Sentencing Law and Policy

Highlighting still more notable new Inquest essays

I continue to struggle to find time to keep up with the steady stream of great pieces regularly posted at Inquest.  As regular readers know from my regular postings, Inquest, "a decarceral brainstorm," keeps churning out must-read essays, and I try to keep up just by flagging here some of the recent sentencing/prison pieces folks may want to be sure check out:

By Katharine Blake, "A New Clarity: In search of an abolitionist language"

By Marcus Kondkar, "Face to Face: The Visiting Room offers an intimate glimpse into the stories of Louisianians serving life without parole"

By Abbe Smith, "Bars and Barriers: Far from a decarceral plan, 'Barred' is nonetheless a trenchant look at how the criminal system fails the innocent and guilty alike"

By Candice Delmas, "A Weapon of Last Resort: It's time to reconsider the power and promise of hunger strikes — without denying the tactic’s radical, disruptive, and violent character"

District Court finds sexual assault by guard and assistance prosecuting perpetrator provide basis for sentence reduction under 3582(c)(1)(A)

A helpful reader alerted me to a notable new opinion from a federal district court in US v. Brice, No. 13-cr-206-2 (ED Pa. Dec. 15, 2022) (available fore download below), which finds “extraordinary and compelling” reasons warranting a sentence reduction in the defendant's sexual assault by a federal corrections officer and her assistance to prosecutors in bringing that officer to justice.  Here is hope the Brice opinion gets started as a key passage: 

This case presents a difficult question under the First Step Act for compassionate release and involves balancing the disturbing conduct underlying Defendant Rashidah Brice’s conviction with the extraordinary and compelling events that occurred after sentence was imposed.  For reasons explained below, I will partially grant Brice’s motion and reduce her sentence by 30 months but will not order her release as she has requested.  Although Brice’s circumstances are extraordinary and compelling and warrant a reduction from her original sentence, due to the serious and violent nature of her crimes and their effect on the victims, I find that releasing Brice now would not be consistent with the sentencing factors of 18 U.S.C. § 3553(a)....

It is entirely appropriate for me to consider how Brice responded to suffering abuse at the hands of her prison guards. The “broad discretion” federal courts have “to consider all relevant information” at a “proceeding[] that may modify an original sentence” is “bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”  Concepcion v. United States, 142 S. Ct. 2389, 2398 (2022). That Brice reacted to her trauma by agreeing to assist in the prosecution of her assailant supports a finding that Brice’s disproportionate suffering while in custody “warrant[s] . . . a reduction” in her sentence and that these circumstances are extraordinary and compelling.  Despite facing tremendous adversity both in her personal life before prison and at the hands of a prison guard, Brice responded by preventing more inmates from being abused, including cooperating in an investigation regarding individuals who had authority over her and could have retaliated against her.  I also note that Congress and the Department of Justice have determined that “[p]rison rape often goes unreported,” 34 U.S.C. § 30301(6), and “retaliation for reporting instances of sexual abuse and for cooperating with sexual abuse investigations is a serious concern in correctional facilities.” Department of Justice, National Standards To Prevent, Detect, and Respond to Prison Rape, 77 F.R. 37106-01 (June 20, 2012).

Download BRICE sentence reduction opinion

The helpful reader who brought this ruling to my attention indicated this may be "the first time a federal court has concluded that either of these circumstances warrants compassionate release." The reader also rightly stated that this decision "is particularly timely, as Congress and Department of Justice leadership have been pressing the Bureau of Prisons to seek compassionate release for women abused behind bars."

"Do Prison Conditions Change How Much Punishment A Sentence Carries Out? Lessons From Federal Sentence Reduction Rulings During the COVID-19 Pandemic"

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

A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment — as contrasted with prison conditions — as the sole determinant of how much punishment a sentence carries out.  Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions.  Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions.  The BOP used this authority almost exclusively for people who were in the final stages of terminal illness.  The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard.  The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so.

Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons.  Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment.  This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws — including second looks — as well as efforts to increase transparency surrounding life inside prisons.

Another ugly report about some ugly realities involving prison rape by guards in federal prisons

This new Reason article discusses a new disconcerting report emerging from the US Senate.  The piece is fully headlined, "Senate Investigation Finds Federal Prisons Fail to Prevent or Investigate Rapes; Long delays and management failures 'allowed serious, repeated sexual abuse in at least four facilities to go undetected'."  Here is how it gets started:

The federal Bureau of Prison's deeply flawed, backlogged system for investigating sexual assault fails to protect female inmates from rape while protecting employees who commit sexual assault, according to a bipartisan report issued today by the Senate Permanent Subcommittee on Investigations (PSI).

The PSI investigation found that the Bureau of Prisons (BOP) has failed to implement a federal law to prevent prison rapes, and that long delays in investigating complaints have led to a backlog of more than 8,000 internal affairs cases, leading to failures to hold employees accountable. The report says that these management failures "allowed serious, repeated sexual abuse in at least four facilities to go undetected."

"BOP's internal affairs practices have failed to hold employees accountable, and multiple admitted sexual abusers were not criminally prosecuted as a result," the report concludes. "Further, for a decade, BOP failed to respond to this abuse or implement agency-wide reforms."

Overall, the PSI investigation found that BOP employees sexually abused female inmates in at least two-thirds of federal women's prisons over the last decade.  However, the report focused on four prisons — MCC New York, MDC Brooklyn, FCC Coleman, and FCI Dublin — where it says multiple BOP employees abused multiple women.

The 68-page report from the Senate PSI is available at this link.  It makes for hard, but important, reading.

Rounding up some particularly recent ugly prison stories

Following incarceration news and commentary leads me to see, all too often, all sorts of discouraging reports about life in prison. I will sometimes post some of these reports, but they are really too frequent to cover fully in this space.  Just in the last week, for example, I have seen so many of these kinds of pieces from so many sources that I thought a round up was in order:

From the AP, "AP Investigation: Prison boss beat inmates, climbed ranks"

From CNN, "Justice Dept. report outlines series of mistakes that led to prison beating death of Boston gangster Whitey Bulger"

From The Intercept, "Incarcerated People Forced To Do Dangerous Work For “Slave” Wages At Height Of Pandemic"

From The Mashall Project, "Federal Prisons Were Told to Provide Addiction Medications. Instead, They Punish People Who Use Them."

From NBC News, "No food in 9 days for 19 Nevada prisoners on hunger strike"

From the New York Times, "Some Prisoners Remain Behind Bars in Louisiana Despite Being Deemed Free"

From Salon, "Your child's glasses may have been made with forced prison labor"

New Sentencing Project report covers "Why Youth Incarceration Fails: An Updated Review of the Evidence"

Via email, I learned of this lengthy new report from The Sentencing Project titled "Why Youth Incarceration Fails: An Updated Review of the Evidence."  Here is the start of the report's executive summary:

Though the number of youth confined nationwide has declined significantly over the past two decades, our country still incarcerates far too many young people.

It does so despite overwhelming evidence showing that incarceration is an ineffective strategy for steering youth away from delinquent behavior and that high rates of youth incarceration do not improve public safety.  Incarceration harms young people’s physical and mental health, impedes their educational and career success, and often exposes them to abuse.  And the use of confinement is plagued by severe racial and ethnic disparities.

This publication summarizes the evidence documenting the serious problems associated with the youth justice system’s continuing heavy reliance on incarceration and makes recommendations for reducing the use of confinement. It begins by describing recent incarceration trends in the youth justice system.  This assessment finds that the sizable drop in juvenile facility populations since 2000 is due largely to a substantial decline in youth arrests nationwide, not to any shift toward other approaches by juvenile courts or corrections agencies once youth enter the justice system. Most youth who are incarcerated in juvenile facilities are not charged with serious violent offenses, yet the United States continues to confine youth at many times the rates of other nations.  And it continues to inflict the harms of incarceration disproportionately on Black youth and other youth of color -- despite well-established alternatives that produce better outcomes for youth and community safety.

"Freedom Denied: How the Culture of Detention Created a Federal Jailing Crisis"

The title of this post is the title of a remarkable 280-page report produced by Alison Siegler and the Federal Criminal Justice Clinic at the University of Chicago Law School. Here is the start of its executive summary:

Over thirty years ago, the Supreme Court held that people charged with federal crimes should only rarely be locked in jail while awaiting trial: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”  Given that everyone charged with a crime is presumed innocent under the law, federal judges should endeavor to uphold the Court’s commitment to pretrial liberty.

This Report reveals a fractured and freewheeling federal pretrial detention system that has strayed far from the norm of pretrial liberty.  This Report is the first broad national investigation of federal pretrial detention, an often overlooked, yet highly consequential, stage of the federal criminal process.  Our Clinic undertook an in-depth study of federal bond practices, in which courtwatchers gathered data from hundreds of pretrial hearings.  Based on our empirical courtwatching data and interviews with nearly 50 stakeholders, we conclude that a “culture of detention” pervades the federal courts, with habit and courtroom custom overriding the written law.  As one federal judge told us, “nobody’s . . . looking at what’s happening [in these pretrial hearings], where the Constitution is playing out day to day for people.”

Our Report aims to identify why the federal system has abandoned the norm of liberty, to illuminate the resulting federal jailing crisis, and to address how the federal judiciary can rectify that crisis.  This Report also fills a gaping hole in the available public data about the federal pretrial detention process and identifies troubling racial disparities in both pretrial detention practices and outcomes.

Federal pretrial jailing rates have been skyrocketing for decades. Jailing is now the norm rather than the exception, despite data demonstrating that releasing more people pretrial does not endanger society or undermine the administration of justice. Federal bond practices should be unitary and consistent, since the federal bail statute — the Bail Reform Act of 1984 (the BRA) — is the law of the land and governs nationwide. Yet this study exposes a very different reality than that envisioned by the Supreme Court, one in which federal judges regularly deviate from and even violate the law, and on-the-ground practices vary widely from district to district.

"Dying Inside: To End Deaths of Despair, Address the Crisis in Local Jails"

The title of this post is the title of this notable new issue brief that was produced by folks with the Addiction & Public Policy Initiative of the O’Neill Institute for National and Global Health Law (and, full disclosure, that was supported by funding from the Drug Enforcement and Policy Center).  Here is the starting text of the interesting eight-page document:

U.S. life expectancy has declined in recent years, primarily due to a series of converging public health crises that resulted in deaths from overdoses, suicides, and alcohol-related liver disease, sometimes referred to as “deaths of despair.”  More recently, COVID-19 has accelerated this trend.  These bleak numbers shine a spotlight on the historic challenges of treating medical conditions, mental health conditions, and substance use disorder (SUD), particularly in settings like local jails, which are traditionally separate from the general health care system.

Individuals entering jails and other correctional settings are more likely to have a chronic health condition or infectious disease, resulting in an increased risk to their physical health and well-being while incarcerated.  A close look at statistics from local jails demonstrates that, far from being a safe haven from these converging crises, a failure to prioritize implementation of adequate policies and protocols addressing these issues in many local jails are fueling these crises for the individuals inside and everyone in our communities.

According to the latest data available from 2018-2019, deaths in jail custody have increased.  Each and every one of these lost lives is a tragedy.  In addition to the human cost, deaths in jail custody also account for hundreds of millions of dollars in financial costs and legal liability for governments and jail personnel.

Efforts at the local, state, and federal levels have begun a shift toward adopting more public healthoriented approaches in correctional settings, largely driven by an acknowledgement that addressing the health care and treatment needs of incarcerated people can positively impact both these individuals and the overall health of communities.  However, government leaders and advocates at every level must undertake significant policy and practice changes to reduce deaths in jail custody and accelerate reform.

This brief outlines the legal framework on the right to adequate care and treatment for medical, mental health, and substance-related conditions in jails.  The brief also highlights the findings of original research on litigation related to deaths in jail custody and provides recommendations for reform.

Two of the authors of this report, Regina LaBelle and Shelly Weizman, authored this related commentary in The Hill titled "We can’t ignore the ties binding US deaths of despair and incarceration."

New Justice Department memo calls for "Prioritizing Restitution for Victims"

As detailed in this Washington Post piece, headlined "Prosecutors urged to more aggressively seize funds owed to crime victims," there is a notable new memo from the US Deputy Attorney General Lisa Monaco.  Here are details and context from the press piece:

A new Justice Department memo issued Monday seeks to address criticism that the agency has shielded inmates’ money meant to go to the victims of their crimes, urging prosecutors to more aggressively pursue court cases to seize those funds....

The Washington Post has previously reported that a number of high-profile inmates, including former USA Gymnastics doctor Larry Nassar, singer R. Kelly and Boston Marathon bomber Dzhokhar Tsarnaev have kept and spent thousands of dollars with their prison accounts, while paying only small amounts of court-ordered restitution to their victims. In each of those cases, prosecutors went to court to force the Bureau of Prisons to turn over the money — a process that has been criticized as unfair to victims and counterproductive since it requires one arm of the Justice Department to go to court against another arm of the same department.

Deputy Attorney General Lisa Monaco wrote the memo Monday to “encourage prosecutors to file restitution pleadings or to include restitution calculations in sentencing” documents. “Prosecutors should request that sentencing courts order that restitution be due and payable immediately, but if courts order otherwise, prosecutors should propose that payment plans be set at ‘the shortest time in which full payment can reasonably be made,’” the memo says.

Jason Wojdylo, who spent years at the U.S. Marshals trying to get the Bureau of Prisons to change its policy on inmates’ accounts and has since retired from government, called Monaco’s new memo “maddening” because “it does nothing to address the problem.” For years, Wojdylo said, federal prosecutors “have been doing everything they can to collect court-imposed debt inmates owe to victims,” and without any help from the Bureau of Prisons. Wojdylo said that’s apparently because the inmates often use that money to buy things from the prison commissary system, and that system ultimately pays for tens of millions of dollars in prison worker salaries every year.

In response to Wojdylo’s criticism, a Justice Department official said: “Ensuring victims can recover restitution from inmate trust accounts has been a priority for the Deputy Attorney General and the entire Justice Department. This directive to prosecutors is just one piece of an ongoing effort across the Department to accomplish this goal. We look forward to continuing progress in the near term.”

Under the current system, there are no limits on how much money inmates can keep in their prison accounts, and last year The Post reported that roughly 20 inmates kept at least $100,000 apiece in their prison accounts. The agency only requires inmates to pay a minimum of about $9 a month toward whatever restitution they owe, though officials say they encourage inmates to pay more.

The two-page memo from the DAG is dated December 2, 2022 and has the subject line of "Prioritizing Restitution for Victims." Here are the first two paragraphs of the six-paragraph memo:

On October 1, 2022, the Attorney General published revised Guidelines for Victim and Witness Assistance.  Those Guidelines make clear that the Department is responsible not only for ensuring that those who commit crimes are prosecuted vigorously but also for achieving justice for victims.  Because crimes can have a devastating financial effect on victims, the Department is responsible for ensuring that "victims receive full and timely restitution." Guidelines art. V, § H.  That obligation extends throughout the life ofa case, including after judgment is entered.

Under the Crime Victims' Rights Act, a crime victim has the right to "full and timely restitution as provided by law." 18 U.S.C. § 377l(a)(6).  The Department's prosecutors should therefore be proactive in enforcing court-ordered restitution obligations, including where funds are held in accounts maintained by the Federal Bureau ofPrisons (BOP) in trust during an inmate's period of incarceration.  Last year, I instructed BOP to strengthen monitoring and reporting related to these accounts, consistent with applicable law.  Pursuant to that directive, BOP has since enhanced guidance on monitoring inmate accounts; improved coordination with law enforcement partners, including the U.S. Marshals Service (USMS), on investigating and taking appropriate action against suspicious activity; and identified funds that should be encumbered to meet financial obligations.  BOP is also strengthening the Inmate Financial Responsibility Program to apply additional funds towards restitution and has partnered with other Department ofJustice components and federal agencies to ensure that funds are used to help meet those obligations.

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected Under the First Step Act, 2022"

Via email this morning, I learned of this 25-page report produced by DOJ's Bureau of Justice Statistics. This BJS webpage provides this discriptive overview and these "highlights":

This is the fourth report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons for calendar year 2021.  Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site healthcare, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

• The federal prison population increased more than 3%, from 151,283 at yearend 2020 to 156,542 at yearend 2021.
• In 2021, a total of 74 pregnant females were held in BOP-operated prison facilities, a 19% decrease from 2020 (91).
• During 2021, a total of 378 prisoners were receiving medication-assisted treatment (MAT) approved by the U.S. Food and Drug Administration to treat a substance use disorder prior to their admission to federal prison, and 1,127 prisoners received MAT while in custody.
• In 2021, a total of 17,252 federal prisoners participated in a nonresidential substance use disorder treatment program, while 10,919 participated in a residential program.

BOP reports that all federal inmates have been moved out of private prisons

As this ABC News piece reports, all "federal inmates housed in private prisons have been moved to Bureau of Prisons facilities and the agency has ended all contracts with private facilities, officials said." Here is more:

Last year, in one of his first actions in office, President Joe Biden signed an executive order directing BOP to move all inmates to federal facilities, rather than have them housed in private facilities.  "We have never fully lived up to the founding principles of this nation, to state the obvious, that all people are created equal and have a right to be treated equally throughout their lives," Biden said just before signing the actions in January 2021.  "And it's time to act now, not only because it’s the right thing to do. Because if we do, we'll all be better off."...

Advocates, including the ACLU, have said that private prisons reap lucrative financial rewards while taking advantage of people who are behind bars.

On Nov. 30, the McRae Correctional Facility in McRae, Georgia, was closed, making it the final facility to shutter its doors. Biden signed an order directing the attorney general to not renew contracts the Department of Justice has with privately-operated criminal detention facilities.  As expected it took about a year to complete the transition.

"BOP and privately managed facilities remained positive, while maintaining transparency and accountability," a release from BOP said.  "BOP inmates housed in these private prisons have been transferred to BOP facilities.  In the mid-1980s, the BOP began designating low security inmates with specialized needs, such as sentenced criminal aliens, to privately managed facilities to better manage the increasing population.  Over time, the BOP maintained contracts for 15 facilities, housing approximately 29,164 inmates. The overall BOP population peaked in 2013, with over 219,000 inmates."

The head of the Bureau of Prisons union told ABC News that the prison population has declined to a point where private prisons aren't needed, and has said previously the agency supports the president's decision to shutter private prisons.  "The fact remains that our population has declined to the point where we can safely return offenders who were temporarily housed in private prisons to vacant BOP facilities," Shane Fausey, president of the Council of Prison told ABC News through a text message. "The reality is additional beds are no longer needed and the most cost effective measure is not to renew or further private prison contracts at this time."

Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence

As reported in this new press piece, "District Judge Edward Davila has proposed sentencing Theranos founder Elizabeth Holmes to a federal prison camp in Texas, according to court filings." Here is more:

“The Court finds that family visitation enhances rehabilitation,” Davila wrote in the filing, according to Bloomberg, which summarized the terms of Holmes’ sentencing.

The prison camp is located in Bryan, Texas, and was proposed as an alternative to Holmes serving her 11-year 3-month sentence at a California prison.  There’s a few prison camps like this one across the country that typically have a low security-to-inmate ratio, dormitory housing, and a work program. “...compared to other places in the prison system, this place is heaven.  If you have to go it’s a good place to go.” Alan Ellis, a criminal defense lawyer, told Bloomberg.

Keri Axel, a criminal defense attorney told Yahoo! Finance that it is common for non-violent offenders like Holmes to serve out their time at minimum security facilities.  “Sometimes they’re called ‘Camp Fed’ because they have a little bit more amenities, and they’re a little nicer places,” she said, adding the caveat, “they’re not great places. No one wants to be there.”

Although the judge has recommended the prison camp for Holmes’ incarceration, the U.S. Bureau of Prisons will make the final decision.  Holmes was sentenced to 11 years and three months in prison on November 18 after she was found guilty of defrauding Theranos investors out of millions of dollars as part of her failed blood-testing startup.  She was also sentenced to three years of supervision after her release.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?
• Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes 

"Punishment Externalities and the Prison Tax"

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

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation.  Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses.  But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state.  These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment.  This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities.  The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions.  This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

Wouldn't pardons and commutations for those who served be a great way for Prez Biden to honor Veterans Day?

The question in the title of this post is inspired by today's national holiday, Veterans Day.  Based on the latest data from Bureau of Justice Statistics, from this March 2021 report "Survey of Prison Inmates, 2016: Veterans in Prison," veterans make up over 5% of the federal prison population (and nearly 8% of state prison populations).  Moreover, as an important new initiative from the Council for Criminal Justice has highlighted, roughly "one third of veterans report having been arrested and booked into jail at least once in their lives, compared to fewer than one fifth of non-veterans."  In other words, at both the federal and state level, there are surely no shortage of justice-involved veterans who could and should be a focus of concern and attention on this important day and for whom clemency consideration would be justified.

Though I am not expecting that Prez Biden will celebrate this Veterans Day by making a special effort to grant commutations or pardons to a special list of veterans, I have long thought criminal justice reform advocates ought to lean into this day by urging the President and all Governors to make a tradition of using clemency powers in this kind of special and distinctive way on this special and distinctive day.  As I have noted before, a key slogan for this day is "honoring  ALL who served," not just those who stayed out of trouble after serving.

Some (or many) prior related posts: 

• Thinking about sentenced troops on Veterans Day
• How many vets, after serving to secure liberty, are now serving LWOP sentences?
• My amicus effort to support our troops 
• Should prior military service reduce a sentence?
• How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
• "Roughly one in 12 people in America’s prisons and jails is a veteran" 
• Eager to honor our veterans caught up in our nation's massive criminal justice systems 
• Making the case for criminal justice reform as a way to honor those who served on Veterans Day
• New CCJ commission to examine factors driving veterans' involvement in criminal justice system 

Rounding up recent disheartening stories in incarceration nation

In recent days, I have seen a number of notable stories and commentaries focused on various discouraging incarceration realities in US prisons and jails:

From The Marshall Project, "Why So Many Jails Are in a ‘State of Complete Meltdown’"

From NBC News, "Tech glitch botches federal prisons' rollout of update to Trump-era First Step Act"

From the New York Post, "Rikers Island detainee is 18th person to die in NYC’s prison system in 2022"

From the New York Times, "‘Dying Inside’: Chaos and Cruelty In Louisiana Juvenile Detention"

From the Omaha World Herald, "‘Waiting on death’: Nebraska prisoners are getting older, and it’s costing taxpayers"

From PennLive, "Sick people in Pa. jails are suffering, dying: ‘The Constitution allows for medical neglect’"

From the Reno Gazette-Journal, "Inmate deaths, drug overdoses on rise at Washoe County Jail"

From Washington Monthly, "Do Prisons Need to Be Hellholes?"

From WSB-TV, "Reality star Joe Exotic says zoo has better living conditions than Atlanta Federal Penitentiary"

"Taking stock of incarcerated military veterans: a review of (and guide for) research"

The title of this post is the title of this interesting new research published in Criminal Justice Studies and authored by Matthew W. Logan, Erika J. Brooke, Mark A. Morgan & Andrea R. Hazelwood. Here is its abstract:

The sociodemographic backgrounds of inmates are essential for understanding their prison experiences and the extent to which they cope with incarceration and recidivate upon release.  The notion that military veterans might fare differently from other groups in the correctional system has existed for decades; yet scholars have only recently begun to focus on the effects that prior service has on metrics of prison adjustment and beyond. Increased emphasis on the prison experiences of military veterans necessitates a review of the studies published to date.

In the current study, we take stock of the empirical research conducted on incarcerated veterans by systematically reviewing all articles published online between 2000 and 2022 . Overall, we find little evidence to support the view that veteran status confers any specific benefits or vulnerabilities during incarceration or following release. However, given the limitations of the studies reviewed, we address several methodological concerns regarding the study of former service members and provide directions for future research.

"The Efficiency Mindset and Mass Incarceration"

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

Efficiency often carries a positive connotation. To be efficient, especially in a job, is to get things done quickly and with little wasted effort.  As such, it makes sense that lawyers and judges see efficiency, especially in the form of plea bargaining, as a normative good, particularly since it can be used in individual cases to achieve fair results in an often unfair system.  But this view of efficiency masks the darker side of the efficient administration of justice, which has contributed to some of the underlying causes of mass incarceration.

To combat mass incarceration, reformers must think seriously about how to break lawyers and judges of their efficiency mindset.  Legal culture change in criminal courts is unlikely to be driven by legislation, court action, or lawyers and judges themselves.  Instead, this Essay suggests other sources of power that may break the efficiency mindset.  By examining these sources of power — both inside and outside of the legal culture — the Essay hopes to offer some ideas for how legal actors might start to, or be forced to, re-envision their role in mass incarceration.

Just why is it "not in the public’s best interest" for the feds to refuse to transfer to Oklahoma a prisoner scheduled for execution?

I recall a notable case from just over a decade ago in which Rhode Island was refusing to turn a suspected murderer in state custody to the federal government because of concern that he would be subject to the federal death penalty (see story blogged here and here).   As noted here, the en banc First Circuit ultimately ruled that Rhode Island had to surrender custody of Pleau for trial on pending federal charges.  Pleau thereafter pleaded guilty to federal murder charges and avoided being sentenced to death, but not before engendering lots of interesting and notable discussion of federal and state criminal justice authority and power (see, e.g., this commentary explaining why "the decision about appropriate criminal sentencing, and particularly about the application of the death penalty, [should be placed] back into the hands of individual states [in order] to reverse the trend toward the federalization of criminal law").

This bit of capital history, and the question in the title of this post, all came to mind when I focused on this notable recent news piece out of Oklahoma.  The story is headlined "Federal inmate set for state execution denied transfer to Oklahoma custody," and here are excerpts:

The Oklahoma attorney general is asking the U.S. Bureau of Prisons to reconsider a decision his office says could amount to unprecedented federal interference in the state’s execution process.

Federal officials have denied the state’s request to transfer federal inmate George John Hanson, known as John Fitzgerald Hanson in his Oklahoma death-sentence case. A Tulsa County jury found Hanson guilty of murdering retired Tulsa banker Mary Bowles and Owasso trucking company owner Jerald Thurman in 1999 and sentenced him to death.

Hanson, 58, is currently housed in the U.S. Penitentiary in Pollock, Louisiana, serving a life sentence plus 107 years for a series of armed robberies he committed after the murders but was convicted of and sentenced for while the state case was ongoing. He has since exhausted his appeal opportunities in Oklahoma and is slated for execution by lethal injection on Dec. 15, pending a clemency hearing Nov. 9 where Gov. Kevin Stitt could grant him mercy.

Tulsa County District Attorney Steve Kunzweiler requested the AG’s assistance after receiving a formal notice in late September of the denial that cited a reason set forward in the U.S. Code. The DA’s Office provided the Tulsa World a copy of the letter from the Bureau of Prisons.

“(The law) authorizes the Bureau of Prisons to transfer a prisoner who is wanted by a State authority to that State authority’s custody if it is appropriate, suitable, and in the public’s best interest,” the letter reads in part. “The Designation and Sentence Computation Center … has denied the request for transfer, as it is not in the public’s best interest.”

Kunzweiler balked at the vague term and said in a news release that the decision reeked of politics. In the release last week, the DA said he was “outraged” and has demanded a greater explanation. “The crimes for which Hanson is serving time in federal custody were committed after his involvement in the murders of Mary Bowles and Jerald Thurman,” he wrote. “Of what reasonable purpose is there for him to remain in federal custody — at taxpayers’ expense — when he can and should be delivered to Oklahoma authorities for the rendition of the punishment he received here?”

Kunzweiler listed several state and federal agencies from which he has sought assistance in the matter, and a spokeswoman for Oklahoma Attorney General John O’Connor said O’Connor has reached out to a Bureau of Prisons regional director “to see if he will reconsider his refusal to transfer Hanson to Oklahoma.”

The bureau’s Office of Public Affairs declined to comment for this story, stating that “based on privacy, safety, and security reasons, we do not comment on inmate’s conditions of confinement, to include transfers or reasons for transfers.”

The Tulsa World has submitted a Freedom of Information Act request to the bureau seeking an internal document that could clarify the conditions under which the decision was made.

Like the folks at the Tulsa World, I would like to hear more from the U.S. Bureau of Prisons about just why is has decided that it is "not in the public’s best interest" to allow a state to complete a seemingly lawful capital sentence.  I am not an expert on prisoner transfer protocol, but I certainly think at least some greater transparency is wholly justified here.

UPDATE:  I failed to see that Chris Geidner has been writing about this case on his Substack, Law Dork, including a new post with the latest breaking legal developments: 

"Oklahoma wants the feds to transfer a man in federal prison to their custody so they can kill him"

"Breaking: Oklahoma sues the Biden administration in the state's quest to kill John Hanson"

Prez Biden suggests disinterest in broader marijuana clemency as activists protest on behalf of pot prisoners

This new Marijuana Moment piece, headlined "Biden Has No Intention Of Extending Marijuana Pardons To Help People Jailed For Selling It, He Suggests," reports on new comments from the President about his recent clemency activity.  Here is how it starts:

President Joe Biden on Friday again touted his recent marijuana pardons proclamation, but indicated that he has no intention of granting relief to people who are in prison for selling cannabis.  “I’m keeping my promise that no one should be in jail for merely using or possessing marijuana,” he said. “None. And the records, which hold up people from being able to get jobs and the like, should be totally expunged. Totally expunged.”

“You can’t sell it,” the president added. “But if it’s just use, you’re completely free.”

The comments come as activists are planning a protest including civil disobedience at the White House for Monday aimed at calling attention to those who are left behind by Biden’s existing cannabis clemency action.

It’s not clear if the president’s latest remarks simply describe the scope of his current marijuana pardons, which came alongside a separate move to review the drug’s current scheduling status under federal law, or if they are an indication he is ruling out broadening the scope of clemency relief in the future.

The latter scenario would be a great disappointment to the advocates behind the planned White House protest. Those groups, including Students for Sensible Drug Policy, Last Prisoner Project, DCMJ and others, sent a letter to Biden this month, calling his moves to date “a great first step” but saying they “did nothing to address the thousands of federal cannabis prisoners currently incarcerated.”

This extended Washington Post piece, headlined "Sentenced to 40 years, Biden’s marijuana pardons left him behind," discusses the planned protest and the prisoners who are the focal point for additional clemency advocacy:

Protesters are expected to gather outside the White House on Monday to advocate for people ... incarcerated for what they would consider nonviolent offenses that involve marijuana, especially as public perception of the substance has shifted.  Cannabis is now legal for recreational adult use in Washington, D.C., two territories and 19 states.  It is on the ballot in five more states next month.

For those hoping to see marijuana law and policy reforms untangle the legacy of the country’s war on drugs, Biden’s announcement this month that he’d pardon people convicted of federal simple possession did not go far enough. And meaningful post-conviction reform still remains largely elusive in an America that echoed with promises to scrutinize criminal justice following the murder of George Floyd.

The Last Prisoner Project, a nonprofit working on cannabis criminal justice reform that lobbied the White House on this issue, has estimated that there are roughly 2,800 people in federal prison due to marijuana-related convictions, a statistic the organization said stems from a 2021 report from Recidiviz, a nonprofit that uses technology and data to build tools for criminal justice reform....

The first step in ending the war on drugs — which has disproportionally affected Black and Brown communities — is releasing people who have been incarcerated for nonviolent marijuana offenses, said Jason Ortiz, executive director of Students for Sensible Drug Policy.

Offenses like cultivation, distribution and conspiracy, Ortiz said, are the same actions major companies are able to commercialize and profit from today. “There are multibillion dollar companies that sell thousands and thousands of pounds of cannabis a year and operate in multiple states. So if we’re going to allow for that type of commerce to happen, everyone in prison who did anything even remotely close to that should be immediately let out.”

I think it notable and worth noting that we actually have no clear accounting of how many persons may still be serving federal prison terms for "nonviolent marijuana offenses."  This recent analysis of federal prison data from January 2022 by the US Sentencing Commission suggests the number of imprisoned marijuana trafficking offenders was "only" around 2200 as of the start of this year.  Notably, the federal marijuana prisoner number was around 7500 based on USSC data from just five years ago, but sharp declines in federal marijuana prosecutions (discussed in this article) and COVID-era prison population reductions have had a huge impact on the total number now incarcerated for federal marijuana offenses.

Prior recent related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons
• Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"? 

UPDATE: Here is a new Washington Post piece about the protest headlined "With speeches, stars and a blow-up joint, protesters press Biden on pot."

Might the recent marijuana pardons by Prez Biden "make things worse for criminal legal reform"?

The question in the title of this post is prompted by this new Slate commentary by John Pfaff headlined "Biden’s Focus on Marijuana Is Part of the Problem." One should read the full lengthy piece to understand the full "hot take," but here are some excerpts (with my complaints to follow):

A bigger concern, though, is not just that the policy might accomplish very little, but that it might make things worse for criminal legal reform in the long run because it reinforces a false narrative about the causes of mass punishment in general and mass incarceration in particular.  It’s a narrative that shapes — or, better put, misshapes — policy.

Most Americans are deeply misinformed about why people are in prison.  A survey in 2017 found that solid majorities across the ideological spectrum agreed with the claim that a majority of people in U.S. prisons are there for drug crimes. That’s a far cry from reality: 14 percent of people in state prisons were locked up for drug offenses at the time, a number that has fallen since then.  (Those held in state prisons make up 90 percent of the nation’s incarcerated population.)  This misbelief likely contributed to the next two results from that survey: while majorities of liberals, moderates, and conservatives favored lesser sanctions for those convicted of non-violent crimes who posed little risk of reoffending, majorities of all three groups also opposed lesser sanctions for those convicted of violence who likewise pose little risk of reoffending.

We think we can decarcerate with easy choices.  We cannot.

Nationally, in 2019 almost 60 percent of all people in state prisons were convicted of violence; those convicted of just homicide or rape make up nearly 30 percent of the overall prison population....  If we released everyone held in state prisons convicted not just of marijuana crimes, nor just of drug offenses, but of all non-violent offenses combined, we would still have one of the world’s highest incarceration rates.  Unsurprisingly, this means that violent crimes are also at the heart of racial disparities in U.S. prison populations, as a recent study by the Council on Criminal Justice made clear.

Yet reforms continue to refuse to grapple with this reality.  A 2020 report by the Prison Policy Initiative found nearly 100 state reforms in recent years that had explicitly refused to extend the changes to those convicted of violence.  In some cases, the tradeoff between non-violent and violent crimes is explicit.  In 2016, Maryland’s Democratic legislature scaled back sanctions for non-violent crimes, but also increased punishment for violent offenses.  And just recently, California Gov. Gavin Newsom vetoed a bill to limit the use of solitary confinement, long viewed by behavioral scientists as torture, an indication of the lack of stomach for deeper reforms even among so-called progressive state leaders.

The inability to discuss crimes of violence remains clear in our current politics. Oz’s attacks on Fetterman on crime are now echoed in Wisconsin, where Republican Sen. Ron Johnson says Democratic challenger Mandela Barnes demonstrated “far greater sympathy for the criminal or criminals versus law enforcement or the victims.”  Anecdotal attacks about violent crime have already caused two different New York governors to roll back the state’s 2020 bail reform law, before it was even possible to assess its impact.  Even with new evidence suggesting reform did not contribute much if anything to rising crime in 2020, further rollbacks loom for 2023.  And Virginia recently amended a law that expanded the ability of people in prison to earn good time credits to expressly exclude those who were serving time for any crime of violence.

Meanwhile, as state prison populations fell nationwide by 15 percent from 2010 to 2019, Bureau of Justice Statistics data suggests that the number of people locked up for violence fell by just 1 percent; a separate analysis of the BJS data conducted by the Council on Criminal Justice estimated that the numbers confined for violence actually rose over that time, undermining the declines in drug and property cases.

Talking exclusively about drugs does little in the short-run and reinforces a narrative that appears to affirmatively undermine the sorts of difficult discussions we need to have about the ways we respond to violence.  There are things that Biden could have done, or at least done at the same time, that could have taken advantage of his bully pulpit.

He could have encouraged state and local governments to think about alternative ways to address not just crime, but serious violence.  Biden’s August 2022 Safer America Plan did include some funding for just this but that part of the plan was always secondary to the push to hire more police; it was even framed merely as a way to free up the police to focus more on violence....

He could have announced a push for a repeal of the PLRA or AEDPA, two Clinton era laws that continue to impose real costs on people held in prison or challenging potentially wrongful convictions.  Or, he could have pushed harder to amend the federal code to eliminate qualified immunity for police, or pushed state legislatures to pass such bills, about 35 of which have been proposed in the aftermath of George Floyd’s murder only to almost all be thwarted by police union lobbying.  Such an approach could help improve police-community relations, which in turn could help address the single biggest challenge we face in reducing violence: the general unwillingness of victims of violence to contact the police.

It’s true that these are long-shot proposals.  But short of pardoning every single person in federal prison — an impossibility — nothing any president does will have a significant impact on the size and reach of a criminal legal system that is almost entirely driven by local politics, policies, and funding.  The president’s biggest power is his ability to shape the debate around criminal legal policy, not the policy itself.

Biden’s proposal here did nothing to shape that debate. There are lots of ways he could have taken steps to push the discussion in the direction it needs to go, but he disappointingly chose to highlight, once again, marijuana.  That choice will make it harder to move the reform discussion beyond where it has mostly been mired for the past decade.

I am a big fan of so much of Pfaff's work, especially his emphasis on "the numbers," but there is much about this commentary that just does not add up.  For starters, these World Population data of incarceration rates suggests that the US would easily fall out of the top 10 in incarceration rates if we cut our prison population 40% by releasing everyone held for non-violent offenses.  Pfaff has long been eager to say we must not ignore violent offenders when thinking about the problem of mass incarceration.  That is basically right, but dramatic decreases in our use of prison for non-violent offense would still make a very big impact AND his own commentary highlights why this is far more politically achievable than massive cuts to sentences for violent offenders.  (Indeed, there is good reason to hope and expect that much shorter and many fewer prison sentences for non-violent offenses would serve as an essential first step to laying the foundation for reducing the overall severity scale of all our punishments.)  

More generally, Pfaff claims there is an "inability to discuss crimes of violence," but I am seeing plenty of discussion (and political ads) about crimes of violence and especially murder having increased considerably over the last few years.  When violent crime has spiked — which it clearly has and which Pfaff does not discuss — and when many polls indicate many voters are troubled greatly by this spike — which they clearly have and which Pfaff does not discuss — one should not be surprised that politicians are responsive to voter concerns about violent crime in their actions and rhetoric.  Indeed, I think it notable (and encouraging) that some criminal justice reform efforts continue moving forward (at least for non-violent crimes) even when "tough on crime" political conditions seems to be prevalent.

And while I support various reforms to PLRA and AEDPA and qualified immunity, I am not aware of any significant research or evidence that such reform will reduce violence in our communities.  If there was such evidence, these reforms could and likely would become a central element of reform supported by politicians on both sides of the aisle.  There are all sort of good arguments for all sorts of criminal justice reforms, but wishing away the facts of increased violent crime (and increased voter concerns about violent crime) will surely "make things worse for criminal legal reform in the long run," much more than will Prez Biden granting blanket pardons to thousands of marijuana possession offenders. 

Lots of coverage of ugly BOP mistreatment of cancer victim called out in court opinion

I finally got the chance to read in full this federal district court order from earlier this month authored by US District Judge Roy Dalton Jr., assailing the Bureau of Prisons' treatment of Frederick Mervin Bardell, who died of colon cancer not long after it seems BOP denied he had colon cancer.  The full opinion is worth a full read, and it begins and wraps up this way:

Judges carry the heavy burden of depriving individuals of their liberty. But the Bureau of Prisons shoulders the constitutional burden of protecting the remaining rights of the incarcerated while in custody.  The possibility that the Bureau of Prisons would be so indifferent to the human dignity of an inmate in its care as the facts here demonstrate, increases the burden on the sentencing judge exponentially.  This, of course, pales in comparison to the suffering of the inmate and his family....

Though this contempt proceeding focused primarily on the circumstances surrounding Mr. Bardell’s release, the Court is also troubled by his care and treatment while confined, especially during the latter stages of his incarceration.  The Court has serious reservations about the adequacy of his treatment and diagnosis.  In light of these concerns, the Court recommends that the Attorney General (or Inspector General for the Department of Justice) undertake an investigation into the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition.

I believe Reason was the first outlet to highlight this ruling in this article headlined, "Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer."  Since then, I have been intrigued to see this case garnering lots more media attention:

From the New York Times, "Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate"

From Reason, "Justice Department Inspector General Launches Investigation Into Inmate Death Following Judge's Contempt Order"

From Salon, "A federal prisoner's gruesome and shameful mistreatment — and why it was all too typical"

From the Washington Post, "Judge blasts Bureau of Prisons’ treatment of dying prisoner"

New FAMM report: "Grading the States: The State Compassionate Release Report Card Project"

As detailed in this press release, the folks at FAMM have today released a lot of new materials and resources focused on how states approach compassionate release for state prisoners.  Here are details from the press release:

Today, FAMM has released a compassionate release report, including report cards for every state, grading compassionate release programs designed for incarcerated people struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

“It was not surprising, but still disheartening to see so little improvement in compassionate release across the country since we first examined state compassionate release in 2018,” said Mary Price, FAMM’s general counsel and author of the report. “Lawmakers across the country fund compassionate release programs that sit idle and leave people to die in prison – including during the COVID-19 pandemic.

“There comes a point in a person’s sentence where they are so sick that incarceration loses any meaning or worse, becomes torture. If the programs are broken and can’t be used effectively, the lawmakers should fix them.”

In concert with the report, FAMM today also released a new national poll which found that 70% of Americans, across political lines, support compassionate release programs.

“At a time of concern about rising rates of crime, why are so many states wasting their limited resources to incarcerate sick and elderly people?” said Kevin Ring, FAMM’s president. “Committing to compassionate release programs could allow for funds to be better used to address concerns about crime.”

FAMM graded the compassionate release programs for each state in several categories before assigning a letter grade. The map of results is below.

The report is an update to “Everywhere and Nowhere: Compassionate Release in the States,” a comprehensive, state-by-state report on the early-release programs. That report was released in 2018.

Another discouraging dispatch about BOP's shaky First Step Act steps

Walter Palvo continues to provide terrific coverage of difficulties in the implementation of the First Step Act's earned time credits, and this latest piece in Forbes is titled "Bureau Of Prisons’ Failure To Communicate First Step Act."  Here are excerpts from this lengthy piece that merits a full read:

The Federal Bureau of Prisons (BOP) is under new leadership but it is still suffering from decades of mismanagement. BOP Director Colette Peters began work on August 2nd of this year ... [and] testified on September 29, 2022 in front of the Senate Judiciary Committee.... Senator Dick Durbin was frustrated in Peters’ testimony stating that the full effects of FSA had not been implemented nearly 4 years after it being signed into law.  Peters assured the Senators that an auto-calculator was completed in August 2022 that provided FSA credits to prisoners which had the effect of reducing many sentences.  However, that auto-calculator was not in place at the time of the hearing, or at least it was not communicated to prisoners or the public. 

According to dozens of prisoners I interviewed for this piece, calculations were not communicated to them nor reflected on BOP.gov, which tracks release dates for federal prisoners.  Anticipating this computer program’s rollout that would reduce many prisoner release dates, prisoners and their families eagerly awaited the news of when they would be going home.  As the weeks passed after after August, prisoners still had no news.  It was not until the week of October 3rd that FSA credits started to be applied.  As one prisoner told me, “I was expecting a year of credits and I got 4 months. I have no idea what happened.”

What happened is that the calculator still has errors in it.  Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year....

Prisoners have worked for years to take programming that the FSA law stated would earn them credits.  Now, as implemented, those credits are fewer than many thought and they still do not have answers.  They also have no realistic remedy to correct it in a timely manner.  Millions of dollars will now be spent on litigation that will last years while prisoners who should be released stay in prison.

Some prior related posts:

• Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules
• Articulating concerns while celebrating implementation of FIRST STEP earned-time credits
• Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits
• Highlighting continuing struggles with implementing the FIRST STEP Act's earned time credits
• Another account of continuing struggles with FIRST STEP Act implementation 
• Another ugly report on the ugly implementation of the FIRST STEP Act

"Promise or Peril?: The Political Path of Prison Abolition in America"

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

This article explores whether prison abolition as a movement will, on net, lead to more productive changes to criminal justice punishment practices or instead produce a backlash that hinders reform efforts.  For those who embrace abolition as an expressive reaction to what they view as the intolerable state of American punishment practices, the answer to that question may not matter.  But others adopt an abolitionist stance precisely because they believe it is the most effective political strategy for bringing about change to American criminal justice practices.  It is this latter goal of abolition that is the subject of this Article.

The most optimistic take is that the movement could shift the conversation around crime policy for bolder initiatives that dislodge the central role of prisons and punishment and shift attention to root causes of harm.  On this view, the abolitionist perspective can shift the Overton window to embrace much broader downsizing of prisons and investment in communities than would take place without the abolitionist challenge.  Moreover, the call for abolition is just the kind of simple, powerful rhetorical move that draws people to embrace it and helps mobilize grassroots efforts for change.

There is, however, a future political path for abolition that is less rosy.  Instead of helping the cause of decarceration and improving the lives of those under the control and supervision of the state’s punitive apparatus, there is the possibility that calls for abolition could lead to more harms than they prevent.  This risk exists for two main reasons. First, because the rhetoric of abolition is absolutist — the language being used is deliberate and calls for an end to prisons — there is the risk that approach will frighten segments of the public who would otherwise support even radical decarceration but who are not prepared to rule it out entirely.  The second reason an abolitionist framing may ultimately produce more harm than good is that some who seek abolition often use that goal as the yardstick for deciding what policy changes to support.  They reject what they call “reformist reforms” that do not contribute to dismantling the existing legal order. For example, many abolitionists reject calls to invest in improvements to prisons or put in place greater staffing, even if doing so would improve the lives of currently incarcerated people, on the view that this additional funding ultimately expands the role of prisons in society and leads to incarceration being more entrenched overall.  Abolitionists have also rejected laws that would release certain groups of incarcerated people —  such as those serving offenses that do not involve violence — because of a concern that those laws exclude others.  The abolitionist framing therefore runs the risk of sacrificing too many reforms that would benefit people currently suffering from incarceration for a utopia that will ultimately not materialize.

In weighing the pros and cons of abolition as a political organizing strategy, then, a great deal turns on the likelihood of prisons being abolished.  And on that score, the relatively recent history of another recent abolition movement — the movement to close state mental hospitals and provide community care to people with mental health needs known as deinstitutionalization — strongly suggests that the more pessimistic take on the fate of prison abolition will ultimately prove correct.  Deinstitutionalization is a cautionary tale with important lessons for today’s abolitionists and their political calculus.

It is an urgent question what strategy will best address the fact that prisons and jails in the United States are inhumane and dreadful.  For those of us committed to drastic changes to patterns of policing, prosecution, and punishment that perpetuate structural inequality and fail to reduce harm, what is the best path forward to achieve those goals?  Is the rhetoric and social organizing power of abolition beneficial because it will spark a successful political movement toward decarceration, or does it bring more political risks than benefits and therefore ultimately harm the goal of weening America off its reliance on prisons, jails, and other forms of detention?

This article answers these questions by first describing the abolitionist movement in Part I.  Part II considers the policy implications of an abolitionist framework.  Part III then turns to the political calculation and analyzes the political pros and cons of an abolitionist stance.  Drawing lessons from the defund the police movement and deinstitutionalization, it highlights where and why public resistance may emerge.

"Three steps to setting federal prisons on the right path"

The title of this post is the headline of this new Hill commentary authored by Hugh Hurwitz, who served as Acting Director of the US Bureau of Prisons during the Trump Administration.  Here are excerpts:

The Federal Bureau of Prisons’ (BOP) mission is to safely and securely confine offenders and assist them in becoming law-abiding citizens.  By most media accounts, the BOP is failing in this mission.  Members of Congress have described the agency as “crisis plagued.”  BOP’s recent history includes allegations of sexual assault against inmates and female staff at several institutions, staff misconduct and discipline issues at all levels of the agency, serious staffing shortages, and failures to implement policies under the three-year-old First Step Act (FSA).

New Bureau of Prisons (BOP) Director Colette Peters recently testified before the Senate Judiciary Committee. Director Peters undoubtedly has a big job ahead of her.  Until recently, BOP had long been a model of quality and consistency, but has lacked permanent, consistent leadership for years.  Peters is the seventh director/acting director in seven years.

Senate committee members, other members of Congress, DOJ leadership, and many stakeholders, all are pushing Peters to do more.  Most changes and priorities will require the right resources in people, time, and money.  To reverse these trends and restore BOP’s place as the premier correctional agency in the world, Peters will need to be allowed to initially focus on three important areas.  Succeeding in these areas will open the doors to making many of the other changes she and others wish to achieve.

First, focus on the staff. Peters is known to care greatly about staff; it has been a focal point through her career in Oregon. BOP must work to fill many vacant jobs. Easier said than done, as recruiting people to work inside prison is a challenge for all correctional systems....

Second, begin to address BOP infrastructure. Inmates and staff need safe, well-maintained prisons.  Peters testified that BOP’s infrastructure is in such bad shape that they need to prioritize the life/safety issues and let other needs go unmet.  She noted that BOP has over $2 billion of structural needs and repairs, but their annual appropriation is under $100 million.  Obviously, this is unsustainable.  At the same time, BOP’s population is down to about 158,000 people from the peak of nearly 220,000.  COVID and the CARES Act showed that we can safely put more people in home confinement and halfway houses without increasing crime.  As the BOP continues to implement the FSA, it will continue to move more low risk people to community confinement or supervision, and out of prison.....

Finally, demonstrate a commitment to fully implementing the FSA, which was the culmination of years of bipartisan effort and the first major criminal justice reform legislation in a generation.  When fully implemented, the FSA reduces overly lengthy prison sentences and better prepares inmates to successfully reenter society.  Efforts to fully implement the FSA have been hampered by the pandemic, staffing shortages, and failed policy implementation.  Director Peters can’t repair all this overnight, but she needs to demonstrate to Congress, BOP staff, and all stakeholders, that implementation of this significant legislation is on the top of her list....

If Peters is given the help and resources to resolve the staffing challenges and improve the infrastructure, she will have the staff and resources needed to fully implement the FSA, increased capacity to provide mental health treatment, medical care, education, and job training — and to ensure that the 95 percent of BOP population that are returning to our communities will be good neighbors that we can all be proud of.

In the wake of historic pardons, noticing the federal prison population keeps growing during the Biden years

As a matter of pardon practice and marijuana policy, President Joe Biden's actions yesterday (basics here and here) qualify as both historic and consequential.  But, because nobody receives significant federal prison time for just simple marijuana possession, his mass pardon has absolutely no direct impact on the federal prison population.  I suspect some persons imprisoned for marijuana trafficking might cite the pardons in compassionate release motions, but I doubt these pardons alone will significantly impact how judges thinking about compassionate release issues.

More broadly, the same day as this pardon announcement, I thought to check the prison population numbers that the federal Bureau of Prisons updates weekly at this webpage.  As of October 6, 2022, the federal prison population clocks in at 158,949, which is the highest it has been since July 2020.   

The day after Joe Biden was inaugurated, I authored this post posing this question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable recent realities about the the federal prison population (based on BOP data); there I highlighted that during Prez Trump's one term, the federal population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021. 

The dramatic federal prison population drop in the Trump years was largely a function of the FIRST STEP Act and especially COVID dynamics.  So, with COVID disruptions easing, it should not be too surprising to see some growth in the federal prison population.  Still, over the course of 21 months, we have now had the federal prison population grow over 7,300 persons, which amounts to federal population growth of almost 5%.  So, while I am eager to celebrate Prez Biden for getting out his clemency pen, there is still plenty more work to do.

"Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People"

The title of this post is the title of this new article available via SSRN and authored by Tessa Bialek and Margo Schlanger.  Here is its abstract:

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deaf-blind, speech disabled, or otherwise disabled in ways that affect communication.  Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling, for persons with disabilities.  Correctional entities must confront these challenges; persons with communication disabilities are overrepresented in jails and prisons and the population continues to grow.  Federal antidiscrimination law obligates jails and prisons to avoid discrimination, promote integration, and ensure effective communication.  This requires adequate resources and preparation, joined by a shift in policy, practice, and values: to meet their antidiscrimination obligations, jails and prisons must offer choice, flexibility, and individuation well beyond what is typical in carceral environments. This white paper offers a starting point for such efforts.

Weekend round-up of stories from incarceration nation

Another busy week means another weekend effort to catch up with this round-up of links to a number of stories and commentaries concerning prison realities that caught my eye in recent days:

From the AP, "Alabama prisons reduce meals, nix visits amid inmate strike"

From Forbes, "First Appearance By Bureau Of Prisons Director Falls Shorts On Facts"

From The Guardian, "What’s Prison For? Concise diagnosis of a huge American problem"

From The Guardian, "‘Slavery by any name is wrong’: the push to end forced labor in prisons"

From the Marshall Project, "What an Alabama Prisoners’ Strike Tells Us About Prison Labor"

From NBC News, "Biden pledged to end solitary confinement. Federal prisons are increasing its use."

From the New York Times, "Justice Dept. to Seek Stiffer Sentences in Prisoner Abuse Cases"

From NPR, "What it's like serving a life sentence in prison with no chance of release"

From Scientific American, "Dementia in Prison Is Turning into an Epidemic: The U.S. Penal System Is Badly Unprepared"

From the Washington Post, "They’re in federal prison, and they’re done staying quiet"

Spotlighting again the decarceral success of the CARES Act

Because it is often so very easy to notice and spotlight government failings in the crime and punishment arena, it is nice to have opportunities to highlight government successes in this world.  So, though I have noted before the great data about the success of persons released from federal prison early under the CARES Act, I am happy to see Molly Gill talking up this data in this new Washington Post opinion piece headlined "Thousands were released from prison during covid. The results are shocking."  Here are excerpts:

We are keeping many people in prison even though they are no danger to the public, a jaw-dropping new statistic shows. That serves as proof that it’s time to rethink our incarceration policies for those with a low risk of reoffending.

To protect those most vulnerable to covid-19 during the pandemic, the Cares Act allowed the Justice Department to order the release of people in federal prisons and place them on home confinement. More than 11,000 people were eventually released. Of those, the Bureau of Prisons (BOP) reported that only 17 of them committed new crimes.

That’s not a typo. Seventeen. That’s a 0.15 percent recidivism rate in a country where it’s normal for 30 to 65 percent of people coming home from prison to reoffend within three years of release.

Of those 17 people, most new offenses were for possessing or selling drugs or other minor offenses. Of the 17 new crimes, only one was violent (an aggravated assault), and none were sex offenses.

This extremely low recidivism rate shows there are many, many people in prison we can safely release to the community. These 11,000 releases were not random. People in low- and minimum-security prisons or at high risk of complications from covid were prioritized for consideration for release....

The Cares Act policy teaches us that many of our prison sentences are unnecessarily lengthy. People who commit crimes should be held accountable, and that might include serious time in prison. Many of the people released to home confinement had years or even decades left to serve on their sentences. But they changed in prison and are no longer a danger to others, as the new data confirms.

Releases to home confinement were also focused on two groups of people who pose little to no risk to public safety: the elderly and the ill (i.e., those most likely to face serious covid complications). Study after study confirms that people become less likely to reoffend as they get older. America’s elderly prison population is growing rapidly, because of our use of lengthy prison terms.

People with serious chronic illnesses or physical disabilities are another group who can be safely released from long sentences. They are not dangerous, but their increased medical needs make them exponentially more expensive to incarcerate. Taxpayers aren’t getting much public safety bang for their buck when we incarcerate bedridden people.

The federal Cares Act home confinement program should inspire similar programs across the country. Virtually all states have programs available to release elderly or very sick people from prison, but they are hardly used and should be expanded. States should also give people serving the longest sentences a chance to go back to court after 10 or 15 years and prove that they have changed and can be safely released.

The data is in. It shows that we can thoughtfully release low-risk people from prison with supervision and not cause a new crime wave. At a time when crime is going up in so many cities and towns, we cannot afford to waste money or resources keeping those who no longer need to be in prison locked up.

Prior related posts:

• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort
• More notable details on the remarkable success of those released from federal prison under CARES Act  

New bill, Federal Prison Oversight Act, part of continued congressional push for federal prison oversight

As detailed in this AP article, a "bipartisan group of U.S. senators introduced legislation Wednesday to overhaul oversight and bring greater transparency to the crisis-plagued federal Bureau of Prisons."  Here is more:

The bill, called the Federal Prison Oversight Act, would require the Justice Department to create a prisons ombudsman to field complaints about prison conditions, and would compel the department’s inspector general to evaluate risks and abuses at all 122 federal prison facilities.

The bill, sponsored by Sens. Jon Ossoff, D-Ga., Mike Braun, R-Ind., and Dick Durbin, D-Ill., is being introduced a day before Bureau of Prisons Director Colette Peters is scheduled to testify before the Senate Judiciary Committee, which Durbin chairs.

Ossoff, Braun and Durbin are three founding members of the Senate Bipartisan Prison Policy Working Group. The panel launched in February amid turmoil at the Bureau of Prisons, much of it uncovered by AP reporting, including rampant sexual abuse and other criminal misconduct by staff, chronic understaffing, escapes and deaths. “It’s no secret that BOP has been plagued by misconduct,” Durbin said. “One investigation after another has revealed a culture of abuse, mismanagement, corruption, torture, and death that reaches to the highest levels. And yet it still operates without any meaningful independent oversight. The result has been catastrophic for both incarcerated people and staff.”

A companion bill in the House is sponsored by Reps. Kelly Armstrong, R-N.D. and Reps. Lucy McBath, D-Ga. Under the Federal Prison Oversight Act, the Justice Department’s inspector general would be required to conduct risk-based inspections of all federal prison facilities, provide recommendations to address deficiencies and assign each facility a risk score. Higher-risk facilities would then receive more frequent inspections.

The inspector general would also be required to report findings and recommendations to Congress and the public, and the Bureau of Prisons would then need to respond with a corrective action plan within 60 days. A prison ombudsman would be established to take complaints — via a secure hotline and online form — and investigate and report to the attorney general and Congress dangerous conditions affecting the health, safety, welfare and rights of inmates and staff....

The reforms have the backing of a wide array of groups involved in the federal prison system and across the political spectrum, including the correctional officers’ union, the inmate advocacy group Families Against Mandatory Minimums, the American Conservative Union and the Koch brothers-backed Americans for Prosperity....  Shane Fausey, the president of the Council of Prison Locals union, is also scheduled to testify Thursday, along with the former head of Pennsylvania’s state prison system, John Wetzel, and Cecilia Cardenas, a former federal inmate.

The folks at FAMM have this detailed summary of The Federal Prison Oversight Act of 2022.  Today's Senate Judiciary Committee hearing, "Oversight of the Federal Bureau of Prisons," can be followed at this link.  And Shanna Rifkin is live-tweeting the hearing starting with this tweet.

"Voices from Within the Federal Bureau of Prisons: A System Designed to Silence and Dehumanize"

The title of this post is the title of this notable recent report from the nonprofits More Than Our Crimes and The Washington Lawyers Committee for Civil Rights and Urban Affairs. Here is part of the report's executive summary:

Prison walls are erected not only to keep people in, but to prevent the world from seeing the abuses of our carceral system.  The inhumanity of what happens behind bars, as is demonstrated by the accounts of incarcerated persons in this report, is deliberately hidden from view in faraway prisons surrounded by high walls and double fences of razor wire.  Few people other than those who are confined or work in prisons have a full view of how they operate.  Glimpses provided by litigation or a scandal are rare and transitory; sustained transparency is nonexistent. This opacity allows dehumanizing conditions to be sustained and grow worse.

The Federal Bureau of Prisons (FBOP) is comprised of 122 institutions, incarcerating more than 157,000 people, that are among the least transparent and accountable in the nation.  The violent, dehumanizing and dangerous conditions in FBOP prisons harm families and communities in every state; impacting the mothers, fathers, children and siblings who lose loved ones to this sprawling network....

Yet, despite this extremely problematic history, the FBOP operates with no real accountability. The Department of Justice (DOJ) Inspector General routinely lists “maintaining a safe, secure and humane prison system” as one of its top management challenges.  FBOP and prison leadership seem to be either unwilling or incapable of ensuring that even minimum standards are met.  As Sen. Dick Durban, chair of the Senate Judiciary Committee, noted, FBOP Director Michael Carvajal (since resigned) has “overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more.”

However, the overarching conclusion of this report is that reform cannot be achieved solely by replacing Director Carvajal with new blood.  The problems with the FBOP are cultural, entrenched and systemic, and independently enforced accountability must be the cornerstone of any serious attempt to change.  That cannot be achieved without replacing the current grievance procedure that incarcerated individuals must follow — which too often triggers retaliation as severe as physical abuse — with a process that is safe, reliable and fair.

Taking account of extreme sentences under "habitual offender" laws in Mississippi and Louisiana

Tana Ganeva has this lengthy new piece at The Appeal which details the impact and import of repeat offender laws in two southern states. The full title of this piece previews in coverage: "'Habitual Offender' Laws Imprison Thousands for Small Crimes — Sometimes for Life: Data obtained by The Appeal show nearly 2,000 people in Mississippi and Louisiana are serving long — and sometimes life — sentences after they were labeled “habitual offenders." But most are behind bars for small crimes like drug possession." I recommend the full piece and here are some excerpts:

The Appeal took a deeper look at Louisiana and Mississippi, states that changed their laws in 1994 or 1995 and now have some of the highest rates of incarcerated people in the country.  The Appeal sent freedom of information requests to both the Mississippi Department of Corrections and Louisiana Department of Public Safety and Corrections for data on people serving 20-year-plus sentences and, where possible, information regarding whether their sentences had been enhanced by a habitual offender statute.  We broke the data down by race, crime, time served, and sentence. In total, datasets suggest there are close to 2,000 people currently serving long sentences enhanced by habitual offender statutes in these two states.

A small number of these people in these two states committed serious crimes.  But most are serving 20-plus years primarily because of habitual offender status, where the triggering offense was drug possession, drug sale, illegal gun possession, or another crime besides murder or rape.  Scores of people are serving virtual or literal life sentences for nonviolent drug possession....

In the mid-1990s, Mississippi instituted some of the most restrictive habitual offender laws in the country and virtually did away with parole for repeat offenders....  According to data analyzed by The Appeal, as of August 4, 2021, there were nearly 600 people in Mississippi who were serving 20 years or more with no parole date and were considered habitual offenders....  In Mississippi, 75 percent of “habitual offenders” are Black, while 25 percent are white. (Other racial groups make up a negligible number.) ...

The majority of habitual offender convictions analyzed by The Appeal are linked to possession of drugs, possession of firearms, or contraband in prison. In the most extreme cases, multiple people convicted of drug crimes were given virtual life sentences because of their habitual offender status.  Perry Armstead is serving 63 years for five charges of cocaine possession and sales. Keith Baskin is serving 60 years for possession of cannabis with intent to distribute. Timothy Bell is serving 80 years after being convicted of possessing a firearm as a felon and selling meth twice. Malcolm Crump is serving 56 years for selling meth on three occasions. Paul Houser got 60 years for meth. Anthony Jefferson got 60 years for possession of cannabis with intent to distribute....

There are nearly 900 people serving sentences longer than 20 years in Louisiana because of habitual offender statutes who aren’t eligible for parole. (Overall, there are more than four thousand people serving life without parole in the state.)

According to data acquired through a freedom of information request, the most serious crimes are in the minority. Less than 3 percent of those imprisoned due to habitual offender status were convicted of first-degree murder.  Slightly less than 5 percent are serving time for second-degree murder. Almost 6 percent are serving time for rape. Meanwhile, 12.6 percent are serving 20-plus years because of habitual offender statutes triggered by a drug crime.  Of those serving decades for drug crimes, 49 people were convicted for possession, 34 for possession with intent to distribute, and 31 for distribution.

Spotlighting the ugly problems with incarceration deaths (and with data collection by the Justice Department)

Last week brought this notable bipartisan Senate report with a title that largely highlights its main points: "Uncounted Deaths in America’s Prisons & Jails: How the Department Of Justice Failed to Implement the Death In Custody Reporting Act."  Here is the report's "Executive Summary":

Approximately 1.5 million people are incarcerated in state and local correctional facilities throughout the United States.  Thousands die every year.  The Death in Custody Reporting Act of 2013 (“DCRA 2013” or “the reauthorization”) — reauthorizing a law that first passed in 2000 — requires states that accept certain federal funding to report to the Department of Justice (“DOJ” or “the Department”) about who is dying in prisons and jails.

Over the course of a ten-month bipartisan investigation into DOJ’s implementation of the law, the Permanent Subcommittee on Investigations (“PSI” or “the Subcommittee”) found that DOJ is failing to effectively implement DCRA 2013.  DOJ’s failed implementation of DCRA 2013 undermined the effective, comprehensive, and accurate collection of custodial death data.

This failure in turn undermined transparency and Congressional oversight of deaths in custody.  The Subcommittee has found that DOJ will be at least eight years past-due in providing Congress with the DCRA 2013-required 2016 report on how custodial deaths can be reduced.  The Subcommittee also highlights the following key facts: in Fiscal Year (“FY”) 2021 alone, DOJ failed to identify at least 990 prison and arrest related deaths; and 70% of the data DOJ collected was incomplete.  DOJ failed to implement effective data collection methodology, despite internal warnings from the DOJ Office of the Inspector General (“OIG”) and the Bureau of Justice Statistics (BJS).  DOJ’s failures were preventable.

Here was just some of the media coverage from the release of this report and the associated hearing:

From The Marshall Project, "‘A Moral Disgrace’: How The U.S. Stopped Counting Deaths Behind Bars; The Department of Justice is failing miserably at collecting data on deaths. Experts say that makes it hard to identify the worst prisons and jails."

From NBC News, "Hundreds of prison and jail deaths go uncounted by the federal government, report finds; A Senate subcommittee hearing is focusing on how lawmakers say the Justice Department has "failed to implement" the Death in Custody Reporting Act.

From The Washington Post, "DOJ slammed by senators over poor reporting on deaths in custody"

Brennan Center publishes new report on "The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward"

I was alerted via email this morning about this notable new Brennan Center report titled “The First Step Act’s Prison Reforms: Uneven Implementation and the Path Forward.”  I recommend the report in full, but the email I received usefully summarized the reports "recommendations to Congress and to the Department of Justice and its Bureau of Prisons to fulfill the First Step Act’s potential":

• Broaden eligibility for earned time credits so more people can get released earlier. (Congress)

• Revise PATTERN (Prisoner Assessment Tool Targeting Estimated Risks and Needs): Focus on predicting the risk of reconviction or re-incarceration, rather than rearrest, to reduce racial disparities in PATTERN’s risk predictions. (Department of Justice)

• Decouple PATTERN from earned time credit eligibility so that all people incarcerated by the Bureau of Prisons are incentivized to participate in programming and productive activities. (Department of Justice)

• Expand prison program offerings (e.g., drug treatment or literacy programs, work or vocational training) and interpret rules expansively to ensure that people can earn credits where programs are inaccessible or booked. (Department of Justice)

• Increase funding for prison reforms so the Bureau of Prisons has the resources it needs to deploy high-quality prison programming. (Congress)

Council on Criminal Justice releases "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020"

Three years ago, as flagged in this post, the Council on Criminal Justice (CCJ) released a notable report detailing notable modern changes in the modern demographics of prison, jail, probation, and parole populations titled "Trends in Correctional Control by Race and Sex."  Today, CCJ has released another important data report looking a racial disparity data under the title "Justice System Disparities: Black-White National Imprisonment Trends, 2000 - 2020."  The full report is available at this link, and here is what's listed as "key findings" in the first few pages of the full report:

• Over the first two decades of the 21st century, the disparity in Black and White state imprisonment rates (the ratio of Black-to-White rates) fell 40%; in 2020, Black adults were imprisoned at 4.9 times the rate of White adults, down from 8.2 times in 2000.
  o The Black imprisonment rate fell faster than the White imprisonment rate (47% vs. 11%).
  o The number of Black people in prison decreased by 27%, while the number of White people in prison increased by 4%.

• Half of the disparity reduction occurred in the first five years of the 20-year period, as the rate of narrowing slowed in more recent years. In 2020, responses to the COVID19 pandemic led to an unprecedented 15% drop in state prison populations, but that historic decline did not result in a change in Black-White imprisonment disparities.

• Black-White disparities in state imprisonment rates fell across all four offense categories—violent, property, drug, and public order—with the largest decrease occurring for drug crimes. Disparity in drug imprisonment rates fell by 75%; that drop accounted for about half of the overall decrease in the Black-White imprisonment rate disparity.

• Black-White disparity in new court commitments to prison per arrest fell to near parity for property and drug crimes in 2019. Disparities in arrest rates per resident for these offense categories fell to about 2-to-1. Disparity in prison admission for
  technical violations per person on parole also fell. In combination, these results suggest that Black adults are overrepresented in prison admissions relative to White adults because they are arrested at higher population-based rates, not because their arrests are more likely to result in imprisonment.

• Racial disparity in violent crime imprisonment rates arose from racial differences in offending rates (as indicated by accounts of victims of violent crimes, most of which are intra-racial); admissions per arrest; and length of stay.

• The Black-White disparity in prison admission rates declined, while disparity in length of stay in prison increased. Disparity in admissions rates fell from 7.2 in 2000 to 3.2 in 2020. Expected length of stay in prison for Black adults increased from 2.2 years to 2.5 years, while for White adults it fell from 2 to 1.8 years. Despite these changes, racial differences in prison admissions rates accounted for nearly three quarters of the Black-White imprisonment rate disparity in 2020.

• In 2000, Black people on parole were more likely to be returned to prison for breaking the rules of their supervision (“technical violations”) than White people; by 2020 White people were more likely to be returned to prison for this reason. The changes in technical violation rates contributed to decreasing the disparity in total admissions.

• Racial disparities in imprisonment will persist without significant reductions in:
  o The disparity in rates of violent offending;
  o The disparity in prison time served; and/or,
  o The role of criminal history in sentencing and release decisions

"The Prison Pleading Trap"

The title of this post is the title of this new paper on SSRN authored by Tiffany Yang.  Here is its abstract:

The prison is an epicenter of dominance — it is where state-sanctioned abuses are most forcefully expressed and legitimized without being seen. Incarcerated people have increasingly turned to civil prisoners’ rights litigation to expose the injustices hidden behind prison walls.  But rather than safeguarding incarcerated people’s access to courts, Congress enacted the Prison Litigation Reform Act to obstruct their pathways to judicial relief.  A centerpiece of this effort is the Act’s exhaustion provision, which mandates proper completion of the prison grievance process before challenging any condition of prison life in federal court.

Prisons design demanding grievance pleading standards to make exhaustion more difficult for the people they confine. When a federal court disagrees with the prison’s interpretation of a pleading rule and permits an incarcerated plaintiff’s claim to move forward, the decision is seen as a victory that safeguards incarcerated people’s right to judicial redress.  It is tempting to perceive the plaintiff’s success as the prison’s defeat.  But when we peer behind the curtain and interrogate what follows, a dangerous manipulation of power emerges.  Prisons have responded to litigation “defeats” by amending their grievance rules to impose a more onerous pleading standard that forecloses the short-lived victory.  What appears at first glance to be a welcome exercise of judicial intervention functionally becomes an invitation — indeed, a blueprint — for the prison to raise its grievance pleading bar and immunize itself from liability.

This reactive process — what I call the “prison pleading trap” — creates an untenable and perilous regime.  And its harms are heightened for people of color, who are disproportionately incarcerated and, while confined, disproportionately subject to prison abuses requiring redress.  This article investigates the trap’s operations and impacts, and upon considering a range of potential solutions, it ends by recognizing the merits of transformative change.  Congress created PLRA exhaustion to reduce the quantity of prison litigation, but this reform addressed a symptom (the volume of litigation) while ignoring the disease (growing prison populations and persisting abuses). Discrete procedural solutions to prison grievance pleading will have meaningful impacts, but they are ultimately incomplete without a concurrent commitment to decarceration.

US organizations file complaint at United Nations stating LWOP and other extreme prison terms "are cruel in violation of the international prohibition on torture"

As reported in this new Guardian piece, headlined "US civil rights groups file complaint against ‘death by incarceration’ to UN," a coalition of organizations today filed a notable broadside against all extreme prison terms in the US.  Here are the basics:

A coalition of civil and human rights organizations on Thursday filed a complaint urging United Nations special rapporteurs to declare the United States’ longstanding practice of subjecting people to life sentences, including without possible release, “cruel, racially discriminatory” and “an arbitrary deprivation of liberty” that violates incarcerated people’s rights.

They argued that “death by incarceration”— a term describing life sentences without parole coined by [Terrell] Carter and other members of the Right to Redemption Committee, a group of incarcerated people seeking the abolition of the practice — amounted to torture.  In their complaint, the civil rights organizations asked the international watchdogs to pressure the United States, who leads the world in sentencing people to life imprisonment, to abolish the extreme practice altogether.  They proposed instead to impose maximum sentencing laws that would eliminate the practice of “virtual life” sentences — those longer than a person’s remaining years of life expectancy, often more than 50 years....

Dozens of testimonies from incarcerated people sentenced to life detail the horrific toll so-called “death by incarceration” has not just on their physical, mental and emotional wellbeing but also the lasting impact separation has on their family members.  Carlos Ruiz Paz, who is serving a life sentence in California, wrote in a testimonial that a life sentence without parole signaled a person was “irreparably damaged without hope of redemption”, adding: “Extreme sentences affect the kids who grow up without us and the parents that will die without us at their side.”

The complaint noted that the United States’ use of virtual life sentences increased exponentially since the 1970s, particularly after the supreme court abolished the death penalty in 1972, prompting states to strengthen life sentencing laws for offenders.  Even after the supreme court reversed course in 1976, extreme sentencing practices continued.  By the 1980s and 90s, as the federal government incentivized states to impose harsher sentencing practices in an effort to curtail perceived rises in crime, more and more people were imprisoned for longer.

The toll of that suffering has disproportionately upended the lives of Black and brown people who have been subjected to over-policing throughout time, exposing them to the US carceral system and led to escalating mass incarceration.  Organizers argue that that violates international human rights law prohibiting racial discrimination. “This systemic deprivation of resources, including education, healthcare and other social support and services, is coupled with the entry of more police and prisons in these communities and exposure to the criminal legal system,” the complaint noted.

The US is the only country that sentences children under 18 to life without parole, a practice that the United Nations has already singled out. And the US accounted for more than 80% of people worldwide serving life sentences without parole.

The full complaint is available at this link, and it runs 160 pages in total (though 3/4 of the document is comprised of an Appendix with testimonials from persons serving extreme sentences). Here is a paragraph from the complaint's introduction:

The United States’ use of DBI sentences violates a range of international human rights.  First, the disproportionate imposition of DBI sentences on racial minorities, in particular Black and Latinx people, violates the prohibition against racial discrimination.  Second, by arbitrarily and permanently sentencing individuals to prison terms that result in their premature death, DBI sentences violate individuals’ right to life.  Third, as recognized by numerous international human rights bodies, by depriving individuals of their right to hope and to rehabilitation, DBI sentences violate the international prohibition against torture and cruel, inhuman, and degrading treatment.  The devastating consequences on an individual’s right to family life further exacerbate the cruelty of DBI sentences.  Finally, the failure of DBI sentences to serve any legitimate purpose further demonstrates that such sentences are an impermissibly arbitrary deprivation of liberty.  To comply with international human rights standards, the United States must abolish DBI and restore incarcerated individuals’ right to hope.

"Pandemic Rules: COVID-19 and the Prison Litigation Reform Act's Exhaustion Requirement"

The title of post is the title of this new paper authored by Margo Schlanger and Betsy Ginsberg now available via SSRN. Here is its abstract:

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people.  For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win — regardless of merit.  We have seen the result in the wave of litigation relating to the COVID-19 pandemic.  Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them.  Time and again, courts have thrown cases out based on the PLRA —especially, on the PLRA’s instruction to dismiss civil rights cases unless “such administrative remedies as are available are exhausted” (that is, unless the incarcerated plaintiff worked the complaint all the way through the prison’s or jail’s grievance system).

The pandemic has exposed a particularly egregious problem: the mismatch between a mandate to use internal grievance systems and those grievance systems’ systemic inability to address emergency situations. Here, we propose three solutions.  First, incarcerated plaintiffs should be allowed to proceed with their federal lawsuits if the press of an emergency renders a prison’s or jail’s grievance system “unavailable” because it is unable to process their complaint quickly enough to offer any relief.  As we describe below, this is already the right answer under existing case law — but so far, many district courts have declined to follow this path.  The second proposal focuses on possible actions at the state and local levels, because it is corrections agencies, not the PLRA, that determine what procedures must be exhausted or whether the defense is raised in litigation.  Any prison or jail unhappy with allowing incarcerated plaintiffs to proceed in federal court or amenable to allowing them to access court quickly in emergency circumstances could implement working emergency grievance systems.  We provide some parameters to guide any such system. In addition, state legislatures could enact legislation forfeiting or waiving the exhaustion defense in cases seeking emergency relief.  The third solution addresses the reluctance of district judges to excuse non-exhaustion when they should; we propose that the PLRA be amended to pretermit the “availability” inquiry by eliminating the statutory exhaustion requirement in emergency situations.  We offer suggested legislative text to accomplish this end.

Should workers who are incarcerated at least be paid minimum wage?

The question in the title of this post is prompted by this new Stateline piece headlined "Advocates Seek to Make Prison Work Voluntary," and also by the recent ALCU report, Captive Labor: Exploitation of Incarcerated Workers.  Here are excerpts from the Stateline piece:

Prisoners making license plates is a popular stereotype, but most of the nation’s 800,000 incarcerated workers hold jobs more similar to those on the outside: They cook and serve food, mop floors, mow lawns and cut hair.

Unlike other workers, though, the incarcerated have little say, if any, in what jobs they do. They face punishment if they refuse to work and are paid pennies per hour — if that.

The nation’s racial reckoning of the past few years has prompted a reevaluation of penal labor as a legacy of slavery, spurring people to question whether incarcerated people should be required to work in 2022. Activists are pressing for an end to work requirements or, if they continue, for higher wages....

In March, Colorado enacted a law that will pay the state minimum wage of $12.56 an hour to inmates who are within a year of their release date and work for private companies through the state-run Take TWO (for Transitional Work Opportunity) program.   “This is actually a very conservative approach,” Colorado state Rep. Matt Soper, the Republican sponsor of the bipartisan measure, said in an interview. “We need workers, and they need to gain skills before release.”

To pass the bill, though, Soper first had to explain why paying prisoners the minimum wage was a good idea.  “Some victims and victims’ advocacy groups opposed the idea at first, and then they wanted every dollar to come back in restitution,” he said. “But that’s not a good system, because we want [the former offenders] to have savings as seed money to restart their lives. My goal is to disrupt the current model of recidivism.”

But no Colorado inmates are participating right now.  Take TWO, which began in 2019 and reportedly had about 100 participants in March, is “on a pause while we review and update logistics and criteria and address some of our immediate staffing shortages,” the Colorado Department of Corrections said in an email.

Prison minimum wage bills are pending in New York and Illinois.  Since 2019, bills have failed in Arizona, Maryland, Mississippi, Nevada, Texas and Virginia, according to the ACLU....

Proponents of making prison work more remunerative and meaningful also argue it’s not productive for society to keep incarcerated workers in dead-end jobs that fail to prepare them for employment outside the prison walls or allow them to accumulate some savings for when they are released.  Studies show poverty and unemployment lead to recidivism.

Some crime victims groups also support raising prison wages, said Lenore Anderson, founder and president of the Alliance for Safety and Justice, an Oakland, California-based group that works to end mass incarceration, reduce crime and support survivors of violent crime.  The public assumes that people hurt by crime and violence would want the worst possible prison experience for those who committed the crimes, Anderson said.  “But that’s not what we find. People want them to succeed,” she said. “How do we know after someone has served time they’re prepared for living in society? That’s what rehabilitation, work and education programs do. Wages are part of that. It would be very consistent with smart rehabilitation to align prison wages with wages on the outside.”

The average wage nationwide for incarcerated workers who maintain prison facilities ranges from 13 cents to 52 cents an hour, according to the ACLU and Global Human Rights Clinic.  In seven Southern states — Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina and Texas — almost all work by prisoners goes unpaid. “It’s not hard to imagine that’s a vestige of slavery,” said Jennifer Turner, the ACLU’s principal human rights researcher and primary author of the report, “Captive Labor: Exploitation of Incarcerated Workers.”

Prior recent related post:

• Notable new ACLU report on prison labor in the United States 

"Have American jails become the inferior replacement for mental hospitals?"

The question in the title of this post is the headline of this new Salon piece.  Here are a few excerpts:

London's Bedlam psychiatric hospital is infamous today for how its staff brutally abused their patients....

Things are arguably better for mentally ill people in 21st century America.  Yet a new study by George Mason University's Schar School of Policy and Government, and published in the medical journal BMC Health Services Research, suggests that any improvement may not be as great as we'd like to think.  At present, there are 10 times as many people with mental illnesses in jails and prisons than in state psychiatric hospitals.  In other words, we've substituted jails for treatment facilities. 

Niloofar Ramezani, assistant professor of statistics at George Mason University and corresponding author of the study ... believes that the study's "most important finding," is that "one should focus on building up the community's capacity to provide mental health services."  Ramezani pointed out that their study also found that "after accounting for the availability of mental health care services, the size of the violent crime problem no longer has an effect to how the jail is used."  American society is filling up its jails with mentally ill individuals in a way that, quantifiably, cannot be plausibly linked to any kind of meaningful violent crime problem....

"We've known for some time that this country's chief response to serious mental illness is incarceration, a fact that stands out because prisons are so clearly unsuited to treating mental illness," Wanda Bertram, Communications Strategist at Prison Policy Initiative, told Salon by email.  "Our organization recently found that even though 43% of people in state prisons have been diagnosed with a mental disorder, only 26% have received some form of mental health treatment, and only 6% are currently receiving treatment."...

Ramezani and the study's other co-authors ultimately argue, as Ramezani put it to Salon, that "more research needs to be done on the type of individuals with mental health issues who are incarcerated and how they are handled.  Once we know more about them, their mental health journey, and how their mental health condition is changing over time while incarcerated, we can find better solutions to provide helpful support to them if they end up in jail."

In addition to doing more research, American policymakers need to exercise the "political will" necessary to address mental health issues in a humane and effective way.

Formerly incarcerated and advocacy groups write to new head of federal BOP

This webpage at the Sentencing Project has the full text of this letter from formerly incarcerated individuals and advocacy organizations to new Federal Bureau of Prisons Director Colette Peters advocating for various reforms.  The full letter is worth a full read, and here are a few excerpts:

As people formerly incarcerated in US Bureau of Prisons facilities and organizations dedicated to civil rights and justice, we know well the challenges that await you and hope to share with you our concerns and advice for advancing the systemic reform you have pledged to achieve.  We have all witnessed the Bureau’s failure to provide adequate medical care, safe conditions, and rehabilitative programs.  We ask you to bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability....

Federal prisons are plagued by inadequate medical care, overcrowding, staff shortages, unsanitary conditions, violence, and abuse.  These conditions are well-documented in media coverage, Office of Inspector General and Bureau reports, and congressional testimony.  Following a recent oversight hearing on July 26, Senator Ossoff observed within FCI Atlanta that “conditions for inmates were abusive and inhumane” and that “stunning failures of federal prison administration” “likely contributed to the loss of life.”5) FCI Atlanta is not unique; all federal prisons urgently need reform....

Compassionate release can save the lives of medically vulnerable people, ease staff shortages by reducing the prison population, and provide mercy.  Yet the Bureau rarely uses its power to file motions for compassionate release in extraordinary or compelling circumstances.... [O]ver the first 13 months of the pandemic, the Bureau only ultimately approved 36 compassionate release requests, fewer than in 2019.  You have the power to change that.  We urge you to normalize the use of compassionate release to save lives, reunite families, and make federal prisons safer....

In 2018, Congress passed the First Step Act, a vital piece of legislation that gave many people hope.  Congress recognized that people grow and change, and that it was in the interest of the American people and public safety to allow individuals to earn the ability to come home sooner by completing rehabilitative programs.  But today, almost five years later, the Bureau has still failed to fully implement the First Step Act....

Abuse, corruption, and misconduct have been apparent within the Bureau for decades, but leadership has too often failed to act. In 2019, the House Subcommittee on National Security found that misconduct in the federal prison system is widespread and routinely covered up or ignored, including by senior officials.  The recent oversight hearing on FCI Atlanta highlighted decades of corruption and abuse and inaction by the Bureau Director.  We urge you to set a new standard and lead the Bureau towards transparency and accountability.

Lots of notable new briefings and other interesting items from the Prison Policy Initiative

The start of a new semester and other matters have left me behind on reading and blogging on various fronts, particularly with respect to a number of notable new items from the Prison Policy Initiative.  In an effort to catch up, here is a reprinting of links to notable recent PPI works:

• The state prison experience: Too much drudgery, not enough opportunity: An underutilized government dataset goes deep into daily life in state prisons - including work assignments, programming, and discipline - revealing lost opportunities for rehabilitation, education, and hope.

• Our first chance to end prison gerrymandering in the 2030 Census: The 2030 Census should count incarcerated people at home; tell them to start that change now.

• New data reveals where people in California prisons come from: Report shows every community in California is harmed by mass incarceration

• Since you asked: How many people are released from each state’s prisons and jails every year?: The number of people going through reentry each year vastly exceeds the resources available to them in most communities.

• Military base closures: A model for getting past the parochial politics of closing prisons: The BRAC process, which is used to close military bases, has successfully avoided political minefields. Could a similar process be created to close prisons?

• Please Mr. Postman: It’s time to create a special postal mail rate for incarcerated people: Congress has created reduced postage rates for special groups in the past… it’s time for it to create one for incarcerated people and their families.

"The Coherence of Prison Law"

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

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state.  In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants.  Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity.  To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. 

As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism.  When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules.  These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades.  Then came Covid-19.  As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally.  COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated.  These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

Noting the punishing reality of persistent prison debt

With a certain type of debt (and forgiveness) now a hot topic, this new AP article provides a window into another type of debt that persistently punishes.  The piece is headlined, "At $249 per day, prison stays leave ex-inmates deep in debt," and here are excerpts:

Two decades after her release from prison, Teresa Beatty feels she is still being punished.  When her mother died two years ago, the state of Connecticut put a lien on the Stamford home she and her siblings inherited.  It said she owed $83,762 to cover the cost of her 2 1/2 year imprisonment for drug crimes.

Now, she’s afraid she’ll have to sell her home of 51 years, where she lives with two adult children, a grandchild and her disabled brother.  “I’m about to be homeless,” said Beatty, 58, who in March became the lead plaintiff in a lawsuit challenging the state law that charges prisoners $249 a day for the cost of their incarceration.  “I just don’t think it’s right, because I feel I already paid my debt to society.  I just don’t think it’s fair for me to be paying twice.”

All but two states have so-called “pay-to-stay” laws that make prisoners pay for their time behind bars, though not every state actually pursues people for the money.  Supporters say the collections are a legitimate way for states to recoup millions of taxpayer dollars spent on prisons and jails.  Critics say it’s an unfair second penalty that hinders rehabilitation by putting former inmates in debt for life.

Efforts have been underway in some places to scale back or eliminate such policies.  Two states — Illinois and New Hampshire — have repealed their laws since 2019.  Connecticut also overhauled its statute this year, keeping it in place only for the most serious crimes, such as murder, and exempting prisoners from having to pay the first $50,000 of their incarceration costs....

Beatty acknowledges she was guilty of selling and possessing drugs, but said nobody told her when she went to jail that every day behind bars would cost her more than a night at a fine hotel.  “It just drags you back to despair,” said Beatty, who has had other brushes with the law over drug possession since her release from jail, but has also become a certified nursing assistant. “That’s where I feel like I’m at. I feel like no hope. Where do I go? All of this work and it feels like I’ve done it in vain.”

Pay-to-stay laws were put into place in many areas during the tough-on-crime era of the 1980s and ’90s, said Brittany Friedman, an assistant professor of sociology at University of Southern California who is leading a study of the practice. As prison populations ballooned, Friedman said, policymakers questioned how to pay for incarceration costs. “So, instead of raising taxes, the solution was to shift the cost burden from the state and the taxpayers onto the incarcerated.”

Laws vary from state to state.  Many, like Connecticut, only go after inmates for the cost of incarceration if they come into money after leaving prison.  A few, such as North Carolina, have laws on the books but almost never use them, Friedman said.

Latest "Time-in-Cell" report estimates that, as of July 2021, "between 41,000 and 48,000 people were held in isolation in U.S. prison cells"

This Guardian article, headlined "Nearly 50,000 people held in solitary confinement in US, report says," reports on the latest version of the important work done by Correctional Leaders Association and the Arthur Liman Center for Public Interest Law at Yale Law School to estimate the number of people held in solitary confinement in the United States.  Here is part of the press reporting:

In a new report spearheaded by Yale Law School, the number of prisoners subjected to “restrictive housing”, as solitary is officially known, stood at between 41,000 and 48,000 in the summer of 2021. They were being held alone in cells the size of parking spaces, for 22 hours a day on average and for at least 15 days.

Within that number, more than 6,000 prisoners have been held in isolation for over a year. They include almost a thousand people who have been held on their own in potentially damaging confined spaces for a decade or longer....

The new solitary study, Time-In-Cell: A 2021 Snapshot of Restrictive Housing, extrapolates its findings from the reported figures of 34 states and the Federal Bureau of Prisons. Though it finds that levels of solitary remain shockingly high, it also stresses that the figures are moving in the right direction.

When the researchers began the series of annual snapshots in 2014 the number of prisoners trapped in isolation was almost twice today’s level, at between 80,000 to 100,000. Since then the graph has steadily declined, with a growing number of states introducing new laws to restrict or even ban the practice.“In the 1980s people promoted solitary confinement as a way to deal with violence in prisons,” said Judith Resnik, Yale’s Arthur Liman professor of law. “It is now seen as a problem itself that needs to be solved.”

California, a state with a dark history of abusive solitary confinement, is currently debating new legislation. The California Mandela Act would require every custodial institution in the state to impose strict rules and reporting, and would ban solitary for pregnant women, people under 26 or over 59, and those with mental or physical disabilities.

Last year New York state passed similar legislation, joining a growing list. The Yale study finds that three states – Delaware, North Dakota and Vermont – reported having no inmates in such confinement in 2021, and two other states said they had fewer than 10 people.

Despite such optimistic signs, restrictive housing continues to inflict untold suffering on thousands of men and women. 

This press release about the report provides some more details and context:

Time-In-Cell: A 2021 Snapshot of Restrictive Housing estimates that, as of July 2021, between 41,000 and 48,000 people were held in isolation in U.S. prison cells. The report defines solitary confinement as 22 hours or more on average a day for 15 days or more. 

The report’s co-authors have worked together for a decade to generate this data, producing the only longitudinal, nationwide database documenting the reported use of solitary confinement in prisons in the United States. 

According to the most recent study, three states reported holding no one in isolation in July 2021, two other states reported fewer than 10 people in solitary, and 10 states reported not using solitary in any of their women’s prisons. In contrast, in 2014, every jurisdiction reported using solitary confinement. That year, an estimated 80,000 to 100,000 people were in solitary in prisons throughout the United States.....

Time-in-Cell also examined the demographics of people held in isolation. The report found that solitary confinement continues to be used for people whom reporting jurisdictions define as having serious mental illness. Moreover, the report found that the number of Black women held in solitary was higher than the number of white women.

The full report includes the numbers, duration, and conditions of people in solitary confinement and the changes underway.

More notable details on the remarkable success of those released from federal prison under CARES Act

In this post on Monday, I flagged the NPR article which reported the remarkable fact that "only 17 people out of more than 11,000 who were released [early from federal prison under the CARES Act] committed new crimes, mostly drug related ones, while they were out."  Marshall Project reporter Keri Blakinger followed up this piece, as she explained on Twitter, by asking the federal Bureau of Prisons what those crimes exactly were.  BOP reported that 10 of the 17 were "drug related" and that only one of the 17 involved a violent offense ("aggravated assault"). 

In other words, depending on just how one wants to account for these data, it could be fair to say those released early from federal prison early under the  CARES Act had a better than 99.9% or even better than a 99.99% recidivism (or lack of recidivism) success rate.  Within a criminal justice system that often has all sort of folks lamenting all sorts of failures from all sorts of perspectives, I am so very eager to really lean into celebrating this extraordinary success.    

Prior related posts:

• Another encouraging report on those released under federal CARES Act
• Celebrating "real" recidivism is essentially nil, and even technical violations stunningly low, for CARES home confinement cohort 

Bureau of Justice Statistics releases big report on COVID's impact on prisons during pandemic's first year

As detailed on this BJS webpage, this morning the Bureau of Justice Statistics released this 45-page "Special Report" titled "Impact of COVID-19 on State and Federal Prisons, March 2020–February 2021."  The BJS webpage has a press release, a summary and this overview:

Description

This report provides details on the effects of COVID-19 on state and federal prisons from March 2020 to February 2021. The report presents data related to COVID-19 tests, infections, deaths, and vaccinations.  It also provides statistics on admissions to and releases, including expedited releases, from state and federal prisons during the first year of the COVID-19 pandemic.

Highlights

• BJS’s survey to measure the impact of COVID-19 on U.S. prisons from the end of February 2020 to the end of February 2021 found that the number of persons in the custody of state, federal, or privately operated prisons under state or federal contract decreased more than 16%.
• The prison population declined by 157,500 persons during the first 6 months of the COVID-19 study period through the end of August 2020, and by 58,300 in the 6 months through the end of February 2021.
• Twenty-four states released a total of 37,700 persons from prison on an expedited basis (earlier than scheduled) during the COVID-19 study period.
• State and federal prisons had a crude mortality rate (unadjusted for sex, race or ethnicity, or age) of 1.5 COVID-19-related deaths per 1,000 prisoners from the end of February 2020 to the end of February 2021.
• From the end of February 2020 to the end of February 2021, a total of 196 correctional staff in state and federal prisons died as a result of COVID-19.

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

The folks at The Sentencing Project have this notable new fact sheet titled simply "Private Prisons in the United States." Here is part of the text of the short document:

Private prisons incarcerated 100,151 American residents in 2020, representing 8% of the total state and federal prison population. Since 2000, the number of people housed in private prisons has increased 15%.

Harmful crime policies of the 1980s and beyond fueled a rapid expansion in the nation’s prison population. The resulting burden on the public sector led to the modern emergence of for-profit prisons in many states and the federal system. Of the 1.2 million people in federal and state prisons, 8%, or 100,151 people, were in private prisons as of yearend 2020.

States show significant variation in the use of private prisons. At one end of the spectrum, Montana incarcerates half of its prison population in privately run facilities, but in another 19 states, private prisons are not used at all. A total of 31 states use private corporations like GEO Group, Core Civic,1 LaSalle Corrections, and Management and Training Corporation to run some of their corrections facilities.

Montana is not alone in its reliance on private prisons. Arizona, Hawaii, New Mexico, Mississippi, and Florida rely considerably on private prisons for housing imprisoned people. In these states, between 13% and 45% of the prison population resides in a for-profit prison.

Another encouraging report on those released under federal CARES Act

NPR has this notable new piece, headlined "Released during COVID, some people are sent back to prison with little or no warning," with a kind of good news/bad news reporting on persons released from federal prison during the pandemic under the CARES Act.  Here are extended excerpts: 

More than 11,000 people [under the bipartisan pandemic legislation called the CARES Act] have been released from federal prison in the last couple of years, to ride out the pandemic at home, often with their families and loved ones.  But that situation can be precarious.

In June 2021, [Eric] Alvarez and [his finance Eva] Cardoza took a 90-minute cab ride into the Bronx, so she could meet with staffers in charge of her supervision.  Cardoza, who had tested positive for marijuana, never came out of the building....  Cardoza's return to prison turned the family upside down.  She's now been back at Danbury for 14 months. Alvarez said she never got the chance to explain herself or challenge that single positive drug test.  "That's just mind boggling to me," Alvarez said.  "Where is the judicial system? Where is the fairness? Where is the 50-50? I don't see it."

Less than 0.2% of the people released committed new crimes while they were out

This week, the Bureau of Prisons told NPR that 442 people who were released during the pandemic have now returned to prison.  Only 17 people out of more than 11,000 who were released committed new crimes, mostly drug related ones, while they were out.  More than half, some 230 people including Eva Cardoza, got sent back for alleged alcohol or drug use.  Other cases involved technical violations.

Sakira Cook of the racial justice group Color of Change explained what that means.  "It could be as simple as failing to answer the phone when your probation officer calls you. It could be as simple as the ankle monitor giving an incorrect signal about your location," Cook said....

Most of the monitoring of people on home confinement is being done by private contractors, said Quinnipiac University School of Law professor Sarah Russell.  "There can be a lot of room for miscommunications and misunderstandings," Russell said.  Russell said that's all the more reason to ensure due process rights for people at risk of being sent back: the opportunity to see the evidence against them and to have a hearing before a neutral arbiter.

Last week, one of Russell's clients won those rights in court.  The decision by Judge Omar Williams is the first in the nation to hold that the current process for returning people to federal prison after home confinement is unconstitutional.

Russell said her other clients — moms with young children — are still nervous about having to leave their lives behind unexpectedly.  "My real hope is that this gets addressed at the national level through the Bureau of Prisons and through the Department of Justice," Russell said.  "They have a real opportunity to set clear procedures and criteria."

More lawsuits from people returned to prison are under way. The Bureau of Prisons said it can't talk about that pending litigation. But it is considering a new federal rule to make the process more clear.

Though I understand why the focus of this piece is on the opaque and seemingly unfair processes often adopted by BOP when returning people to custody, I am eager to highlight and stress the extraordinarily low recidivism rate being reported for those released under federal CARES Act.   FBI arrest data suggest (very very, roughly) that up to 1 in every 50 adults get arrested for a crime in the US each year.  That just over 1 in every 1000 persons released under federal CARES Act have been found to commit new crimes over the last 2+ years is truly remarkable.  (Or course, persons released under the CARES Act have been screened for riskiness and have very strong incentives to stay crime-free with a prison return looming.  Still, the same can arguably said for a large portion of persons released from prison, and yet usual recidivism rates are depressingly high for many other cohorts of former prisoners.)

I sense a lot of different groups and researchers are busy trying to better understand what factors contribute to desistance from crime these days.  The CARES Act data suggest this is a cohort that ought to be examined closely as we seek to engineer improved prison release mechanism.

UPDATE: I wrote to Professor Sarah Russell about the ruling from Judge Williams, which she was able to provide his 35-page opinion for posting here.  Folks will want to read the full 35-page opinion if working in this area, but this one line provides the main part of the holding: "this court finds that Respondents violated Petitioner’s due process rights in revoking her home confinement without a proper revocation hearing as described in Morrissey."

Download Tompkins Order on CARES Act return procedures

"Youth Incarceration & Abolition"

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

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