Friday, January 28, 2022

"Private Prison Companies and Sentencing"

The title of this post is the title of this paper recently posted to SSRN and authored by Amy Pratt, a recent graduate of The Ohio State University Moritz College of Law.  (This paper is yet another in the on-going series of student papers supported by the Drug Enforcement and Policy Center.)  Here is this paper's abstract:

The use of private prisons in the United States to house federal and state inmates has added a voice to sentencing practice.  This voice is unnecessary and should not exist as a concern in sentencing law and policy.  Private prisons affect sentencing at the policy level through lobbying, networking, and by influence over judges’ sentencing decisions in individual cases.  These methods of influencing sentencing are not always blatant, but they do exist.  The United States should end the use of private prisons or adopt a hybrid model similar to that used in Europe to help quiet this unnecessary voice. However, eliminating the use of private prisons will not end the United States’ mass incarceration problem.  Policy makers must address other causes of mass incarceration along with ending the use of private prisons. 

This paper will explore the history of private prisons in the United States, how private prisons influence sentencing, and potential solutions to end or improve the use of private prisons, while addressing the larger causes of mass incarceration.  The suggested solution explored at the end of this paper is for the United States to develop and implement a hybrid model similar to that used in France, which eliminates completely private prisons, but still uses some private entities in the prison system.  Eliminating private interests from the prison system entirely is unrealistic and unlikely given their long history of presence in the United States criminal justice system.

January 28, 2022 in Prisons and prisoners, Sentencing around the world | Permalink | Comments (1)

Wednesday, January 26, 2022

Some notable recent commentary on modern carceral stories

I have seen a variety of great new commentary on a number of notable carceral fronts.  Here is a quick round-up:

From The Hill by Jason Pye, "New head of prisons must embrace criminal justice reform"

From Inquest by Judah Schept, "Cages in the Coalfields: A growing carceral state has slowly replaced the coal industry in large swaths of Central Appalachia. But even here, a different future is possible."  

Also from Inquest, "Abolition Is Public Health: The largest public health professional organization in the U.S. took a stand against carceral systems as fundamentally antithetical to our nation's health. Here's why that matters."

From Slate by Eric Reinhart, "How Joe Biden Launched a New Prison Boom"

January 26, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Articulating concerns while celebrating implementation of FIRST STEP earned-time credits

As first discussed in this post, the Department of Justice a few weeks ago officially announced its new rule for "implementing the Time Credits program required by the First Step Act"; as noted in this follow-up post, the process of awarding retroactive credits to prisoners who were eligible and had already done the work to earn credits resulted in an immediate significant reduction of the federal prison population.  And though there is much to celebrate about this stage of implementation of a huge part of the FIRST STEP Act — which was enacted with overwhelming bipartisan support in Congress and signed by President Trump way back in late 2018 — I have noticed a number of new commentaries and other press pieces flagging concerns to watch.

This CNN opinion piece, by Michael Cohen, E. Danya Perry and Joshua Perry, carries a headline that is most celebratory: "This is an unmistakable win for incarcerated people."  But, after an effective review of the positives of the new DOJ rules on earned-time credits, it closes with these sentiments:

There is still a lot of work to be done. There are strong indications that the BOP is not offering enough high-quality programs to help support people in prison, particularly during the pandemic.  While unquestionably impactful, the act was indeed only a "first step" towards broader changes that are desperately needed to reduce our cruel and counterproductive overreliance on incarceration.  And even this welcome development does not erase the needless suffering of too many people, while the BOP pushed back against inmates seeking time credit and initially proposed a rule that cut against Congress' intent.

This Forbes piece by Walter Palvo picks up these themes with even more concern for the implementation particulars under the headline "Bureau Of Prisons Begins Implementing First Step Act With Release Of Thousands In Custody":

One concern is that there does not appear to be a consistent way these ETCs are being calculated at each institution.  Case managers, who have been keying in classes that prisoners have taken over the past two years, seem to have a liberal way of calculating ETC and those who I have spoke to about their release have no idea how their release date was calculated.  As one man told me, “I was just happy to be released and don’t care how they calculated it.”  However, for the man or woman sitting in prison, it makes a huge difference.  Many advocates may be giving one another high-fives, but, as history has demonstrated, the BOP somehow finds a way to mess up a good thing. The law. already has flaws as there are a number of exceptions carved out to prevent some offenses from being ineligible from earning ETC. 

And this new NPR piece from Carrie Johnson spotlights long-standing concerns about the PATTERN risk-assessment tool central to these new prison policies.  The lengthy piece is headline "Flaws plague a tool meant to help low-risk federal prisoners win early release," and here are excerpts:

Thousands of people are leaving federal prison this month thanks to a law called the First Step Act, which allowed them to win early release by participating in programs aimed at easing their return to society. But thousands of others may still remain behind bars because of fundamental flaws in the Justice Department's method for deciding who can take the early-release track. The biggest flaw: persistent racial disparities that put Black and brown people at a disadvantage.

In a report issued days before Christmas in 2021, the department said its algorithmic tool for assessing the risk a person in prison would return to crime produced uneven results. The algorithm, known as Pattern, overpredicted the risk that many Black, Hispanic and Asian people would commit new crimes or violate rules after leaving prison. At the same time, it also underpredicted the risk for some inmates of color when it came to possible return to violent crime....

Risk assessment tools are common in many states. But critics said Pattern is the first time the federal justice system is using an algorithm with such high stakes. Congress passed the First Step Act in 2018 with huge bipartisan majorities. It's designed to prepare people in prison for life afterwards, by offering credits toward early release for working or taking life skills and other classes while behind bars....

Only inmates who pose a low or minimal risk of returning to crime can qualify for the programs, with that risk level determined using the Pattern algorithm.... The implementation has been rocky. The Justice Department finished the first version of Pattern in a rush because of a tight deadline from Congress. It then had to make tweaks after finding Pattern suffered from math and human errors. About 14,000 men and women in federal prison still wound up in the wrong risk categories. There were big disparities for people of color.

Prior recent related posts:

January 26, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Tuesday, January 25, 2022

Notable new report on juve LWOP reviews "Montgomery v. Louisiana Six Years Later: Progress and Outliers"

This morning I received this email from the folks at the Campaign for the Fair Sentencing of Youth that highlighting this new report "Montgomery v. Louisiana Six Years Later: Progress and Outliers." The full short report is worth a full read, and the emails provides this brief accounting of the report's coverage:

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive and offering new hope to thousands of people who had been sentenced to life without parole as children.  For many, that hope has led to shorter prison sentences, and for hundreds of others, it’s meant freedom.  At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children.  In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child.  While we celebrate this inspiring progress, we recognize that far too many others have not yet received the relief they rightfully deserve.  Thus, we are pressing forward in the fight for these individuals across all areas of our work, with a particular focus on state legislatures and advocacy in outlier states. You can read more about how far we have come and the challenges we still face in this report authored by Rebecca Turner, the CFSY’s Senior Litigation Counsel.  

The full report gives particular attention to developments in Pennsylvania, Michigan, and Louisiana, which "each had more children sentenced to life without parole than any other state in the country" when Montgomery was handed down.  Here is how the report describes subsequent developments in those states and nationwide:

A majority of the 2,800 individuals serving juvenile life without parole (JLWOP) following Miller have been resentenced in court or had their sentences amended via legislation, depending on the jurisdiction in which they were convicted.

Yet despite the 80% reduction in people serving JLWOP, jurisdictions have varied significantly in their implementation of Miller. As a result, relief afforded to individuals serving JLWOP is based more on jurisdiction than on whether the individual has demonstrated positive growth and maturation.

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population....

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

January 25, 2022 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sunday, January 23, 2022

Guest post #2 on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

6a00d83451574769e202788010ea87200d-320wiAs explained in this post from last week, Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, wrote to me to highlight a big Seventh Circuit ruling on the Bail Reform Act (BRA).  I suggested that she do a guest post series on this Wilks ruling (as she previously did a series of guest posts on her stash-house sting litigation).  Alison  prepared two  posts on the topic; the first is at this link, the second is here:

The Wilks opinion is groundbreaking not only for its clarification of the BRA’s presumption of detention, but also because it is the first opinion from the Seventh Circuit to address the standard of review for a revocation decision under 18 U.S.C. § 3148.  The court sets the same standard of review for both an initial detention decision under 18 U.S.C. § 3142 and a revocation decision under § 3148: “‘independent review’ of the decision below, though with deference to the judge’s findings of historical fact and his greater familiarity with the defendant and the case.” United States v. Wilks, 15 F.4th 842, 847 (7th Cir. 2021); id. (“We conclude that the same standard of review governs an appeal from an initial detention decision and a decision to revoke pretrial release.” (emphasis in original)).

Moreover, Wilks is also the first Seventh Circuit case to address the legal standard for revocation of pretrial release in 18 U.S.C § 3148 (a different issue from the standard of review).  The court holds, in relevant part: “A finding that the defendant violated a release condition does not alone permit revocation; the judge must make findings under both § 3148(b)(1) and (b)(2) before he may revoke release” and must also “weigh the factors listed in § 3142(g).” Id. at 848.

The court ultimately determines that the judge’s findings were insufficient to satisfy the legal standard: “[T]he judge did not find by clear and convincing evidence that Wilks violated a condition of release. See § 3148(b)(1)(B).” Id.  The court finds fault for two reasons.

First, as a factual matter, the judge did not focus on the correct alleged bond violations and did not give the defense an opportunity to respond to new allegations: “Though it was not improper for the judge to reframe the inquiry, the fact remains that Wilks’s counsel did not have an opportunity to address the specific issue that the judge was concerned about.” Id. For the judge to permissibly order detention, the defense must have an opportunity to meaningfully rebut the court’s justification for detention, especially if the court orders detention on the basis of an argument not raised by the government.

Second, the judge did not make sufficient factual findings or properly apply the legal standard to the facts: “A recitation of the statutory language ‘devoid of any discussion, analysis, or explanation as to why the district court concluded that the criteria for release had not been met’ cannot justify detention even after conviction, when the presumption of innocence has been extinguished.” Id. (emphasis in original) (citation omitted).  In other words, before revoking pretrial release, the judge must provide detailed factual findings that are connected to the relevant legal standard — notably, even if the accused has already been convicted and is pending sentencing.

Finally, Wilks reminds us that “the government’s interest in ensuring the safety of the community and securing the defendant’s appearance in court” must be balanced against “the defendant’s interest in his personal liberty.” Id. at 847. As the Supreme Court has emphasized, “[f]reedom from bodily restraint has always been [ ] the core liberty protected by the Due Process Clause.” Foucha v. Louisiana, 504 U.S. 71, 90 (1992). And in the pretrial detention context, “the individual[ ] [has a] strong interest in liberty.” United States v. Salerno, 481 U.S. 739, 750 (1987).  Too often, the government’s interests are treated as paramount, despite the fact that the BRA and precedent require a meaningful consideration of an accused’s “importan[t] and fundamental” interest in liberty. Id.

Federal practitioners seeking to obtain their clients’ release on bond should file written bond motions incorporating the foregoing arguments and applying § 3142(g) to the facts of their case.  My Federal Criminal Justice Clinic at the University of Chicago Law School has written a template motion for pretrial release in presumption cases and other bond motions that are available on fd.org at this link (click on “Bail Handout”) and via NACDL at this link.  If you do not have access to these websites you can obtain the FCJC’s template bond motions by emailing the clinic’s assistant, Kyla Norcross, knorcross @ uchicago.edu. For more tips for getting federal clients released on bond, see Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); Erica Zunkel & Alison Siegler, The Federal Judiciary’s Role in Drug Law Reform in an Era of Congressional Dysfunction, 18 OHIO STATE JOURNAL OF CRIMINAL LAW 238 (2020).

January 23, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)

Friday, January 21, 2022

"The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons?"

The title of this post is the title of this congressional hearing taking place this morning conducted by the Subcommittee on Crime, Terrorism, and Homeland Security of the US House Judiciary Committee.  I cannot yet find links to any written testimony, but here are the scheduled witnesses from this Witness List:

Homer Venters, Adjunct Clinical Associate Professor, NYU School of Global Public Health

Alison Guernsey, Clinical Associate Professor of Law, University of Iowa College of Law

Gwen Levi, Baltimore, MD

Melissa Hamilton, Professor of Law and Criminal Justice, University of Surrey, School of Law

Gretta L. Goodwin, Director, Homeland Security and Justice, U.S. Government Accountability Office

Julie Kelly, Senior Contributor, American Greatness

January 21, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, January 20, 2022

Due surely to implementation of FIRST STEP earned-time credits, federal prison population drops by nearly 4,000 in one week

As noted in this prior post from last Thursday, the Department of Justice last week officially announced its new rule for "implementing the Time Credits program required by the First Step Act" and began awarding retroactive credits to those who were eligible and had already done the work to earn credits.  In my post, I commented that, with the retroactive application of these credits, it would be interesting to see if the federal prison population (which as of Jan 13 BOP reported at 157,596 "Total Federal Inmates") would start to decline.  

A week later, on the first day that BOP updates here its reports of "Total Federal Inmates," there is a dramatic change in the total federal prison population.  Specifically, this morning BOP reports 153,855 "Total Federal Inmates," a decline of 3,741 persons now federal inmates.  This roughly 2.5% drop in the federal inmate population in one week is surely the result of the implementation of FIRST STEP Act earned-time credits, and it will now be interested to see if there are continued drops in the weeks ahead.  (I suspect there will be as implementation must take more than just a week, though I will be very surprised if there are subsequent drops as large as this one.)

Among the notable parts of this story is that it represents a bi-partisan, multi-Congress, multi-administration achievement many years in the making.  Of course, the formal law making this possible was the FIRST STEP Act which was enacted with overwhelming bipartisan support in Congress in 2018 and which President Trump signed after he helped get to the bill to the finish line.  But, well before that bill was passed, congressional leaders and the Justice Department during the Obama years had started drafting and building consensus around the prison reform elements of the Sentencing Reform and Corrections Act of 2015 (first discussed here in October 2015).  And now, of course, it is the Justice Department of the Biden Administration that finalized and now implements this important earned-time credits program required by the FIRST STEP Act.   

Prior recent related posts:

January 20, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Wednesday, January 19, 2022

Guest posts on big Seventh Circuit Wilks decision on Bail Reform Act’s "presumption of detention"

6a00d83451574769e202788010ea87200d-320wiI hope readers recall the series of guest posts from a few years ago authored by Alison Siegler, Clinical Professor of Law and Director of the University of Chicago Law School's Federal Criminal Justice Clinic, concerning the extraordinary litigation her clinic has done in response to so-called "stash house stings."  Not too long ago, Alison wrote to me to highlight a big new Seventh Circuit ruling on the Bail Reform Act that related to another focus of her work.  I suggested that she do another guest post series on the ruling because this was a legal space I know little about.  She has prepared two long posts on the topic, and here is the first:

===

GUEST BLOG POSTS RE WILKS AND THE PRESUMPTION OF DETENTION by ALISON SIEGLER

PART I

This is the first of two guest posts discussing a groundbreaking opinion that addresses the Bail Reform Act’s “presumption of detention.”

The BRA’s presumption of detention applies to “nearly half of all federal criminal cases and to 93 percent of all drug cases.” Alison Siegler & Erica Zunkel, Rethinking Federal Bail Advocacy to Change the Culture of Detention, THE CHAMPION 46, 50 (July 2020); 18 U.S.C. § 3142(e)(2)–(3). The most common types of cases in which the presumption applies are drug cases, § 924(c) gun cases, and minor victim cases. A study from the Administrative Office of the United States Courts finds that the “presumption of detention . . . is driving high federal detention rates,” and that in practice, the presumption “has become an almost de facto detention order.” Amaryllis Austin, The Presumption for Detention Statute’s Relationship to Release Rates, 81 FED. PROBATION 52, 56, 61 (2017).  The same study found that “the presumption increases the detention rate without advancing community safety. Rather than jailing only the worst of the worst, the presumption over-incarcerates the lowest-risk offenders in the system.” Siegler & Zunkel, supra, at 50 (citing Austin, supra, at 57). “Now, with the presumption as a driving force, federal pretrial detention rates have skyrocketed, with three in four people jailed before trial — a 75 percent detention rate that falls disproportionately on people of color. This is mass incarceration in action.” Alison Siegler & Kate Harris, How Did the Worst of the Worst Become 3 Out of 4?, N.Y. TIMES (Feb. 24, 2021).  Courts often assume that the presumption ties their hands, and defense attorneys sometimes waive the right to seek release in presumption cases because challenging pretrial detention feels futile.

An important recent Seventh Circuit opinion reminds us that is not how the presumption is supposed to operate as a matter of law. United States v. Wilks, 15 F.4th 842, 844 (7th Cir. 2021) (reversing a district court’s revocation of pretrial release because “the judge did not hew to the statutory framework in making the revocation decision”). Wilks illuminates the operation of the presumption in a way that enables lawyers to push back on the presumption’s worst manifestations.

Wilks clarifies numerous key aspects of the limits of the § 3142(e) presumption of detention.

First, even when a presumption of detention is triggered, “the burden of persuasion always rests with the government.” Wilks, 15 F.4th at 846–47.

Second, the presumption is intended to be easy to rebut. See 18 U.S.C. § 3142(e)(3) (“Subject to rebuttal by the person . . .”); see also Wilks, 15 F.4th at 846 (“A defendant charged with a serious drug crime . . . is subject to a rebuttable presumption.”).

Third, “an unrebutted presumption is not, by itself, an adequate reason to order detention. Rather, the presumption is considered together with the factors listed in § 3142(g).” Wilks, 15 F.4th at 847 (citation omitted).

Fourth, once the presumption is rebutted, it carries a lot less weight.

January 19, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, January 18, 2022

Helpful FAMM "Explainer" talks through DOJ rule for implementing earned time credits under FIRST STEP Act

As noted in this prior post, last week the Department of Justice announced its new rule for "implementing the Time Credits program required by the First Step Act."  Because this rule is to be applied retroactively and enables perhaps half of all current (and future) federal prisons to earn early release, it is a very big deal while also having lots and lots complicated implementation intricacies.  Helpfully, FAMM has this helpful new four-page document titled "First Step Act Earned Time Credits Rule Explainer," which starts this way:

On January 13, 2022, the BOP published a rule implementing the Earned Time Credits that were included in the First Step Act. There are a lot of questions about the rule, many of which this Explainer attempts to answer.  There is still much to learn, however, and we will continue to update this Explainer as we learn more.  Please understand that we cannot answer your questions about whether you or your loved one is eligible for credits toward pre-release custody or supervised release, among other things. 

Here are some of the essentials from the document provide a window into just some of the particulars:

Who is eligible to apply FSA Time Credits toward pre-release custody or supervised release?

  • People in BOP custody (including those in a halfway house or on home confinement);
  • who are serving a federal sentence;
  • who have successfully participated in Evidence-Based Recidivism Reducing Programs (EBRR or Programs) or Productive Activities (PA); 
  • who have been assessed as “minimum” or “low” risk for at least one assessment or who can obtain warden approval; and
  • who have earned credits equal to the remainder of their prison term.

Who is barred from either earning FSA Time Credits or applying those credits toward pre-release custody?

  • People serving sentences for convictions under state or District of Columbia law, or who have a final order of removal under immigration law, cannot apply credit toward pre-release custody or supervised release.
  • People serving a sentence for a conviction the First Step Act identifies as disqualifying cannot earn credit. In limited circumstances, certain prior convictions may also prohibit one from earning credit....

What do earned FSA Time Credits do?

  • Eligible people who have earned FSA Time Credits may have them applied toward pre-release custody (halfway house or home confinement transfers) or early transfer to supervised release (essentially shortening the sentence).
  • Transfer to supervised release is limited to one year, but people may be transferred to pre-release custody earlier

Prior related post:

January 18, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (3)

Monday, January 17, 2022

"The Paid Jailer: How Sheriff Campaign Dollars Shape Mass Incarceration"

The title of this post is the title of this new report published by Common Cause and Communities for Sheriff Accountability. Here is part of the report's introduction:

In the criminal legal system, the patterns are clear and striking.  Business interests can establish a relationship with sheriffs by sending even small contributions.  Construction companies provide backing to sheriffs who proceed to build new jails.  Health care companies fund campaigns, and then receive multimillion-dollar contracts, with no criteria for results or the health of incarcerated people.  The list of donors with direct conflicts is striking and includes employed deputies, bail bonds companies, weapons dealers, and gun ranges.  It is a system incentivized to jail more people and cast a blind eye to any harm suffered by those within the jails.

Our research, conducted in 11 states, in less than 3 percent of sheriffs offices, documents approximately 13,000 apparent conflicts of interest, primarily between 2010 and 2021.  We have identified upward of $6 million, approximately 40% of all examined contributions, that create potential conflicts of interest.  We have selected these sheriffs using a combination of public interest, and random selection, so these sheriffs are more likely to represent a pattern than exceptional cases....

Sheriffs are politicians who make major decisions about health and safety for millions of Americans — and they shouldn’t be up for sale to the highest bidder.  Alongside carceral reforms and community investment, small-dollar democracy programs can amplify the voices of those most impacted by overincarceration and can help to reenvision a justice system that works for everyone and not just a wealthy few.

January 17, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Sunday, January 16, 2022

Rounding up some more notable recent criminal justice reads at the start the new year

Though the new year is now just two week old, I have seen more than two weeks worth of interesting reads that I have not had a chance to blog about.   I did a round up last Sunday here, but here are a bunch more pieces worth checking out:

From the Christian Science Monitor, "A step toward better justice: Prying open the ‘black box’ of plea deals"

From the Collateral Consequences Resource Center, "A radical new approach to measuring recidivism risk"

From Governing, "Prison Population Drops as States Revamp Admission Policies: State prisons quickly adjusted policies and procedures when the coronavirus pandemic hit to ensure the health and safety of the incarcerated individuals and staff. If these pandemic changes become permanent, states could save $2.7 billion annually."

From The Hill, "Colorado trucker's case provides pathways to revive pardon power"

From the Los Angeles Times, "California was supposed to clear cannabis convictions. Tens of thousands are still languishing"

From The Marshall Project, "People in the Scandal-Plagued Federal Prison System Reveal What They Need in a New Director: 'This is kind of like AA: To move forward, first you have to admit there’s a problem'."

From NBC News, "The Federal Bureau of Prisons is getting a new leader — and another shot at reforms: A year after taking office, President Joe Biden has disappointed many prisoners and guards who were hoping for big changes. Now he has a chance to do more."

From the Prison Policy Initiative, "New data: The changes in prisons, jails, probation, and parole in the first year of the pandemic: Newly released data from 2020 show the impact of early-pandemic correctional policy choices and what kind of change is possible under pressure.  But the data also show how inadequate, uneven, and unsustained policy changes have been: most have already been reversed."

From the UCLA Law COVID Behind Bars Data Project, "New Report Shows Prison Releases Decreased During The Pandemic, Despite A Drop In Incarceration"

From Washington Monthly, "Critical Race Query: If America is irredeemable, why are racial disparities in the criminal justice system plummeting?"

January 16, 2022 in Prisons and prisoners, Recommended reading, Reentry and community supervision, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, January 13, 2022

California Gov Newsom reverse parole grant to Sirhan Sirhan, RFK's assassin

Under California law, the Governor reviews any recommendation of parole by a convicted murderer.  As explained in this new Los Angeles Tomes op-ed, California Governor Gavin Newsom has decided to reverse a parole decision in the high-profile case of Sirhan Sirhan.  Here is how the op-ed starts:

In 1968, Sirhan Sirhan assassinated Sen. Robert F. Kennedy just moments after Kennedy won the California presidential primary.  Sirhan also shot and injured five bystanders. Decades later, Sirhan refuses to accept responsibility for the crimes.

California’s Board of Parole Hearings recently found that Sirhan is suitable for parole. I disagree. After carefully reviewing the case, including records in the California State Archives, I have determined that Sirhan has not developed the accountability and insight required to support his safe release into the community. I must reverse Sirhan’s parole grant.

A copy of the Governor’s parole reversal decision can be found here.  Interestingly, and surely not coincidentally, Gov Newsom also decided today to announce a large number of clemency grants, as this press release details: "Governor Gavin Newsom today announced that he has granted 24 pardons, 18 commutations and 5 reprieves."

Prior related posts:

January 13, 2022 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (7)

"A Call to Reform Federal Solitary Confinement"

The title of this post is the title of this effective new report authored by Ilanit Turner and Noelle Collins with the Texas Public Policy Foundation.  Here is part of its executive summary (with cited removed):

Federal solitary confinement is in desperate need of repair. After a 40-year spike in federal incarceration rates beginning in 1980 has tapered off, a bipartisan consensus for solitary confinement reform is finally starting to crystallize.

What was once considered a last-resort disciplinary practice in federal prisons has morphed into a default option when other correctional and administrative protocols fail on their first try.  This paper is the latest installment in the Texas Public Policy Foundation’s series of publications entailing prescriptions for local, state, and federal prison reform. Our research is especially timely as prison officials continue to misuse segregated housing units for medical isolation to combat COVID-19.  Because prison officials know they have limited alternatives to curb transmission, improperly using COVID-19 as a justification for solitary confinement is apparently a tempting option.  Warehousing sick inmates poses a unique challenge as those who report symptoms are unjustifiably forced to endure an experience known to cause mental and physical harm.

The current landscape of solitary confinement data released on the Federal Bureau of Prisons (BOP) website is insufficient.  The information on the precise order of operations for the types of infractions that land inmates in solitary is vague, publications of hearings considered for segregation are unavailable, and it is nearly impossible to determine the total length of time served in solitary confinement by each inmate.  Holding BOP accountable for this information should be emphasized if change is to be effected.

Any information that is known about solitary confinement reaches the outside world a day late and a policy short.  Charles Dickens (1842), a notable critic of the American penitentiary system, alluded to the effect of ignorance of solitude in his prescient observation a century and a half earlier, “this slow and daily tampering with the mysteries of the brain, [is] immeasurably worse than any torture of the body… and therefore I denounce it, as a secret punishment which slumbering humanity is not roused up to stay”. Little has changed. The prolonged effects of solitary confinement take the form of irreversible physical and mental health disorders.  When isolated inmates are granted the long-awaited second chance for release right after solitary confinement, they reoffend in rates disproportionately higher than the general prison population. Long durations in segregation exacerbate mental illnesses, leading to bouts of psychosis.  This prevents inmates from integrating back into the labor market, much less society in general, and is correlated with higher rates of criminal episodes.

The Foundation offers a list of policy solutions to improve the status quo of federal solitary confinement.  First and foremost, data transparency is essential. Pulling back the bureaucratic curtain of the federal prison system will reinforce administrative rectitude when deciding to use solitary confinement. Enhancing due process and ongoing review is another way to redirect prison officials to alternative punitive measures.  The BOP should also consider expanding educational and rehabilitative programming for inmates in isolation, as these changes will reduce occupancy and recidivism rates with a single policy adjustment.  Lastly, the BOP system owes it to the public to reduce violence and suicide for inmates in solitary by improving mental health assessments.  Addressing these issues can also reveal areas of endemic corruption that lead to further misuse of this practice. 

January 13, 2022 in Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thousands of federal prisoners finally to get FIRST STEP Act credits as DOJ implements earned time rules

As reported in this new AP article, headlined "Thousands of federal inmates to be released under 2018 law," this weeks brings some big FIRST STEP Act implementation news, just over three years since President Trump signed the landmark sentencing reform legislation.  Here are the basics:

The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago.

The department, in a rule being published Thursday in the Federal Register, is spelling out how “time credits” for prisoners will work. The bipartisan law is intended to encourage inmates to participate in programs aimed at reducing recidivism, which could let them out of prison earlier....

While the transfers are expected to begin this week, it isn’t clear how many inmates will be released. The department would only say that “thousands” of inmates are being affected.

Under the law signed in December 2018, inmates are eligible to earn time credits — 10 days to 15 days of credit for every 30 days they participate in prison programs to reduce recidivism. The programs range from anger management and drug treatment to educational, work and social skills classes.

The announcement of a finalized rule being published comes about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs. It also comes a week after an announcement that the director of the prison agency, Michael Carvajal, will resign from his position in the face of mounting criticism over his leadership.

The Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet....

The inmates being released will be sent to supervised release programs, released to home confinement or transferred into the bureau’s residential re-entry centers, commonly known as halfway houses. The law allows inmates to earn time credits back to 2018, when the First Step Act was enacted.

The Justice Department says implementation of the finalized rule will begin this week with inmates whose time credits exceed the days remaining on their sentence, are less than a year from release and have a term of supervised release. Transfers are underway. More are expected in the weeks ahead as officials apply the time credits to inmates’ records.

The rule also changes the bureau’s definition of a “day” of credit. A proposed version in January 2020 said inmates would need to participate for eight hours in certain academic programs or prison jobs to qualify for one day’s worth of credit. But the final version changes the timetable and says the prior standard “was inconsistent with the goals” of the law. Inmates will earn 10 days for every 30 days they participate in programs. Inmates who can remain in lower risk categories will be eligible for an additional five days of credit in each 30-day period.

Advocates say the finalized definition of a “day” will make it easier for a wide array of prison programs to count toward time credits and will mean more people will be eligible for release earlier.

This new Justice Department press release, titled "Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act," discusses these developments this way:

Today, the Department of Justice announced that a new rule has been submitted to the Federal Register implementing the Time Credits program required by the First Step Act for persons incarcerated in federal facilities who committed nonviolent offenses.  As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).

“The First Step Act, a critical piece of bipartisan legislation, promised a path to an early return home for eligible incarcerated people who invest their time and energy in programs that reduce recidivism,” said Attorney General Merrick B. Garland.  “Today, the Department of Justice is doing its part to honor this promise, and is pleased to implement this important program.”

The First Step Act of 2018 provides eligible inmates the opportunity to earn 10 to 15 days of time credits for every 30 days of successful participation in Evidence Based Recidivism Reduction Programs and Productive Activities.  The earned credits can be applied toward earlier placement in pre-release custody, such as RRCs and HC.  In addition, at the BOP Director’s discretion, up to 12 months of credit can be applied toward Supervised Release.  Inmates are eligible to earn Time Credits retroactively back to Dec. 21, 2018, the date the First Step Act was enacted, subject to BOP’s determination of eligibility.

Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.  Some of these transfers have already begun, and many more will take place in the weeks and months ahead as BOP calculates and applies time credits for eligible incarcerated individuals.

The final rule will be published by the Federal Register in the coming weeks and will take immediate effect.  The rule, as it was submitted to the Federal Register, can be viewed here: https://www.bop.gov/inmates/fsa/docs/bop_fsa_rule.pdf

This seems like a very big deal, especially with the retroactive application of credits and the new "day" rule for earning credit, and I will be very interested to see if the federal prison population (which today BOP reports at 157,596 "Total Federal Inmates") starts a move back down after having grown by around 6,000 persons during the first year of the Biden Administration.

January 13, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Wednesday, January 05, 2022

Head of federal Bureau of Prisons has resigned (though will stay on pending a successor)

As reported in this new AP piece: "The director of the federal Bureau of Prisons is resigning amid increasing scrutiny over his leadership in the wake of Associated Press reporting that uncovered widespread problems at the agency, including a recent story detailing serious misconduct involving correctional officers." Here is more:

Michael Carvajal, a Trump administration holdover who’s been at the center of myriad crises within the federal prison system, has told Attorney General Merrick Garland he is resigning, the Justice Department said. He will stay on for an interim period until a successor is in place. It is unclear how long that process would take.

His exit comes just weeks after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. The AP stories pushed Congress into investigating and prompted increased calls to resign by lawmakers, including the chairman of the Senate Judiciary Committee....

The administration had faced increasing pressure to remove Carvajal and do more to fix the federal prison system after President Joe Biden’s campaign promise to push criminal justice reforms. The Bureau of Prisons is the largest Justice Department agency, budgeted for around 37,500 employees and over 150,000 federal prisoners. Carvajal presided over an extraordinary time of increased federal executions and a pandemic that ravaged the system.

After the AP’s story was published in November, Senate Judiciary Committee Chairman Dick Durbin demanded Carvajal’s firing. Several congressional committees had also been looking into Carvajal and the Bureau of Prisons, questioning employees about misconduct allegations.

In a statement, Durbin, D-Ill., said Carvajal “has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act,” a bipartisan criminal justice measure passed during the Trump administration that was meant to improve prison programs and reduce sentencing disparities.

“His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons,” Durbin said.

Carvajal, 54, was appointed director in February 2020 by then-Attorney General William Barr, just before the COVID-19 pandemic began raging in federal prisons nationwide, leaving tens of thousands of inmates infected with the virus and resulting in 266 deaths.

COVID-19 is again exploding in federal prisons, with more than 3,000 active cases among inmates and staff as of Wednesday, compared with around 500 active cases as of mid-December. All but four BOP facilities are currently operating with drastic modifications because of the pandemic, with many suspending visiting.

Especially with implementation of the FIRST STEP Act on tap (discussed here), on top of all the other challenges prisons face amid a pandemic, leading BOP is anything but an easy job these days.  But I share Senator Durbin's hope that "new, reform-minded leadership" at the BOP will be forthcoming.

January 5, 2022 in Prisons and prisoners, Who Sentences | Permalink | Comments (4)

Highlighting the challenging issues of implementing the FIRST STEP Act's earned time credits

Walter Pavlo has this extended new Forbes piece detailing some of the nettlesome issues that surround implementation of various parts of the FIRST STEP Act. The piece is headlined "Implementation Of The Criminal Justice Reform Law, First Step Act, Will Likely End Up In Court," and here are excerpts:

President Donald Trump signed one of the most sweeping criminal justice reform laws, The First Step Act (FSA), into law on December 21, 2018.  Since then, its interpretation has been debated and argued, mostly behind closed doors in Washington, on how to fully implement it.  One lesser defined part of FSA is whether or not those in custody within the Federal Bureau of Prisons (BOP), could earn credits for participation in classes and meaningful activities in order to get time reduced off of their sentence.  COVID’s wrath on the BOP slowed FSA implementation but we are on the cusp of discovering the extent of the law’s effects on those currently incarcerated....

By January 24, 2022, the BOP is under a mandate to have the FSA fully implemented.  Under the FSA, prisoners who successfully complete recidivism reduction programming and productive activities are eligible to earn up to 10 days of FSA Time Credits for every 30 days of program participation.  Minimum and low-risk classified prisoners who successfully complete recidivism reduction programming and productive activities and whose assessed risk of recidivism has not increased over two consecutive assessments are eligible to earn up to an additional 5 days of FSA Time Credits for every 30 days of successful participation.  However, prisoners serving a sentence for a conviction of any one of multiple enumerated offenses are ineligible to earn additional FSA Time Credits regardless of risk level.  It is complicated.

Many of the BOP’s facilities are understaffed and pressures of COVID combined with prisoner lockdowns has led many institutions to suspend or delay many of the programs that could have counted toward FSA credits.  Now an internal memorandum posted at some prison camps across the country is causing a stir because of how sweeping the FSA may be for prisoners.  The memo stated [with caveats and exclusions]: "Under the First Step Act of 2018 (FSA), eligible inmates may earn Federal Time Credit (FTC) for successful participation in Evidence-Based Recidivism Programs and Productive Activities.... Inmates are now eligible to earn FTC retroactively back to December 21, 2018; this award will be based on criteria established by BOP."...

Far from clarifying things, the implementation of FSA, based on this limited amount of information, will be almost impossible over the near term.  This affects multiple levels of the criminal justice system; prisons, halfway houses, home confinement and supervised release.  It is an intricate web of agencies that manage the incarceration and supervision of hundreds of thousands of people in the federal criminal justice system.

Those in prison want to be out of the institution.  With many programs suspended in institutions, prisoners have been looking to “Productive Activities,” like a job in the prison, as a means to gain FSA credits.  However, interpretation of that term has been the subject of discussion ever since FSA was passed.  The list of program classes eligible for credit is limited and the hours associated with each one must be based on a need assessment of the prisoner.  It is unknown how a BOP case manager can look back until 2018 for classes (programs) that did not even exist because there was no FSA until December 2018.  In order for “Productive Activities” during the time frame of 2018-2021, it must mean that the BOP is interpreting a broad definition of the term ... I know the prisoners’ interpretation....

Indeed, there will be many prisoners on January 15, 2022 who are being detained unlawfully if the law comes into effect on that day and they are still incarcerated ... that is going to happen.  Thousands will file lawsuits whether they are in prison, halfway houses, home confinement or supervised release, fighting for their right to a broadly defined, and subject to BOP discretion, FSA credit.  Rather than Trump’s FSA being a law, it is going to be subject to interpretation by judges across the country.

While this information is welcome news to those incarcerated, it is also a monumental task for BOP case managers.  Case managers are primarily responsible for moving inmates from prison to halfway houses and home confinement.  It requires a tremendous amount of paperwork and coordination, often taking months.  There is also the additional issue of capacity at halfway houses and monitoring.  This is going to be more complicated than anyone ever imagined.

January 5, 2022 in FIRST STEP Act and its implementation, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Tuesday, January 04, 2022

Senator Cotton criticizes new OLC opinion on CARES home confinement and asks AG Garland lots of follow-up questions

Though the season of the Grinch may be over, US Senator Tom Cotton is starting the new year full of grinchy grouchiness about various criminal justice issues.  I noted here his recent foolish op-ed fretting about a "jailbreak" and an "under-incarceration crisis," and now a helpful colleague made sure I did not miss this press release from the Senator's office titled "Cotton Demands Answers from DOJ About Releasing Criminals to Home Confinement."  Here is how the release starts:

Senator Tom Cotton (R-Arkansas) today wrote to U.S. Attorney General Merrick Garland regarding the Department of Justice’s recent decision to ignore the clear limits placed by Congress on pandemic-related home confinement of convicted federal criminals.

In part, Cotton wrote, “The Department’s Office of Legal Counsel correctly concluded in January 2021 that the only tenable reading of the CARES Act is that the Bureau of Prisons (BOP) could only exercise expanded home confinement placement authority during the coronavirus national emergency, and that the law requires that the BOP return such inmates to prison and follow the limits of longstanding federal law following the end of the emergency.”

“Unfortunately, it seems that you have now decided to bow to the pressure from political activists rather than do your job.  The Office of Legal Counsel, at your direction, issued a slapdash opinion reversing itself in December 2021.  That new opinion is not based on the law, but rather on the policy goals of criminal leniency,” Cotton continued.

The full three-page letter may be found here at this link, and there is more Tom Cotton "tough and tougher" bluster at the start of the letter.  But the questions that make up the heart of the letter are intriguing on a number of fronts, and I would be especially interested to see if and how AG Garland and his team responds to these closing queries:

Please provide a list of all inmates who are currently placed on home confinement under the temporary authority granted by the CARES Act, broken down by primary offense, total sentence length, and the number of months remaining under their sentence. 

How many inmates who were placed on home confinement under the temporary authority granted by the CARES Act have had their home confinement rescinded or have been rearrested for a new offense?  Please provide a description of the offenses for which any such inmates have been rearrested, or the reasons for which their home confinement was rescinded.

Just a few of many prior related posts:

January 4, 2022 in Criminal justice in the Biden Administration, Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Monday, January 03, 2022

Senator Cotton leans into political foolishness rather than serious policy issues in latest "jailbreak" commentary

Senator Tom Cotton is always eager to provide a "tough-and-tougher" perspective on criminal justice issues, and he has long responded to advocacy against mass incarceration by claiming that the US actually has an "under-incarceration problem."  Some time ago, I was described at least some of his takes on criminal justice issues as at least somewhat thoughtful, but more recently it seems Senator Cotton has been content to make op-ed claims which are quite suspect and have been described as "horrifically dishonest" and are disconnected from political and social reality.  His latest commentary, published here today at Fox News, sets the bar especially low to start 2022 because he turns serious criminal justice policy issues into political posturing.  Here are some key parts of this piece (with a few phrases highlighted for follow-up commentary): 

In 2020, our nation’s state and federal prison populations plummeted 15% to the lowest levels since 1992 — at the same time, murders skyrocketed nearly 30% to the highest level since 1998.  By the middle of last year, local jail populations similarly shrank by an astonishing 25%.  In raw numbers, state and federal authorities reduced their prison populations by 214,000 in 2020 and local authorities reduced their jail populations by 185,000 compared to 2019.  This is the worst jailbreak in American history and was committed in broad daylight.  Our nation has paid the price.

So-called "coronavirus protocols" caused most of these reductions.  Last year, the federal government sent thousands of inmates home in response to the pandemic.  Rikers Island in New York City released 1,500 criminals, and Chicago’s largest prison released a quarter of its inmates.

Democrat-run states also released convicted murderers and an untold number of violent felons in the name of "public health."  In Virginia, an accused rapist murdered his accuser.  In Florida, a documented gang member murdered a 28-year-old.  In my home state of Arkansas, a career criminal murdered a police officer.  What did these murderers have in common?  They had all been released early from jail due to concerns about coronavirus....

The rash of early releases is not the entire story.  The drop in incarceration in 2020 was also fueled by a shocking 40% nationwide decline in the admission of newly sentenced criminals — which indicates a massive decrease in prosecutions.  In New York, there was an even starker 60% drop in admission of newly sentenced criminals.  In California, there was a 66% drop, the biggest decline of any state.  This concentrated drop in prosecutions is virtually unexplainable, except by the proliferation of progressive "Soros prosecutors" and a shrinking willingness to hold the guilty accountable.

There were certainly plenty of crimes to prosecute last year when over 100,000 Americans died from homicide and drug overdoses and the nation was wracked with the worst rioting in a generation. Initial data also shows that California experienced a 31% increase in murders, while New York experienced a 142% increase in gang killings and a 42% increase in murders overall.... This under-incarceration crisis must end.

All serious people should be taking seriously how the COVID pandemic has been impacting US crime rates, criminal justice case processing, and prison and jail populations. But talking about these issues in terms of "Democrat-run states" and "the proliferation of progressive Soros prosecutors" is so foolish simply in light of the data. 

For starters, it is notable and amusing that, right after complaining about releases in "Democrat-run states," Senator Cotton then gives examples of crimes in GOP-run states of Arkansas and Florida.  More systematically, the uptick in murders in 2020 was a nationwide phenomenon as this Pew report highlights, and many GOP states had the highest uptick in murder rates: "At least eight states saw their murder rates rise by 40% or more last year, with the largest percentage increases in Montana (+84%), South Dakota (+81%), Delaware (+62%) and Kentucky (+61%), according to the CDC."  (Indeed, this US News piece reveals that the top seven states in terms of homicide rates in 2020 were all "red" states.)

Turning toward prison populations and drops in prosecutions, this dynamic is again not an issue involving only "blue" states and "progressive Soros prosecutors."  Senator Cotton appears to be cherry picking some numbers from this recent BJS report titled "Prisoners in 2020 – Statistical Tables."  But Figure 3 of that report shows that the top four jurisdictions with biggest 2020 reductions in prison population were, in order, California, the federal system, Texas and Florida.  In 2020, three of those four jurisdictions were under GOP control.  Similarly, though I do not recall Prez Trump appointing any "progressive Soros prosecutors," the data show that the federal system saw a 40% decline in prison admissions; "red" states ranging from Florida to Idaho to Indiana to Kentucky to Kansas to South Carolina all saw above-national-average declines in the admission of sentenced prisoners.

Political foolishness aside, if Senator Cotton really wants to get serious about pandemic era crime and punishment issues, why is he not seriously trying to help develop more and deeper data about all these important and complicated trends and others.  Exactly what types of offenders have been released during pandemic?  What types of cases were prosecuted less in 2020?  Have these trends continued through 2021?  We have decent (but not great) homicide data from local police departments, but we need much better and richer data.  Notably, in 2022, Senator Cotton still references "Initial data" from 2020 on homicides.  Is this really the best we can do at the start of 2022?  And how about better data on other crimes? 

Moreover, despite two more big COVID waves in 2021, we have very little data in real-time about the national prison population (this VERA accounting as of March 2021 is the last data I have seen).  And reports suggest declines in prison populations have slowed or stopped, while jail populations have risen through 2021.  Notably, we do have real time data from the federal BOP revealing that there are now "157,654 Total Federal Inmates," which is over 6000 more federal prisoners compared to the first full day of the Biden Administration when BOP reported  151,646.  Since the federal prison population went down nearly 38,000 persons(!) under Prez Trump, and now has gone up over 6,000 persons during the first year of the Biden Administration, maybe Senator Cotton ought to consider if he should target a very different ""jailbreak" bogey-man than "progressive Soros prosecutors" is he really thinks we have an "under-incarceration crisis."  Sigh.

January 3, 2022 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6)

Tuesday, December 28, 2021

"Methods of Calculating the Marginal Cost of Incarceration: A Scoping Review"

The title of this post is the title of this notable new paper authored by Stuart John Wilson & Jocelyne Lemoine published in the Criminal Justice Policy Review. Here is its abstract:

Criminal justice reforms and corrections cost forecasts require appropriate estimates of the marginal costs of incarceration to adequately assess cost savings and projections. Average costs are simple to calculate while marginal cost calculations require much more detailed data and advanced methods.  We undertook a scoping review to identify, report, and summarize the existing academic and gray literature covering the different estimation methods of calculating the marginal costs of incarceration, following the Arksey and O’Malley framework.  Eighteen publications met criteria for inclusion in this review, with only one from the peer-reviewed literature.  The three main approaches in the literature and their use are reviewed and illustrated.  We conclude that there is a lack of, and need for, peer-reviewed literature on methods for calculating the marginal cost of incarceration, and marginal cost estimates of incarceration, to assist program evaluation, policy, and cost forecasting in the field of corrections.

December 28, 2021 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, December 23, 2021

BOP chief from Trump Administration says "prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief"

Hugh Hurwitz, who served as Acting Director of the Federal Bureau of Prisons from May 2018 to August 2019, has this notable new Hill commentary headlined "To fix our prison system, we need far more than a change in leadership."  It is worth reading in full, and here are some extended excerpts:

U.S. prisons are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief.  In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.

The reality is that one person can only do so much. I should know. I was one of those six.

The news that sparked Durbin’s ire was an Associated Press report revealing that numerous federal prison workers have been arrested, convicted or sentenced for crimes since the start of 2019.  Sadly, corruption and other malfeasance within prison systems are not uncommon.  But as Durbin rightly noted, “it’s clear that there is much going wrong in our federal prisons, and we urgently need to fix it.”...

How do we move forward?  We must rethink our overall approach to incarceration to ensure that only the right people — those who need to be separated from society or require intensive reentry programming — are confined for the appropriate amount of time.

Common-sense sentencing reforms are a good place to start.  These include mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes, which, among other problems, result in long sentences that drive prison populations up.

On the back end of the system, we need more intensive reentry programs to ensure that the more than 650,000 people leaving prison annually find the jobs, housing and healthcare they need to lead stable lives — and remain crime-free. Congress started this effort with bipartisan passage of the First Step Act of 2018 (co-sponsored by Durbin), but BOP needs sufficient resources to fully implement this law.

We also must invest in the recruitment, retention and training of correctional officers, while paying them on par with what other law enforcement officers earn. While the conduct spotlighted in recent news reports was reprehensible, it does not reflect the majority of BOP officers who put their lives on the line every day, and suffer disproportionately high rates of PTSD and suicide. They deserve to lead healthy lives, and their mental health has a direct impact on the orderly functioning of our prisons. It must be our concern.

Beyond such measures, Congress must tackle what should be the easiest, but may be the most divisive, piece of the debate: closing some of America’s oldest and costliest federal prisons.  Shuttering these aging lock-ups, some of which are more than a century old, would allow the BOP to reallocate staff and resources to the remaining facilities, improving safety and security while strengthening programs and services.

Closing prisons may be a hard sell to some, particularly to those in Congress.  But it has been done recently, at least at the state level. South Carolina, for example, has closed six correctional centers in the past decade, as its prison population declined following bipartisan passage of sentencing and corrections reforms in 2010.

One step the Attorney General and Congress should quickly consider is a recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for BOP.  This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.  The board would also provide political cover for harder choices that agency leaders and elected officials are sometimes reluctant or unable to make.

While the recent news about the BOP is disturbing, I hope it serves as a reminder of the need to rebuild our criminal justice system so that it is smaller, less punitive, more humane and safer for all.  With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.

December 23, 2021 in Criminal justice in the Trump Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

"Legislative Regulation of Isolation in Prison: 2018-2021"

The title of this post is the title of this new article now on SSRN authored by Judith Resnik, Jenny E. Carroll, Skylar Albertson, Sarita Benesch and Wynne Muscatine Graham. Here is its abstract:

Legislative activity seeking to limit or abolish the use of solitary confinement (often termed “restrictive housing”) has increased in recent years.  Efforts to “stop” solitary (nationally and internationally) are underway through organizing, hunger strikes, litigation, administrative reform, and media campaigns.  The goal is to end the practice of leaving people in cells for hours, days, months, and years on end.

This paper provides an overview of recent pending and enacted legislative proposals. From 2018 to 2021, legislation aiming to limit or end the use of isolation in prison was introduced in more than half of the states and in the U.S. Congress.  As of the summer of 2021, legislators had proposed statutes in 32 states and in the U.S. Congress, and both states and the federal system have enacted a variety of provisions.

The statutes vary in scope.  Some are comprehensive and address the treatment of all people incarcerated within a prison or jail system and impose limits on the reasons that prison authorities can use to put individuals into isolation, the duration of such confinement, and/or the extent to which the conditions of isolation can depart from those in general population.  In addition, some statutes focus on the use of solitary confinement for subpopulations, such as pregnant or young people, or people who have received certain medical or mental health diagnoses.  Many statutes have reporting requirements to create some measures of transparency and data collection.  A few aim to create monitoring and oversight beyond the prison administration.

This paper hones in on examples of enactments by detailing statutes in Colorado, Massachusetts, Minnesota, New Jersey, and New York.  This paper also provides an integrated overview of the features of the various statutory regimes.  In addition, because Pennsylvania legislators invited members of the Liman Center to testify in August of 2021 on a proposed bill, the paper contextualizes the proposed Pennsylvania bill within the recent nationwide waves of legislative activity and analyzes the text of the proposed bill.  This paper also draws on other work of the Liman Center's researchers, who are part of collaborative efforts underway since 2013 to track the rules governing solitary confinement, the numbers of people held in prison in isolation, and the conditions of their confinement. Time-In-Cell 2019: A Snapshot of Restrictive Housing, published in September 2020, is the latest report documenting these efforts. It is available at: https://law.yale.edu/sites/default/files/area/center/liman/document/time-in-cell_2019.pdf.

This legislative analysis will, we hope, be helpful in formulating and evaluating means to limit or end the use of isolation as a disciplinary or “protective” measure.  The Liman Center will also provide periodic updates of legislative activity and trends.

December 23, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, December 22, 2021

More timely new Prison Policy Initiative briefings on the many challenges of incarceration

I am often not able to keep up with all the great "briefings" produced by the folks at Prison Policy Initiative. Last month in this post, I noted a set of important recent work detailing ugly economic realities and disparities intertwined with prison experience. I am pleased now to have a chance to flag three more important and timely new briefings about other incarceration realities:

"Research roundup: The positive impacts of family contact for incarcerated people and their families: The research is clear: visitation, mail, phone, and other forms of contact between incarcerated people and their families have positive impacts for everyone — including better health, reduced recidivism, and improvement in school. Here’s a roundup of over 50 years of empirical study, and a reminder that prisons and jails often pay little more than lip service to the benefits of family contact."

"Since you asked: What information is available about COVID-19 and vaccinations in prison now?: Despite the new variants of COVID-19, prison systems are failing to publish up-to-date and necessary data and we don’t know much about booster shot access."

"Recent studies shed light on what reproductive 'choice' looks like in prisons and jails: States that are otherwise hostile to abortion rights are especially likely to make it difficult for incarcerated people."

December 22, 2021 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Tuesday, December 21, 2021

New OLC opinion memo concluding CARES Act "grants BOP discretion to permit prisoners in extended home confinement to remain there"

Regular readers are familiar with the legal issues surrounding what I have called the "home confinement cohort," those people who had been released due to COVID concerns from federal prison to serve their sentences on home confinement pursuant to the CARES Act, but who were at risk of being sent back to prison at the end of the pandemic because the US Justice Department's Office of Legal Counsel (OLC) issued a 15-page opinion on Jan 15, 2021 that the CARES Act required as much. But now that group has been given a notable holiday present in the form of a a new OLC 15-page opinion that concludes that "a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there." Here is a key starting and closing paragraph from the new memo:

We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon a thorough review of the relevant text, structure, purpose, and legislative history — and a careful consideration of BOP’s analysis of its own authority — we conclude that the better reading of section 12003(b)(2) and BOP’s preexisting authorities does not require that prisoners in extended home confinement be returned en masse to correctional facilities when the emergency period ends.  Even if the statute is considered ambiguous, BOP’s view represents a reasonable reading thatshould be accorded deference in future litigation challenging its interpretation...

For the reasons described in Part II, we conclude that our prior opinion failed to address important and persuasive counterarguments. We now believe that a better reading of section 12003(b)(2) grants BOP discretion to permit prisoners in extended home confinement to remain there.  Even if the statute were considered ambiguous, BOP’s view represents a reasonable reading that should be accorded deference in future litigation challenging its interpretation.  It accords with section 12003(b)(2)’s text, structure, and purpose, and it also makes eminent sense in light of the penological goals of home confinement.  BOP’s interpretation avoids requiring the agency to disrupt the community connections these prisoners have developed in aid of their eventual reentry. Instead, it allows the agency to use its expertise to recall prisoners only where penologically justified, and avoids a blanket, one-size-fits-all policy.  We thus depart from the view of our January 2021 opinion concerning section 12003(b)(2).

I certainly think this new OLC opinion reaches a much better policy outcome, and one that certainly seems consistent with both the goals and the text of the CARES Act.  I will need more time to read and re-read this new OLC effort before reaching a firm conclusion on its legal analysis, but I recall some months ago being moved by this long letter from advocates making the legal case for reconsidering the original OLC opinion.  

interestingly Attorney General Garland issued this statement along with the new OLC memo (with my emphasis added): "Thousands of people on home confinement have reconnected with their families, have found gainful employment, and have followed the rules. In light of today’s Office of Legal Counsel opinion, I have directed that the Department engage in a rulemaking process to ensure that the Department lives up to the letter and the spirit of the CARES Act.  We will exercise our authority so that those who have made rehabilitative progress and complied with the conditions of home confinement, and who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”  This statement by AG Garland suggests that DOJ is now going to engage in "rulemaking" that will create a set of requirements or criteria about who may get to stay on home confinement and who might be returned to prison after the pandemic ends.  I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the "home confinement cohort" who may need to worry about eventually heading back to federal prison.

Some of many prior related posts:

December 21, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (14)

A deep dive into extreme sentences in the Pelican State

61bbccc672eb3.imageThe Marshall Project with the Times-Picayune and The Advocate has a new series of pieces exploring extreme sentences in Louisiana.  Here are headlines, links and a few passages:

"Her Baby Died After Hurricane Katrina. Was It a Crime?: An expansive definition of murder in Louisiana leaves many behind bars forever."

Louisiana sentences people to life without parole at one of the highest rates in the nation, data shows. Nearly 4,200 men and women are serving lifetime sentences in the state, for crimes that range from homicide and rape to rarer cases of repeat purse snatchings and child neglect, an investigation by The Marshall Project and The Times-Picayune | The Advocate found.

Second-degree murder charges, like the ones Woods and Scott were found guilty of, are a big driver of life-without-parole sentences. The state has long had the highest homicide rate in the nation. But Louisiana law contains an unusually sweeping definition of second-degree murder that includes even some accidental deaths, legal experts say. And despite the wide variations in circumstances that can produce a second-degree murder conviction — from a premeditated ambush to a getaway car accident — the sentence is the same: mandatory life without parole. Judges have almost no discretion.

"‘The Only Way We Get Out of There Is in a Pine Box’: Elderly, ailing and expensive, lifetime prisoners cost Louisiana taxpayers millions a year."

Total medical spending for state corrections eclipsed $100 million last year. That’s an increase of about 25% from 2015, according to state budget figures....

Now, one in six people incarcerated in Louisiana has been sentenced to die in state custody. Nearly 1,200 lifers are over 60. Those geriatric lifers make up nearly 5% of the state prison population.

"A life sentence for $20 of weed? Louisiana stands out for its unequal use of repeat offender laws."

The crime that landed Kevin O’Brien Allen a spot among the more than 4,100 Louisianans now serving life-without-parole sentences wasn’t a bloody one: He sold $20 in marijuana to a childhood friend....

Agents booked Allen on two counts of marijuana distribution, and prosecutors in District Attorney Schuyler Marvin’s office made him an offer: a 5-year sentence if he pleaded guilty. Allen, a father of two with a steady job but a handful of drug convictions, balked....

Louisiana law affords prosecutors wide discretion to increase a repeat offender’s sentence, up to life, and Marvin’s office drew on Allen’s past convictions: possession with intent to distribute marijuana in 2004, marijuana possession in 2007 and 2011, and methamphetamine possession in 2013.

Once invoked by a prosecutor, the habitual-offender law gives little leeway to judges. They can sentence a defendant to less time if they find the minimum is so far out of line that it defies “acceptable goals of punishment” or serves as “nothing more than the purposeful imposition of pain and suffering.” But courts have described those scenarios as “exceedingly rare.”...

Allen [received a life sentence and] now works in the prison kitchen, making juice for pennies a day, serving a sentence that ends when he dies. He’s among nearly 300 people serving life without parole in Louisiana prisons based on their status as habitual offenders, an analysis of recent state corrections data show. In 40% of those cases, the incarcerated person is locked up for life on a non-violent crime....

Corrections data show wide variances in how district attorneys around the state have used the habitual offender law. Nearly two-thirds of habitual lifers in the state were sentenced in one of four large parishes: Caddo, Orleans, St. Tammany or Jefferson, according to the data. The practice is somewhat less common in East Baton Rouge Parish, the state’s most populous.

Overall, Louisiana prosecutors have mostly aimed the law at Black defendants, like Allen. Black people make up 31% of Louisiana’s population, but 66% of its state prisoners; 73% of those serving life sentences; and 83% of those serving life as habitual offenders, corrections and census data show.

December 21, 2021 in Offender Characteristics, Offense Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (5)

BJS releases "Employment of Persons Released from Federal Prison in 2010"

The Bureau of Justice Statistics has just released this fascinating new accounting of employment dynamics for over 50,000 persons who were released from federal prison in 2010.  Here is how the report starts to explain its scope:

The Bureau of Justice Statistics (BJS) produced this study to fulfill a congressional mandate in the Fair Chance to Compete for Jobs Act, part of the 2019 Defense Reauthorization Act (P.L. 116-92, Title XI, Subtitle B, Section 1124).  Congress tasked BJS and the U.S. Census Bureau with reporting on post-prison employment of persons released from federal prison. The study population in this report includes 51,500 persons released from the Federal Bureau of Prisons (BOP) whose release records could be linked by the U.S. Census Bureau to employment and wage files from the Longitudinal Employer-Household Dynamics (LEHD) program.

I cannot readily summarize all the findings from this report, but here are a few passages I found notable:

More than two-thirds (67%) of the study population released from federal prison in 2010 obtained formal employment at any point during the 16 quarters following release. However, the total study population’s employment did not exceed 40% in any of the individual 16 quarters after release. The highest percentage of persons in the study population who were employed occurred in the first full quarter after prison release for whites (46%) and American Indians and Alaska Natives (37%), in quarter 2 for blacks (37%) and Hispanics (34%), and in quarter 5 for Asians and Native Hawaiians and Other Pacific Islanders (38%). Males who obtained post-prison employment worked for an average of 9.1 quarters during the 16 quarters following release, while females worked an average of 10.2 quarters....

A third (33%) of persons in the study population were employed 12 quarters prior to their admission to federal prison. This percentage declined in each subsequent quarter, with 18% employed in the last full quarter before admission to prison and 11% employed in the quarter of prison admission....

A higher percentage of persons in the study population who served time in federal prison for drug offenses before their 2010 release were employed during the 16 quarters after release (72%) compared to other offense types, while persons who served time for public order offenses had the lowest (60%).  Seventy percent of persons in the study population who returned to federal prison during the time from their 2010 release to yearend 2014 found employment in at least 1 quarter of the follow-up period, compared to 66% of persons who were not reimprisoned by the BOP....

Persons in the study population worked in a wide range of jobs after prison, but five industrial sectors employed the majority of persons released in 2010: administrative support and waste management and remediation services; accommodation and food services; construction; manufacturing; and retail trade (table 7). Together, these sectors employed 72% of persons in the study population who obtained work in the first quarter after their 2010 prison release, declining to 66% in quarter 16. During each of the 16 quarters after release, the top nine employment sectors accounted for more than 85% of the jobs worked by the employed persons in the study population.

Because I do not see this report including any data about education levels or any in-prison vocational training efforts, I am not sure quite what to make of all these particulars. But the particulars are still quite interesting.

December 21, 2021 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Sunday, December 19, 2021

Vera Institute updates its Incarceration Trends website

As discussed in this press release, titled "Vera Institute of Justice Unveils Updated Incarceration Trends Website," the Vera Institute has updated this cool website. Here are the basics as described in the press release:

The Vera Institute of Justice [has] a new, updated version of its Incarceration Trends website, which now includes analysis of more than five decades of local jail and state prison data at the national, state, and county levels.  The updated site brings many of the data points current to spring 2021 and represents the most comprehensive look to date at the growth of mass incarceration across states, counties, and urban-to-rural geographies....

The nation’s biggest cities once had the highest rates of incarceration, but over the past several decades, jail incarceration and state prison admissions have declined in major metro areas as they rose precipitously in smaller cities and rural communities.  Today in the United States, approximately two out of three people in local jails have not been convicted of a crime — many are being detained in civil matters, such as people incarcerated pretrial for immigration cases or those who can’t pay child support or fines and fees.  The updated analysis presented in Incarceration Trends highlights that the disproportionate criminalization and incarceration of Black people and other people of color is also most pronounced in rural counties, as is the rise of women’s incarceration.

The newly visualized data also features the rebound in jail incarceration after an unprecedented 14 percent drop in incarceration in the first half of 2020 (bringing the total incarcerated population from 2.1 million to 1.8 million people) in response to the spread of COVID-19.  As of spring 2021, state prison decarceration had stalled and jail populations continued to trend upward.

Incarceration Trends offers insight on national-, state-, and county-level pages, enabling users to compare county-level data to state and national trends.  The website includes:

  • analysis of the race, ethnicity, and gender of people in the nation’s jails and prisons;

  • visualizations of state incarceration trends across major metros, smaller cities, suburbs, and rural communities;

  • rankings of all of the counties in a given state by the incarceration rate and growth of incarceration;

  • a visualization of each county’s jail population, representing the most recently available data about what proportion is held pretrial, sentenced, and held on behalf of other authorities, including state departments of corrections and federal agencies;

  • the ability to toggle between the average number of people held in a jail on any day and the rate of incarceration, accounting for resident population changes; and

  • data on regional jail systems that serve multiple counties.

The new Incarceration Trends website shows both the significant increase in jail incarceration across the urban to rural spectrum since 1970 and the more recent divergence in incarceration trends, including during the COVID-19 pandemic. Nationally, the rate at which people are incarcerated in local jails declined 26 percent between late 2019 and mid-2020. However, jail incarceration had rebounded sharply by spring 2021.

December 19, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, December 16, 2021

New BJS reports on "Probation and Parole in the United States, 2020" and "Profile of Prison Inmates, 2016"

Earlier this week, the Bureau of Justice Statistics released its latest detailed accounting of US prison populations (discussed here), and today brought two more notable data reports from BJS.  Here is a brief summary (with links) via the email I received this morning from the office of Justice Programs:

The Department of Justice’s Bureau of Justice Statistics today released Probation and Parole in the United States, 2020.  The report is the 29th in a series that began in 1981. It includes characteristics of the population such as sex, race or ethnicity and most serious offense of adult U.S. residents under correctional supervision in the community. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding or other unsatisfactory outcomes while in the community.  Findings are based on data from BJS’s 2020 Annual Probation Survey and Annual Parole Survey.

BJS also released Profile of Prison Inmates, 2016.  This report describes the characteristics of state and federal prisoners in 2016, including demographics, education and marital status.  Findings are based on data from BJS’s 2016 Survey of Prison Inmates (SPI), which is conducted periodically and consists of personal interviews with prisoners.  For the first time, the 2016 SPI measured sexual orientation and gender identity, and those estimates are included in this report.  Statistics on prisoners’ offenses, time served, prior criminal history and any housing status prior to imprisonment, including homelessness, are also presented.  The report concludes with a summary of the family background of prisoners while they were growing up and any family members who have ever been incarcerated.

I am hoping in the weeks ahead to find some time to really mine some interesting factoids from all this notable new BJS data. For now I will be content to flag just a few "highlights" from the start of these two new document:

December 16, 2021 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Wednesday, December 15, 2021

New BJS report documents big decrease in prison admissions drove 15% imprisonment rate decline in 2020

The Bureau of Justice Statistics has released its latest detailed accounting of US prison populations in this big report titled "Prisoners in 2020 – Statistical Tables."  The BJS data capture realities at yearend 2020, and thus reflects lots (but not all) COVID-era developments. Here is part of the start of the document, along with some of its "highlights":

In 2020, the number of persons held in state or federal prisons in the United States declined 15%, from 1,430,200 at yearend 2019 to 1,215,800 at yearend 2020. Only Alaska showed an increase (2%) in its prison population, while other jurisdictions showed declines of 7% to 31%.  The number of persons sentenced to more than 1 year in state or federal prison decreased from 1,379,800 in 2019 to 1,182,200 in 2020. Te combined state and federal imprisonment rate for 2020 (358 per 100,000 U.S. residents) represented a decrease of 15% from 2019 (419 per 100,000 U.S. residents) and a decrease of 28% from 2010 (500 per 100,000 U.S. residents).

The COVID-19 pandemic was largely responsible for the decline in prisoners under state and federal correctional authority.  Courts significantly altered operations for part or all of 2020, leading to delays in trials and/or sentencing of persons, and this was refected in the 40% decrease in admissions to state and federal prison from 2019.  While the number of releases also declined during 2020, releases occurred at a slower rate (10%) than the decrease in admissions. Although deaths represented 1% of the total releases from prison in 2020, the number prisoners that died under the jurisdiction of state or federal correctional authorities in 2020 (6,100 prisoners) increased 46% from 2019 (4,200).

From 2019 to 2020, the decline in the number of females sentenced to more than 1 year in prison (down 22%) outpaced the decrease in sentenced male prisoners (down 14%).  The imprisonment rates for U.S. residents in all racial or ethnic categories decreased by 12% to 16% from 2019 to 2020 and by at least 25% from 2010 to 2020.  The imprisonment rate for black U.S. residents decreased 37%, from 1,489 per 100,000 in 2010 to 938 per 100,000 in 2020.

Highlights

  • At yearend 2020, the number of prisoners under state or federal jurisdiction had decreased by 214,300 (down 15%) from 2019 and by 399,700 (down 25%) from 2009, the year the number of prisoners in the United States peaked.
  • Nine states showed decreases in the number of persons in prison of at least 20% from 2019 to 2020.
  • The prison populations of California, Texas, and the Federal Bureau of Prisons each declined by more than 22,500 from 2019 to 2020, accounting for 33% of the total prison population decrease.
  • In 2020, the imprisonment rate was 358 per 100,000 U.S. residents, the lowest since 1992.
  • From 2010 to 2020, the sentenced imprisonment rate for U.S. residents fell 37% among blacks; 32% among Hispanics; 32% among Asians, Native Hawaiians, and Other Pacifc Islanders; 26% among whites; and 25% among American Indians and Alaska Natives.
  • The number of admissions to federal prison (down 19,000) and to state prison (down 211,800) both declined by 40% from 2019 to 2020.
  • Releases from federal and state prisons decreased during 2020 (down 58,400 or almost 10% from 2019), but at a lower rate than the decrease in admissions.

I find it fascinating and telling that our nation actually did not release more people from prison during an historic pandemic, but it did have a harder time continuing to send a massive number of new people to prison. I am thus tempted to joke that, like lots of other segments of our society, America's mass incarceration system has also had "supply chain" issues that has impacted its usual functioning. Whether these patterns have continued into 2021 and beyond as this pandemic lingers on will be worth watching closely.

December 15, 2021 in Data on sentencing, Detailed sentencing data, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, December 13, 2021

"Prison Reform Should Be a Bipartisan Issue"

This title of this post is the headline of this effective Wall Street Journal commentary authored by Marc M. Howard. I recommend the full piece and here are excerpts:

I was happy to learn that Rep. Marjorie Taylor Greene and several other members of Congress visited the District of Columbia Jail recently.  And I was flattered that her ensuing report, “Unusually Cruel,” quoted from my book and even borrowed its title.  As someone who frequently visits prisons, I believe it is vital that people see firsthand the conditions of incarceration around the country — and realize the humanity of those behind bars.

Mrs. Greene’s report focuses on the “inhumane” conditions in which the Jan. 6 defendants are being held. “Cells in the January 6 wing of the CTF were extremely small, composed of a single toilet, sink and a small bed cot,” she notes. “The walls of the rooms had residue of human feces, bodily fluids, blood, dirt and mold. The community showers were recently scrubbed of black mold — some of which remained.”  The report adds that inmates said they “did not have access to their attorneys, families or proper nutrition.”

These observations match the standard story of incarceration in America, and they should lead people to reflect on how they would feel if they or a loved one were held in such conditions.  This isn’t an abstract exercise, as 45% of Americans have had an immediate family member incarcerated.

Deplorable physical conditions are shockingly common, with prisons and jails across the country characterized by filth, violence, overcrowding and lack of privacy.  Most correctional facilities allow limited movement and communication, scant access to work or educational programming, and hostile and dehumanizing relations with staff....

Across the country, prison reform has been a largely bipartisan issue for nearly a decade.  The First Step Act of 2018 passed overwhelmingly in both houses of Congress and was signed by President Trump.  It was the most significant federal criminal-justice reform aimed at reducing incarceration in the past 50 years.  States led by Republicans (including Texas, Mississippi, Georgia, Louisiana and South Carolina) and Democrats (New York, New Jersey, Connecticut and California) have made conscious efforts to reduce their incarceration levels.

Although the events of Jan. 6 have become polarizing in American politics, the situation at the D.C. Jail has created an opportunity for both sides to appreciate the disturbing realities of prison in America.  I hope Mrs. Greene and others on the right who are appalled by the physical conditions they witnessed will become advocates for reforming the laws and policies that support a system that currently treats prisoners inhumanely.

I also hope that people on the left — including those who already favor prison reform but view it primarily through a racial-justice lens — will resist their own vindictive impulses, stop demonizing their political opponents, and support Jan. 6 defendants’ right to proper treatment.

December 13, 2021 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

Saturday, December 11, 2021

New Harvard Law Review article details "The Incoherence of Prison Law"

The new issue of the Harvard Law Review has this notable new article authored by Justin Driver and Emma Kaufman and titled "The Incoherence of Prison Law."  Here is its abstract:

In recent years, legal scholars have advanced powerful critiques of mass incarceration.  Academics have indicted America’s prison system for entrenching racism and exacerbating economic inequality.  Scholars have said much less about the law that governs penal institutions.  Yet prisons are filled with law, and prison doctrine is in a state of disarray.

This Article centers prison law in debates about the failures of American criminal justice.  Bringing together disparate lines of doctrine, prison memoirs, and historical sources, we trace prison law’s emergence as a discrete field — a subspeciality of constitutional law and a neglected part of the discipline called criminal procedure.  We then offer a panoramic critique of the field, arguing that prison law is predicated on myths about the nature of prison life, the content of prisoners’ rights, and the purpose of penal institutions.  To explore this problem, we focus on four concepts that shape constitutional prison cases: violence, literacy, privacy, and rehabilitation.  We show how these concepts shift across lines of cases in ways that prevent prison law from holding together as a defensible body of thought.

Exposing the myths that animate prison law yields broader insights about judicial regulation of prisons.  This Article explains how outdated tropes have narrowed prisoners’ rights and promoted the country’s dependence on penal institutions. It links prison myths to the field’s central doctrine, which encourages selective generalizations and oversimplifies the difficult constitutional questions raised by imprisonment.  And it argues that courts must abandon that doctrine — and attend to the realities of prison — to develop a more coherent theory of prisoners’ constitutional rights.

December 11, 2021 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, December 08, 2021

"The Effects of College in Prison and Policy Implications"

The title of this post is the title of this notable new piece authored by Matthew G.T. Denney and Robert Tynes newly published in the journal Justice Quarterly. Here is its abstract:

Despite the policy relevance of college-in-prison, the existing research on these programs has important flaws, failing to address selection and self-selection bias.  We address an important policy question: what are the effects of college-in-prison program?  To do this, we provide the largest study published to-date of a single college-in-prison program. 

We analyze the effects of the Bard Prison Initiative (BPI) in New York, a liberal arts program that has offered college courses to incarcerated students since 2001.  By leveraging the BPI admissions process, we employ a design-based approach to infer the causal effect of participation in BPI.  We find a large and significant reduction in recidivism rates.  This reduction is consistent across racial groupings.  Moreover, people with higher levels of participation recidivate at even lower rates.  In light of these findings, we provide policy recommendations that support college-in-prison programs.

December 8, 2021 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Monday, December 06, 2021

Working through challenges facing CARES home confinement cohort

Charles Burnham and Jonathan Knowles have this new Law360 piece, headlined "Addressing Prison Risk After CARES Act Home Confinement," that talks through the possibilities (and challenges) for individuals placed on home confinement pursuant the CARES Act facing a potential future return to prison. Here are excerpts:

First, people with criminal convictions should remember that they retain political influence, even if many of them are unable to vote. Congress could resolve the issue by enacting law that clarifies the BOP's authority to maintain home confinement. Unfortunately, such legislation does not seem likely.

Many representatives and senators have requested that the Biden administration change its attitude, however, and continued pressure might push the administration to adopt a new approach. Presumably, most people with convictions would like to go further. As always, they can request a pardon from the president, but this process remains unlikely to succeed, except, perhaps, for those specifically invited to apply.

So, what other options are available?

Section 12003(b)(2) of the CARES Act is ambiguous as to what happens when the national emergency ends. It could be read as restricting the authority to place new people on home confinement, while preserving home confinement that has been granted.

There may be other grounds to challenge revocation of home confinement.  Whatever the strength of such challenges, there are numerous obstacles before a court will even hear them.  One issue is timing. In May, a woman named Dianthe Martinez-Brooks attempted to preemptively challenge the OLC memo that threatened to revoke her home confinement. Rather than answering her complaint, the BOP moved to dismiss, arguing that her case was not ripe because the BOP had not recalled her to prison.

At the time of writing, the court has yet to rule on the motion. Yet, if individuals on home confinement are not able to challenge their recall before it occurs, they may have to surrender to prison for many months while their cases are pending. People attempting such preemptive challenges should therefore be prepared to argue that their claims are ripe.

Another issue is the correct procedural vehicle for the challenge. Martinez-Brooks moved under the Administrative Procedure Act. In its motion to dismiss, the BOP asserted that such challenges cannot be brought under the APA because Congress has prohibited people who are incarcerated from using the APA to challenge the BOP's placement decisions.

At least one federal court has ruled that Title 18 of the U.S. Code, Section 3625, the statute cited by the government, prevented individuals who are incarcerated from challenging a denial of home confinement under the CARES Act. The District of New Jersey held as such on Sept. 1 in Goodchild v. Ortiz.

The BOP also asserted that the OLC memo at issue is not final agency action.  Finally, the BOP argues that relief under the APA is unavailable because Martinez-Brooks has another remedy — namely, the motion for compassionate release that she has previously filed.

The obvious alternative would seem to be habeas corpus. Indeed, from around 2005 to 2008, incarcerated individuals in some circuits successfully used habeas corpus to challenge the BOP's categorical denial of community confinement.  Federal courts have reached different conclusions, however, about whether they have jurisdiction to consider requests for home confinement under habeas corpus.

A preemptive challenge under habeas would also raise questions about where to file suit, and against whom.  Attorneys will need to review the law of their circuits carefully to ascertain whether suits can be brought under habeas or Title 42 of the U.S. Code, Section 1983, as well as whether individuals in prison are required to exhaust administrative remedies.

Yet another obstacle is whether the relief sought is within the court's power. In considering the claims of people who are incarcerated, courts have so far held that home confinement is solely within the discretion of the BOP.  Even so, some courts have left open the possibility that they could review a categorical denial of home confinement based on a misreading of a statute.

Finally, people who are incarcerated should be ready to seek relief under other avenues. Some may be within the one-year deadline to move to vacate, set aside or correct a sentence.  In many cases, however, the only option will be to seek compassionate release.

Courts have split as to grounds for compassionate release....

If possible, affected individuals should prepare motions now and submit them to the BOP as soon as it formally rescinds home confinement.  They may even be able to move the court earlier, asking the court to hold the issue in abeyance, although such a procedure would be risky.

Some of many prior related posts:

December 6, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Sunday, December 05, 2021

Recidiviz forecasts federal marijuana legalization would reduce "federal prison population by 2,807 over 5 years"

Recidiviz has this notable new data analysis titled "Ending Federal Prison Sentences for Marijuana Offenses."  Here is part of its text:

Ending federal marijuana prohibition specifically, ceasing federal prison commitments for marijuana-related offenses could reduce incarceration costs by $571.8M and the federal prison population by 2,807 over 5 years. The policy is also projected to divert roughly 1,120 people from being sent to federal prison each year....

In spite of these shifts in public opinion and state law, marijuana is still prohibited at the federal level, and more than 3,000 individuals are currently serving marijuana-related sentences in federal prison.  Significant racial disparities exist in federal marijuana sentencing; an estimated 60% of people serving time in federal prison for marijuana offenses are of Hispanic descent, and over the past five years, 67% of individuals receiving prison sentences for marijuana offenses were Hispanic.


While the rate of prison sentencing for federal marijuana offenses has declined substantially in the past five years, individuals incarcerated for federal marijuana offenses still face an average sentence of approximately 38 months.  Furthermore, nearly 1 in 4 individuals incarcerated under federal marijuana trafficking offenses will face
reincarceration.

December 5, 2021 in Drug Offense Sentencing, Pot Prohibition Issues, Prisons and prisoners | Permalink | Comments (0)

"Crime and Punishment. Crime Rates and Prison Population in Europe"

The title of this post is the title of this new paper available via SSRN authored by Beata Gruszczyńska and Marek Gruszczyński. Here is its abstract:

We present the attempt of finding association between crime level and prison population across European countries.  We propose observation that Central and Eastern European countries distinctly differ from the rest of Europe.  Building on this we offer justification that is methodologically based on correlations and regressions of country incarceration rates on crime rates, with the reference to governance indicators.  We use data on crime and prisoner rates by offence from Eurostat and SPACE.  Our cross-sectional analysis is confined to year 2018.

The empirical part of the paper is preceded by specifying the challenges of comparing crime between countries in Europe.  Next, we present the review of research concentrated on relationships between incarceration and crime, with the emphasis on deterrence effect and the prison paradox.  This stream of research is typically dedicated to single countries or smaller areas, with the use of microdata.  International comparisons are rare and are usually based on time series and trend analyses.

Quantitative approach applied here is established on recognizing two clusters of countries: Central and Eastern European (CEE) cluster, and Western European (WE) cluster. We show that the observation of higher prisoner rates and lower crime rates for CEE countries is confirmed in a quantitative way. The analysis encompasses four types of offences: assault, rape, robbery and theft.  Final part of the paper presents the attempt to include World Governance Indicators into the analysis of association between incarceration and crime rates.

All results confirm that crime rates in WE countries are distinctly higher than in CEE countries while incarceration rates in WE are significantly lower than in CEE countries. We think it is because of the broader extent of crimes registered and better accuracy of police statistics.  Prison population is largely determined by the criminal and penal policy in each country. Those policies differ substantially between CEE and WE countries, e.g. in terms of frequency of sentencing to the prison and the length of imprisonment.  These result in higher incarceration rates in CEE countries, despite lower crime rates – as compared to WE countries.

December 5, 2021 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world | Permalink | Comments (0)

Three deep dives into ugly realities of Alabama's justice system

One often hears talk of Texas justice being unique, but there are really distinctive stories to tell about criminal justice realities in every state.  To that end, consider three new lengthy recent pieces about crime and punishment in Alabama.  I recommend all of these deep dives:

From AL.com, "Alabama parole rate far short of board’s own recommended guidelines"

From Politico, "‘A humanitarian crisis’: Why Alabama could lose control of its dangerous prisons: Alabama sends so many people to prison that the state can no longer safely house its inmates, consequences of a tough-on-crime mentality among politicians and the public that keeps aggressive sentencing laws on the books."

From the New York Times, "He Never Touched the Murder Weapon. Alabama Sentenced Him to Die.: Nathaniel Woods was unarmed when three Birmingham police officers were fatally shot by someone else in 2004.  But Woods, a Black man, was convicted of capital murder for his role in the deaths of the three white officers."

December 5, 2021 in Death Penalty Reforms, Prisons and prisoners | Permalink | Comments (7)

Monday, November 29, 2021

"The population prevalence of solitary confinement"

Th title of this post is the title of this notable new research article in the new issue of the journal Science Advances and authored by Hannah Pullen-Blasnik, Jessica T. Simes and Bruce Western.  Here is its abstract:

Solitary confinement is a severe form of incarceration closely associated with long-lasting psychological harm and poor post-release outcomes.  Estimating the population prevalence, we find that 11% of all black men in Pennsylvania, born 1986 to 1989, were incarcerated in solitary confinement by age 32.  Reflecting large racial disparities, the population prevalence is only 3.4% for Latinos and 1.4% for white men.  About 9% of black men in the state cohort were held in solitary for more than 15 consecutive days, violating the United Nations standards for minimum treatment of incarcerated people.  Nearly 1 in 100 black men experienced solitary for a year or longer by age 32.  Racial disparities are similar for women, but rates are lower.  A decomposition shows that black men’s high risk of solitary confinement stems primarily from their high imprisonment rate.  Findings suggest that harsh conditions of U.S. incarceration have population-level effects on black men’s well-being.

November 29, 2021 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)

Wednesday, November 24, 2021

Notable new news reports about declining prison populations in two "New" states

I was intrigued to see two new local new reports about significant prison population declines in two states.  Here are headlined, links and excerpts (with links from the originals):

"NJ Cut Its Prison Population By 40% During 11 Months Of the Pandemic":

As the coronavirus swept through New Jersey’s prison system last year, killing inmates at the highest rate in the nation for months, state leaders took an unprecedented step: They slashed the prison population by 40%.

“No other state has been able to accomplish what New Jersey has accomplished,” said Amol Sinha, executive director of the American Civil Liberties Union of New Jersey, “making it the nation's leading de-carcerator and I think that's a badge that we should wear with honor.”

In October 2020, Governor Phil Murphy signed a law that allowed those within a year of release to get out up to eight months early. The first-in-the-nation measure ultimately freed nearly 5,300 adults and juveniles from state custody over the last 11 months.

“New Jersey's prison population plummeted under the law, reaching a level that it had not been in for decades and creating a much more manageable … population for the correction system,” said Todd Clear, a university professor at Rutgers who specializes in criminal justice.   He said the prison census dropped to numbers not seen since the 1980s. “New Jersey was the most aggressive [state] and it was the most expansive across the largest proportion of the population,” Clear said.

"Why is New Mexico’s prison population on the decline?"

There’s been a “dramatic” decline in the state’s prison population from summer of 2020 to summer of 2021, according to the New Mexico Sentencing Commission (NMSC). In early November, the commission, which evaluates policies related to the criminal justice system, told state legislators that the recent declines in part are likely due to ongoing criminal justice reform, increased prison diversion programs, and changes in how criminals are sentenced.

The COVID-19 pandemic is also thought to have played a role, as jury trials were suspended and the Department of Corrections worked to find elderly and at-risk prisoners who were eligible for early release, according to the NMSC. However, the decline in prison population began even before the pandemic.

For the first time in the last 10 years, the peak male prison population — the maximum number in prison in a fiscal year — has dropped below 6,000 prisoners. And the peak female prison population has dropped by a total of 24% over the last two fiscal years to 607 prisoners in 2021, according to data from the NMSC.

“Some of the decline may be attributable to a decrease in prosecutions during the pandemic,” Linda Freeman, the executive director at NMSC, told the legislature. As a result, the NMSC predicts a slight increase in prison populations in the coming years, as the effects of COVID-19 wane.

November 24, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1)

Tuesday, November 23, 2021

Bureau of Justice Statistics releases "Federal Prisoner Statistics Collected under the First Step Act, 2021"

I was excited to receive new of this new Bureau of Justice Statistics' publication with lots of rich new data about the federal prisoner population.  This website provides this overview and a few key findings from "Federal Prisoner Statistics Collected under the First Step Act, 2021":

Description

This is the third report as required under the First Step Act of 2018 (FSA; P.L. 115-391). It includes data on federal prisoners provided to BJS by the Federal Bureau of Prisons (BOP) for calendar year 2020. Under the FSA, BJS is required to report on selected characteristics of persons in prison, including marital, veteran, citizenship, and English-speaking status; education levels; medical conditions; and participation in treatment programs. Also, BJS is required to report facility-level statistics, such as the number of assaults on staff by prisoners, prisoners’ violations of rules that resulted in time credit reductions, and selected facility characteristics related to accreditation, on-site health care, remote learning, video conferencing, and costs of prisoners’ phone calls.

Highlights

  • The federal prison population decreased 13%, from 174,391 at yearend 2019 to 151,283 at yearend 2020.
  • In 2020, a total of 91 pregnant females were held in BOP-operated prison facilities, which was half the number held in 2019 (180).
  • In 2020, a total of 14,791 persons held in federal prison participated in a nonresidential drug abuse program, 10,868 in a residential drug abuse program, and 1,268 in a treatment challenge program for a substance use disorder.
  • In 2020, a total of 418 federal prisoners received medication-assisted treatment (approved by the U.S. Food and Drug Administration) to treat a substance use disorder.

The full document has a lot more interesting highlights, including these notable data points about the work of the federal risk assessment tool used by BOP known as PATTERN:

November 23, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, November 22, 2021

Recent Prison Policy Initiative briefings spotlight how money matters, a lot, even in prison

I have been behind on highlighting some of the great briefings created or noted over the last month by Prison Policy Initiative.  A notable theme in all these recent reports is how economic realities and disparities do not get locked away even in with prison experience.  I recommend all this research in full:

"For the poorest people in prison, it’s a struggle to access even basic necessities: Our survey of all 50 states and the BOP reveals that prisons make it hard for people to qualify as indigent—and even those who do qualify receive limited resources."

"Show me the money: Tracking the companies that have a lock on sending funds to incarcerated people: We looked at all fifty state departments of corrections to figure out which companies hold the contracts to provide money-transfer services and what the fees are to use these services."

"The CFPB’s enforcement order against prison profiteer JPay, explained: The company was fined $6 million for exploiting people leaving prison."

"Blood from a stone: How New York prisons force people to pay for their own incarceration: A study by members of the New York University Prison Education Program Research Collective gives important first-hand accounts of the damage done when prisons shift financial costs to incarcerated people."

November 22, 2021 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Wednesday, November 17, 2021

Notable Sentencing Project fact sheet on "Parents in Prison"

The Sentencing project today released this short fact sheet titled simply "Parents in Prison" that provides key facts on parents in prison and policies that impede their ability to care for their children when released. Here is how it starts:

Half of imprisoned people in the United States are parents of minor children who are under age 18: 47% in state prisons and 57% in federal prisons.  Most imprisoned parents of minor children are fathers (626,800 fathers, compared to 57,700 mothers).  But a higher proportion of imprisoned women (58%) than imprisoned men (47%) have minor children.  Between 1991 and 2016, the latest year for which national data is available, the number of fathers in prison increased 48% and the number of mothers increased 96%.  This brief examines trends in parental incarceration, strains on families, missed opportunities for interventions, as well as recent reforms.

November 17, 2021 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (0)

Henry Montgomery (of Montgomery v. Louisiana) finally granted parole at age 75

Henry Montgomery back in 2016 won in the US Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively. But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.   Montgomery was in February 2018 denied parole as detailed in this post, and he was denied parole again in April 2019 as detailed in this post.  But I am pleased to now be able to report that the third time was a charm for Montgomery as reported in this UPI piece headlined "Longtime inmate and key figure in juvenile sentence reforms finally wins parole." Here are some of the details:

A Louisiana man who's spent the vast majority of his life in prison for killing a sheriff's deputy when he was a minor almost 60 years ago -- and whose case has been instrumental in freeing hundreds of inmates who were sentenced to life for crimes as juveniles -- is finally getting his chance to walk free.

Henry Montgomery on Wednesday appeared at his third hearing before a Louisiana parole board. The first two turned him down.  The third gave him his freedom after 57 years behind bars.

For years, advocates have said Montgomery is serving an unconscionably long sentence for a crime he committed as a minor, in spite of state Supreme Court rulings that determined that life sentences for juveniles amount to "cruel and unusual punishment."...

Montgomery was 17 when he shot and killed East Baton Rouge Paris Deputy Charles Hurt in 1963, after the lawman caught him skipping school. He's now 75. He was initially sentenced to death, but that sentence was overturned in 1966 when the Louisiana Supreme Court ruled that he did not receive a fair trial. After a retrial, he was sentenced to life without parole.

Montgomery has been locked up in the Louisiana State Penitentiary, known as "Angola" after the former plantation that occupied the area. "Through his personal growth, maturity, and maintenance of an excellent record of conduct while in prison, Henry proves daily that he is no longer the 17-year-old child he was in 1963," Marshan Allen, national policy director of Represent Justice, said in a tweet before Wednesday's decision....

Montgomery's case was at the center of a legal fight that went all the way to the U.S. Supreme Court, and resulted in a ruling that's allowed nearly 1,000 people who were sentenced to life without parole as a juvenile to be freed....

At his first two parole hearings -- in 2018 and 2019 -- he was denied release. At both hearings, two of the three board members voted to grant him his release from prison and one voted to keep him imprisoned. At the time, parole decisions had to be unanimous. Earlier this year, however, Louisiana changed its law to require only a majority vote if an inmate meets certain conditions -- meaning Montgomery would be freed if he got another 2-1 vote in his favor.

The dissenting voter who voted against releasing Montgomery in 2019 said that he hadn't presented enough programs in prison. But Andrew Hundley, one of the people who was released as a result of Montgomery vs. Louisiana and director of the Louisiana Parole Project, said that Angola did not offer such programs for decades of his sentence. "It was the most violent prison in America.  There wasn't this idea of rehabilitation and that prisoners should take part in programming to rehabilitate themselves," he told The Atlantic. "That culture didn't exist and there weren't programs. You just woke up every day trying not to get killed."

Hundley added that he's felt like it's his "life's work" to get Montgomery and others like him out of prison. "Henry was in prison 18 years before I was born. And I've been home five and a half years now."

November 17, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, November 16, 2021

New OIG report assails BOP failures in implementation of FIRST STEP Act

This new Forbes article highlights key features of this detailed new memorandum from the Office of Inspector General criticizing the Bureau of Prisons on various failing that disrupted implementation of the FIRST STEP Act. Here is how the Forbes piece gets started:

On December 21, 2018, then President Donald J. Trump signed into law the First Step Act (FSA), which enacted several criminal justice reforms throughout the federal prison system. Now, nearly three years later, the Federal Bureau of Prisons (BOP) has yet to implement much its central purpose which was to further reduce institutional prison populations by offering incentives to inmates to earn credits toward more halfway house through certain educational programs.  It turns out part of the holdup on the implementation is because BOP management and union staff have been unable to come up with a solution to meet to discuss how the program will be implemented.  The reason we now know this is not because of an announcement from the BOP, but from the release of a recent Office of Inspector General (OIG) report criticizing the lack of implementation along with a lack of the BOP responding to a number of OIG reports over the past 3 years.

According to the OIG report, the BOP’s national union has declined to conduct formal policy negotiations in a remote manner.  Relying on labor contractual terms providing for in-person negotiations, the national union has insisted on in-person negotiations and expressed its availability to meet in person.  This disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised in response to the FSA.

November 16, 2021 in FIRST STEP Act and its implementation, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

US Senate Judiciary Chair calling for AG Garland to fire head of Bureau of Prisons

This new AP article, headlined "Durbin calls for Garland to remove federal prisons director," reports on a notable call from a notable legislator for federal criminal justice personnel change. Here are the details:

The chairman of the Senate Judiciary Committee demanded Tuesday that Attorney General Merrick Garland immediately fire the director of the beleaguered federal Bureau of Prisons after an Associated Press investigation detailing serious misconduct involving correctional officers.

Sen. Dick Durbin’s demand came two days after the AP revealed that more than 100 Bureau of Prisons workers have been arrested, convicted or sentenced for crimes since the start of 2019.  The AP investigation also found the agency has turned a blind eye to employees accused of misconduct and has failed to suspend officers who themselves had been arrested for crimes.

Durbin took particular aim at Director Michael Carvajal, who has been at the center of the agency’s myriad crises. Under Carvajal’s leadership, the agency has experienced a multitude of crises from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.

Carvajal was appointed by then-Attorney General William Barr but Deputy Attorney General Lisa Monaco said recently that she still had confidence in him despite the many serious issues during his tenure. The AP reported in June that senior officials in the Biden administration had been weighing whether to oust him. He is one of the few remaining holdovers from the Trump administration.

“Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act, and more,” Durbin said in a statement. “It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.”...

Separately on Tuesday, the Justice Department’s inspector general found that the Bureau of Prisons had stalled the development of more than 30 agency policies because agency officials have been refusing to meet with the union representing prison workers for in-person policy negotiations, as required under a contract.

About half of the policies that have stalled for the last 20 months were created or revised in response to the First Step Act, a bipartisan criminal justice overhaul signed during the Trump administration and aimed at encouraging inmates to participate in programs aimed at reducing recidivism — which could let them out of prison earlier — easing mandatory minimum sentences and giving judges more discretion in sentencing.

The inspector general found that the Bureau of Prisons has not given credit to any of the about 60,000 federal inmates who have completed those programs because the agency hasn’t finalized its procedures or completed the policy negotiations with the union. The watchdog also found that the failure to negotiate has delayed the implementation of 27 recommendations from the inspector general’s office.

November 16, 2021 in Prisons and prisoners, Who Sentences | Permalink | Comments (0)

Another quartet of must-read new essays in Brennan Center's "Punitive Excess" series

highlighted here back in April the terrific new essay series assembled by the Brennan Center for Justice under the title "Punitive Excess."  I have blogged about sets of new essays repeatedly (as linked below) because each new set of new essays are must reads (like all that come before).  Since my last posting a few months ago, the series has added four awesome new essays, and here are links to the latest quartet:

Prior related posts:

November 16, 2021 in Mandatory minimum sentencing statutes, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, November 12, 2021

"Two Strikes and You’re in Prison Forever: Why Florida leads the nation in people serving life without chance of parole."

The title of this post is the headline of this important new reporting (and accounting) from the Marshall Project. I recommend the full piece, and here is a taste:

The number of people serving life-without-parole sentences has soared across the country in the last two decades, rising to 56,000, according to The Sentencing Project, an advocacy group.  Some people received these penalties as an alternative to capital punishment, which has fallen out of favor with many prosecutors and the public.  The number of death sentences dwindled to 18 last year, and only 2,500 people are now on death row, down from almost 3,600 two decades ago.

But there’s another reason for the increase: A handful of states have embraced life-without-parole sentences to punish “repeat offenders” — even if their crimes didn’t cause physical injury, an investigation by The Marshall Project and The Tampa Bay Times found.

Washington passed the first “three strikes” law in 1993, allowing prosecutors to give life sentences to people convicted even of nonviolent felonies if they met the criteria for “persistent offenders.”  At least two dozen states followed suit, including Florida in 1995.  In many states, people sentenced to life used to become eligible for parole after 15 years. But Florida and others virtually ended parole a generation ago, so that life sentences became permanent.

Today, Florida has more than 13,600 people serving life without parole, far more than any other state and almost a quarter of the total nationwide.  Though this sentence is widely seen as an alternative to the death penalty, which is used in murder cases, 44% of the people serving it in Florida were not convicted of that crime, according to our analysis of state data.

Part of the reason Florida’s numbers are so high is that it went further than any other state in 1997 by passing an unusual “two strikes” law known as the Prison Releasee Reoffender Act. The law directs prosecutors to seek the maximum sentence for someone who commits a felony within three years of leaving prison, which often means a lifetime behind bars. The law also takes sentencing discretion away from judges.  About 2,100 of the state’s permanent lifers, or about 15%, are in prison because of the law, our investigation found.  The crimes that netted life without parole included robbing a church of a laptop, holding up motel clerks for small amounts of cash and stealing a television while waving a knife....

The two-strikes punishment has been disproportionately applied to Black men, who account for almost 75% of those serving time because of the 1997 law, our analysis found; about 55% of all prisoners in the state are Black. Their most common charge was armed robbery, not homicide. Housing its life-without-parole population, including those locked up under the two-strikes law, cost Florida at least $330 million last year, according to our analysis of state data.

“This is an incredibly punitive law that is totally arbitrary,” said Jeff Brandes, a Republican who represents St. Petersburg in the Florida Senate and is trying to repeal the two-strikes law, so far without much support from his colleagues. He said Florida wastes too much taxpayer money locking people up forever on burglary, robbery and theft. “A sentence that is too long is just as unjust as a sentence that is too short,” he said.

The Marshall Project has this companion piece headlined "He Got a Life Sentence When He Was 22 — For Robbery: Black men are most affected by Florida’s two-strikes law." Here is a snippet:

The two-strike punishment has been disproportionately applied to Black men, an analysis of state data by The Marshall Project and Tampa Bay Times found. Among all prisoners serving life in Florida, 54% are Black; but among those serving life with enhancements like two strikes, 74% are Black.

In some counties, the racial disparities regarding sentence enhancements were glaring, the analysis found: In Leon County, home to the state capital of Tallahassee, among people serving life sentences for crimes committed within three years of release from prison, 96 of 107 were Black.  In Pinellas County, where Mackeroy grew up, 75% of prisoners serving life with two-strikes sentences are Black.

November 12, 2021 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Highlighting compassion's limits as to prison releases during pandemic

Wanda Bertram has this notable New Republic commentary fully headlined, "State Prisons Released More People Before Covid-19 Than During It: Prison officials touted a compassionate response to Covid, but the statistics tell another story."  I recommend the full piece, and here is how it starts (with links from the original):

As Covid-19 first spread through the United States, it became clear that jails and prisons would see the worst of it. Already suffering from overcrowded, unsanitary facilities and medical neglect, incarcerated people lived in prime conditions for deadly outbreaks.  Responding to pressure from advocates, prison officials insisted they would look for opportunities to release people who could go home safely or who were at high risk of dying from the disease.

But state prison statistics show another story: Relatively few people have been released from prisons over the course of the pandemic.  According to data collected by the Prison Policy Initiative (where I work as a spokesperson) tracking releases in 11 states, 10 of those states reported releasing even fewer prisoners in 2020 and the beginning of 2021 than they had in 2019.  This drop in releases occurred as the coronavirus infected one in every three people in prison nationwide, leading to 2,800 deaths as of this October.

Many prisons did make policy changes designed to expedite early releases.  In most places, though, these changes didn’t result in more people going home.  An apparent drop in the overall prison population during the last two years, most agree, is due to fewer people being sent to prison in the first place, not people being freed. So why did releases go down?  Prison officials say that they make decisions on petitions for early release by weighing several factors, including an individual’s behavior, the nature of their original offense, their potential risk to public safety, and circumstances that might prompt a “compassionate” release (such as a prisoner suffering from severe dementia).  To be sure, the pandemic posed logistical challenges — making it hard to hold in-person parole hearings, offer classes that are sometimes prerequisites for parole, or place people in halfway houses.  But the pandemic also introduced what should have been a compelling new factor in release decisions: the risk of serious illness or death.  One would think this would have tipped the scales in a significant number of cases, adding up to more releases.  The fact that it did not raises disturbing questions about the conduct of prison officials.

While the data collected by my colleagues at the Prison Policy Initiative is incomplete, because only some states publish monthly release data, anecdotes and statewide reports help fill in the gaps. We know, for instance, that compassionate releases have stagnated in many states.  A recent investigation by The Salt Lake Tribune showed Utah’s parole board didn’t increase compassionate releases during the pandemic; instead it denied people like Jesus Gomez, an 84-year-old man confined to a wheelchair who can’t remember his crimes.  Over in Nevada, officials granted zero compassionate releases in 2020; medical staff in its prisons failed even to identify candidates to review. Alabama, whose infamously crowded prisons hold about 28,000 people, identified just 15 candidates for compassionate release last year and granted it to five.  Alabama also granted parole to a smaller percentage of the people who applied in the spring and summer of 2020 than it had from 2018 to 2019.  Meanwhile, the Southern Poverty Law Center obtained a list of the oldest incarcerated people in Alabama, discovering that hundreds were parole-eligible but either had been denied or hadn’t had a hearing.

November 12, 2021 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, November 10, 2021

BJS releases "Census of State and Federal Adult Correctional Facilities, 2019 – Statistical Tables"

Via email, I learned that the Bureau of Justice Statistics has released this new report providing a US correctional census with "data collected from state, federal, and private adult correctional facilities on the characteristics of facilities by type, operator, size, physical security level, capacity, court orders, and programs." This report provides a pre-COVID era snapshot o f US carceral realities, as decribed at the start of the 24-page report:

At midyear 2019, there were a total of 1,677 adult correctional facilities in the United States.1 Of these, 111 were operated by the Federal Bureau of Prisons (BOP), 1,155 were operated by state correctional authorities, and 411 were privately operated (table 1).  Confinement facilities made up 69% of all adult facilities, and community-based facilities made up the remaining 31% (figure 1).

Confinement facilities held about 95% of all prisoners reported at midyear 2019.  About 8 in 10 (83%) confinement facilities were operated by state authorities, and those facilities held a comparable percentage of prisoners in confinement facilities (82%) (figure 2).  About 2 in 3 (64%) community-based facilities were privately operated, and those private facilities housed about half (51%) of prisoners reported in community-based facilities at midyear 2019.

Statistics in this report are based on the 2019 Census of State and Federal Correctional Facilities (CCF).  The CCF covers adult correctional facilities operated by state departments of corrections, BOP, and private contractors in all 50 states, including the combined jail and prison systems in Alaska, Connecticut, Delaware, Hawaii, Rhode Island, and Vermont.

November 10, 2021 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, November 04, 2021

Federal prison population has now grown more than 4,300 persons (almost 3%) in just last six month

Prez Joe Biden campaigned on a promise to "take bold action to reduce our prison population."  But I cannot think of a single action he has taken over his first 10 months in office, let alone any "bold action," to reduce the federal prison population.  And the latest numbers from the federal Bureau of Prisons tell a notably story of federal prison population growth, not reduction, so far in the the Biden era.

The day after Joe Biden was inaugurated, I authored this post posing a question in the title: "Anyone bold enough to make predictions about the federal prison population — which is now at 151,646 according to BOP?".  That post highlighted notable numerical realties about the the federal prison population (based on BOP data) during recent presidencies: during Prez Obama's first term in office, the federal prison population increased about 8%, climbing from 201,668 at the end of 2008 to 218,687 at the end of 2012; during Prez Trump's one term in office, this population count decreased almost 20%, dropping from 189,212 total federal inmates in January 2017 to 151,646 in January 2021.

At the 100 day mark of the Biden Administration, I noted in this post that the prison population in the first few months of the Biden era had held pretty steady.  Specifically, as of May 6, 2021, the federal prison population clocked in at 152,085, an increase of just over 500 persons in inauguration day.  But now the BOP update of the federal prison population as of Nov. 4, 2021 reports 156,428 "Total Federal Inmates."  Thus, over the last six months, the total federal prison population has grown nearly 3% with more than 4,300 additional inmates.

This prison growth, I suspect, is mostly a function of the federal criminal justice system returning to more case-processing normalcy as COVID concerns recede.  (The reduction in COVID concerns also likely is resulting in fewer grants of compassionate release and perhaps a greater willingness of some judges to order the start of prison terms.)  Increased concerns about violent crime might also be playing a role, directly or indirectly, in the flow of prisoners in and out of federal facilities.

Though a range of uncertain factors may be driving the significant uptick in federal prisoners over the last six months, I am certainly inclined to now predict that we will see continued increases in the federal prison population unless and until Prez Biden makes an effort to carry out his pledge to "take bold action to reduce our prison population."  I am not holding my breath.

November 4, 2021 in Criminal justice in the Biden Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Tuesday, November 02, 2021

On Election Day, an encouraging report about moves away from prison gerrymandering

NBC News has this new encouraging piece that seems fitting for Election Day 2021. The article is fully headlined "States rethink 'prison gerrymandering' in 2020 redistricting process: More than a dozen states are changing how they handle incarcerated Americans in redistricting maps, unwinding a practice critics call 'prison gerrymandering'." Here are excerpts:

More than a dozen states are changing how they factor incarcerated Americans in redistricting maps this year, unwinding a longstanding practice that critics call “prison gerrymandering.”

The changes were spurred by state and national advocacy over concerns on how mass incarceration and the increasingly partisan process of drawing political district lines for elections was affecting people of color in state and local elections, and research that helped indicate how much communities of color were losing because of these changes.

"When you have people sharing their stories about what it feels like to have your body counted to inflate the vote of prison staff who honestly might be abusing you on any given day, to hurt your family and community's representation back home is just so emotional and really moving," said Villanova University Professor Brianna Remster, who has studied the effects of this practice on states. "People sharing their stories is really what got lots of folks thinking about it."...

Counting incarcerated residents at the site of their prison puts large blocks of residents in districts where the vast majority cannot vote and likely have no ties.  In practice, experts say, it allocates prisoners' political representation to often rural and white districts where prisons are located at the expense of urban, more diverse districts where incarcerated people lived before their convictions.  Changing the maps so that prisoners are counted in their home districts would reverse that in many places.

According to the Prison Policy Initiative, a nonpartisan criminal justice-focused think tank, Washington, Virginia, New Jersey, Nevada, Illinois, Connecticut, Colorado, and California have all passed legislation in the last few years adding or expanding policies to count at least some prisoners in their home districts in some or all local, state, or federal district lines, instead of at the location of their prison.  Those states join Maryland and New York, which started placing incarcerated residents at their last known address in the 2010 redistricting cycle; Maryland does so for both state, federal, and county districts, while New York made the change in state and local districts.

Other states are making the change during this cycle, including Delaware, where legislation from 2010 will be implemented this year.  Pennsylvania’s redistricting commission also recently decided to return prisoners whose sentences would expire by the end of the decade to their home districts, and more states are lining up to follow.  Montana’s redistricting commission is reportedly considering similar reforms while Rhode Island’s commission has said it will address the issue soon.  In New York, voters will weigh a ballot measure on Tuesday that would expand the reform to the state’s Congressional districts and codify the change into the state constitution....

Illinois’ legislation won’t be implemented until the next redistricting cycle, but in total, at least 12 states will deploy legislative maps that put some incarcerated Americans back in their home districts this year. In total, approximately half the nation now lives in a state that's formally rejected the practice.  The laws and policies vary on the mechanics — like how prisoners are returned to their home districts within the data, which legislative district lines are affected, whether the change applies to federal or state prisoners or both — but experts say the change will have a considerable effect on communities of color....

The numbers aren't big enough to influence Congressional districts, experts said, but significant numbers are seen in state and more local level districts.  According to the Prison Policy Initiative, 40 percent of one state House district in New Hampshire is incarcerated people.  In Connecticut, state House District 59 is 14 percent incarcerated, the group said. Drill down into the smallest county-level district maps and the numbers get bigger.  In Juneau County, Wisconsin, 80 percent of the county's District 15 are incarcerated, giving the handful of eligible voters there enormous political power.

November 2, 2021 in Elections and sentencing issues in political debates, Prisons and prisoners | Permalink | Comments (0)

Sunday, October 31, 2021

"Bloody Lucre: Carceral Labor and Prison Profit"

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

The pursuit of profit is inextricably intertwined with America’s system of carceral labor and criminal punishment.  Along with the institution of slavery, the harnessing of involuntary carceral labor yielded enormous proceeds through transformation of human toil into financial gain.  Profit incentives have exerted a profound influence on the shape of American carceral labor.  From 16th-century British convict transportation to 21st-century private corrections companies, profitable returns from involuntary carceral servitude have been an important feature of criminal punishment.

This Article traces the coruscating power of the private profit motive within the criminal justice system, one of the first to chart the ways this focus on revenues has shaped the forced toil of those under correctional control.  By thoroughly evaluating our carceral history, and dissecting the financial currents that have shaped the many forms of involuntary inmate servitude, we will be better able to disentangle how money has influenced and warped our system into one of mass incarceration.  Moreover, a full understanding of our carceral past could help us begin to rechart the course of modern criminal justice, eliminating this kind of involuntary servitude in our system.

October 31, 2021 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (0)