of images less suitable for publication — they are full of nudity, indignity and gore.  It is also hard to imagine photographs that cry out more insistently to be seen.  As I scrolled through them, shock rose from my gut to my sternum.  Was I looking at a prison, or a 19th-century battlefield?

From 60 Minutes, "German-style program at a Connecticut maximum security prison emphasizes rehab for inmates":

One of the more radical attempts at prison reform is taking place in a foreboding Connecticut prison nicknamed the Rock.  It's a two year old program based on therapy for 18-25 year old prisoners, whose brains, science shows, are still developing, and their behavior more likely to change.  The idea came from Germany where the main objective of prison is rehabilitation and where the recidivism rate is about half that of the U.S.  We were in Germany four years ago when then Connecticut Governor Daniel Malloy toured the prison system.  He returned home inspired and launched the small, German style program at the Rock.  It's too early to tell whether it will reduce recidivism but we wanted to see how the German approach is being tested in America.  So, we went to Connecticut by way of a slight detour to the northeast corner of Maine.

The University of Maine at Presque Isle is small in the world of college basketball. But for number 10, Shyquinn Dix, being a student-athlete here is the biggest shot of his life....  When we first met him a year ago, Presque Isle number 10 was inmate number 391175 serving a four-year sentence for felony check fraud at Cheshire Correctional Institution, a maximum security prison in central Connecticut that houses about 1,300 prisoners....

Warden Erfe [following instructions from Malloy] closed down a solitary confinement wing and opened up a sanctuary for self-improvement for about 50 young inmates, whose crimes range from drugs to violent assault.  They have to apply to get into the program called T.R.U.E., for truthful, respectful, understanding and elevating to success....

For more than 100 years the rock has been a hard place.  The T.R.U.E. unit hopes to prove a softer touch can yield better results.  Officer James Vassar convinced coach Dan Kane at Presque Isle to take a shot on a prison inmate.  Now Shyquinn Dix is a big man on campus and the pride of the T.R.U.E. unit.  His jersey hangs on the wall.  A month after leaving, he was back at Cheshire.  Not as a repeat offender, but an inspiration.

April 1, 2019 in Prisons and prisoners | Permalink | Comments (1)

Sunday, March 31, 2019

Federal judge rules ADA requires Maine jail to provide woman with access to medication-assisted treatment during her 40-day term

As explained in this ACLU posting, a US District Court judge in Maine issued a notable ruling last week about prisoner rights and the ADA.  Here are the basics from the posting:

In a landmark decision, a federal judge has ordered the Aroostook County Jail to provide a Madawaska woman with access to medication-assisted treatment (MAT) for her opioid use disorder during her 40-day jail sentence, which is scheduled to begin on Monday.

The 28-page ruling comes in the case of Brenda Smith, who uses physician-prescribed buprenorphine to keep her opioid use disorder in remission. Lawyers for Smith argued that continuing this medication while in jail is essential to treating Smith’s medical condition, as well as preventing painful withdrawal symptoms and an increased chance of relapse, overdose and death upon release....

U.S. District Court Judge Nancy Torresen of the U.S. District Court for the District of Maine heard testimony from Smith as well as medical and corrections experts over the course of a week-long trial in February. In her ruling, Judge Torresen found that denial of MAT would cause serious and irreparable harm to Smith, and would violate the Americans With Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability, including against people in recovery for opioid use disorder....

Despite the medical consensus that MAT is safe and effective in combating substance use disorder, most Maine jails have policies explicitly prohibiting this treatment for incarcerated people. The Maine Department of Corrections had a similar ban until it was lifted by an Executive Order from Gov. Mills on February 6, 2019.

Noting the high risk of overdose and death for people who suffer from opioid use disorder, Judge Torresen wrote that, "[g]iven the well-documented risk of death associated with opioid use disorder, appropriate treatment is crucial. People who are engaged in treatment are three times less likely to die than those who remain untreated."

Additionally, Judge Torresen found that the Aroostook County Jail’s prior refusal to provide access to MAT was “consistent with the broader stigma against MAT observed by [plaintiff’s expert] Mr. Hayes, who noted that correctional staff often resist providing MAT because they equate MAT to giving addicts drugs rather than giving people treatment.”

The full ruling, which is available at this link, gets started this way:

Plaintiff Brenda Smith’s doctor has prescribed her a twice-daily dose of buprenorphine as part of a medication-assisted treatment (“MAT”) program for her opioid use disorder.  Ms. Smith brings this lawsuit against Defendant Aroostook County and against Defendant Shawn Gillen, in his official capacity as Sheriff of Aroostook County, alleging that the Defendants’ refusal to allow her to continue taking her medication during her impending 40-day term of incarceration at the Aroostook County Jail (the “Jail”) violates the Americans with Disabilities Act (“ADA”) and the Eighth Amendment.  Before me is the Plaintiff’s motion for a preliminary injunction requiring the Defendants to provide her with access to her prescribed medication.  Pl.’s Mot. for Prelim. Inj. (ECF No. 9).  For the reasons that follow I GRANT the Plaintiff’s motion for a preliminary injunction.

Notably, the judge's ruling was based entirely on the ADA, and the judge expressly decided not to address the Eighth Amendment claim.  But the judge did drop this footnote suggesting where she might have been headed on that front:

The evidence presented in this action suggests that a scientific consensus is growing that refusing to provide individuals with their prescribed MAT is a medically, ethically, and constitutionally unsupportable denial of care.  E.g., Pl.’s Ex. 32.  Cognizant of the principle of judicial restraint and given my ruling that the Plaintiff is likely to succeed on her ADA claim, I sidestep the constitutional issue at this time. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”).

March 31, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Friday, March 29, 2019

New reform reports from Florida and Ohio with broader ideas and lessons

This week I came across two notable and reader-friendly reports that each focus on developments in one (swing) state and do so in ways that suggest broader ideas and lessons for reformers working in any jurisdiction. Here are links to these reports with some of their introductory text:

From the Urban Institute, "Smart Reforms to Prison Time Served Requirements in Florida":

Florida’s criminal justice policy decisions, including strict time served requirements, have resulted in an unsustainably large prison system.  The average length of time served in Florida prisons has risen dramatically in recent decades, far outpacing increases in other states and contributing to the state’s large prison population.  Adjusting the state’s inflexible time served requirement is one approach to reducing incarceration that could allow Florida policymakers to save money and invest instead in preventing crime and helping people succeed after coming home from prison.  This brief describes the results of an analysis that shows thousands of people in Florida’s prisons could be released at lower time served requirements, and, for the time they would have been in prison, would not be arrested.

From Alliance for Safety and Justice, Americans for Prosperity-Ohio, and The Buckeye Institute, "Building on Ohio’s sentencing changes to keep prison populations in check":

Bipartisan support for criminal justice reforms such as 2011’s Justice Reinvestment Initiative (HB 86), Targeted Community Alternatives to Prison (T-CAP) and probation reforms in the last biannual budget (HB 49), and SB 66 from the last general assembly allowed the state to minimally reduce the prison population and take steps to increase the use of local sentencing options to reduce recidivism and connect people to treatment.  These efforts, and reducing the use of confinement for juveniles, have garnered well-earned national attention, helped the state avoid or end costly litigation, and saved hundreds of millions of dollars on new prison construction.   

As lawmakers turn their attention to the new legislative session, the General Assembly has an opportunity to build on the success of their recent reforms to ensure Ohioans suffering from addiction have the tools necessary to become contributing members of society while potentially saving the state hundreds of millions of dollars every year.

Right now, Ohio spends $1.8 billion on corrections every year and, despite promises of decreased budgets because of reforms, corrections costs have risen.  There are numerous reasons for increased spending including inflation, healthcare costs for an aging prison population, and the Department of Rehabilitation and Correction granting tens of millions of dollars back to local governments. But one of the main reasons is that recent changes in the law have not led to the big reductions in prison populations that were projected because not as many people convicted of low-level felonies are being served locally as intended. 

March 29, 2019 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

"The Captive Lab Rat: Human Medical Experimentation in the Carceral State"

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

Human medical experimentation using captive, vulnerable subjects is not a relic of our American past. It is part of our present.  The extensive history of medical experimentation on the disabled, the poor, the mentally ill, and the incarcerated has been little explored. Its continuance has been even less discussed, especially in the legal literature.  The standard narrative of human medical experimentation ends abruptly in the 1970’s, with the uncovering of the Tuskegee syphilis study.  My research shows, however, that this narrative is incorrect and incomplete. The practice of experimenting on the captive and vulnerable persists, not just then but now.

Our current approach to human medical experimentation disregards informed consent and privacy, allowing the pharmaceutical and medical industries to play an outsized role in shaping clinical research.  The confusing amalgam of laws, rules and codes loosely governing such research almost entirely fail to regulate or prevent patient mistreatment and abuse.  Acquiring a true understanding of our system of mass incarceration requires us to unearth the hidden contours of our current experiments on the poor, the disabled, and the confined, and calls for a wholesale revision of the flawed legal and medical regime overseeing human medical experimentation.

March 29, 2019 in Prisons and prisoners, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, March 21, 2019

"Reduce prison populations by reducing life sentences"

The title of this post is the title of this new Washington Post piece authored by Daniel Nagin.  Here are excerpts:

The imprisonment rate in the United States is now five times larger than it was in the early 1970s, and most of that increase happened at the state level.  Marc Mauer and Ashley Nellis of the Sentencing Project have made a bold recommendation for unraveling mass incarceration — abolition of life sentences.  Most lifers are in state prisons.

Research demonstrates that increases in already long prison sentences, say from 20 years to life, do not have material deterrent effects on crime.  There is no good reason for believing that life sentences are a better deterrent than the Mauer-Nellis recommendation of a maximum sentence of 20 years.

The political and social causes for mass incarceration are complex, but the mechanism is easily described — the system sends more people to prison for longer periods of time. One unintended consequence of this is that our prisons have become old-age homes.  Between 1993 and 2016, the percentage of U.S. prisoners ages 50 or older grew from 5 percent to 20 percent, and the number of those ages 40 years or older more than doubled, from 17.9 percent to 40.4 percent.

From a public safety perspective, this makes no sense.  Decades of research by criminologists demonstrate that nature’s best cure for crime is aging — crime is a young man’s game.  The principal driver of the graying prison population is the growing proportion of lifers, mostly in state prison systems.  One in 7 U.S. prisoners is now serving life or a virtual life sentence, a total of more than 200,000 people.  In 1984, there were only about 34,000 lifers....

The Mauer and Nellis proposal for complete abolition of life sentences is probably a bridge too far for our elected state legislators and governors.  But more moderate changes, such as reducing the use of life sentences and increasing the possibility of eventual parole for those serving life, could have a significant effect without jeopardizing public safety.

March 21, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Tuesday, March 19, 2019

"Mass Incarceration: The Whole Pie 2019"

Pie2019The Prison Policy Initiative has today posted the latest, greatest version of its remarkable incarceration "pie" graphic and associated report on the particulars of who and how people are incarcerated in the United States.  The extraordinary pies produced by PPI impart more information in one image than just about any single resource I can think of.  Here is part of the report's introductory text and the concluding discussion on my favorite law-nerd version of pie day:

Can it really be true that most people in jail are being held before trial?  And how much of mass incarceration is a result of the war on drugs?  These questions are harder to answer than you might think, because our country’s systems of confinement are so fragmented.  The various government agencies involved in the justice system collect a lot of critical data, but it is not designed to help policymakers or the public understand what’s going on.  As public support for criminal justice reform continues to build, however, it’s more important than ever that we get the facts straight and understand the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement.  The American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities, 3,163 local jails, and 80 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.  This report provides a detailed look at where and why people are locked up in the U.S., and dispels some modern myths to focus attention on the real drivers of mass incarceration.

This big-picture view allows us to focus on the most important drivers of mass incarceration and identify important, but often ignored, systems of confinement.  The detailed views bring these overlooked systems to light, from immigration detention to civil commitment and youth confinement.  In particular, local jails often receive short shrift in larger discussions about criminal justice, but they play a critical role as “incarceration’s front door” and have a far greater impact than the daily population suggests.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities, nor the far larger universe of people whose lives are affected by the criminal justice system.  Every year, over 600,000 people enter prison gates, but people go to jail 10.6 million times each year.  Jail churn is particularly high because most people in jails have not been convicted.  Some have just been arrested and will make bail within hours or days, while many others are too poor to make bail and remain behind bars until their trial.  Only a small number (less than 150,000 on any given day) have been convicted, and are generally serving misdemeanors sentences under a year....

Now that we can see the big picture of how many people are locked up in the United States in the various types of facilities, we can see that something needs to change.  Looking at the big picture requires us to ask if it really makes sense to lock up 2.3 million people on any given day, giving this nation the dubious distinction of having the highest incarceration rate in the world.  Both policymakers and the public have the responsibility to carefully consider each individual slice in turn to ask whether legitimate social goals are served by putting each group behind bars, and whether any benefit really outweighs the social and fiscal costs.

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

March 19, 2019 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Monday, March 18, 2019

"Don't Overlook First Step Act Pilot Programs"

The title of this post is the title of this notable new Law360 commentary authored by By Addy Schmitt and Ian Herbert.  I recommend the piece in full, and here are excerpts (with footnotes omitted):

Much attention has been paid to the provisions in the law designed to address systemic issues for defendants in drug cases.... The First Step Act also includes numerous changes to address quality-of-life issues for current inmates and to help individuals transition back to society following their incarceration....

However, two programs are particularly notable because of the potential they hold to reduce prison sentences for certain prisoners by up to one-third.  The first is a pilot program that will allow the Bureau of Prisons to release to home confinement inmates over 60 years old who have served at least two-thirds of their sentences.  The second is a recidivism reduction program that will allow prisoners to earn credit worth up to one-third of their sentences for participation in programming designed to reduce recidivism.

Both programs have their faults and come with caveats.  As others have written, Congress gave the attorney general great power to decide how to implement the programs, which could hamper their effectiveness.  But combined, the two programs have the potential to offer substantial reductions in sentences, particularly to elderly and nonviolent prisoners....

One of the most profound changes that the First Step Act makes for currently incarcerated individuals is to reauthorize and expand a pilot program that allows for early release to home confinement for elderly, nonviolent prisoners.

The pilot program was created by the Second Chance Act of 2007, but it contained some important restrictions that reduced the impact of the program.  First, it was not required at all BOP facilities.  Second, it only applied to prisoners over 65 years old who had served the greater of 75 percent of their sentence or 10 years in prison.  Third, prisoners who were serving life sentences or who had been convicted of crimes of violence, sex offenses or terrorism-related offenses were ineligible, as were prisoners who attempted to escape.

The First Step Act changed the first two of these restrictions (though it left the requirements in the third).  The First Step Act directed the attorney general to make the program available at all BOP facilities, reduced the eligibility age to 60 years old, reduced the amount of time that a prisoner had to serve before being eligible from 75 percent to two-thirds of his or her sentence, and, most importantly, removed the requirement that the prisoner must serve at least 10 years prior to becoming eligible.

The result of these changes is that nonviolent prisoners over 60 could serve as much as one-third of their prison sentence in home confinement rather than in a BOP facility.

Unfortunately, these substantial reductions in terms of imprisonment are not yet guaranteed.  Though the law says that the attorney general “shall conduct a pilot program” in all facilities, it does not require release of anyone, saying only that the attorney general “may release some or all eligible elderly offenders” to home confinement.

However, while the attorney general is not required to release any prisoners under the pilot program, a separate provision of the First Step Act mandates that the BOP shall “to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted” under the law.  Thus, the elderly release pilot program, coupled with the directive to move low-risk prisoners to home confinement, sends a clear signal that Congress intended for the attorney general to utilize the benefits of home confinement.

The pilot program began with the start of fiscal year 2019, and the attorney general is given authority to release eligible offenders upon written request from the BOP or prisoners who meet the criteria described above.  For that reason, nonviolent prisoners over 60 years old who have served more than two-thirds of their sentence should request to take part in the program immediately.

March 18, 2019 in FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, March 17, 2019

Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act

In this post last month, which was titled "Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?," I speculated about the possible impact of a key change of the FIRST STEP Act allowing federal courts to directly reduce sentenced under compassionate release statutory provisions.  Excitingly, in recent days I have seen two article reporting on encouraging action in this arena:

From the Houston Chronicle, "‘Pill mill’ doctor among first released under law for dying prisoners"

From NPR, "Seriously Ill Federal Prisoners Freed As Compassionate Release Law Takes Effect"

Here is an excerpt from this latter piece:

FAMM's Facebook group has been sharing information about how to prepare petitions for release. And the group's lawyers are doing what they can to support families seeking help, too.

"Now, thanks to the First Step Act, when I hear from someone struggling with the compassionate release process, I don't have to say, 'I'm sorry,' " FAMM general counsel Mary Price told NPR.  "Instead, I can say, 'Let me see if I can find you a lawyer.' "

Price said the new possibilities opened up by the law have changed her work. "It is the most amazing feeling to work with the many lawyers who are filing and beginning to win compassionate release motions for prisoners who I know would never have made it to court, were it up to the BOP."

A few prior related posts:

March 17, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

"Criminal justice reform must do more than shrink prison populations"

The title of this post is the headline of this recent Hill commentary authored by David Harding, Jeffrey Morenoff and Jessica Wyse. I recommend the full piece, and here are excerpts:

Senator Cory Booker (D-NJ) introduced the Next Step Act on March 7, an expansion of the criminal justice reform started with December’s First Step Act.  We applaud the Next Step Act for essential reforms, including reducing mandatory minimums for nonviolent drug offenses.

Yet, reversing the harms that have been created by decades of mass incarceration and an overly punitive and racially-biased criminal justice system requires more than reversing past policy mistakes.  Reform should go beyond shrinking prisons to providing those whose lives have been impacted by mass incarceration with real opportunities that lead to reintegration into society after release....

[R]eintegration requires more than just determination and work ethic, a key finding of our three-year study of the day-to-day lives of formerly incarcerated individuals. About a third struggle with hunger, homelessness and housing instability.

Chronic physical and mental health problems are also common.  Jobs are scarce for those with criminal records, who disproportionately move into communities like Detroit with high unemployment.  Half of those released from prison return within three years.  The period immediately after release is both a time of great risk and an opportunity to ensure that each person starts with a strong foundation of health and material security.

This “re-entry moment” is one of optimism, commitment to a new life and family support, but also a critical time of struggle with hunger, homelessness, employment and sobriety.  Investments in housing, health and employment services during the re-entry moment can create that foundation.

The Next Step Act contains worthy provisions for removing barriers to employment, including certain occupational licensing barriers for those with criminal records.  Yet our research shows that securing a job is only part of the reason for low rates of employment after release.

Education is essential to improving reintegration into the labor force.  Formerly incarcerated workers experience high rates of job turnover, in part because that is common in the low-skill jobs they find.  To improve employment for those like Randall, we should empower more community colleges to offer prison education with a seamless transition into community programs.

Time in prison can be better used to prepare for release.  Research shows that intensive treatment and prison education programs reduce recidivism, and incarcerated individuals are eager to take part in them.  Yet too many prisoners sit idle during their time in prison or engage in make-work jobs like cleaning and gardening....

Just as the federal government supports local efforts in education, health care and policing, it can support state and local reintegration efforts through funding, technical support and evaluation of promising programs.

Can we afford to support reintegration?  Each federal prisoner costs almost $32,000 a year, and in some states that figure is over $80,000.  The money saved by reducing imprisonment can create a virtuous cycle if it is reinvested in reintegration, which will result in fewer people returning to prison.

March 17, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

Monday, March 11, 2019

New indictment exposes underbelly of federal RDAP program ... and provides still more reason to be thankful for passage of FIRST STEP Act

This interesting new AP piece, headlined "Show up drunk: Indictments spotlight prison rehab scams," reports on indictments surrounding efforts to defraud the only long-standing federal prison program thathas  allowed prisoners to earn reductions in their rehabilitative efforts.  Here are the details:

It's a tip that has been passed onto convicts for years: On your way to federal prison, say you have a substance abuse problem, and you could qualify for a treatment program that knocks up to a year off your sentence.

Federal prosecutors have long suspected abuses in the program, which has enrolled a deep list of high-profile convicts.  Recently, a grand jury in Connecticut indicted three people accused of coaching ineligible convicts on how to get into the Residential Drug Abuse Program, or RDAP, by telling them to show up to prison intoxicated and fake withdrawal symptoms. The charges are among the first filed against prison consultants involving the program.

The case has put a spotlight on the unregulated world of prison consulting, in which some ex-convicts and former prison employees charge thousands of dollars for their inside knowledge to help people prepare for life behind bars. Some consultants say there has been wrongdoing in the industry for decades, including encouraging clients to scam their way into the rehab program.

The small industry now is "totally the Wild West," said Jack Donson, president of New York-based My Federal Prison Consultant and a retired federal Bureau of Prisons employee. "I hope it brings light to things," he said, referring to the Connecticut case.  "I hope it gives people ... pause to not cross that line to illegality and unethical conduct."

Completing the nine-month, 500-hour treatment program for nonviolent offenders is one of only a few ways inmates can get their sentences reduced. About 15,600 inmates — nearly 10 percent of the current federal prison population — participated in the program last year, and thousands more are on waiting lists. To get in, convicts must present evidence they had substance abuse or addiction problems during the year prior to their arrest. Upon completion, their sentences can be reduced and they can spend the last six months of their sentences in a halfway house.

Christopher Mattei, a former federal prosecutor in Connecticut, said the U.S. attorney's office increasingly saw white-collar convicts make use of the program. "It undermines the public's confidence that all people when they go before a court for sentencing will be treated fairly.  People who know how to game the system know how to get the benefits, whereas people who are struggling with addiction don't know all the angles to play," said Mattei, former chief of the financial fraud and public corruption unit in the Connecticut U.S. attorney's office....

The criminal indictments in Connecticut are believed to be among the first criminal charges filed against prison consultants in connection with the treatment program. Arrested were Michigan residents Tony Pham, 49, and Samuel Copenhaver, 47, both of Grand Rapids; and Constance Moerland, 33, of Hudsonville.  The three were managing partners in RDAP Law Consultants, authorities said.

Prosecutors said the three told clients over the past six years to falsely inform Bureau of Prisons officials that they had drug and alcohol problems, taught them how to fake withdrawal symptoms and how to fraudulently obtain medication to treat withdrawal symptoms, so they could show prescriptions to qualify for the program. The partners also told their clients to begin drinking alcohol daily before going to prison and to show up drunk, the indictments said....

Last year in New York City, a lawyer and three other people were charged with defrauding the government and making false statements. They allegedly submitted bogus information to prison officials, claiming that a convicted drug dealer had a history of addiction, in an effort to get the client into the drug treatment program so he could be released early. The case remains pending.

Other consultants coach people on how to lie to get into the program, according to Donson, who said some also claim they can get convicts sent to prisons that have the RDAP program when only federal prison officials have that authority. He said he sees potential for fraud also as consultants rush to offer help related to a new law that allows federal prisoners sentenced for crack cocaine offenses before late 2010 the opportunity to petition for a lighter penalty.

Donson and other consultants say more monitoring of the industry and prosecutions would help deter misconduct. "It's an unregulated industry, so something like this hopefully brings some attention to it," said Dan Wise, an ex-con who completed the RDAP program and now runs a prison consultant business based in Spokane, Washington.

I think it important for the feds to appropriately police the RDAP program to ensure defendants who are truly struggling with addiction are able to access a program with finite resources. But this article fails to highlight that defendants' efforts to sneak into the RDAP program was a symptom of a broader disease, namely that federal prisoners have historically had precious few means to seek to earn reductions in their sentences. Thankfully, the FIRST STEP Act is a significant step toward treating this disease, as it provides an elaborate set of mechanisms for allow some prisoners to earn reductions through other rehabilitative efforts. But, critically, the FIRST STEP Act has a number of problematic exclusions and restrictions on which prisoners can earn reductions AND there is reason to worry that poor implementation of the FIRST STEP could lead to privileged prisoners again being better able to access programming and reduction that should be made properly available to as many prisoners as possible.

Without know more about the indictments and underlying facts referenced in this AP article, I am disinclined to comment directly on whether federal prosecution of prison consultants may be the most efficient and effective way to police the administration of prison programming. But I am eager to encourage everyone involved in counseling defendant and prisoners to be honest and straight-forward in their dealing or else prisoners and their families are likely to be the ultimate victims.

March 11, 2019 in FIRST STEP Act and its implementation, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Friday, March 08, 2019

"3 more steps to make 'First Step Act' work"

The title of this post is the headline of this recent Hill commentary authored by Jessica Jackson. Here are excerpts:

The First Step Act aims to transform the federal prison system, prioritize rehabilitation over punishment, and reform some of our nation’s harshest prison sentences — remnants of the outdated War on Drugs.  While getting any meaningful legislation signed into law is worthy of celebration, in most cases it is just the beginning of a much longer battle. The hard work — the part that goes mostly unnoticed — is turning intentions into actual programs, procedures and outcomes for real people. To meet those goals, the Trump administration and Congress must follow through and implement the law quickly, fully and fairly.

Some of the most important provisions have taken effect immediately....  A total of four sentencing reforms began to take effect in courtrooms across the country the day after the bill was signed. In total, they will impact 25,000 defendants every year.

But challenges to fully implementing other provisions have been significant.  Just hours after President Trump signed the First Step Act into law, the federal government entered what would become the longest partial shutdown in history.  Key employees at the Department of Justice and White House were furloughed.  To add to the chaos, the Senate had not yet confirmed an attorney general.  The Bureau of Prisons has not had a permanent director since May 2018, when Mark Inch resigned.

Because of the lack of permanent leadership and the heated battle over border security funding, the first deadline laid out in the First Step Act came and went without effective action.  By Jan. 21, the Department of Justice was supposed to form an Independent Review Committee, which would be responsible for working with the Bureau of Prisons to create a new Risk and Needs Assessment across the federal prison system. One of the most critical components of the new law, the Risk and Needs Assessment System is relied upon by other key provisions.  The Review Committee has not yet been formed and further delays could significantly derail implementation efforts....

Now that leaders in Congress have reached a budget deal to fund the government through September and Attorney General William Barr has taken his oath of office, implementation of the First Step Act must pick up the pace and make up for lost time.

First, Attorney General Barr should nominate a permanent Director of the Bureau of Prisons and establish a credible and committed leader to steer the Bureau into a better future....

Second, Congressional Appropriations committee members must continue the bipartisan spirit that carried the First Step Act onto President Trump’s desk.  They can do so by fully funding the bill in Fiscal Year 2020.  This funding will allow for the valuable programming that will help people change their lives and earn time off the amount of time they have to serve behind the prison bars.

In fact, appropriators gave BOP $200 million more than the president’s budget requested, leaving ample flexibility to begin to implement the bill’s provisions.  As passed, First Step will require $75 million a year for five years to fund the expansion of prison programming and reentry preparedness.  This funding will become necessary after the Risk Assessment system is completed.  It will also allow people inside the prisons to take valuable, life-changing classes to prepare them to come home job-ready.

Finally, Congress must wield its oversight powers to ensure that implementation moves forward effectively and efficiently.  It is important to note that I am not calling for partisan hearings where House Democrats can score political points beating up on the administration’s failings.  Nor am I calling for opportunities for hard-line Senate Republicans to continue to trumpet the alleged dangers of being “soft on crime.”

Now that the First Step Act is the law of the land, both parties have good reason to keep a close watch. President Trump championed this bill as a rare bipartisan win for his administration.  Democrats vying for their party’s nomination have campaigned on the impact the bill will have on our justice system.  Nobody wins and everybody loses (most of all people in prison and their loved ones) if the First Step does not live up to its promise.

March 8, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (1)