Monday, March 16, 2020

When and how will federal authorities start systematically modifying federal sentencing and prison realities in response to COVID-19 outbreak?

I have previously already blogged here (March 3) and here (March 12) and here (March 13) on the potential impact of the coronavirus on prisons and jails, but it seems the world changes a few dozen times each day when it comes to this global pandemic.  And now it is obvious that sentencings and prisons are already being impacted dramatically, with this Crime Report piece providing just some of the details.  The piece is headlined "Corrections Authorities Eye Inmate Release, Halts in Visits, to Prevent Virus Spread," and here are excerpts:

Authorities have begun focusing on America’s overcrowded prisons and jails — environments where “social distancing” can be problematic — as critical danger points for the spread of Covid-19.  Actual infections and fear of the coronavirus have begun to grind the scales of justice to a halt in pockets of the U.S. under states of emergency as judges and lawyers struggle to balance the constitutional rights of defendants against the concerns that the public institutions could unwittingly become contamination sites, CNN reports.

“The whole system is coming to a halt,” said New York City criminal defense lawyer Gerald Lefcourt. “I’m sure everybody is wait-and-see at the moment,” he added, saying he wouldn’t be surprised if prosecutors and defense lawyers seek to resolve cases outside of a trial, either through plea bargains or dropped cases....

In Ohio, dozens of inmates were released from jail sooner than expected to help reduce the population inside the Cuyahoga County jail, as a way to minimize potential virus outbreaks inside jails. The Ohio county judges held a rare court session to hear cases involving low-level, non-violent offenders on Saturday, according to Channel 11 News. Some 38 inmates were released from the Cuyahoga County jail after they appeared in court.

In Michigan’s Kent County, bond and sentence modifications are being discussed to allow some inmates to be released. “We are taking precautions, like everyone else, and making arrangements to deal with what is presented to us,” Kent County Sheriff Michelle LaJoye-Young told ABC 13.

And in Minnesota, the state’s public defender recommened that nonviolent offenders should be released from jail because of the threat of coronavirus. “I am no doctor, but I think it’s better for them to be on quarantine at home,” said Bill Ward told the Pioneer Press on Sunday. “The request is to treat them humanely.” Two jails in southern Minnesota have each had one inmate with a confirmed case of the disease, Ward said. Diseases from the common cold to the flu spread more quickly in prisons — so coronavirus poses a greater risk for inmates.

Efforts to limit the spread of disease in the nation’s corrections systems also included suspending or curtailing visits to prisoners.

This new New York Times commentary effectively details why many working in the criminal justice arena have been thinking about this issue for some time already.  The extended piece should be read in full, and its full headline highlights the themes: "An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues: The conditions inside, which are inhumane, are now a threat to any American with a jail in their county — that’s everyone."  Here are passages:

In America’s jails and prisons, people share bathrooms, laundry and eating areas. The toilets in their cells rarely have lids. The toilet tank doubles as the sink for hand washing, tooth brushing and other hygiene. People bunked in the same cell — often as many as four — share these toilets and sinks. Meanwhile, hand sanitizer is not allowed in most prisons because of its alcohol content. Air circulation is nearly always poor. Windows rarely open; soap may only be available if you can pay for it from the commissary.

These deficiencies, inhumane in and of themselves, now represent a threat to anyone with a jail in their community — and there is a jail in every county in the United States. According to health experts, it is not a matter of if, but when, this virus breaks out in jails and prisons. People are constantly churning through jail and prison facilities, being ushered to court hearings, and then being released to their communities — nearly 11 million every year.

“We should recall that we have 5,000 jails and prisons full of people with high rates of health problems, and where health services are often inadequate and disconnected from the community systems directing the coronavirus response,” said Dr. Homer Venters, former chief medical officer of the New York City jail system. “Coronavirus in these settings will dramatically increase the epidemic curve, not flatten it, and disproportionately for people of color.”

Jails are particularly frightening in this pandemic because of their massive turnover. While over 600,000 people enter prison gates annually, there are about 612,000 people in jail on any given day. More than half of the people in jail are only in there for two to three days. In some communities, the county jail or prison is a major employer. Jail staff members are also notoriously underpaid, may not have paid sick leave and are more likely to live in apartments, in close and frequent contact with neighbors. They return home daily to aging parents, pregnant partners or family members with chronic conditions.

Our penal system should have received more comprehensive guidance and material support from the Department of Justice, far earlier in this crisis. Like much of the federal level response, it is falling short....

American officials can learn from the harrowing story of South Korea’s Daenam Hospital. In late February, South Korea had already reported more than 3,150 confirmed cases, and of these, 101 were from patients in the Daenam psychiatric ward.  Seven of these patients have now died.  All but two patients in the ward contracted Covid-19. The ward was put on lockdown, in an attempt to confine the spread of the virus. Instead, the lockdown issued was a death sentence to many inside....

Aging people who are released after serving long sentences have a recidivism rate close to zero.  Governors and other public officials should consider a one-time review of all elderly or infirm people in prisons, providing immediate medical furloughs or compassionate release to as many of them as possible.

Though this NY Times commentary makes a pitch to "Governors and other public officials," I strongly believe criminal justice advocacy groups should be focusing advocacy now toward President Trump, Congress and federal judges.  For starters, if the federal government leads with a strong proactive response, many states and localities are likely to follow suit.  And it seems there are plenty executive branch tools already available under current law ranging from (mass) clemency relief for older and at-risk prisoners, to the Justice Department and the Bureau of Prisons (BOP) recommending (mass) compassionate release or release to home confinement for older and at-risk folks or perhaps for everyone who has served, say, 75% of their prison time.

Congress can and should get involved ASAP by enacting emergency legislation that could, for example, give BOP discretion to release any and every prisoner that has been scored at low-risk under the FIRST STEP Act's new risk tools.  Or, perhaps better yet, Congress could authorize the creation of a new "emergency agency" tasked with immediately devising the most effective and humane and just way to reduce the number of persons, in both the federal system and in state systems, now seemingly subject to having a jail or prison sentence turned into a possible death sentence by COVID-19.

Federal judges can and should be proactive here as well. In addition to re-calibrating their 3553(a) sentencing analysis given the ugly new reality of prison life, judges should sua sponte reconsider any and all past denied compassionate release motions because times surely have changed.  I think every single federal prisons has an argument that the coronavirus has created ""extraordinary and compelling reasons" that warrant a sentence reduction, and I wonder if anyone has thoughts about seeking a national class action on behalf of all federal prisoners under the statutory provisions of 18 U.S.C. § 3582(c)(1)(A) in order to at least establish a baseline of eligibility for sentence modifications. 

I could go on and on, and I likely will in some coming posts.  But the title of this post asks "when and how" not "if" our normal rules will change because I sense some federal judges and prison officials are already working on COVID responses in various scattered ways -- in part because everyone realizes that it is essential for the health of federal prison workers, as well as for prisoners, for there to be smart efforts to reduce prison populations amidst this global pandemic.  At some point, these scattered efforts will become a systematic plan, I sure hope that happens sooner rather than later.

Prior coronavirus posts:

March 16, 2020 in Criminal justice in the Trump Administration, Impact of the coronavirus on criminal justice, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 12, 2020

Rounding up more coverage of the frightening intersection of incarceration and the coronavirus

In this post last week, I spotlight the handful of articles noting that the coronavirus outbreak could be especially bad news for prisons and jails.  Unsurprisingly, after remarkable public health developments in the US and elsewhere over the last week, the intersection of incarceration and the coronavirus is getting even more attention.  Here is just a small partial sampling of pieces:

March 12, 2020 in Prisons and prisoners | Permalink | Comments (0)

Wednesday, March 11, 2020

Fascinating work by the Marshall Project and Slate to survey "the Politics of People Behind Bars"

The Marshall Project and Slate today released a series of terrific pieces based on a "first-of-its-kind political survey" of the persons who are currently incarcerated.  Here is how this main piece, headlined "What Do We Really Know About the Politics of People Behind Bars?", gets started:

A simple question at a Bernie Sanders town hall last spring sparked a debate new to prime time: Should incarcerated people be allowed to vote? S anders said yes — his home state of Vermont (and its neighbor, Maine) are the only states to give all people in prison that right.  Later, Joe Biden said no.

Yet in a country awash in political polling, the views of those who are most affected remain a mystery: the 2.3 million people behind bars.  Do they want to vote? If given the right, who would they vote for? What issues do they care about most?  No one’s ever really asked.

This is why The Marshall Project partnered with Slate to conduct the first-of-its-kind political survey inside prisons and jails across the country.  Now that criminal justice is a campaign issue and many states are restoring voting rights to those convicted of felonies, we asked thousands of incarcerated people across the country for their opinions on criminal justice reform, which political party they identify with and which presidential candidate they’d support.  We heard from more than 8,000 people. Here’s what we found:

  • A plurality of white respondents back President Donald Trump, undercutting claims that people in prison would overwhelmingly vote for Democrats.
  • Long stretches in prison appear to be politicizing: The more time respondents spend in prison, the more motivated they are to vote, the more they discuss politics, and the more likely their opinions are to evolve.
  • Perspectives change inside prison. Republicans behind bars back policies like legalizing marijuana that are less popular with GOP voters on the outside; Democrats inside prison are less enthusiastic about an assault weapons ban than Democrats at large.
  • Political views diverged by race. Black respondents are the only group pointing to reducing racial bias in criminal justice as a top concern; almost every other group picked reducing the prison population as a top criminal justice priority.

Many respondents’ answers reflected the crucible of their own experiences—offering new insights into issues often discussed from a distance on a debate stage.

Here are links to the companion pieces:

"Millennials, Meth and Mass Incarceration: We asked incarcerated people to weigh in on the biggest issue facing the country today. Here is what they said."

"How We Pulled Off A Groundbreaking Political Survey Behind Bars: More than 8,000 incarcerated people responded."

UPDATE: These two additional article were published from this fascinating survey on Thursday:

"Trump's Surprising Popularity in Prison: Many incarcerated white people said they'd re-elect the president — if given the chance."

"For Those Serving Long Sentences, Politics is a Lifeline: Respondents who’ve spent decades behind bars were more politically engaged than their peers, but they’re also the most cynical."

March 11, 2020 in Prisons and prisoners | Permalink | Comments (0)

Tuesday, March 10, 2020

"Inmate Constitutional Claims and the Scienter Requirement"

The title of this post is the title of this new paper available via SSRN authored by Ann Woolhandler and Michael Collins. Here is its abstract:

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials.  The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment.

Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees.  This Essay argues that the scienter requirements are more justified than the critics claim.  The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter.  Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts.  State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.

March 10, 2020 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Monday, March 09, 2020

"Data Collected Under the First Step Act, 2019"

The title of this post is the title of this notable new document that the Bureau of Justice Statistics released this morning.  The document reports a range of data about the federal prison system, and here are excerpts from the start of this document:

The First Step Act of 2018 (FSA) requires the Bureau of Justice Statistics (BJS), through its National Prisoner Statistics program, to collect data from the Federal Bureau of Prisons (BOP) on a number of topics and to report these data annually.  BJS is required to report on selected characteristics of prisoners, including marital, veteran, citizenship, and English-speaking status; educational levels; medical conditions; and participation in treatment programs.  Also, BJS is required to report some facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations that resulted in time-credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

The statistics in this report are for calendar year 2018, which is prior to the enactment of the FSA, and were collected in 2019.  Data for 2019 will be available from BOP in the second half of 2020.  Unless otherwise noted, all counts in this report include federal prisoners held in correctional facilities operated either by the BOP or by private companies contracted by the BOP.  Other reporting required by the FSA, such as the establishment of new methods by BOP to score risk-assessment or recidivism-reduction programs, will be included in BJS’s annual reports when data become available.

Key findings....

  • At year-end 2018, a total of 80,599 prisoners — or 45% of all BOP prisoners — were the parent, step-parent, or guardian of a minor child (dependents age 20 or younger, per BOP definition).
  • At year-end 2018, a total of 51,436 prisoners (about 29% of all BOP prisoners) had not attained a high-school diploma, general equivalency degree (GED), or other equivalent certificate before entering prison.
  • At year-end 2018, a total of 23,567 prisoners identified English as their second language (13% of all BOP prisoners).
  • At year-end 2018, a total of 33,457 prisoners were non-citizens (19% of all BOP prisoners)....
  • In 2018, all 122 BOP-operated facilities had the capability for prisoners to use video-conference technology to participate in judicial hearings, foreign embassy consultations, reentry-related communication from probation offices, pre-reentry preparation, disciplinary hearings, and the Institution Hearing Program....
  • A total of 87,628 prohibited acts occurred in BOP-operated facilities during 2018, of which 39,897 were committed in medium-security facilities (45%).
  • A total of 55,361 individual prisoners committed the 87,628 prohibited acts.
  • During 2018, there were 1,270 physical assaults on BOP staff by prisoners, with 21 of the assaults resulting in serious injury to the staff member.

March 9, 2020 in Data on sentencing, FIRST STEP Act and its implementation, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Sunday, March 08, 2020

"The Janus Face of Imprisonment: Contrasting Judicial Conceptions of Imprisonment Purposes in the European Court of Human Rights and the Supreme Court of the United States"

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

This paper considers how the Supreme Court of the United States (SC) and the European Court of Human Rights (ECtHR) apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions, while discussing the constitutionality of prison conditions.  The paper argues that the SC and the ECtHR view, conceptualise and interpret the purposes of imprisonment differently.  Regarding the purposes of retribution and rehabilitation specifically, the analysis presented in the paper exposes a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways. 

The paper offers three themes regarding the conceptualisation of imprisonment purposes by the SC and the ECtHR: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (SC), or should they conversely progress with the passage of time, from retribution to resocialization as the primary purpose of imprisonment (ECtHR).  Second, the meaning of retributivism in regard to prison conditions: should prisoners pay a debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (ECtHR).  Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (SC), or as a moral concept grounded in a prisoner’s ability to change his life and belief in personal responsibility for one’s actions (ECtHR).  Possible theoretical implications and general policy implications are considered in the paper.

March 8, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, March 06, 2020

"Women in Prison: Seeking Justice Behind Bars"

100The title of this post is the title of this nearly 300-page(!) "briefing report" released last week by the United States Commission on Civil Rights. Here is a brief overview of the report from the transmittal letter that fronts it:

This report examines the civil rights of women in United States prisons.  The population of women in prison has increased dramatically since the 1980s, and this growth has outpaced that of men in prison, yet there have been few national-level studies of the civil rights issues incarcerated women experience.  The Commission studied a range of issues that impact incarcerated women, including deprivations of women’s medical needs that may violate the constitutional requirement to provide adequate medical care for all prisoners; implementation of the Prison Rape Elimination Act (PREA); and the sufficiency of programs to meet women’s needs after release.  The Commission also examined disparities in discipline practices for women in prison compared with men, and the impacts of incarcerated women being placed far from home or having their parental rights terminated.

The Commission majority approved key findings including the following: Many prison policies and facilities are not designed for women or tailored to their specific needs. Rather, many policies were adopted from men’s prison institutions without evaluating their application to women’s prison institutions.  Incarcerated women report extremely high rates, and much higher rates than men, of histories of physical, sexual, and mental trauma.  Notwithstanding federal statutory legal protections such as the Civil Rights of Institutionalized Persons Act (CRIPA) and the Prison Rape Elimination Act (PREA), aimed at protecting incarcerated people, many incarcerated women continue to experience physical and psychological safety harms while incarcerated and insufficient satisfaction of their constitutional rights.  Department of Justice (DOJ) litigation against prison systems involving sexual abuse among other wrongs has secured important changes to safeguard incarcerated women’s rights.

Classification systems that are not calibrated for gender-specific characteristics have been shown to classify incarcerated women at higher security requirement levels than necessary for the safety and security of prisons; women classified at higher security levels may receive fewer vocational and educational, community placement, and reentry opportunities than they would have received had they been classified at lower security levels.  Many incarcerated women are placed at facilities far from their families, limiting visitation opportunities.  Many prison policies do not prioritize family visits, such as by permitting extremely limited family visitation hours that often do not reflect distances visiting family must travel.

Some prisons provide adequate healthcare specific to women, such as gynecological and prenatal care, while others do not.  The high rates at which incarcerated women report past trauma results in the need for mental health care and treatment while incarcerated. Sexual abuse and rape remain prevalent against women in prison. Incarcerated women who report sexual assault have experienced retaliation by their institutions and prison personnel in violation of the law.

The Commission majority voted for key recommendations, including the following: DOJ should continue to litigate enforcement of the civil rights of incarcerated women in states that violate these mandates and the rights of incarcerated women.  Prison officials should adopt validated assessment tools, currently available, to avoid inaccurately classifying incarcerated women to a higher security level than appropriate.  Prison officials should give strong preference to placing incarcerated women in as close proximity as possible with location of their family, provide free video and lowcost phone services to incarcerated persons, and not ban in-person visits for non-safety reasons.

Prison officials should implement policies to address women’s specific healthcare needs, including gynecological and prenatal care, as is constitutionally required. Prisons should have adequate mental health care staff and treatment programs available to meet the needs of the many incarcerated women with mental health challenges, such as past trauma.  Congress should enact stricter penalties for non-compliance with PREA standards focused on inmate safety and consistently appropriate funding sufficient to ensure correctional agencies comply with PREA.  Prisons should implement evidence-based, trauma-informed discipline policies to avoid harsh punishments for minor infractions, and recognizing the significant harms that can result from placement in restrictive housing.  Prisons should ensure restrictive housing is not used against people of color, LGBT people, and people with mental health challenges in a discriminatory manner.

March 6, 2020 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, March 03, 2020

Connecting realities of incarceration to the outbreak of coronavirus

I have now seen a handful of notable stories connecting incarceration and coronavirus.  Here is a sampling:

UPDATE: On the afternoon of March 4, I receive via email this press release from NACDL titled "Nation’s Criminal Defense Bar Calls for Prompt Implementation of Comprehensive, Concrete, and Transparent COVID-19 Coronavirus Readiness Plans for Nation’s Prisons, Jails, and Other Detention Facilities."

March 3, 2020 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (4)

Saturday, February 29, 2020

"Why Shouldn't Prisoners Be Voters?"

The question in the title of this post is the headline of this New Yorker piece by Daniel Gross. The lengthy piece, which is part of the magazine's The Future of Democracy series, is worth a full read.  The subheading captures the piece's themes: "Americans take for granted that they have a right to vote. The situation of people in prison suggests otherwise."  Here is an excerpt:

Two centuries ago, only Connecticut barred citizens with criminal convictions from voting. The state’s constitution, which was ratified in 1818, declared that a man’s right to vote could be “forfeited by a conviction of bribery, forgery, perjury, duelling, fraudulent bankruptcy, theft, or other offence for which an infamous punishment is inflicted.”  In the years before the Civil War, seventeen states joined Connecticut in passing some form of felony disenfranchisement. Then, in the decade after the abolition of slavery, while the national movement for black suffrage was building momentum, ten more states, mostly in the South, quickly adopted them.  The same period saw a sharp increase, in many states, in the incarceration of African-Americans. (Although the vast majority of people in prison cannot vote, the census counts them as living where they are incarcerated, shifting political representation to the places that have prisons.)

Many state lawmakers were explicit about the racist motivations for these changes. In 1901, Alabama Democrats, who had a history of election tampering, called a convention to rewrite the state constitution. “The justification for whatever manipulation of the ballot box that has occurred in this State has been the menace of negro domination,” John B. Knox, the president of the convention, said in his opening remarks. “If we should have white supremacy, we must establish it by law—not by force or fraud.” The resulting constitution named twenty convictions, from robbery to forgery to vagrancy, that would strip men of their right to vote. The same document discriminated against black voters with poll taxes and literacy tests.

Felony-disenfranchisement laws spread across the country: by the nineteen-seventies, forty-six states had them. Massachusetts was the last state to join the group, passing a constitutional amendment in 2000 with more than sixty per cent of the vote.  (The Prison Policy Initiative observed that it was “the first time that the Massachusetts constitution has been amended to take away rights from a group of people.”)  Three years later, three researchers published a paper in the American Journal of Sociology showing that the most stringent of these laws were to be found in states with many potential voters of color.  In Tennessee, where citizens lose the franchise for life if they are convicted of crimes such as forgery, sodomy, or receiving stolen property, a fifth of African-Americans are barred from voting, according to the Sentencing Project.  (The same was true in Virginia and Alabama until recently, when the Democratic governors of those states restored the franchise to large numbers of citizens.)

Vermont and Maine, the only states that have never disenfranchised prisoners, are also the whitest states in the nation. Less than four per cent of Vermonters, and less than five per cent of Mainers, are people of color. “I do think that it’s not a coincidence that it’s only Maine and Vermont that allow inmate voting,” Emily Tredeau, a supervising attorney at the Vermont Prisoners’ Rights Office, told me.  “White voters will give pause before they disenfranchise other white people.” Joseph Jackson, a formerly incarcerated activist, added, “Mainers look at Maine folks that are incarcerated as though they are not other.”  (While the prison population in Maine is mostly white, it is significantly less white than the state as a whole: nearly twenty per cent of those incarcerated in Maine are people of color.)

February 29, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (2)

Tuesday, February 25, 2020

Attorney General Barr names Michael Carvajal as new permanent Director of the Bureau of Prisons

As reported in this AP piece, "Attorney General William Barr has named a new director of the beleaguered federal Bureau of Prisons, months after shaking up the agency’s top leadership following the death of wealthy financier Jeffrey Epstein."  Here is more:

Barr named Michael Carvajal as the new director Tuesday, replacing Kathy Hawk Sawyer, whom he had personally asked to return to run the agency in the wake of Epstein’s death. Carvajal is currently the assistant director of the department’s correctional programs division, which handles the daily oversight of the bureau’s correctional services. He has held a number of positions since joining the Bureau of Prisons in 1992 as a correctional officer, including working as a warden and director of a regional office.

The Army veteran is also responsible for leading the bureau’s intelligence efforts, working with other law enforcement and counterterrorism agencies around the country. “Michael’s nearly 30 years of experience with the Bureau will serve him exceptionally well as he takes on these new responsibilities, and I am confident he will do an outstanding job as director,” Barr said in a statement. “I want to thank Kathy Hawk Sawyer for her exceptional leadership and helping us identify a highly qualified individual to serve as permanent director.”

Hawk Sawyer, who will remain for now as a senior adviser at the Bureau of Prisons, did not intend to remain in the top post permanently and was appointed to help implement immediate reforms in the wake of Epstein’s suicide, three people familiar with the matter said. Her deputy, Thomas Kane, will remain in his job under Carvajal....

One of the people said a goal with Hawk Sawyer was to help raise Barr’s confidence in the bureau and identify someone to come in and the lead the bureau long-term. Senior Justice Department officials now believe the bureau is in a better position to implement the Trump administration’s sweeping criminal justice reform known as the First Step Act.

The Bureau of Prisons has been in the spotlight since Epstein killed himself in August while awaiting trial on charges he sexually abused girls as young as 14 and young women in New York and Florida in the early 2000s. But the federal prison agency has been plagued for years by a chronic staffing shortage and violence and Epstein's death while in custody highlighted a series of safety lapses inside one of the most secure jails in America.

The inspector general is investigating, and the Justice Department is still probing the circumstances that led to Epstein’s death, including why he wasn’t given a cellmate. Two correctional officers responsible for watching Epstein have pleaded not guilty to charges alleging they lied on prison records to make it seem as though they had checked on Epstein, as required, before his death.

The official statement from the Justice Department about this appoint can be found at this link. I do not know anything specific about Michael Carvajal, but I do know he will be a key figure in the continuing implementation of key provisions of the FIRST STEP Act.

February 25, 2020 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, February 23, 2020

"The Extraordinary Ordinary Prisoner: Essays From Inside America’s Carceral State"

Jeremiah-book-coverThe title of this post is the title of this notable new book authored by Jeremiah Bourgeois. The book is a collection of columns, mostly written while Jeremiah Bourgeois was serving a term of life imprisonment for a crime committed at the age of fourteen. Here is how the work is described at Amazon:

On June 7, 2016, an email from a prospective writer appeared in the inbox of The Crime Report, a nonprofit criminal justice news site. The last line in the message caught the editors' attention: “I realize that submissions should include more information. However, I hope you overlook that requirement in light of the fact that I am incarcerated.”

Over the next three years, Jeremiah Bourgeois, then confined to the Stafford Creek Corrections Center, a mixed medium-minimum security prison for men near Aberdeen, Washington, contributed 36 columns on his own transformation from self-destructive rage to dedicated writer and on subjects such as the treatment of gay and transgender prisoners, the lack of a #MeToo movement for incarcerated women, and the hypocrisies of prison “family visitation” events.

Months after Bourgeois finally won his parole in 2019, The Crime Report is publishing this collection of Jeremiah Bourgeois's most searing and unforgettable work.

The Crime Report provides more of the story in this posting:

When he wrote us, he was 38 years old — and had already spent the previous 24 years behind bars for the May 19, 1992, revenge killing of Seattle store owner Tecle Ghebremichale, who had testified against his brother in an assault case. Aged 14 at the time of his crime, he was sentenced to life without parole in the era before the Supreme Court ruled such sentences for juveniles unconstitutional.  Jeremiah had every expectation of spending the rest of his life in prison. “It was probably the saddest case I’ve ever had,” his lawyer, Michael Trickey, told the Seattle Times in 2005, noting both Jeremiah’s age and length of sentence.

Jeremiah spent much of his first decade in prison in a permanent state of anger and defensiveness, frequently in conflict with corrections officers and fellow inmates.  But then something changed.  Prisoner #708897, as he would later write in his columns, realized that he was on a path to self-destruction.  He began reinventing and reeducating himself through long hours in the prison library.

He is not the first incarceree to write his story.  Prison writing has long been a special genre, and The Crime Report has frequently published work written behind bars — by both juveniles and adults. But Jeremiah’s emergence as an independent, often contrarian, voice has been especially timely as our national debate about mass incarceration approaches a crossroads.

February 23, 2020 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Friday, February 21, 2020

"People Serving Life Exceeds Entire Prison Population of 1970"

The title of this post is the title of this new fact sheet released by The Sentencing Project’s Campaign to End Life Imprisonment.  Here is how the document (which is full of interesting images) get started:

As states come to terms with the consequences of 40 years of prison expansion, sentencing reform efforts across the country have focused on reducing stays in prison or jail for those convicted of nonviolent drug and property crimes.  At the same time, policymakers have largely neglected to address the staggering number of people serving life sentences, comprising one of seven people in prisons nationwide.  International comparisons document the extreme nature of these developments.  The United States now holds an estimated 40% of the world population serving life imprisonment and 83% of those serving life without the possibility of parole.  The expansion of life imprisonment has been a key component of the development of mass incarceration.  In this report, we present a closer look at the rise in life sentences amidst the overall incarceration expansion.

To place the growth of life imprisonment in perspective, the national lifer population of 206,000 now exceeds the size of the entire prison population in 1970, just prior to the prison population explosion of the following four decades.  In 24 states, there are now more people serving life sentences than were in the entire prison population in 1970, and in an additional nine states, the life imprisonment total is within 100 people of the 1970 prison population.  

February 21, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

I am sorry to have missed this article by Chaz Arnett with the title used for the title of this post when it was first posted to SSRN some months ago, but I am glad to have seen it as recently revised. Here is its abstract:

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to their communities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of electronic monitoring as part of a burgeoning e-carceration regime, where digital prisons arise, not as substitutes to brick and mortar buildings, but as net-widening correctional strategy operationalized to work in tandem.

This Paper examines this debate on the effectiveness of electronic ankle monitors using a social marginalization framework. It argues that the current scholarly debate on the use of electronic ankle monitors is limited because it fails to consider the potential harm of social marginalization, particularly for historically subordinated groups subjected to this form of surveillance. It uses system avoidance theory to elucidate the argument that intensive criminal justice surveillance has the counterproductive effect of causing those subjected to surveillance to avoid institutions necessary for adequate reintegration and reduction in recidivism. It offers a theory of the carceral state as malleable, extending beyond prison walls, expanding our carceral reality, and placing great strains on privacy, liberty, and democratic participation. Ultimately, it stresses that a move from decarceration to e-carceration, or from mass incarceration to mass surveillance, will likely fail to resolve, and may exacerbate, one of the greatest harms of mass incarceration: the maintenance of social stratification. Thus, adequately addressing this challenge will demand a more robust and transformative approach to criminal justice reform that shifts a punitive framework to a rehabilitative one focused on proven methods of increasing defendants’ and former offenders’ connections to their community and civic life, such as employment assistance programming, technical and entrepreneurial skill development, supportive housing options, and mental health services.

February 20, 2020 in Criminal Sentences Alternatives, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment, Technocorrections | Permalink | Comments (0)

Sunday, February 16, 2020

As Virginia and other states consider expanding parole, might the federal system do the same in a SECOND STEP Act?

In this 2017 Federal Probation article, titled "Reflecting on Parole's Abolition in the Federal Sentencing System," I imagined various ways modern federal sentencing reform might have been less problematic if some form of parole had been retained in the Sentencing Reform Act of 1984.  I also noted how the legislation that became the FIRST STEP Act served as a kind of "parole light" while also explaining why I thought reformers "troubled by the punitive policies that the SRA helped usher into the federal system ought to think about talking up the concept of federal parole anew."

This not-so-old-but-already-dated article came to mind as I saw this piece from the New York Times this week under the full headline "‘It Didn’t Work:’ States That Ended Parole for Violent Crimes Are Thinking Again; Virginia, newly dominated by Democrats, may broaden parole for the first time in a generation. Others states are watching."  Here are excerpts:

After Zenas Barnes was convicted of three robberies in the 1990s, he accepted a plea deal that stunned even veteran lawyers for its severity: 150 years in state prison. Mr. Barnes, who was 21 at the time, said that he had not realized when he took the deal that the Virginia Legislature had, only months before, abolished the most common type of parole, meaning that there was a good chance he would die in prison.

Twenty-five years later, the State Legislature, newly dominated by Democrats, is poised to broaden parole for the first time in a generation.  The move would give Mr. Barnes and thousands of other prisoners convicted of violent crimes a chance for parole, which allows inmates to be released early.

Watching closely are lawmakers across the nation, including in California, New York, Illinois and Pennsylvania.  Like Virginia those states decades ago virtually eliminated discretionary parole, granted by appointed boards on a conditional basis, during an era of surging violent crime and the imposition of progressively harsher punishments.

“We thought we were fighting crime, and it didn’t work,” said David Marsden, a Democratic state senator in Virginia, who has previously introduced bills to restore parole but was blocked by Republican majorities.  “But more recently, we’ve stopped trying to teach lessons and started trying to solve problems.  People are now more likely to believe that people deserve a second chance.”...

Even in Virginia, where Democrats won majorities in both chambers of the Legislature in November, and which also has a Democratic governor, Ralph Northam, the question of expanding parole remains politically perilous.  This month, Democrats shelved a bill that would have restored the possibility of parole for nearly 17,000 inmates — more than half the state’s prison population.  Instead, Democrats have focused on more modest efforts to restore parole to older inmates.

“The prevailing attitude of policymakers is we’ve come to the limit because they don’t want to release violent offenders,” said Marc Mauer, executive director of the Sentencing Project, a nonprofit that advocates shorter sentences and other policy changes to the criminal justice system.  There is no significant difference in violent crime rates between states that allow parole and those that do not, according to federal data.  But Mr. Mauer said many people associate parolees with recidivism and violence, and their crimes often garner significant public attention.

Republican lawmakers have warned that restoring parole would make Virginia — which has the fourth lowest violent crime rate of any state — more dangerous.  “When parole is granted, it will result in violent criminals being released into our communities,” said Robert Bell, a Republican member of the House of Delegates.  Mr. Bell added that parole “will force victims of violent crimes and their families to relive the worst day of their lives over and over again.”...

Both chambers of the Virginia Legislature have already approved a bill that would make hundreds of prison inmates eligible for parole because they were convicted by juries that were not informed by courts that defendants were no longer eligible for parole after the practice was abolished in 1995.  Governor Northam has said he will support it.

Mr. Northam has also said he supports a bill that would grant parole eligibility to prisoners who are older than 50, a group that may number in the thousands.  He has not yet said whether he would sign a measure that would restore the possibility of parole to thousands of inmates who have served 20 years or more of their sentences.  Both bills are expected to be passed by both chambers of the Legislature.  The governor has not taken a position on the shelved bill that would have restored the possibility of parole for more than half the state’s prison population.

I think it wise for any parole reform, at the state or federal level, to move forward incrementally.  Given the Supreme Court's Eighth Amendment rulings, jurisdictions ought to have general parole mechanism that are available to all young offenders sentenced to very long prison terms.  Likewise, public safety concerns would be minimized if and when parole eligibility is at least initially focused upon defendants imprisoned for long periods for non-violent offenses (especially for first offenses and for offenses without victims).

Notably, the federal prison system likely has many more defendants imprisoned for long periods for non-violent offenses than do state systems because, according to federal prison data, roughly 40% of federal prisoners are incarcerated for drug offenses and nearly half are serving terms of 10 years or longer.  In other words, I think the federal system would be one in which it would be ideal to develop a new modern (and initially modest) system of parole.

Notably, as reported in this post back in November, at a Senate Judiciary oversight hearing with the head of the federal Bureau of Prisons, Senator Lindsay Graham raised the idea of "reinstituting parole in the federal system."  I am sorry we have not yet seen any follow-up on this idea from Senator Graham or others, but I am encouraged that parole appears to no longer be a dirty word in various criminal justice reform conversations.  And, as the title of this post indicates, I think it would be a great idea to include in any SECOND STEP federal reform proposals to follow up the "parole light" elements in the FIRST STEP Act.

February 16, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 12, 2020

"Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System"

DownloadThe title of this post is the title of this notable new report from the Council of State Governments Justice Center that was released yesterday.  This webpage provides context and overview about the report, and here are excerpts:

New data from a 50-state report ... reveals how state policies fail to support, and often restrict, incarcerated people from accessing continued education, despite research showing that such education can significantly reduce reoffending and increase employment rates.  The report, Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System, shows that only 10 states allow all people behind bars to access college and employment certification courses, while the rest prohibit certain segments of the incarcerated population from participating....  

Laying the Groundwork also reveals that barriers to education aren’t confined to correctional facilities, but follow people after they’re released: half of all public universities in the U.S. require applicants for admission to disclose their criminal history.  This practice has been shown to discourage potential students from even completing their applications. 

Most states can’t attribute these challenges to a lack of resources. Only three states use all of the federal funding available specifically to support postsecondary education for people in prison; the rest leave taxpayer money on the table.  And two-thirds of states restrict state-based financial aid for currently and formerly incarcerated students, adding another barrier to continued education.

Laying the Groundwork is based on data collected through original surveys of all 50 state correctional agency education directors and parole-granting agencies, as well as extensive online research on state statutes, regulations, and administrative policies, and university application processes....  

The report outlines four essential building blocks states must have in place to make postsecondary education accessible to people impacted by the criminal justice system: making use of available funding, offering a variety of programming aligned with local employer needs, eliminating restrictions on participation, and providing incentives and supports to encourage participation and completion.  Currently, no state has all four of these basic elements in place. And less than half of states meet the criteria for each one of the building blocks, demonstrating that while states may recognize the importance of continued education, they can do much more to ensure that currently and formerly incarcerated people can access it.

To help states make continued education more effective and attainable, Laying the Groundwork includes checklists of best practices that can inform efforts to improve state statute, administrative policy, and funding practices. States can use these checklists to ensure that they are doing all they can to make their communities safer by providing people in correctional facilities and who have a criminal record the opportunity to continue their education.

The report was developed by The Council of State Governments Justice Center and funded by Lumina Foundation.  Read the full report and find every state’s factsheet here.

February 12, 2020 in Collateral consequences, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, February 09, 2020

American Journal of Public Health's supplement explores public health impact of carceral state

Download (10)I have just recently seen that the American Journal of Public Health has this big new "Supplement" with many articles under the headline "Documenting and Addressing the Health Impacts of Carceral Systems."  This short introduction to the issue closes this way:

Over the past 40 years, our society has deliberately divested from social and public goods designed to promote health and economic security while pumping resources into police, courts, and correctional systems that punish, impoverish, and dehumanize people and communities.

We conceptualized this special supplement to amplify the growing chorus of scholars, practitioners, and activists who are committed to ending mass incarceration.  As an interdisciplinary field, public health has a critical role to play by bringing our range of theoretical and analytic tools to bear on documenting and addressing the health impacts of carceral systems.  As conveyed in prior research and the articles in this supplement, mass incarceration has already caused incalculable damage to the health and vitality of our society.  As scholars working on these issues in local government, academia, advocacy, and the nonprofit world, we saw a need to further solidify recognition of mass incarceration as a sociostructural driver of health inequities in our field by devoting an entire supplement to this topic in a premier journal.

This supplement includes original research and essays that portray the myriad pathways through which carceral systems imperil the health of individuals, families, neighborhoods, and the population by compromising social determinants of health.  Collectively, it also offers visionary ideas and practical guidance for addressing these harms.  We hope it inspires public health scholars, advocates, and practitioners to continue devoting their intellect and energy to the topics covered.

We are thankful to everyone who submitted and contributed to this issue.  We are especially fortunate to have powerful pieces written by formerly incarcerated people who are working tirelessly to help those still locked down to find hope and dismantle carceral systems for future generations.  In addition, we thank the editors and staff at AJPH and the Robert Wood Johnson Foundation for supporting this supplement and ensuring that the articles are available in an open-access format.  The aim was to ensure that the content finds its way beyond academic discourse and proves useful to all people fighting for health equity, decarceration, and racial justice.

This supplement includes nearly three dozen (relatively short) articles that ought of be of great interest to those interested in the intersections of criminal justice and public health. Here are just a few of the pieces that ought to be of particular interest to sentencing fans:

February 9, 2020 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Wednesday, February 05, 2020

"Lost in Translation: 'Risks,' 'Needs,' and 'Evidence' in Implementing the First Step Act"

The title of this post is the title of this notable new paper now available via SSRN authored by Jennifer Skeem and John Monahan.  Here is its abstract:

In this article, we focus on two highly problematic issues in the manner in which the First Step Act of 2018 is being implemented by the Bureau of Prisons: (1) an uncritical separation of “dynamic risks” and “criminogenic needs” and (2) a spurious reliance on “evidence-based” interventions to reduce recidivism risk.  We argue that if the Act is to live up to its promise of being a game-changing development in efforts to reduce crime while simultaneously shrinking mass incarceration, “needs assessment” must be subject to vastly increased empirical attention, variable and causal risk factors must be identified and validly assessed, and interventions to reduce risk must be rigorously evaluated both for their fidelity of implementation and impact on recidivism.  Rather than further proliferating programs that ostensibly reduce risk, we believe that serious consideration should be given to the Bureau of Prisons offering one signature, well-established cognitive-behavioral program that can simultaneously address multiple risk factors for moderate and high-risk prisoners.

February 5, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, February 03, 2020

"What Would a World Without Prisons Be Like?"

The question in the title of this post is the title of this recent piece from The New Yorker.  Of course, the question does not lend itself to an easy answer, and this piece includes a 20+-minute podcast to dig deeper.  Here is how the segment is previewed:

Mass incarceration is now widely regarded as a prejudiced and deeply harmful set of policies.  Bipartisan support exists for some degree of criminal-justice reform, and, in some circles, the idea of prison abolition is also gaining traction.  Kai Wright, the host of the WNYC podcast “The United States of Anxiety,” spoke about the movement with Paul Butler, a law professor and former federal prosecutor who saw firsthand the damage that prosecution causes, and sujatha baliga, a MacArthur Foundation fellow and a survivor of sexual violence who leads the Restorative Justice Project at the nonprofit Impact Justice.

“Prison abolition doesn’t mean that everybody who’s locked up gets to come home tomorrow,” Butler explains.  Instead, activists envision a gradual process of “decarceration,” and the creation of alternative forms of justice and harm reduction.  “Abolition, to my mind, isn’t just about ending the prisons,” baliga adds. “It’s about ending binary processes which pit us as ‘us, them,’ ‘right, wrong’; somebody has to be lying, somebody’s telling the truth. That is not the way that we get to healing.”

February 3, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2)

Friday, January 31, 2020

"How America’s prisons and jails perpetuate the opioid epidemic"

The title of this post is the headline of this new Vox piece by German Lopez.  Here are excerpts:

Just Rhode Island and Vermont officially offer all three federally approved opioid addiction medications (buprenorphine, methadone, and naltrexone) to jail and prison inmates.  The 48 other states and the federal government offer them only in limited circumstances or not at all.

The lack of adequate treatment in jails and prisons puts a vulnerable population of around 2.3 million people at risk. About 58 percent of people in state prisons and about 63 percent of those sentenced in jails meet the definition for drug dependence or misuse, compared to 5 percent of the general population, according to a 2017 report from the Bureau of Justice Statistics.

Yet a 2017 study by Johns Hopkins researchers found that less than 5 percent of people who were referred to opioid use disorder treatment through the justice system received methadone or buprenorphine, compared to nearly 41 percent of people referred through other sources.

The result is likely more overdoses and deaths.  A 2007 study in The New England Journal of Medicine found ex-inmates’ risk of a fatal overdose is 129 times as high as it is for the general population during the two weeks after release.  Other studies have backed up the finding that recently released inmates are at particular risk of overdose. In Rhode Island, a preliminary research letter in 2018 found that the state’s program offering medications for opioid addiction was followed by a more than 60 percent drop in overdose deaths among recently released inmates.

But many local and state lawmakers and jail and prison officials remain skeptical. Some of that skepticism is driven by stigma: the view that addiction is a moral failing, not a medical condition, so public resources shouldn’t go to treating it. Stigma toward medications for addiction — like the myth that medications are simply “replacing one drug with another” — is especially prominent. And there are funding and logistical concerns with better addiction treatment programs in jails and prisons, although Rhode Island and Vermont show those issues can be overcome.

“We have a population that’s incredibly vulnerable,” Sarah Wakeman, medical director at the Massachusetts General Hospital Substance Use Disorder Initiative, previously told me. “It’s really inexcusable that we don’t make this available for people who are at such risk of death.”

January 31, 2020 in Prisons and prisoners | Permalink | Comments (0)

Monday, January 27, 2020

"(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People's 'Ruin'"

The title of this post is the title of this notable new piece now available via SSRN authored by Judith Resnik. Here is its abstract:

In 2019, all Justices on the U.S. Supreme Court agreed in Timbs v. Indiana that the Constitution’s prohibition on excessive fines applied to the states.  The Court’s opinion discussed the Excessive Fines Clause’s “venerable lineage” and termed its protections “fundamental.”  Justice Thomas, concurring, wrote that the English prohibition against excessive fines aimed to insulate citizens from what historians called “ruinous fines.”

This Essay puts Timbs into the context of the Court’s search for metrics to assess the legitimacy of governments’ choices about punishment.  In and after the 1960s, as convicted and incarcerated people asserted that constitutional law constrained sovereign powers, the Court repeatedly encountered challenges to punishment.  I bring together lines of cases that have sat in doctrinal silos to show the links between the concerns animating judicial limits on sentencing and judicial recognition of incarcerated people’s rights to safety, sanitation, food, medical care, access to courts, and religious observance.  I argue that this body of law, produced through convicted individuals’ insistence that they were entitled to constitutional protection, should be read to constitute a nascent anti-ruination principle that all branches of government need to implement.

January 27, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, January 26, 2020

"The Cruelty of Supermax Detention and the Case for a Hard-Time Sentencing Discount: A Pragmatic Solution to a Moral Shortcoming Which Is Otherwise Unlikely to Be Fixed"

The title of this post is the title of this new paper authored by Mirko Bagaric and Jen Svilar now available via SSRN.  Here is its abstract:

We should send offenders to prison as punishment, not for punishment.  This principle is currently being violated in relation to approximately 60,000 offenders who are caged in ‘supermax’ prison conditions in the United States.  Many of these prisoners spend up to 23 years in a small cell with no contact with any person.  The conditions are traumatic. Emerging evidence demonstrates that these conditions cause considerable psychological and physical harm to prisoners.  Understandably, there are growing calls to abolish confinement of this nature.  However, there are no signs that abolition of supermax conditions will occur soon.  Despite this, it is incontestable that the deprivation experienced by prisoners can vary considerably, depending on the strictness of the prison regime in which the prisoner is confined.  Prisoners subjected to supermax conditions suffer considerably more than those in conventional prison conditions.

In this Article, we make recommendations regarding the manner in which prison conditions should impact the length of a prison term.  We suggest that for most prisoners, every day spent in supermax conditions should result in two days’ credit towards the expiration of the prison term.  Hard-time credits are justified by the principle of proportionality, which stipulates that the seriousness of the crime should be matched by the hardship of the penalty.  The main cohort of prisoners that should not be eligible for hard time credits are serious sexual and violent offenders who are at risk of re-offending, as determined by the application of a risk assessment instrument.  Infringement of the proportionality principle is justified in these circumstances because of the more pressing need to pursue the ultimate aim of sentencing: community protection.

Providing hard-time credits for most prisoners who are forced to endure supermax conditions will not overcome the ethical problems associated with this form of detention — which are especially acute given that African American and Hispanic inmates are disproportionality subjected to supermax confinement.  However, the reform proposed in this Article will provide a pragmatic solution to a considerable failing in our sentencing and prison systems and operate to make authorities less inclined to subject prisoners to cruel conditions in a manner that does not compromise community safety.

January 26, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Friday, January 17, 2020

The Sentencing Project reports briefly on "Top Trends in State Criminal Justice Reform, 2019"

The folks at The Sentencing Project have this helpful new short brief reviewing "Top Trends in State Criminal Justice Reform, 2019." The four-page document starts and ends this way:

The United States is a world leader in incarceration and keeps nearly 7 million persons under criminal justice supervision.  More than 2.2 million are in prison or jail, while 4.6 million are monitored in the community on probation or parole. More punitive sentencing laws and policies, not increases in crime rates, have produced this high rate of incarceration.  Ending mass incarceration will require changing sentencing policies and practices, scaling back the collateral consequences of conviction, and addressing racial disparities in the criminal justice system.  In recent years most states have enacted reforms designed to reduce the scale of incarceration and the impact of the collateral consequences of a felony conviction.  This briefing paper describes key reforms undertaken in 2019 prioritized by The Sentencing Project....

During 2019, lawmakers in several states enacted legislative changes to address high levels of imprisonment. While the reforms help improve criminal justice policy, most measures will have a modest impact on the scale of incarceration.  It will take more far-reaching measures to markedly reduce the nation’s rate of incarceration, which is far above that of other western nations. Given the limited impact of incarceration on crime, there is potential for significant reductions in state prison populations.  Lawmakers and advocates should explore key changes that limit the use of incarceration, challenge racial disparity, address collateral consequences, and improve outcomes for justice-involved youth.

January 17, 2020 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, January 15, 2020

Justice Department announces new FIRST STEP Act developments and data

Via this press release, titled "Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation," DOJ reported today on various new FIRST STEP realities. Here are excerpts from the press release:

The Department of Justice announced several significant developments in the implementation of the First Step Act (FSA) in a report published today [which is available here]...

Some of the key developments are described here:

  • In accordance with the First Step Act and due on Jan. 15, 2020, all inmates in the Bureau of Prisons (BOP) system have received an initial assessment using the Justice Department’s risk and needs assessment tool known as the Prisoner Assessment Tool Targeting Estimated Risk and Need (PATTERN). Initially released last July, the tool is designed to measure risk of recidivism of inmates.
  • As of Jan. 15, 2020, inmates will be assigned to participate in evidence-based recidivism reduction programs and productive activities based on an initial needs assessment conducted by BOP. Participation and completion of those assigned programs and activities can lead to placement in pre-release custody or a 12-month sentence reduction under the First Step Act. A list of these programs will be published on the BOP’s website.
  • In response to the public comments received and in coordination with the Independent Review Committee (IRC), the Justice Department has made changes to PATTERN that enhance its effectiveness, fairness and transparency....
  • The department will also begin a pilot program to publish recidivism data and other First Step Act updates on a quarterly basis....

Implementation Progress, New and Expanded BOP Programs Under FSA.

The FSA provides for eligible inmates to earn time credits if they participate and complete assigned evidence-based recidivism reduction programs or productive activities. It also provides for the expansion of existing programs that allow for compassionate release and home confinement.

Releases for Good Conduct Time.  In July 2019, over 3,100 federal prison inmates were released from the Bureau of Prisons’ custody as a result of the increase in good conduct time under the Act.

Retroactive Resentencing.  The Act’s retroactive application of the Fair Sentencing Act of 2010 (reducing the disparity between crack cocaine and powder cocaine threshold amounts triggering mandatory minimum sentences) has resulted in 2,471 orders for sentence reductions.

Compassionate Release.  The BOP updated its policies to reflect the new procedures for inmates to obtain “compassionate release” sentence reductions under 18 U.S.C. Section 3582 and 4205(g).  Since the Act was signed into law, 124 requests have been approved, as compared to 34 total in 2018.

Expanded Use of Home Confinement.  The FSA authorizes BOP to maximize the use of home confinement for low risk offenders.  Currently, there are approximately 2,000 inmates on Home Confinement.  The legislation also expands a pilot program for eligible elderly and terminally ill offenders to be transitioned to Home Confinement as part of a pilot program.  Since enactment of the law, 379 inmates have been approved for participation under the pilot program.

Drug Treatment.  The BOP has always had a robust drug treatment strategy. Offenders with an identified need are provided an individualized treatment plan to address their need.  In FY 2019, approximately 14,800 offenders enrolled in Residential Drug Abuse Program (RDAP), almost 21,000 offenders enrolled in Non-residential drug treatment, and almost 23,000 offenders participated in Drug Education.

Medication Assisted Treatment (MAT).  The FSA requires BOP to assess the availability of and the capacity to treat heroin and opioid abuse through evidence-based programs, including medication-assisted treatment.  In the wake of the opioid crisis, this initiative is important to improve reentry outcomes.  Every inmate within 15 months of release who might qualify for MAT has been screened.

Effective Re-Entry Programming.  FSA implementation includes helping offenders successfully reintegrate into the community -- a critical factor in preventing recidivism and, in turn, reducing the number of crime victims.  Finding gainful employment is an important part of that process.  In furtherance of this goal, the BOP launched a “Ready to Work” initiative to connect private employers with inmates nearing release under the FSA.

Other BOP programs directed towards the full implementation of the FSA include the operation of twenty pilot dog programs, the development of a youth mentoring program, the identification of a dyslexia screening tool, and issuance of a new policy for its employees to carry and store personal weapons on BOP institution property.

January 15, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners | Permalink | Comments (1)

"The economic and moral costs of our inhumane prison system"

The title of this post is the headline of this recent Washington Examiner commentary authored by Arthur Rizer.  Here are excerpts:

In the U.S., we say we care about human dignity and rehabilitation. We say we want to promote public safety.  But our actions show a different reality. As a result, the American incarceration system produces little benefit to either those caught within the system or those forced to pay for it.

Mississippi, for example, houses more inmates on a per capita basis than nearly any other state in the country.  The reason has nothing to do with crime rates there but rather with how the state chooses to address crime.  Mississippi’s draconian habitual-offender laws have resulted in thousands of people serving decades in prison. Because these laws require prison sentences even for minor, nonviolent offenses, the punishment is often severely disproportionate to the underlying conduct.  A person can be sentenced to die in prison for possessing marijuana if they have two prior convictions — even if one conviction was for something as minor as shoplifting.

The conditions in Mississippi prisons are an added affront to America’s purported commitment to protecting human dignity.  Indeed, stories and photos of prison conditions at the state’s Parchman Farm penitentiary that were leaked earlier this year prompted Families Against Mandatory Minimums to send a letter to the U.S. Department of Justice’s Civil Rights Division demanding an investigation into the facility’s “unsafe conditions, violence, weapons, and understaffing.”

Unsurprisingly, U.S. prisons are also extraordinarily deadly.  Last year, more than 75 people died in Mississippi Department of Corrections custody — 16 in August alone. In 2019, the number of prisoner deaths spiked again.  Overcrowding, inadequate resources, and a focus on retribution over rehabilitation all contribute to an environment that is an affront to human dignity.

We pay not only a moral cost for this ineffective and inhumane system but also an economic one. Mississippi spends nearly $1 million a day on its prison system. But that money is not spent on making sure people are prepared to become productive members of society, so it is no surprise that many people return to prison after they are released. Warehousing people in prisons and then releasing them into society without any support, training, or opportunity rarely results in success....

Germans have a fundamentally different way of thinking about corrections. Article 1 of Germany’s postwar Constitution states that human dignity is “inviolable,” and one sees this value implemented nowhere more clearly than in the German approach to incarceration....  To Germans, the loss of freedom, not cruel treatment or inhumane prison conditions, is the punishment.  And that loss is administered for the shortest time necessary.  Approximately 75% of prison sentences are for 12 months or less, and 92% of sentences are for two years or less.  Compare this to the U.S., where the approximate average sentence is three years.

For Germans, corrections are not about humiliation or retribution.  They are about healing.  This means that their focus is squarely on rehabilitation.  Normalization, or making life in prison closely resemble life in a community, and preparation for reentering society take precedence over everything else.  Similarly, resocialization replaces isolation. Instead of simply treating inmates as potential problems, guards act as motivators and actively create a positive culture within the prison community.  By learning to respect the humanity of those within their care, the guards play an integral role in preparing those in prison for reentering their communities....

In our approach to criminal justice and corrections, we have fallen behind other major countries in the world.  Like the Germans, we have to change the way we think about our correctional systems.  Reforming Mississippi’s habitual sentencing laws and commuting overly harsh sentences would be a good place to start.

January 15, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (1)

Friday, January 10, 2020

Reviewing uncertainty still surrounding earned-time credits created by the FIRST STEP Act

Alan Ellis, Mark Allenbaugh, and Nellie Torres Klein have this new Bloomberg Law piece headlined "The First Step Act — Earned Time Credits on the Horizon." The piece is an important reminder that, even a full year after the enactment of the FIRST STEP Act, there is still uncertainty surrounding the operation of one of the biggest part of the legislation.  Here are excerpts:

One of the remaining programs to be implemented under the First Step Act is set to begin shortly, enabling some prisoners to earn time credits. But some impediments still exist. As of January, all inmates in the Bureau of Prisons (BOP) custody will have undergone an initial assessment pursuant to implementing a new risk and needs assessment program pursuant to the First Step Act.

By January 2022, it is anticipated the BOP will begin providing all eligible inmates recidivism reduction programming based on their identified needs.  As an incentive for participating in such programming, the First Step Act directs that eligible inmates be able to earn time credits which, while not expressly reducing their sentence, under some circumstances can be used toward increasing pre-release custody (e.g., halfway house and/or home confinement).  The BOP has stated it will post available programming opportunities on its website soon....

In theory, these time credits can then be redeemed by eligible inmates for early transfer into a halfway house, home confinement, or supervised release.  Earned time credits thus do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.

Importantly, potentially large categories of inmates will not be eligible to receive earned time credits based on the crime they committed.  Additionally, non-citizens with immigration detainers will not be able to benefit.... Offenders who complete rehabilitative programs serving sentences for offenses not eligible to receive earned time credits are nonetheless eligible for other incentives including increased telephone and email time, expanded visitation and more options at the commissary.  Incentives for privileges will be decided by individual wardens at each institution.

The current limits on time in a halfway house (up to 12 months) and home confinement (six months or 10% of the sentence, whichever is less) will not apply to earned time credits.  Thus, a person can be released to a halfway house and/or home confinement even earlier, meaning, inmates can spend more than 12 months in a halfway house or more than ten percent of their sentence in home confinement after accumulating earned time credits....

If properly implemented, this aspect of the First Step Act could not only significantly lower the number of inmates in an already over-crowded and under-staffed system, but actually reduce recidivism and thereby provide important insights to criminal justice professionals and legislators on best practices for keeping people out of prison.  As of now, no one can earn time credits for completing the program or productive activities until the DOJ completes and releases PATTERN, and the BOP creates or expands existing evidence-based programming or productive activity.  As a result, earned time credits received prior to the implementation of the Risk Assessment Tool will not be eligible for redemption until the Tool is implemented.

Unfortunately, the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.  PATTERN was the subject of a House Judiciary Committee Oversight Hearing where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” 

The DOJ has been somewhat circumspect as to how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.”  Nonetheless, indications are that inmates will begin being scored under a preliminary version soon.

Another potential impediment to full implementation will be the availability of half-way house beds.  In certain parts of the country, there is a shortage of available half-way house beds for federal inmates.  The act did not mention any additional funding or resources for the BOP to implement this program.  This obviously could potentially delay or otherwise limit the implementation of other aspects of the program.  Congress’ intent under the First Step Act is well-intentioned, but without adequate funding, it may not benefit qualifying inmates it was designed to serve.

January 10, 2020 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, January 05, 2020

Noting the discouraging connection between criminal justice involvement and overdose deaths

This recent Connecticut Mirror piece, headlined "From prison to the grave: Former inmates now account for more than half of all drug overdose deaths in Connecticut," spotlights the disconcerting link between involvement with the criminal justice system and overdose deaths:

Accidental drug overdose deaths tripled in Connecticut between 2010 and 2018, with the proportion of overdose victims with prior involvement in the criminal justice system slowly increasing during that time.

Former inmates account for more than half of the people who died from drug overdoses between 2016 and 2018, according to an analysis of new state data. In 2015, this same group made up 44% of the people who died from an overdose.

Officials with the Office of Policy and Management’s Criminal Justice Policy and Planning Division discovered the uptick in drug deaths among former inmates when examining data from the Office of the Chief Medical Examiner and the Department of Correction.

While the data shows an overlap between criminal justice involvement and overdose deaths, many details are still missing.  While officials believe the majority of the overdose deaths are from fentanyl, for example, OPM did not specify this in its analysis.  There has been a dramatic increase in fentanyl-related deaths statewide over the past half-decade, according to the Office of the Chief Medical Examiner.  Of 1,017 opioid deaths last year, 75% involved fentanyl. In 2012, fentanyl deaths accounted for 4% of the total.

There are other unanswered questions, as well. “We don’t know whether they were admitted pretrial or served a sentence,” said Marc Pelka, Gov. Ned Lamont’s undersecretary of criminal justice policy and planning. “We don’t know how soon after their release they experienced an accidental drug overdose death.”

Pelka said his office likely would do a deeper dive into the data to learn more about the intersection between arrests and overdose fatalities.  Even without that detail, however, the data is startling, officials said.  “I hope that this whole commission really understands what this shows. Because I’m seeing this come across my desk every day,” Department of Correction Commissioner Rollin Cook told his colleagues on the Criminal Justice Policy Advisory Commission during a recent presentation on the data.  Cook said one of his jobs is to sign off on investigations into overdose deaths of people who have been released from prison but are still under state supervision.

Those reports, Cook said, often show the overdose victims were attending recovery programs and adhering to the terms of their parole.  “They’re doing everything they’re supposed to do,” he said. “Yet we’re still losing them. They’re dying.”

People released from prison are at greater risk of certain early deaths compared to the general population.  Research shows people who get out of prison are 40 times more likely to die of an opioid overdose within two weeks of their release than those who haven’t spent time behind bars.  In Connecticut, white ex-prisoners are more likely to die from drug overdoses, while black former inmates are more likely to die by homicide....

The overlap between criminal justice system involvement and addiction makes sense to Louis Reed, an organizer for the national criminal justice reform group Cut 50.  Criminal records function as scarlet letters, making it hard for people to secure housing or land jobs even after their sentences have ended. “The moment they get a door slammed in their face they most likely are going to go right back to what it is they felt was more comfortable to them,” Reed explained.  Using drugs after a long period of sobriety while incarcerated also poses problems, said Reed. Tolerances decrease when people don’t use for a while.  That puts them at risk of an accidental overdose because their first hit “shocks their system.”

January 5, 2020 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Friday, January 03, 2020

"The Effectiveness of Prison Programming: A Review of the Research Literature Examining the Impact of Federal, State, and Local Inmate Programming on Post-Release Recidivism"

The title of this post is the title of this notable new research document authored by James Byrne on Behalf of the First Step Act Independent Review Committee. (Backgound on this important Committee can be found at this link.)  I do not believe that this Committee has yet produced much original substantive material, and I am not sure if this new 42-page research document (which is dated Dec. 2019) is a sign of more to come.  In any event, here is its introduction:

The First Step Act emphasizes the importance of BOP programming as a recidivism reduction strategy and includes sentence-reduction incentives for eligible inmates who participate in “evidence-based recidivism reduction programs.”  This memorandum reviews available research about the recidivism reduction effects of federal, state, and local prison programming in an attempt to determine to what extent such programming can fairly be described as evidence-based.  There are three distinct types of reviews that can be used to establish evidentiary criteria and determine “what works” in the area of prison programming (Byrne and Luigio, 2009).  The most rigorous such review would focus narrowly on the results of high quality, well-designed randomized control trials (RCTs) conducted during a specified period.  A minimum of two RCTs demonstrating effectiveness (and a preponderance of lower-level research studies producing similar results) would be necessary before a determination could be offered about whether a particular program or strategy “worked.”  This is the type of review strategy and scientific evidence relied on in the hard sciences.

A second review strategy allows identification of a program as evidence-based (or working) if there are at least two quasi-experimental studies with positive findings, and the majority of lower-quality studies point in the same direction.  This is the approach used in the reviews produced by the Campbell Collaborative.  A variation on this approach — representing a third type of evidence-based review — is found on the DOJ CrimeSolutions.gov website, where a program will be described as effective based on a rating of each applicable research study by two independent reviewers.

To be rated as effective, at least one high quality evaluation — RCT or well-designed quasi-experiment — needs to be identified.  This memorandum adopts the second standard described above to summarize the research under review (see Appendix B), but we have also examined all studies and reviews of prison programs identified by CrimeSolutions.gov.

Included in this review is a careful look at the available evaluation research on the BOP programming, focusing on the 18 “national model” prison programs identified by BOP.  Also included in this review is an examination of the much larger body of evaluation research conducted on the recidivism reduction effects of state and local prison programs.  This memorandum offers summary assessments of all relevant evaluation research and corresponding recommendations for DOJ and BOP to consider as they move to implement high quality, evidence-based programming in the federal prison system.

And here is a key paragraph labelled "Conclusion" after a detailed substantive discussion (with emphasis in original):

Completion of prison programming by federal prisoners does appear to provide an important signal that these individuals have begun to address — via BOP programming — problems that we know are linked to criminality: substance abuse, mental health deficits, and lack of education and/or employment skills.  However, a careful review of the evaluation research strongly suggests that the likely effects of participation in current prison programming on both treatment outcomes (i.e. improvement in identified need areas) and post release behavior are—statistically speaking—significant but marginal (i.e. about a .10 absolute difference between treatment and control groups is the likely result were these programs rigorously evaluated).  While prison programming is certainly one piece of the desistance puzzle, it appears that individuals will desist from crime upon release from prison based on a variety of individual and community level factors not directly related to the availability and/or quality of prison programming.  For this reason, accurate prison-based risk/need classification that links inmates at different risk/need levels to appropriate evidence-based prison programming should be followed by evidence-based reentry programming (Cullen, 2013).  While this report focuses on prison programming, we recognize the critical role of reentry programming and community context (e.g. structure, support, resources, location) in the desistance process.

January 3, 2020 in Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, January 02, 2020

Deep dive into parole history and modern parole practice in California

The New York Times Magazine has this very long new piece on parole under this full headline "Can You Talk Your Way Out of a Life Sentence?: California is giving a second chance to thousands of inmates who had no hope of parole. But first they have to prove to a panel of strangers that they’ve truly changed." The lengthy piece merits a full read, and here is a snippet from its early sections:

The modern idea of basing a prisoner’s release on evidence of his or her rehabilitated character can be traced to 1870, when the inaugural meeting of the newly formed American Prison Association took place in Cincinnati. There, representatives from 25 states, Washington, D.C., and Canada adopted a declaration of principles, among them that prisoners should be rewarded for good conduct and that a “prisoner’s destiny should be placed, measurably, in his own hands.” To achieve this, they argued, “sentences limited only by satisfactory proof of reformation should be substituted for those measured by mere lapse of time.”

By 1922, nearly every state in the union had adopted indeterminate sentencing, in which judges hand out sentences that are formulated as a range of years — a minimum and a maximum amount of time to be served. The responsibility for deciding exactly when in this range an inmate had been rehabilitated enough to be released was vested in state parole boards. (The federal penal system has its own early-release process.)

Over the next half century, it became clear that there was an intrinsic tension between the high-minded notion that inmates should be in control of their own destinies, by deciding whether or not to reform, and the practical difficulty of determining whether they had actually done so. By the 1970s, the discretionary parole system was under attack. Liberals argued that a parole board’s broad leeway allowed racial and class biases to rule unchecked. Conservatives argued that parole boards were releasing dangerous felons who then went on to commit more crimes. A rising national crime rate made the public increasingly dubious of the paternalistic promises of a rehabilitative system.

Over time, some states got rid of parole entirely, while others drastically increased the minimum amount of time an inmate would need to serve before becoming eligible to go before a board. In Georgia, for example, inmates who received a life sentence for a serious crime committed before January 1995 became eligible for parole after seven years. Those who have received a life sentence for a crime committed after June 2006 don’t become eligible for parole until they’ve served 30 years.

But discretionary parole continues to exist in most states, even if it’s often limited to a small pool of longtime inmates whose lengthy periods of incarceration have consigned them to near-oblivion. Conducted by panels of political appointees with varying levels of professional expertise, little accountability and almost unlimited discretion, parole hearings rarely garner attention except when a high-profile inmate comes up for parole.

The United States Supreme Court ruled in 1987 that inmates who have been sent to prison for life have no due-process right to be released unless the wording of their state’s parole statute created one. In the absence of such rights, parole decisions can be remarkably arbitrary. A 2017 survey of paroling authorities by the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School found that 41 percent of parole boards never make public the logic behind a parole denial, and at least seven states don’t require their parole boards to provide a written explanation for their denial to the parole-seeking inmate. Prisoners are often unable to see the file that the parole board bases its decisions on — in Alabama and North Carolina, inmates are not even allowed to be present for the hearing. While every state except Kentucky and New Mexico allows inmates to have a lawyer at their hearing, very few states will pay for one, which means only a tiny minority of inmates have a lawyer with them at their hearings. “You have about 3 percent of the procedural rights before a parole board as you would in a courtroom,” says Kevin Reitz, the Robina Institute’s former co-director.

All of this makes discretionary parole a far cry from the equation proposed in 1870, in which demonstrated behaviors would result in predictable outcomes. Instead, Reitz has found that parole commissioners are dominated by fears of releasing an inmate who goes on to commit a terrible crime. That’s exactly what happened on March 19, 2013, when a parolee, Evan Ebel, murdered Tom Clements, the executive director of Colorado’s Department of Corrections. When he interviewed parole board members in Colorado, Reitz says, he found the specter of that murder loomed over every decision they made: “Board members told me, ‘If I let someone out and he does something horrible, that’s on me.’ ” So parole-board members have little motivation to release inmates, no matter how deserving they seem.

January 2, 2020 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, December 30, 2019

Seeing the human stories behind the reform numbers one year after passage of the FIRST STEP Act

In this post a few days ago, I noted some notable metrics as we hit the one-year anniversary of the FIRST STEP Act becoming law.  Though numbers provide an important perspective on what the FIRST STEP Act has (and has not) achieved, the human stories behind these numbers are surely what is most significant and poignant.  To that end, I was pleased to see that the folks at #cut50 have assembled a set of materials here highlighting "the human impact of the FIRST STEP Act." 

Included in the #cut50 materials is this notable report titled "#HomeForTheHolidays: A Celebration of Freedom Made Possible by the FIRST STEP Act."  I recommend the report in full because it tells the individual human stories, with pictures, of just a few of the "thousands of people have been freed from federal prisons, reunited with their families, and are contributing back to their communities."  

Another way to get some sense of just some of the individual FIRST STEP Act stories is through a review of some notable posts from my FIRST STEP Act and its implementation archive.  After a full year, of course, there are far too many stories to review effectively in this space.  Nevertheless, here is a round-up of particular posts from 2019 that report on a few especially interesting individuals stories resulting from the passage of the FIRST STEP Act:

December 30, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Thursday, December 26, 2019

Tennessee Criminal Justice Investment Task Force releases extensive report with extensive criminal justice reform recommendations for the Volunteer State

As reported in this local article, the Tennessee Criminal Justice Investment Task Force recently "released its interim report, detailing problems with Tennessee's criminal justice system that have led to a high recidivism rate and 23 recommendations to fix them. Here is more about the report from the press piece:

Despite spending over a billion dollars a year and sending more people to prison, Tennessee communities are no safer than they were a decade ago.  That's the major conclusion from Governor Bill Lee's criminal justice investment task force....

Lee created the task force through an executive order in March, with the goal to help develop policies to reduce recidivism and improve public safety.  In August, the task force began reviewing the state's sentencing and corrections data, policies, practices, and programs. It also looked at what other states were doing.

Among the task force's key findings:

  • Tennessee's prison population grew 12 percent over the last decade, primarily because of longer sentences and fewer paroles
  • Three out of every four new prisoners in FY 2018 were serving time for non-violent crimes
  • Over half of prisoners released from custody are back in jail within three years
  • Half of local county jails are overcrowded
  • An increasing number of prisoners are women, with the state ranking 11th highest in the nation for female incarceration

With lawmakers set to return to Nashville in less than three weeks, the task force made 23 recommendations. The recommendations include:

  • Expanding access to sentencing alternatives, like probation and treatment programs
  • Help more inmates transition successfully back into society
  • Increase educational opportunities
  • Improve community supervision programs
  • Reduce probation terms
  • Streamline the parole process
  • Rewrite the sentencing code (replacing the current one from 1989)

This full 38-page task force report can be found at this link, and the last dozen pages has an intricate accounting of the 23 recommendations designed to "provide an avenue
for Tennessee to reduce recidivism and improve public safety."  Other states might also find these proposed avenues quite useful

December 26, 2019 in Offense Characteristics, Prisons and prisoners, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, December 20, 2019

Marshall Project and New York Times examining challenges for families of incarcerated persons

The Marshall Project has partnered this week with the New York Times on what will be a five part series of pieces exploring issues facing the families of persons who are incarcerated. Here are the headlines and links to the first three parts of this series:

"The Hidden Cost of Incarceration: Prison costs taxpayers $80 billion a year. It costs some families everything they have."

"The Long Journey to Visit a Family Member in Prison: Remote prison towns and strict visitation policies make it hard to stay in touch."

"Can You Hear Me Now?: Prison officials tout video visitation’s convenience. Families say they’re paying high rates for second-rate service"

December 20, 2019 in Collateral consequences, Prisons and prisoners | Permalink | Comments (0)

Thursday, December 19, 2019

PPI releases "Youth Confinement: The Whole Pie 2019"

Youth_pie_2019The Prison Policy Initiative has today posted the latest of its remarkable pie charts and reports providing an extraordinary look at confinement realities in the United States.  This new report by Wendy Sawyer is focused on youth confinement, and here is part of the report's introductory text and some other excerpts (along with the great infographic):

On any given day, over 48,000 youth in the United States are confined in facilities away from home as a result of juvenile justice or criminal justice involvement. Most are held in restrictive, correctional-style facilities, and thousands are held without even having had a trial. But even these high figures represent astonishing progress: Since 2000, the number of youth in confinement has fallen by 60%, a trend that shows no sign of slowing down.

What explains these remarkable changes? How are the juvenile justice and adult criminal justice systems different, and how are they similar? Perhaps most importantly, can those working to reduce the number of adults behind bars learn any lessons from the progress made in reducing youth confinement?

This report answers these questions, beginning with a snapshot of how many justice-involved youth are confined, where they are held, under what conditions, and for what offenses. It offers a starting point for people new to the issue to consider the ways that the problems of the criminal justice system are mirrored in the juvenile system: racial disparities, punitive conditions, pretrial detention, and overcriminalization. While acknowledging the philosophical, cultural, and procedural differences between the adult and juvenile justice systems, the report highlights these issues as areas ripe for reform for youth as well as adults.

This updated and expanded version of our original 2018 report also examines the dramatic reduction in the confined youth population, and offers insights and recommendations for advocates and policymakers working to shrink the adult criminal justice system....

Black and American Indian youth are overrepresented in juvenile facilities, while white youth are underrepresented.  These racial disparities are particularly pronounced when it comes to Black boys and American Indian girls.  While 14% of all youth under 18 in the U.S. are Black, 42% of boys and 35% of girls in juvenile facilities are Black.   And even excluding youth held in Indian country facilities, American Indians make up 3% of girls and 1.5% of boys in juvenile facilities, despite comprising less than 1% of all youth nationally.

Racial disparities are also evident in decisions to transfer youth from juvenile to adult court.  In 2017, Black youth made up 35% of delinquency cases, but over half (54%) of youth judicially transferred from juvenile court to adult court. Meanwhile, white youth accounted for 44% of all delinquency cases, but made up only 31% of judicial transfers to adult court.  And although the total number of youth judicially transferred in 2017 was less than half what it was in 2005, the racial disproportionality among these transfers has actually increased over time.  Reports also show that in California, prosecutors send Hispanic youth to adult court via "direct file" at 3.4 times the rate of white youth, and that American Indian youth are 1.8 times more likely than white youth to receive an adult prison sentence.

December 19, 2019 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 16, 2019

Vera Institute produces new report highlighting big increases in rural jail populations

This recent New York Times piece, headlined "‘A Cesspool of a Dungeon’: The Surging Population in Rural Jails," fills out the picture presented by the statistical story set out in this new Vera Institute report on jail populations in the United States. Here is part of the NY Times piece:

Jail populations used to be concentrated in big cities. But since 2013, the number of people locked up in rural, conservative counties such as Hamblen has skyrocketed, driven by the nation’s drug crisis.

Like a lot of Appalachia, Morristown, Tenn., about an hour east of Knoxville, has been devastated by methamphetamine and opioid use. Residents who commit crimes to support their addiction pack the 255-bed jail, which had 439 inmates at the end of October, according to the latest state data. Many cities have invested in treatment options and diversion programs to help drug users. But those alternatives aren’t available in a lot of small towns.

“In the big city, you get a ticket and a trip to the clinic,” said Jacob Kang-Brown, a senior research associate at the Vera Institute of Justice, which released a report on Friday analyzing jail populations. “But in a smaller area, you might get three months in jail.”

The disparity has meant that while jail populations have dropped 18 percent in urban areas since 2013, they have climbed 27 percent in rural areas during that same period, according to estimates in the report from Vera, a nonprofit group that works to improve justice systems. The estimates are drawn from a sample of data from about 850 counties across the country.

There are now about 167,000 inmates in urban jails and 184,000 in rural ones, Vera said. Suburban jail populations have remained about the same since 2013, while small and midsize cities saw a 7 percent increase.

Rural jails now lock up people at a rate more than double that of urban areas. And increasingly, those inmates are women.

Here is part of the summary from the Vera report, which is titled "People in Jail in 2019":

At midyear 2019, there were an estimated 758,400 people in local jails, up 13,200 (1.8 percent increase) from midyear 2017, which is the most recently available BJS data.  This is the highest number of people in jail since midyear 2009, and the number is up 31,000 since the recent trough in 2015 (4.3 percent increase).  Most people in jail have not been convicted of the charges they are facing, and many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those incarcerated due to unpaid child support or fines and fees.

The jail incarceration rate in the United States was an estimated 230 people in jail per 100,000 residents, up from 229 per 100,000 in 2017, representing a 0.5 percent increase. This brings the rate of jail incarceration up 1.3 percent since the recent trough in 2015.  Jail incarceration rates are 2.8 times higher than they were in 1960.

The national increase in the local jail population hides stark diverging trends across the urban to rural continuum.  Since 2013, jail populations have grown 27 percent in rural counties and 7 percent in small and mid-sized metropolitan areas.  During the same period, jail populations have declined 18 percent in large urban counties and are down 1 percent in the suburban counties surrounding those large urban counties.  In 2019, rural counties’ jail incarceration rates were more than double those of urban counties.

December 16, 2019 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, December 14, 2019

"Solitary Confinement in the Young Republic"

The title of this post is the title of this new article authored by David M. Shapiro just published in the December 2019 issue of the Harvard Law Review.  Here is its abstract:

America’s first system for punishing criminals with solitary confinement began at the Walnut Street Jail, an institution that stood right behind Independence Hall in Philadelphia. Historical and archival evidence from that facility demonstrates that the unchecked use of solitary confinement in today’s correctional facilities contravenes norms that prevailed in the Constitution’s founding era.  In the 1790s, a robust array of checks and balances cabined the discretion of corrections officials to isolate prisoners.  Judges, legislatures, and high public officials regulated human isolation at the jail, leaving prison administrators relatively little power over solitary confinement.  Most importantly, long periods of seclusion could be imposed only by courts acting pursuant to criminal sentencing statutes.  Jail officials had the power to impose solitary confinement for disciplinary violations, but only for a matter of days or weeks.  Today, however, deference to prison officials has swallowed these constraints.  In the present regime, some prisoners remain isolated for years and decades based on decisions by prison officials that courts hesitate to second-guess.  The historical record casts doubt upon any originalist argument that the founding generation would have embraced the contemporary regime of judicial deference in matters of human isolation.

December 14, 2019 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

Friday, December 13, 2019

Reviewing LWOP populations in Louisiana and nationwide

5deadab9df7fc.imageI am just finding time to blog about this lengthy terrific piece from last weekend in The Advocate under the headline "Louisiana's life without parole sentencing the nation's highest — and some say that should change." I recommend the piece in full, and here are some excerpts:

About 15 percent of Louisiana's prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago — including mandatory minimums and a 1979 decision from state legislators to abolish parole for all life sentences, creating a rigid structure that critics argue limits opportunities to ensure the punishment fits the crime.

Perhaps the biggest outlier is Louisiana's response to second-degree murder, a broad statute that treats getaway drivers and lookouts the same as trigger pullers. It allows prosecutors to sidestep proving intent in some cases, but nonetheless carries a mandatory minimum sentence of life without parole....

Louisiana has more inmates serving life without parole than Texas, Arkansas, Mississippi, Alabama and Tennessee combined: about 4,700 people behind bars with no chance at release.

Those convicted of second-degree murder make up the largest subset — 51 percent of the total — compared to 19 percent for aggravated rape and 16 percent for first-degree murder, according to Department of Corrections data analyzed by researchers at Loyola University. More than half were under 25 when convicted and about 75 percent are black. When factoring in other long sentences too, almost one in three Louisiana prison inmates will die behind bars, according to the national nonprofit The Sentencing Project.

Many places, including Southern states, make most lifers eligible for parole after 20 or 30 years. But in Louisiana "life means life." People convicted of certain crimes are automatically locked up forever, with no input from judges, juries or the state's parole board.

Opponents of Louisiana's sentencing practices cite extensive research showing people "age out" of crime, meaning their likelihood of getting rearrested decreases the older they get. LSU research published in 2013 shows extremely low — almost nonexistent — recidivism rates among former Louisiana lifers who were released on commuted sentences after decades behind bars. "Giving lifers a chance at parole is about creating a world in which people still keep a little hope," said Jamila Johnson, an attorney with the New Orleans nonprofit Promise of Justice Initiative. "That glimmer of hope changes how people interact in our criminal justice system."

Louisiana lawmakers considered major changes after pledging to pass a criminal justice reform package during the 2017 legislative session. They discussed making lifers eligible for parole after serving at least 30 years and reaching age 50, excluding those convicted of first-degree murder, which carries either death or life without parole.

But the Louisiana District Attorney's Association came out in opposition to all proposals addressing serious and violent offenses. The association, which represents the state's prosecutors, argued that releasing inmates convicted of the bloodiest crimes would pose a real threat to public safety and break promises to victims and their families. Some crimes are so heinous, and cause so much trauma, prosecutors said, that they essentially demand retributive justice.

Those negotiations in the legislature produced a series of reforms that softened sentences and changed parole requirements for minor and nonviolent crimes alone. The changes reduced Louisiana's prison population, but in doing so raised the percentage of inmates serving life sentences.

Other states and the federal government have similarly limited recent prison reform efforts to nonviolent offenses, but advocates now argue that truly addressing mass incarceration must include rethinking the American response to violent crime.

Leaders of the Louisiana Department of Corrections have also argued that keeping aging prisoners behind bars is both expensive and unnecessary, though officials failed to comment further for this story. Some have become vocal critics of Louisiana's most extreme sentencing practices, which often leave the state responsible for the medical treatment and burgeoning healthcare costs of geriatric inmates.

"Part of the challenge is getting the general public to endorse the idea of rehabilitation for violent convicted criminals," corrections department Executive Counsel Natalie LaBorde said during a seminar in Baton Rouge earlier this year. "It is not about absolving anyone of the consequences of crime. … But it is also not about making a decision based on a set moment in time and throwing away the key forever."...

Louisiana hasn't always pursued such harsh sentencing laws despite the current rhetoric surrounding crime and punishment in the Pelican State. For five decades starting in 1926, most people sentenced to life were released on parole after serving just 10 years and six months.

That started to change following the 1972 U.S. Supreme Court ruling that struck down the death penalty nationwide. Louisiana lawmakers responded to the ruling with new policies to keep former death row inmates behind bars longer, delaying parole eligibility for lifers — first to 20 years and then 40. Finally in 1979, the state legislature abolished parole for lifers entirely. 

While Louisiana stands out among other states, America itself is an outlier within the Western world for its use of both life without parole and the death penalty, according to a 2015 article in the Ohio State Law Journal. The author, a University of Mississippi law professor, also asserts a "worldwide consensus against the use of life without parole sentences."

I was not aware that extensions of prison terms in Louisiana were so directly linked to Supreme Court restrictions on the death penalty, but I suppose that story is not all that surprising and may well be a big part of the story in other jurisdictions.

December 13, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5)

"Incapacitating Errors: Sentencing and the Science of Change"

The title of this post is the title of this notable new article authored by Eve Hanan and recently posted to SSRN.  Here is its abstract:

Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited.  We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents.  We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies.  Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable.  Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.

Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.

The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude.  Rather, sentencing policy should engage in only modest predictions about future behavior.  The presumption of reintegration as a full member of society should be the norm.  Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.

December 13, 2019 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, December 11, 2019

"The Missing Link: Jail and Prison Conditions in Criminal Justice Reform"

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

At any given moment in the United States, approximately 2.3 million people are behind bars, at least a quarter of whom have not been convicted of a crime.  Louisiana was second in the nation — and the world — in incarceration rates in 2018, but it is last nationwide in other relevant rankings: health care, infant mortality, economy, education, and infrastructure.  Louisiana only lost its title of “Incarceration Capital of the World” to Oklahoma following bipartisan state legislation enacted in 2017, which lowered our per capita incarceration rate.  Louisiana still far outpaces the nation, incarcerating 712 people per 100,000, compared to a national average of 450 people per 100,000.

The goal of this article is simple: to connect the dots between conditions in jails and prisons and broader criminal justice reform efforts.  This Article looks at conditions in Louisiana jails and prisons, examines recent reforms, and draws from other states and national data to establish broader trends.  It discusses recent criminal justice reform efforts, summarizes some of the key features of prison and jail conditions, with particular attention to how these conditions impact both the people incarcerated and their broader communities, and recommends several strategies to improve prisons and jails based on the relationships between their conditions and existing criminal justice reforms.

December 11, 2019 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Thursday, December 05, 2019

"Who should oversee implementing the First Step Act?"

The question in the title of this post is the headline of this notable Hill commentary authored by Johanna Markind, who served as an assistant general counsel with the US Parole Commission from 2009 to 2014. Here are excerpts from the piece:

During a Nov. 19 Senate Judiciary Committee hearing, committee Chairman Lindsey Graham (R-S.C.) asked Bureau of Prisons (BOP) Director Kathleen Hawk Sawyer: How does the First Step Act differ from parole, and should the federal government reinstate parole?  With respect, the answers are: There’s no real difference, and it already has.  The issue that Sen. Graham implicitly raised is, who should run parole?

The groundbreaking First Step Act, enacted last December, authorizes early release of federal prisoners who have worked to reform themselves and are deemed low-risk.  The legislation requires BOP to perform a needs assessment on eligible prisoners and recommend programming for each.  The evidence-based programs are designed to reduce offenders’ risk of recidivism — that is, of returning to a life of crime — and increase their chances of successfully re-entering society.  Low-risk offenders who complete their programs are eligible for conditional early release (“home confinement”).

This is a reboot of parole.  Before parole was abolished in the federal system, effective 1987, the U.S. Parole Commission used to evaluate new prisoners, informally recommend programming such as drug treatment, and set tentative release dates.  As the proposed release date approached, the Parole Commission would re-evaluate the offenders in light of considerations, including whether they had completed recommended programming.  If it decided to release the prisoner, it would set release conditions.

A few years ago, an aide to one of the Senate co-sponsors of the First Step Act acknowledged to me that the risk-reduction/early release provisions are effectively parole by another name — albeit a new, improved version incorporating evidence-based practices developed during the intervening years.  To implement the act, the Department of Justice (DOJ) released a new risk-assessment tool (PATTERN) last July.

Unfortunately, as Sawyer admitted, BOP has yet to complete its needs-assessment tool. That could be because BOP is undermanned, as Sawyer testified. Recent coverage in The Hill has suggested the problem was that elements within DOJ are trying to undermine the act. Or, the problem could be that deciding when to release prisoners just isn’t what BOP and DOJ are institutionally designed to do.

Congress discovered a similar problem after it first authorized parole in 1910.  Parole was granted/denied at each federal prison by a board consisting of that prison’s warden, its doctor, and a Washington-based prison superintendent.  The system didn’t work very well, likely because prison wardens and superintendents were more focused on keeping prisoners in than on letting them out.  In 1930, Congress established a Board of Parole separate from the prison system. It, and its successor Parole Commission, oversaw parole until 1987....

BOP’s basic mission is “to protect society by confining offenders.”  Without a doubt, many BOP employees are sincerely working to comply with the act.  Nevertheless, deciding when and under what conditions to release offenders isn’t part of BOP’s mission.  If Congress wants the act’s release provisions implemented effectively, it should assign responsibility to an organization whose mission is consistent with that task.

A revamped Parole Commission is one option.  A rump Parole Commission still exists — it oversees release of prisoners sentenced for crimes committed before November 1987, and sanctions parole violations by that same population. It is naturally much smaller than it was when it oversaw parole for the entire federal prison population, but it could scale up.  To assist in that process, it could be given permission temporarily to rehire retired staff, just as Sawyer mentioned BOP is now doing.  Former Parole Commission staffers have a wealth of institutional memory and experience determining what programming offenders need to increase their chances for successful re-entry, as well as weighing the risks of releasing them.

Reviving the remnant Parole Commission is not the only way to implement the First Step Act effectively.  There are other options.  For example, Congress might create an agency for the purpose.  But, whatever Congress does or doesn’t do, history suggests that giving BOP the keys while charging it to bar the door is unlikely to produce optimal results.

Regular readers may recall this short article I penned a few years ago, titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," in which I described the correction reform proposals then in Congress "as a kind of 'parole light'." Consequently, I think this author is spot on, particularly when she suggests players other than DOJ and BOP ought to be directly involved in FIRST STEP implementation.

Of course, there are many part of the FIRST STEP Act that extend beyond just providing for means for conditional early release, and thus a revamped Parole Commission would be, in my view, only one important part of ensuring the Act achieves its goals and potential.  We also need a well-functioning US Sentencing Commission, and one filled with Commissioners eager to give full and robust effect to all the the Act's ameliorative sentencing provisions.  I also think we need an entity tasked with and focused on addressing collateral consequences and other barriers to effective offender re-entry that can work to undermine whatever rehabilitative progress an offender may have made while serving a prison term.  (In another recent article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," I made the case for  new criminal justice institution, a Commission on Justice Restoration, that could proactively work on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.)

December 5, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (7)

Tuesday, December 03, 2019

Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex"

This morning the Council on Criminal Justice released this interesting new report detailing notable modern changes in the modern demographics of prison, jail, probaton, and parole populatons.  Like all good data-driven reports, this one defies easy summary, and so I will just here reprint the report's page of "Key Findings":

• From 2000 to 2016, racial and ethnic disparites declined across prison, jail, probaton, and parole populatons in the U.S. For example, the black-white state imprisonment disparity fell from 8.3-to-1 to 5.1-to-1, and the Hispanic-white parole disparity fell from 3.6-to-1 to 1.4-to-1.i

• Black-white disparites in state imprisonment rates fell across all major crime categories. The largest drop was for drug ofenses.  In 2000, black people were imprisoned for drug crimes at 15 tmes the rate of whites; by 2016, that rato was just under 5-to-1.

• Among women, the black-white disparity in imprisonment fell from 6-to-1 to 2-to-1, a sharper decrease than the decline among men. The disparity among women fell because of an increase in the imprisonment rate for whites for violent, property, and drug crimes, and a decrease in the imprisonment of black women for drug crimes.

• The change in the black-white male imprisonment disparity occurred as the number of black men in state prisons declined by more than 48,000 (to about 504,000) and the number of white men increased by more than 59,000 (to roughly 476,000). Comparatvely, the black-white female disparity decreased as the number of black women in state prison fell by more than 12,000 (to about 24,000) and the number of white women increased by nearly 25,000 (to about 60,000).

• Reported ofending rates of blacks for rape, robbery, and aggravated assault declined by an average of 3% per year between 2000 and 2016, decreases that contributed to a drop in the black imprisonment rate for these crimes. This decrease was ofset in part by an increase in the expected tme to be served upon admission, which increased for both blacks and whites.

• Hispanic-white disparites in all four correctonal populatons have narrowed steadily since 2000. For Hispanics and whites on probaton, the data showed no disparity in rates by 2016.

For some context and perspectives on the report, the Marshall Project has this new piece headlined "The Growing Racial Disparity in Prison Time: A new study finds black people are staying longer in state prisons, even as they face fewer arrests and prison admissions overall."

December 3, 2019 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, November 26, 2019

"Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless, Sex-Offender Registrants"

The title of this post is the title of this new Yale Law Journal Forum piece authored by Allison Frankel. Here is its abstract:

Across New York, people are incarcerated for weeks, months, and even years after their prison release dates.  These individuals are not confined for violating prison disciplinary rules or committing new crimes. New York’s Department of Corrections and Community Supervision (DOCCS) detains them, instead, because they are homeless.  DOCCS refuses to release prisoners to community supervision without an approved address.  But for prisoners required to register as “sex offenders,” finding housing means navigating a web of restrictions that are levied exclusively on people convicted of sex crimes and that dramatically constrain housing options, particularly in densely populated New York City. These restrictions amount to effective banishment for registrants with disabilities, who face added obstacles to finding medically appropriate housing and are barred even from New York City’s homeless-shelter system.

As this Essay explores, the State of New York, and particularly New York City, pushes its poor, disabled sex-offender registrants into homelessness, and then prolongs registrants’ detention because of their homeless status.  This detention regime continues unabated, despite studies showing that sex-offender recidivism rates are actually relatively low and that residency restrictions do not demonstrably prevent sex offenses.  Rather, such laws consign registrants to homelessness, joblessness, and social isolation.  It does not have to be this way. This Essay suggests litigation strategies to challenge the prolonged detention of homeless registrants on statutory and constitutional grounds.  The Essay also offers policy solutions to improve New York City registrants’ access to housing and to untether an individual’s housing status from their access to liberty.  New York simply cannot and should not continue both to restrict registrants’ housing options and to detain individuals because they are homeless.

November 26, 2019 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)

Rounding up lots of notable stories and commentary from prison nation

I have been doing this blog for a very long time, and for many years it seemed like there were not very many pieces about prisons and prisoners given that the US has long be the world's leader in incarceration populations. But as interest has increased in criminal justice reform, so too has interest in giving ink to this world.  Consequently, amidst busy weeks, I have to cover a lot of notable stories with a round-up link this:

November 26, 2019 in Prisons and prisoners | Permalink | Comments (0)

Sunday, November 24, 2019

Two new disconcerting reports on southern justice

This past week I saw two notable new reports from pubic policy groups about criminal justice problems in southern states.  Here are links to the reports and excerpts from them:

About Alabama via the Equal Justice Initiative, "As Prison Spending Increases, So Does Violence and Misconduct":

A new study by the Equal Justice Initiative on Alabama’s prisons concludes:

  • In the first 10 months of 2019, twice as many Alabama prisoners have been murdered (13) than the entire 10-year period between 1999 and 2009, making Alabama’s current system the most violent in the nation

About Mississippi via FWD.us, "We All Pay: Mississippi’s Harmful Habitual Laws":

Mississippi has an incarceration crisis, driven in large part by its use of extreme sentences. In fact, long prison sentences have become the norm in Mississippi. First-time drug possession can land you in prison for 20 years. Stealing tools from a garage can result in 25 years behind bars. These excessively long sentences weaken Mississippi’s families and workforce and waste tax dollars since they also do nothing to make neighborhoods safer....

Of the more than 2,600 people in prison today who have been sentenced with a habitual penalty, one-third (906 people) have been sentenced to more than 20 years in prison. Nearly half of that group (439 people) has been sentenced to die in prison through either a life or virtual life sentence of 50 years of more.

The impact of these laws is not felt equally across communities: Habitual penalties are applied overwhelmingly and disproportionately to Black men. Despite making up 13 percent of the state’s population,75 percent of the people with 20+ year habitual sentences are Black men.

November 24, 2019 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Saturday, November 23, 2019

DVR alert for new documentary, "College Behind Bars"

CBB-hero_18x7Thanks to seeing this recent USA Today article, headlined "'Undoing a mistake': Ken Burns film looks inside the push to bring college education back to prison," I just set my DVR to record what looking like an important documentary for all policymakers and reform advocates.  Here are some highlights from the lengthy press article:

Stacks of books are organized meticulously by genre amid the chaos of a maximum security prison.  A makeshift desk made from cardboard is placed over a sink in a cramped cell. A chalkboard is filled with Chinese symbols in a room filled with eager students in green jumpsuits. Late night studying. This isn’t the picture most Americans have of prison.

More often than not, violence, isolation and anger are what come to mind. But these scenes from a PBS documentary airing this month show viewers a different kind of prison life — the rigorous pursuit of higher education.

“College Behind Bars" follows students in the Bard Prison Initiative, a privately funded college program that began in 2001 in New York state prisons. For now, the roughly 300 students taking classes free of charge at the elite college are the exception. Most incarcerated individuals cannot afford a college education — and all are banned from applying for federal grants.

It wasn’t always this way. For decades, college prison programs flourished across the country. After the passage of the 1994 Crime Bill, Pell Grants were banned for those who are incarcerated. For the first time in more than two decades, a push to lift this ban is sparking bipartisan support. Last month, Congress introduced bills that would reinstate Pell Grant eligibility for those incarcerated as part of wider college affordability legislation.

For formerly incarcerated individuals, educational experts and advocates, it’s about time. They argue that post-secondary education behind bars will lower the likelihood that an individual returns to prison and that it will benefit society as whole. “Ninety-five percent of people who are in prison will get out,” Ken Burns, executive producer of the PBS film, told USA TODAY. “Do you want them as responsible, taxpaying citizens or people who have used their time in prison to hone their criminal skills?”

Incarcerated at 17, Jule Hall spent more than 20 years in prison and is one of the main figures in the PBS documentary, which airs Monday and Tuesday. The film trails Hall, a 2011 Bard Prison Initiative graduate who earned a bachelor's degree in German studies, as he navigates the parole process, is released from prison and enters the workforce.

Hall works at the Ford Foundation analyzing the impact of social justice grants — an experience he describes as "another Bard" because of the experts and cutting-edge ideas. "What BPI has achieved is exceptional, but I think it's only a small part of what can be done if we get serious about this," Hall said. "I want people to walk away from this film understanding that there are many more people who want to be involved in programs like this that are incarcerated, but they don't have the access or the possibility of doing so."

Access to education is at the heart of filmmaker Lynn Novick and producer Sarah Botstein's vision. When the two screened one of their films at a BPI class at Eastern Correctional Facility in New York, the engaging conversation they had with the inmates encouraged them to expose the program to more people. "After that one experience in the classroom, we walked out and just felt like, 'Oh my gosh, this is something everybody needs to know is happening,' " Novick said.

The official website for "College Behind Bars" is available at this link, where one can find an extended trailer and additional clips along with airing information for DVR setting.  (I realize I am showing my age when I talked about DVR setting, I expect (and hope) lots of younger folks will just stream this doc.) Here is how the documentary is briefly described on the official website:

College Behind Bars, a four-part documentary film series directed by award-winning filmmaker Lynn Novick, produced by Sarah Botstein, and executive produced by Ken Burns, tells the story of a small group of incarcerated men and women struggling to earn college degrees and turn their lives around in one of the most rigorous and effective prison education programs in the United States — the Bard Prison Initiative.

Shot over four years in maximum and medium security prisons in New York State, the four-hour film takes viewers on a stark and intimate journey into one of the most pressing issues of our time — our failure to provide meaningful rehabilitation for the over two million Americans living behind bars.  Through the personal stories of the students and their families, the film reveals the transformative power of higher education and puts a human face on America’s criminal justice crisis.  It raises questions we urgently need to address: What is prison for?  Who has access to educational opportunity?  Who among us is capable of academic excellence? How can we have justice without redemption?

November 23, 2019 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Tuesday, November 19, 2019

Lots of interesting discussions of FIRST STEP Act (and Jeffrey Epstein) during Senate Judiciary's BOP oversight hearing

This morning, the US Senate Committee on the Judiciary held an hearing titled "Oversight of the Federal Bureau of Prisons" with a single witness testifying.  That witness was Dr. Kathleen Hawk Sawyer, the new Director of the Federal Bureau of Prisons, and the full two-hour hearing can be watched at this link.  

Dr. Hawk Sawyer submitted this lengthy written statement, and it covers a lot of BOP ground.  It also concludes with an extended discussion of FIRST STEP Act implementation efforts, and here is a snippet from that part of the written testimony:

The Bureau has made great progress in implementing the FSA.  We appreciate the considerable work of the Department of Justice (Department) in the implementation process, as well.  In particular, the Department’s National Institute of Justice has been instrumental in collaborating with us as we move forward aggressively to ensure this important criminal justice reform is appropriately and effectively implemented.  We similarly appreciate the ongoing work of the Independent Review Committee as they advise the Attorney General on the new risk and needs assessment systems required under the FSA.

We have listened to the important comments of the many interested stakeholders — from crime victims to a broad array of advocacy groups.  The statutory timelines in the FSA were formidable, and placed before us many challenges, but I am proud to say that the Bureau and the Department rose to that challenge.  And we continue to remain focused on the full, fair, and balanced implementation of the FSA....

With the President signing the FSA into law on December 21, 2018, several provisions became immediately effective. Despite the government shutdown, the Bureau rapidly developed guidance and policies to ensure appropriate implementation.  The retroactive application of sentence reductions under the Fair Sentencing Act resulted in over 2,300 orders for release, with the release thus far of over 1,600 of those inmates.  Staff also immediately began the challenge of re-programming our Good Conduct Time (GCT) sentence computations to reflect the change.  As a result, on July 19, 2019, when the GCT change took effect commensurate with the Attorney General’s release of the Risk and Needs Assessment System, the Bureau executed timely releases of over 3,000 inmates.

Guidance regarding the expanded Reduction in Sentence (RIS or compassionate release) provisions were issued in January 2019. Since the Act was signed into law, 109 inmates have received Compassionate Release.  The re-initiation of the Elderly Offender Pilot from the Second Chance Act of 2008 was issued in April 2019.  We currently have 358 inmates approved for the pilot, with 273 already on Home Confinement. The balance are pending their Home Confinement placement....

In accordance with the FSA, the Attorney General on July 19, 2019, released the Department’s report on the Risk and Needs Assessment System.  The new Risk Assessment system — the Prisoner Assessment Tool Targeting Estimated Risk and Needs or PATTERN — has been developed by the Department and is currently undergoing fine-tuning as we consider feedback from stakeholders.  In the interim, the BOP has conducted extensive training for its staff on the key elements of the tool such that they are prepared to assess inmate risk in accordance with statutory deadlines.  The Bureau already has in place a robust Needs Assessment system, and we are working with experts in the field and research consultants to further enhance it.

During the hearing, FIRST STEP Act implementation issues were raised by a number of Senators. And lots and lots of other topics were also covered.  This AP article published yesterday, headlined "Federal Prison System Plagued by Abuses," provides a review of the range of BOP management issues were brought up during the hearing.  And this ABC News piece, headlined "Bureau of Prisons director set for grilling on Capitol Hill in wake of Epstein, Bulger deaths," names in its headline some of the high-profile prisoners of concerns to lawmakers.   Not surprisingly, especially with news of charges being brought against two guards for falsifying records, the death of Jeffrey Epstein was raised by a number of Senators.

As criminal justice nerd, I enjoyed all the issues raised throughout the entire oversight hearing, and I was encouraged by both the questions raised by many Senators and the answers provided by Dr. Hawk Sawyer.  And I especially enjoyed the surprising discussion during the early part of the hearing (starting just before minute 34) of Senator Lindsay Graham asking about "reinstituting parole in the federal system."  I am not sure why Senator Graham is now saying that reinstating parole is "something [Congress] should look at," but I am really intrigued by and supportive of any such efforts.  A couple of years ago, in this article titled "Reflecting on Parole’s Abolition in the Federal Sentencing System," I explained why I thought "parole might serve as an efficient and effective means to at least partially ameliorate long-standing concerns about mandatory minimum statutes and dysfunctional guidelines" and why sentencing reformers "ought to think about talking up the concept of federal parole anew."  Here is hoping Senator Graham might become a full-throated champion of giving serious consideration to bringing parole back to the federal system.

November 19, 2019 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, November 08, 2019

Latest Harvard Law Review SCOTUS issue gives criminal justice its due

As all law geeks know, the November issue of the Harvard Law Review is always devoted to the Supreme Court's prior Term work.  And as all long-time readers know, I have often been disappointed when the November SCOTUS issue does not give considerable attention to the Court's considerable criminal justice work. 

But, providing another exciting sign of the criminal justice times, the latest HLR issue, which is now available online here, gives criminal justice reform its due.  Specifically, the Foreword authored by Dorothy Roberts is titled "Abolition Constitutionalism" and it aspires to provide a "sustained analysis of the relationship between the prison abolition movement and the U.S. Constitution."  And Rachel Barkow has in this issue this lengthy commentary titled "Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing."

In addition, a handful of OT 2018 SCOTUS criminal cases got case comments in this issue:

I know what extra reading I am looking forward to doing over a holiday weekend!

November 8, 2019 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading | Permalink | Comments (1)

Tuesday, November 05, 2019

Opportunities for law students interested in prison law and prisoners’ rights

Sharon Dolovich, Professor of Law and Director of the Prison Law & Policy Program at the UCLA School of Law, asked if I could post this year's edition of the UCLA Prison Law Summer Job Search Guide.  As Sharon explained to me: "The guide is intended for current law students around the country interested in summer positions working on behalf of incarcerated people. The guide gives the students a one-stop shop of what organizations are hiring."

Download UCLA Prison Law Summer 2020 Job Search Guide

Sharon wisely also suggested I also use this opportunity to note anew Prison Law JD for a new crop of young prisoners’ rights advocates.  Again, from Sharon: "Prison Law JD is the national listserv for current law students or recent law grads who are interested in this field. The purpose is to disseminate information about job and fellowship opportunities, conferences, etc. and also to help build a community of the next generation of prisoners’ rights lawyers.  Students who want to join can email me directly at dolovich @ law.ucla.edu ."

I am so grateful for Sharon's terrific work on these important issues.  I am hopeful this message gets widely shared in all networks so that all law students know of these great resources and opportunities.

November 5, 2019 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, October 29, 2019

"Women’s Mass Incarceration: The Whole Pie 2019"

Womenpie2019_pressimage_croppedThe Prison Policy Initiative continues to do an amazing job with updated accounts of the "whole pie" of different aspects of the US criminal justice system, and today's latest report is this updated version of an accounting of women who are incarcerated in the United States.  Here is part of the report's introductory text:

With growing public attention to the problem of mass incarceration, people want to know about women’s experience with incarceration. How many women are held in prisons, jails, and other correctional facilities in the United States? And why are they there? How is their experience different from men’s? While these are important questions, finding those answers requires not only disentangling the country’s decentralized and overlapping criminal justice systems, but also unearthing the frustratingly hard to find and often altogether missing data on gender.

This report provides a detailed view of the 231,000 women and girls incarcerated in the United States, and how they fit into the even broader picture of correctional control. We pull together data from a number of government agencies and calculates the breakdown of women held by each correctional system by specific offense. The report, produced in collaboration with the ACLU’s Campaign for Smart Justice, answers the questions of why and where women are locked up...

In stark contrast to the total incarcerated population, where the state prison systems hold twice as many people as are held in jails, more incarcerated women are held in jails than in state prisons. As we will explain, the outsized role of jails has serious consequences for incarcerated women and their families.

Women’s incarceration has grown at twice the pace of men’s incarceration in recent decades, and has disproportionately been located in local jails. The data needed to explain exactly what happened, when, and why does not yet exist, not least because the data on women has long been obscured by the larger scale of men’s incarceration. Frustratingly, even as this report is updated every year, it is not a direct tool for tracking changes in women’s incarceration over time because we are forced to rely on the limited sources available, which are neither updated regularly nor always compatible across years.

Particularly in light of the scarcity of gender-specific data, the disaggregated numbers presented here are an important step to ensuring that women are not left behind in the effort to end mass incarceration.

October 29, 2019 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Guest post by Anonymous: "Donald Trump Not A Boon to Private Prison Industry"

Download (5)A thoughtful person recently sent me an email with thoughtful observations on what the Trump era has meant for the private prison industry in the financial markets.  I asked if I could post the musings, and I was allowed to put up this text under the byline "Anonymous."  Enjoy:

Anyone remotely interested interested in criminal justice reform could hardly forget the immediate effect that President Trump’s law-and-order election had on the private prison industry.  Almost immediately, there was an out with the old (Obama) and in with the new (Sessions) ideological shift that saw the value of these companies double in value (press report here). There was very little reason to hope that many reformer’s goal of banning private prisons would come to fruition.

Almost three years later, my life as an investor — along with the non-stop chatter about the S&P 500 at new all-time highs — had me curious to see what the performance of these stocks was since President Trump took over.  My discovery was somewhat astonishing (although pleasantly so); GEO (GEO Group) and CXW (Core Civic Inc. — formerly Corrections Corporation of America) are now trading at Pre-Trump levels (prices that factored in a Hilary Clinton presidency and the potential banishing of the private prison industry as a whole).  Coupled with the fact that this is happening notwithstanding the S&P 500 hitting an all-time high today and rallying 50% or so since Trump's election.  Now when you factor in that these stocks doubled in the weeks following the election, they are actually down 50% since!  That is EXTREME relative underperformance.

What does this all mean?

1.  The major share holders of these stocks feel there is significant likelihood of a Democrat being elected in 2020 — so much so that they have ALREADY begun to dump their stocks a year early,

2.  Trump’s policies are seriously emptying out the private prison through expedited deportations and/or decreasing of prison populations,

3.  States have significantly begun to reduce its number of inmates (after all, there are far more state inmates than federal ones), 

4.  Nothing at all.

Just an interesting thought that intersects last week’s criminal justice forum and today’s new stock market highs.

One thing is for certain — President Trump has not done well for the private prison industry, and that’s just fine by me.

            — Anonymous

October 29, 2019 in Criminal justice in the Trump Administration, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Monday, October 28, 2019

"We've Normalized Prison: The carceral state and its threat to democracy"

The title of this post is the title of this notable new Washington Post commentary authored by Piper Kerman.  I recommend the full piece (which is part of this new Prison issue in the Post's magazine), and here are excerpts:

The reach of the American criminal punishment systems stretches to clutch far more people than many imagine.  I know this not only from being incarcerated, but also from teaching nonfiction writing classes in state prisons.  My students’ stories bravely reveal difficult personal truths and bring to light much wider realities in a way that only lived experience really can.  What incarcerated writers’ voices illustrate is that the American criminal justice system does not solve the problems — violence, mental illness, addiction — that it claims to address....

Indeed, far from solving our problems, the carceral state is causing a massive one: A nation that locks up so many people and creates an expansive apparatus that relies on violence and confinement is a nation in which democracy, over the long term, cannot thrive.  For centuries, the U.S. political economy has relied on millions being sidelined from democratic participation, most notably African Americans and, before 1920, women.  Violence, in the form of lynching, was always important to limit democracy in this country (and agents of law enforcement were often complicit).  As we near 2020, civic exclusion is still a critical tool for those invested in preserving an inequitable status quo, and the policies surrounding mass incarceration are invaluable for continuing to deny participation to millions of Americans.

Last year, the citizens of Florida voted to amend the state constitution to allow people like me, with felony convictions, to regain the right to vote after returning home.  Quickly and shamelessly, the Florida legislature and governor responded by passing a poll tax to prevent those voters — disproportionately people of color and poor people — from having a voice.  Many other states also restrict voting rights of prisoners or ex-prisoners, especially states with large African American populations — not a coincidence, as they remain overly targeted and punished by the criminal justice system.  As a result, we have not only normalized prison but normalized the exclusion of large groups of people from participating in our democracy....

Freedom and safety are too often imagined as being in opposition, but nothing could be further from the truth. Americans who have the most freedom — freedom to learn, freedom from illness, freedom of movement, freedom from violence — are invariably the safest, and the whitest, and the richest.  We did this to ourselves: Mass incarceration is a result of policies that have grown out of a history of slavery, colonialism and punishment of the poor.  Until we reconcile with these hard truths, by listening to the people most affected by the loss of freedom, we will fall far short of equity. We have a choice: We can permit injustice to remain a growth industry or we can elect to have a more fair, restorative and effective system.  And this isn’t an abstract choice — it is one you will make today, and tomorrow, and next week. Ending mass incarceration is imperative for democracy, safety and freedom.  Do you see what is happening in your own community?  And are you ready to do your part?

October 28, 2019 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, October 24, 2019

The Sentencing Project releases new fact sheet on "Private Prisons in the United States"

The Sentencing Project released this new fact sheet on "Private Prisons in the United States."  Here are excerpts from the text (and click through for notable charts and graphs):

Private prisons in the United States incarcerated 121,718 people in 2017, representing 8.2% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 39%.  However, the private prison population reached its peak in 2012 with 137,220 people.  Declines in private prisons’ use make these latest overall population numbers the lowest since 2006 when the population was 113,791.

States show significant variation in their use of private correctional facilities.  Indeed, the New Mexico Department of Corrections reports that 53% of its prison population is housed in private facilities, while 22 states do not employ any for-profit prisons.  Data compiled by the Bureau of Justice Statistics (BJS) and interviews with corrections officials find that in 2017, 28 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation.

Eighteen states with private prison contracts incarcerate more than 500 people in for-profit prisons.  Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 12,728.

Since 2000, the number of people in private prisons has increased 39.3%, compared to an overall rise in the prison population of 7.8%.  In six states the private prison population has more than doubled during this time period: Arizona (479%), Indiana (310%), Ohio (277%), Florida (199%), Tennessee (117%), and Georgia (110%).

The Federal Bureau of Prisons maintains the nation’s highest number of people managed by private prison contractors.  Since 2000, its use increased 77%, and the number of people in private federal custody — which includes prisons, half-way houses and home confinement — totaled 27,569 in 2017.  While a significant historical increase, the population declined 15% since 2016, likely reflecting the continuing decline of the overall federal prison population.

Among the immigrant detention population, 26,249 people — 73% of the detained population — were confined in privately run facilities in 2017. The privately detained immigrant population grew 442% since 2002.

October 24, 2019 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)