Friday, August 07, 2020

Notable Prison Policy Initiative update on pandemic changes to prison and jail populations

Prison Policy Initiative published yesterday this great updated analysis (with lots of helpful charts and data visuals) of jail and prison populations changes amid the pandemic.  The full title of this publication captures the essence of the analysis: "Jails and prisons have reduced their populations in the face of the pandemic, but not enough to save lives:  Our updated analysis finds that the initial efforts to reduce jail populations have slowed, while the small drops in state prison populations are still too little to save lives."  Here are some of the data highlights:

At a time when more new cases of the coronavirus are being reported each day, state and local governments should be redoubling their efforts to reduce the number of people in prisons and jails, where social distancing is impossible and the cycle of people in and out of the facility is constant.  But our most recent analysis of data from hundreds of counties across the country shows that efforts to reduce jail populations have actually slowed — and even reversed in some places.

Even as the pandemic has spiked in many parts of the country, 71% of the 668 jails we’ve been tracking saw population increases from May 1st to July 22nd, and 84 jails had more people incarcerated on July 22nd than they did in March.  This trend is particularly alarming since we know it’s possible to further reduce these populations: in our previous analysis, we found that local governments initially took swift action to minimize jail populations, resulting in a median drop of more than 30% between March and May.

Meanwhile, state prisons — where social distancing is just as impossible as in jails, and correctional staff still come and go every day — have been much slower to release incarcerated people.  Since January, the typical prison system had reduced its population by only 5% in May and about 13% as of July 27th....

Some states’ prison population cuts are even less significant than they initially appear, because the states achieved those cuts partially by refusing to admit people from county jails.  (At least two states, California and Oklahoma, did this.)
While refusing to admit people from jails does reduce prison density, it means that the people who would normally be admitted are still incarcerated, but in different correctional facilities that have more population turnover and therefore more chances for the virus to spread.

Other states are indeed transferring people in prison to outside the system, either to parole or to home confinement, but these releases are not enough to protect vulnerable incarcerated populations from COVID-19.  For example, in California, thousands of people have been released weeks and months early, but the state’s prison population has only decreased by about 11% since January, leaving too many people behind bars in the face of a deadly disease.

Of the states with available data, the smaller systems have reduced their populations the most drastically. North Dakota’s prison population had already dropped by 19% in May. (North Dakota was also the state that we found to have the most comprehensive and realistic COVID-19 mitigation plan in our April 2020 survey.) Two months later, North Dakota has continued these efforts, reducing its prison population by a total of 25% since January, a greater percent change than any other state.

August 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, August 06, 2020

Reviewing how California got under 100,000 prisoners, a huge cut from modern high and the lowest since the 1980s (but still above designed capacity)

This lengthy San Francisco Chronicle piece, headlined "How California reduced its inmate population to a 30-year low," reports on the remarkable modern decline in the prison population in the state of California. Here are some highlights:

California’s prison population of 99,000 is its lowest since 1990 and 74,000 below its peak in 2006. Court rulings, new state laws and policies on imprisonment, and changes in voters’ attitudes have all contributed to the reduction, which has not led to any statewide increase in crime.  But the events look somewhat different through a broader historical lens. In 1976, the state’s prison population was 20,000, and the crime rate was only slightly higher than it is today.

What followed were decades of lockup laws, ballot measures — notably the “three strikes” initiative of 1994 — and policies by a series of governors, starting with Jerry Brown, whose more recent actions were crucial to the state’s turnaround. The surge in incarceration drove California to open 22 new prisons between 1984 and 2013, bringing the total to 35.  Gov. Gavin Newsom has announced plans to close two prisons in the next three years.

“California was at the forefront of both the prison building boom and tough-on-crime sentencing,” said Michael Romano, who teaches law at Stanford, directs the law school’s Three Strikes Project, and has been appointed by Newsom to head a committee examining possible further rollbacks in the state’s sentencing laws.  “To this day, people are serving life sentences for shoplifting batteries, stealing a kid’s bike, possession of drugs.”

When Brown first took office in 1975, prison sentences in California were largely controlled by the parole board — a felony was punishable by 1 to 5 years in prison, 5 to 10, or 7 to life, for example — and the board decided when an inmate was suitable for release, based on the inmate’s record and prison conduct.  The system, in effect since 1917, had become unpopular on both sides of the aisle.  Conservatives said inmates convicted of serious crimes were released too early, while many liberals said the parole board was biased against minorities and the poor.

In 1976, with bipartisan support, Brown signed a “determinate sentencing” law that established a range of fixed terms for nearly all crimes — two, four or six years, for example — and let the judge choose the sentence. The inmate could get time off for good behavior in prison, but, except for some convicted murderers and a few other categories, would never see a parole board.

While the new system made sentences more uniform, it also invited lawmakers, and voters, to increase punishment. A steady stream of laws over the next three decades made imprisonment mandatory for many crimes and added years to sentences for a defendant’s past convictions, gang affiliation, drug dealing and gun use, expanding five-year terms to 20 or 25 years in some cases. Initiatives bearing titles such as the Victims’ Bill of Rights (1982) and the Crime Victims’ Justice Reform Act (1990) limited defendants’ rights to challenge prosecutions and police conduct.  And in 1994, after 12-year-old Polly Klaas was kidnapped from her Petaluma home and murdered by a man with a felony record, state lawmakers and voters passed the nation’s first three strikes law. For defendants with two previous convictions for serious or violent felonies, the law required a sentence of 25 years to life for a new felony conviction, which could include shoplifting in some cases. If the defendant had one prior serious or violent felony conviction, the sentence for a new felony would be doubled.

The sentencing overhaul “was well-meaning and there was some rationale in trying to create equity among sentences and avoid disparities, particularly racial disparities,” said Stanford’s Romano, whose panel is scheduled to make its proposals to Newsom in January. “But it created this one-way ratchet of longer and longer sentences.”  Unsurprisingly, California’s prison population soared, exceeding 100,000 in 1990 and topping out at 173,000 in 2006....

The pushback began in the early 1990s, when prisoners filed class-action suits over prison health care and treatment of disabled and mentally ill inmates. Federal judges initially ordered improvements in the care systems, but saw little progress in prisons with too many inmates and too few resources.

In 2005, a federal judge in San Francisco ordered the state to transfer prison health care management to a court-appointed receiver, saying shoddy care was killing more than one inmate per day.  Although the state had reduced its prison population after Gov. Arnold Schwarzenegger declared an emergency, in 2009 a three-judge panel, citing ongoing health care deficiencies, ordered California to lower imprisonment by an additional 40,000, to 137.5% of designed capacity — an order upheld by the U.S. Supreme Court in 2011.

Brown, after being elected to his third term as governor in 2010, responded to the court order with a legislatively approved plan to sentence thousands of lower-level felons to county jails instead of state prisons, an approach titled “realignment” that lowered the prison population without reducing sentences.  But the governor also supported some rollbacks in sentencing laws, and three measures have won approval from voters:

  • Proposition 36 of 2012, which narrowed the three strikes law by imposing a 25-to-life sentence only if the third felony was serious or violent.
  • Prop. 47 of 2014, which reduced nonviolent, small-scale property thefts and drug crimes from felonies to misdemeanors.
  • Prop. 57 of 2016, a Brown-sponsored measure that allowed the parole board to consider releasing inmates who were convicted of nonviolent felonies and have completed their sentences for those crimes, before serving additional years for past convictions and other increases tacked on by post-1976 sentencing laws.

Those measures showed that “the people were way ahead of the politicians in focusing on rehabilitation and in ending mass incarceration,” said Donald Specter, executive director of the nonprofit Prison Law Office, which represents inmates in the health care case.

That assessment will be tested in November when voters will consider Prop. 20, an initiative sponsored by prosecutors and police groups that would repeal many of the sentencing changes in Prop. 47.

The final factor in the recent reduction in imprisonment was the coronavirus pandemic. With infections soaring in still-crowded penal institutions and heightened by a bungled transfer of infected prisoners to San Quentin, Newsom has temporarily halted transfer of newly sentenced inmates from county jail to state prison and ordered early releases that have reduced inmate totals statewide by 8,000.

Despite the changes, California prisons are still more than 16% above their designed capacity of 89,663, according to state officials. Further reductions would require further changes in sentencing and treatment of certain categories of inmates — for example, the mentally ill. “Are we ready to say that people with serious mental illness and health problems should be cared for in society?” asked Michael Bien, a lawyer for mentally ill inmates who initially sued the state over their treatment in 1990.

August 6, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, July 27, 2020

"Decarceration and Crime During COVID-19"

The title of this post is the title of this notable new online report from the ACLU.  Here is how the short report gets started:

COVID-19 presents an enormous risk to those in carceral facilities and their surrounding communities. Since the pandemic began, more than 50,000 people in prison have tested positive for the coronavirus, and over 600 have died. These infections and deaths were largely preventable, as we demonstrated in April by working with academic partners to build an epidemiological model that illustrated the deadly threat of COVID-19 in jails. In response to this crisis — and in many localities, only after substantial public pressure and threats of litigation — some governors, sheriffs, and judges made the decision to shift detention policies to prioritize protecting the lives of those who live and work in jails and prisons. Some states and localities reduced low-level arrests, or set bail to $0 for certain charges. Others released a small subset of incarcerated people who were nearing the end of their term or were most vulnerable to the disease — sometimes under court order.

While no jail system has gone far enough, county jails and state prison systems across the U.S. have taken differing levels of action, allowing for a unique opportunity to explore the relationship between decarceration and crime in the community. To explore this, the ACLU’s Analytics team looked for data on jail population and crime in locations with the largest jail and overall populations. We were able to find reported data on both from 29 localities. (Crime data more recent than May was not readily available during analysis.)

Nearly every county jail that we examined reduced their population, if only slightly, between the end of February and the end of April. Over this time period, we found that the reduction in jail population was functionally unrelated to crime trends in the following months. In fact, in nearly every city explored, fewer crimes occurred between March and May in 2020 compared to the same time period in 2019, regardless of the magnitude of the difference in jail population.

We found no evidence of any spikes in crime in any of the 29 locations, even when comparing monthly trends over the past two years.  The release of incarcerated people from jails has saved lives both in jails and in the community, all while monthly crime trends were within or below average ranges in every city. 

July 27, 2020 in Impact of the coronavirus on criminal justice, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Sunday, July 19, 2020

Perspectives from A to Z on how to reform incarceration nation

Though there is still plenty more to say about how the coronavirus is continuing to course through our nation's jails and prisons, I was pleased to see this week a number of new commentaries discussing prison and criminal justice reform more generally.  Notably, this round-up of pieces include works from sources that start with A and that start with Z, so here is a collection of pieces that all seem worth a midsummer read from A to Z:

From America: The Jesuit Review, "Religious ideals shaped the broken U.S. prison system. Can they also fix it?"

From Fast Company, "Here’s How We Get to a World Where We Don’t Need Prisons at All"

From The Morning Call, "We need justice system that values people"

From Salon, "Abolishing the whole prison-industrial complex"

From the Washington Times, "Keeping families together must be a priority for the criminal justice system"

From ZDNet, "Can technologists help end mass incarceration?: Data-driven approaches to criminal justice often backfire. Here's one way to do it right."

July 19, 2020 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, July 16, 2020

Important review of just why "Prison Populations Drop by 100,000 During Pandemic"

The quoted portion of the title of this post comes from the headline of this Marshall Project piece that has its theme in the subtitle: "But not because of COVID-19 releases."  The article chronicles nationwide what seems to be the story at the federal level, namely that prison populations are going down largely because a lot fewer people are going in, not so much because a lot of new people are coming out.  Here are the details:

There has been a major drop in the number of people behind bars in the U.S.  Between March and June, more than 100,000 people were released from state and federal prisons, a decrease of 8 percent, according to a nationwide analysis by The Marshall Project and The Associated Press.  The drops range from 2 percent in Virginia to 32 percent in Rhode Island.  By comparison, the state and federal prison population decreased by 2.2 percent in all of 2019, according to a report on prison populations by the Vera Institute of Justice.

But this year’s decrease has not come because of efforts to release vulnerable prisoners for health reasons and to manage the spread of the virus raging in prisons, according to detailed data from eight states compiled by The Marshall Project and AP.  Instead, head counts have dropped largely because prisons stopped accepting new prisoners from county jails to avoid importing the virus, court closures meant fewer people were receiving sentences and parole officers sent fewer people back inside for low-level violations, according to data and experts.  So the number could rise again once those wheels begin moving despite the virus....

While many people may be qualified for early releases, very few actually got out.  In April, Pennsylvania launched a temporary reprieve program, allowing the state’s corrections department to send people home under the condition that they return to finish their sentences once the pandemic passes.  The governor’s office predicted more than 1,500 would be eligible for release.

So far, the state's corrections department has recommended 1,200 people for reprieves, but the application process is slow and tedious, said Bret Bucklen, the department’s research director.  Each application needs approval from the governor, the secretary of corrections and the assistant district attorney who oversaw the initial conviction.  Nearly three months later, fewer than 160 people have been released through the reprieve program, while Pennsylvania’s total prison population dropped by 2,800.

As in Pennsylvania, data from states such as North Carolina, Illinois and New Jersey shows coronavirus releases only account for less than one-third of the decrease in prison population, which suggests something else is driving the drop.  According to Martin Horn, professor emeritus at John Jay College of Criminal Justice and a former corrections commissioner for New York City, the pandemic has slowed the entire criminal justice system, which means fewer people are going to prisons...

Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project, a group that advocates for sentencing reform, said that while the prison population decreases are a step in the right direction, she is disappointed by the numbers.  Even if the COVID-19 release policies work as intended, they might not lower the prison population enough because states often exclude violent offenders from such releases, Ghandnoosh said.  “Even though we are sending too many people to prison and keeping them there too long, and even though research shows people who are older have the highest risk from COVID-19 and the lowest risk of recidivism, we are still not letting them out,” Ghandnoosh said.

July 16, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 15, 2020

Notable new polling and report on juve sentencing and punishment

I just saw that the folks at Data for Progress, The Justice Collaborative Institute, and Fair and Just Prosecution have produced this notable new report titled "A Majority of Voters Support an End to Extreme Sentencing for Children," on which the CFSY was consulted and offered support. The report discusses findings from two national polls indicating much of the public supports significant reform in juvenile sentencing and punishment. Here is part of its executive summary:

Extreme sentences have contributed to the United States being the number one incarcerator in the world — disparately impacting and devastating communities of color — and juvenile life-without-parole sentences are among the most draconian ongoing practices in our country.  These sentences essentially abandon young people to die in prison, despite the fact that children have great potential for rehabilitation and are deserving of second chances.

While a series of Supreme Court decisions in the past decade has altered the landscape of juvenile life-without-parole sentences, there are still too many men and women looking at spending the rest of their lives in prison for acts they committed as youth.  Juvenile life-without-parole sentences also contribute to the racial disparities in the criminal legal system overall: 80 percent of people serving life sentences for crimes they committed as youth are non-white.  More than 50 percent are Black.

But public discourse is shifting.  Reform that ends juvenile life-without-parole sentences is both popular with the public and simple common sense. Community members across the ideological spectrum understand that young people have the capacity to change, and want the justice system to rehabilitate young people, rather than imprison them for life.  Two recent national polls conducted by Data For Progress found that a majority of voters believe no one who committed a crime as a child should be sentenced to life in prison without the hope or the opportunity for a second chance.  Fewer than a third of voters disagree.

As the public conversation considers the future of policing and the meaning of public safety, criminal justice leaders must use this as an opportunity to think more broadly about the entire criminal justice system and make critical changes, especially changes that are sensible, supported by science, and in furtherance of racial equity.  There is no better place to begin than to give young people a chance at redemption and end juvenile life-without-parole.

July 15, 2020 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, July 10, 2020

Is releasing people from prison really that hard? I suppose it is if you cannot shake a carceral mindset.

The question in the title of this post is my response to this recent lengthy Atlantic commentary by Barbara Bradley Hagerty headlined "Releasing People From Prison Is Easier Said Than Done: As the pandemic threatens the lives of those behind bars, the country must confront a system that has never had rehabilitation as its priority."  This piece is reform-minded, and I recommend it, but its headline, much of its prose, and its overall spirit embrace a kind of carceral mentality that serves to reify a mass incarceration message.  These excerpts, as I will explain below, spotlight my concerns:

Some governors, alarmed at the deaths in prisons and jails and worried about the risk to surrounding communities, are listening — sort of, with an ear attuned to the political liability. More than half of the states have agreed to release people convicted of low-level crimes, people who are nearing the end of their sentences, or people who merit compassionate release, such as pregnant people or older, vulnerable inmates.

“It’s been helpful. I know that people have gotten out, and I am moved by their release,” says Nicole Porter, the director of advocacy at the Sentencing Project, a research organization that campaigns for sentencing reform. “But none of it has been substantial.  And what I hope this moment tells us is that our incarceration rate is a function of politics — because there are many questions about who needs to be incarcerated.”

To meaningfully reduce America’s prison population and slow the pandemic will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes.  The difficulty of doing so, in both practical and moral terms, is enormous.  Which people convicted of murder or armed robbery do we release? How do we decide?  And how do we guarantee that they won’t offend again, especially as they try to restart their life during the worst economic collapse in nearly a century?...

Advocates say prisons are brimming with candidates who deserve a second chance—men and women who made egregious mistakes when they were young, whose crimes say more about the impulsiveness of youth and the trickiness of navigating inner-city violence than they do about character.  Yet in large part, these are not people whom the system has been preparing for release.

Prison can serve many purposes — to deter people from committing crimes in the first place, to punish them if they do, or to rehabilitate them and usher them back to normal life. America has by and large chosen the punitive path, imposing decades-long sentences intended to reduce crime on the streets.  During that time, inmates usually don’t receive the kind of training or care that would enable them to return to the outside world and build a new, stable life. This presents a giant hurdle for those who would wish to release prisoners now....

Those are the practical challenges.  The moral question — who deserves to be released? — is even more daunting.  Is the inmate truly penitent, or merely saying the right words? Has he matured past his violent tendencies, or is he a tinderbox waiting to ignite once he’s out?  Does the family of the victim agree, or will his release only add to their pain?  Is the crime simply so heinous that even a perfect record cannot overcome it?

The last paragraph I have excerpted here is perhaps the clearest example of a carceral mindset: when asking "who deserves to be released?", the writer is necessarily assuming that everyone incarcerated not only already "deserves" to be incarcerated, but also "deserves" to continue to be incarcerated.  Further, the author then suggests that, to "deserve" release, an "inmate" must be "truly penitent" AND must have "matured past his violent tendencies" AND must have the "family of the victim agree." And, even then it seems, a "perfect record" still should not permit release amidst a global pandemic killing hundreds of prisoners if a person's crime is "simply so heinous."

For anyone eager to see a US criminal justice system operating with a deep commitment to liberty and justice, this thinking should be — must be — completely flipped.  The proper "daunting" moral question  is who deserves to still be incarcerated, especially amidst a global pandemic with inherently and worsening inhumane prison conditions.  If an incarcerated person is "truly penitent" OR likely has "matured past his violent tendencies" OR has the "family of the victim" in support, then that person ought no longer be incarcerated.  And, even without anything close to a "perfect record," an alternative to incarceration should still be the presumption for any and everyone whose crime or criminal record is not truly heinous.

Similar rhetoric earlier in the piece is comparably problematic, such as the query "how do we guarantee that they won’t offend again" when considering who to release from prison.  It is important — and I think this piece means to get us usefully thinking about — the importance of prison programming and outside support that seeks to minimize the risk of recidivism for persons leaving prison.  But we are never going to be able to "guarantee" that any cohort of individuals will never commit any kind of crime.  When we consider building a new highway, nobody expects public officials to "guarantee" there will never be an accident on that highway.  We want a new road to be as safe as possible, but we recognize that the array of benefits that can come from having a new road generally justify the inevitable public safety risks it creates.   Similarly, we must be ever mindful of the array of benefits that can come from having less people in prison and not demand or even suggest that people should be released from prison only if and only when public officials can "guarantee that they won’t offend again."

Finally, for now at least, I must again lament the tendency in so many of these kinds of discussions to start with the framing that meaningful action here "will require cutting away not just fat but muscle, releasing not just nonviolent drug offenders but those convicted of violent crimes."  I agree that cutting away the "fat" may not alone be enough, but let's focus on getting that hard work done before we fixate on the additional challenges of cutting "muscle."  As this great Prison Policy Initiative pie chart reminds us, roughly 50% of our national prison and jail populations are serving time for what are deemed "non-violent" offenses.  When we let out all or most or even some significant portion of this million+ people in cages, then I will be more than ready to wring my hands over which "violent" offenders to release.  But to now get deeply concerned about exactly which "people convicted of murder or armed robbery" should be released risks creating the impression that these types of offenders are the bulk of our prison populations, when they comprise less than 25% of all the people put in cages in the so-called home of the free and land of the brave.  (Also, for the very most serious of offenders, the debate is much less complicated since presumptive release when they are elderly or ill generally makes the most sense.)

I could go on and on, but I hope my point is clear.  Even as we discuss reform and recognize all the challenges surrounding decarceration efforts, we must be ever mindful of how decades of mass incarceration has not only badly hurt our nation and our values, but also badly hurt how we talk and think about doing better.

July 10, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Thursday, July 09, 2020

Federal prison population, per BOP report of "Total Federal Inmates," drops below 160,000

Two months ago, I noted in this post that federal Bureau of Prisons' official "Total Federal Inmates" count hit a notable milestone when the population dropped down below 170 thousand to an official total of 169,080 as of May 7, 2020.  Though I have been speculating that historic weekly declines would at some point stop or at least significantly slow, that has not happened yet.  In fact, the first part of July brings another modern low and another milestone passed: the new BOP numbers at this webpage now report "Total Federal Inmates" at 159,692.  (For recent context, the BOP reported population dropped from 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25) to 160,690 (as of July 2).)

Given that the COVID-19 crisis does not seem to be letting up, especially in large jurisdictions that historically generate lots of federal criminal cases like Arizona, California, Florida and Texas, I am lately starting to think these federal prison population declines might now be expected to continue for the foreseeable future.  Given that, as recent research notes, "COVID-19 case rates have been substantially higher and escalating much more rapidly in prisons than in the US population" and especially given that the death rate in the prison population is "3.0 times higher than would be expected" in the general population, responsible criminal justice and public health officials should still be seeking to drive down all prison populations as quickly and as robustly as possible.

A few of many prior related posts:

July 9, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Friday, July 03, 2020

Effective review of the 1994 Crime Bill's complicated legacy

USA Today has this effective new piece about the impact and import of the 1994 Crime Bill under the headline "Fact check: 1994 crime bill did not bring mass incarceration of Black Americans."  I recommend the whole thing, and here are excerpts:

The 1994 crime bill, signed by President Bill Clinton, was a grab-bag of crime-fighting measures, ranging from three-strike provisions mandating a life sentence for repeat offenders and funding for states to hire 100,000 additional police officers, to a Violence Against Women Act.

As chairman of the Judiciary Committee, then-Sen. Joe Biden drafted the bill, known formally as the Violent Crime Control and Law Enforcement Act of 1994, which was billed by Democrats as a major crackdown on crime....

Lauren-Brooke Eisen, director of the Justice Program at the Brennan Center for Justice, a nonpartisan law and policy think tank, says one of the most significant and long-lasting impacts of the legislation was the enticement to states to build or expand correctional facilities through the Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants Program....

Marc Mauer, executive director of The Sentencing Project, a campaign to end life imprisonment, told USA TODAY that the 1994 crime bill certainly encouraged the use of expanded incarceration by providing funding to the states for prison construction.  But he added that "mass incarceration was already well under way prior to the adoption of that legislation."...

Regarding mass incarceration of Black Americans, the issue plays out against the reality of longstanding racial disparities in imprisonment rates....  A report on "Racial Disparity in U.S. Imprisonment across States and Over Time," published in the Journal of Quantitative Criminology in 2019, found that a large increase in Black imprisonment is traceable in many states to the crack epidemic in the mid-1980s.

This disparity, the report says, began to ease starting in the 1990s.  "Whatever its other effects, this suggests that the 1994 crime bill did not aggravate the preexisting racial disparity in imprisonment," the report said....

Our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.  Rather, it coincided with a slowdown in the annual grown of the state and federal prison population. Nor did it bring about mass incarceration of Black people, compared to before the bill was passed.

This USA Today piece references and links to some effective research on this topic, although it does not mention the papers recently published by the Council of Criminal Justice on this topic (one of which I authored).  These CCJ papers provide a similar accounting of the impact of the 1994 Crime Bill:

July 3, 2020 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences | Permalink | Comments (3)

Thursday, July 02, 2020

As July starts, "Total Federal Inmates" as reported by BOP, down to 160,690

On the cusp of a (long) weekend when we celebrate American freedom, it seems fitting that America's federal government is still experiencing a declining population of persons being deprived of freedom through its prison system.  Specifically, today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" shows a continuation of historic declines: in a prior post here, I detailed that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week; through May, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners; though June, as detailed here, declines continued at a slightly reduced rate of about 950 persons on average.

As we start July, we start with a new historic low as the new BOP numbers at this webpage report "Total Federal Inmates" at 160,690.  (For recent context, the BOP reported population dropped from 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to 161,640 (as of June 25).)

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases many regions, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And so maybe, just maybe, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

July 2, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, June 25, 2020

"Failing Grades: States’ Responses to COVID-19 in Jails & Prisons"

Newsletter_covidgrading_2.111929The title of this post is the title of this notable new ACLU and Prison Policy Initiative report by Emily Widra and Dylan Hayre.  Here is how it gets started:

When the pandemic struck, it was instantly obvious what needed to be done: take all actions possible to “flatten the curve.”  This was especially urgent in prisons and jails, which are very dense facilities where social distancing is impossible, sanitation is poor, and medical resources are extremely limited.  Public health experts warned that the consequences were dire: prisons and jails would become petri dishes where, once inside, COVID-19 would spread rapidly and then boomerang back out to the surrounding communities with greater force than ever before.

Advocates were rightly concerned, given the long-standing and systemic racial disparities in arrest, prosecution, and sentencing, that policymakers would be slow to respond to the threat of the virus in prisons and jails when it was disproportionately poor people of color whose lives were on the line.  Would elected officials be willing to take the necessary steps to save lives in time?

When faced with this test of their leadership, how did officials in each state fare? In this report, the ACLU and Prison Policy Initiative evaluate the actions each state has taken to save incarcerated people and facility staff from COVID-19.  We find that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far.  The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria.

The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst.  Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions.  Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly.  Universal testing was also scarce.  Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response.  Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities.  This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well.  It has never been clearer that mass incarceration is a public health issue.  As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

For a kind of video version of this story of significant and dangerous failure, also be sure to check out John Oliver's coverage.

Just a few of many, many prior posts from just the last month:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Federal prison population, per BOP accounting of "Total Federal Inmates," drops down to 161,640

Today's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it again appears that the pace of the decline is slowing just a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of weekly decline increased to an average of around 1,200 fewer reported prisoners in federal facilities.  As we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as of June 11) to 162,578 (as of June 18) to now a BOP reported total of 161,640.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But with the recent surge in COVID cases in some regions and some talk of renewed shut-downs, perhaps the federal prison-population reverberations of COVID will be continuing on and on.  And maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  

A few of many prior related posts:

June 25, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, June 24, 2020

Making the case against LWOP, the bigger and badder death penalty

This new NBC News commentary by Peter Irons makes the case for paying more attention to, and getting rid of, LWOP sentences.  The piece's full headline highlights its themes: "A prison sentence of life without parole isn't called the death penalty.  But it should be.  Before we cheer the huge drop in capital punishment cases, we need to revisit and replace the extended death penalty — life without parole."  I recommend the full piece, and here are excerpts:

[A]s more and more prosecutors seek the death penalty more infrequently, if at all­­, they routinely press for LWOP sentences in first-degree murder cases, and sometimes for second-degree murder and armed robbery.  There’s no uniform standard to decide which defendants deserve to eventually be eligible for parole and which don’t; these choices are inherently “arbitrary and capricious” and the antithesis of fairness.

As a result, even with death-sentenced inmates at a modern low of some 2,800, there are now more than 53,000 serving LWOP sentences, a four-fold increase in the past two decades.  Another 44,000 are serving “virtual life” sentences of 50 or more years, past the life expectancies of almost all inmates. In other words, some 97,000 inmates have still been condemned to die behind bars....

Those who receive life sentences with parole eligibility return to prison for another violent crime at a rate of only 1.2 percent.  Though LWOP inmates, by definition, cannot present any evidence of rehabilitation to a parole board, it’s reasonable to expect that ending life without parole sentences would not unleash a new murder wave.  Doing so would also save taxpayers up to $40,000 for each year of further incarceration, not to mention the costs for the growing number of elderly inmates with serious health problems. That’s the pocketbook argument against the practice.

A better argument, in my opinion, is that restoring parole eligibility to all convicted murderers (with no guarantee of release, of course) would encourage inmates to keep their disciplinary records clean and to participate in educational and vocational programs to improve their chances of successful re-entry into their communities and job markets....

My personal preference would be to revise state laws to give all convicted murderers a chance for parole after serving a minimum of 10 or 15 years (those who get life sentences with the possibility of parole serve an average of 13.4 years), and a presumption of parole after age 55 or 60, by which time most inmates have “aged out” of further crime.  But I understand both are unlikely of adoption in all but the bluest states, so I suggest instead urging governors to exercise their pardon and commutation powers in cases of demonstrated rehabilitation and remorse....

The nascent campaign against LWOP has already secured a beachhead from which it can press for eventual abolition. The Supreme Court ruled in 2012 in Miller v. Alabama that juvenile murderers cannot be given a mandatory LWOP sentence.  By the same token, even those LWOP inmates who murdered as adults deserve resentencing consideration.  The only factor in deciding whether to return an inmate to society is whether they are likely to endanger others.  To say that any prisoner, whatever their crime and sentence, cannot possibly show remorse and rehabilitation, as a life-without-parole punishment does, is to say that these “bad” people — unlike the rest of us — cannot change for the good and denies their common humanity.

June 24, 2020 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Latest (and free) Federal Sentencing Reporter issue on "Creating a Crisis: Growing Old in Prison"

As mentioned in this prior post, the academic publisher of the Federal Sentencing ReporterUniversity of California Press, has responded to the impact of the coronavirus crisis by making all UC Press online journal content free to everyone through June 2020.  I continue to be grateful to UC Press for this move, especially now that it allows me to flag this latest and timely FSR issue and some of the articles therein.  This new issue was put together by guest editor Jalila Jefferson-Bullock, and here are a few paragraphs taken from her introduction to the issue which provides a partial overview:

The Creation of a Crisis by Jalila Jefferson-Bullock:

This Issue of FSR is dedicated to the critical matter of aging in prison.  While COVID-19 media coverage currently highlights the plight of our most vulnerable prisoners, the graying of America’s prisons is nothing new.  One of the most foreseeable, yet ironically ignored, consequences of the harsh sentencing laws of the 1980s and 1990s is the dramatic upsurge in prison population through the predictable process of human aging.  Presently, elderly inmates comprise 19% of the total prison population, and that number continues to rise.  The cost of medical care for elderly offenders is five times greater for prisons with the greatest elderly population than for those with the least amount of elderly inmates, due, in large part, to factors that naturally accompany growing older.  Prisoners also experience accelerated aging and therefore require varied medications, special diets, social interventions, and individualized supervision much earlier than members of the general population of the same age.  By their own admission, prisons are ill-equipped to manage the mammoth health care, social, and other costs associated with imprisoning the elderly.  The costs of incarcerating aged offenders are quite unsustainable....

This Issue tackles the prison ‘‘silver tsunami’’ phenomenon rather creatively.  Our contributors include established law and sociology scholars, practicing attorneys, veteran politicians, and returned citizens.  Their voices herald personal narrations of the inhumanity of prion health care, the power of redemption after long years of confinement in a brutal prison system, the importance of committed, community partnerships in rebuilding retuned citizens’ lives, and deep, scholarly insight into the actual, harsh conditions that vulnerable, elderly inmates face.  This Issue represents various, unique perspectives on the crisis of aging in prison and, overall, provides a glimpse into what life is like for the incarcerated elderly.  Here, we read firsthand accounts of the inability of the prison system to safeguard its most vulnerable population.  We also learn, through authentic accounts, that despite the injustice doled out to our imprisoned elderly, there is hope and the prospect of embracing a new, bright future. 

Amendments to compassionate release policies and the passage of the First Step Act represented opportunities for the federal prison system to provide relief to elderly offenders suffering ill-reasoned, illogically lengthy terms of incarceration.  Unfortunately, neither resulted in widespread releases.  In the wake of COVID-19, policies authorized by the CARES Act offer an occasion to explore early release of elderly offenders afresh.  This time, we must get it right.  

Along with the introduction and relevant primary materials, this FSR issues includes these articles:

A Divinity That Shapes Our Ends: From Life Without Parole to the House of Life Initiative by The Elsinore Bennu Think Tank for Restorative Justice
The Unusual Cruelty of Nursing Homes Behind Bars by Rachel E. López
The Personal Case For Releasing The Elderly A Real Second Chance by Thomas J. Farrell
The Special Perils of Being Old and Sick in Prison by William J. Jefferson
Emergency Parole Release for Older Parole-Eligible DOC Inmates by David I. Bruck
Let My People Go: A Call for the Swift Release of Elderly Federal Prisoners in the Wake of COVID-19 by Jalila Jefferson-Bullock

June 24, 2020 in Impact of the coronavirus on criminal justice, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Saturday, June 20, 2020

"The Categorical Imperative as a Decarceral Agenda"

The title of this post is the title of this new essay authored by Jessica Eaglin recently posted to SSRN. Here is its abstract:

Despite recent modest reductions in state prison populations, Franklin Zimring argues in his forthcoming book that mass incarceration remains persistent and intractable.  As a path forward, Zimring urges states to adopt pragmatic, structural reforms that incentivize the reduction of prison populations through a “categorical imperative,” meaning, by identifying subcategories of offenders best suited for diversion from prison sentences at the state level.  This decarceral method is at odds with popular sentencing reforms in the states.

By exploring the tensions between reform trends in practice and Zimring’s proscription, this Essay illuminates a deeper concern with sentencing reforms in the era of mass incarceration.  Reforms focused on categorizing offenders can obscure and sustain policymakers’ persistent tendency to frame social problems as matters of crime and punishment. Recognizing this shortcoming upfront has important implications for scholars and policymakers alike when contemplating the methodologies that should inform sentencing reforms going forward.

June 20, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Thursday, June 18, 2020

BOP accounting of "Total Federal Inmates" continues to drop, though pace may be slowing

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers show a continuation of historic declines, though it now seems that the pace of the decline is slowing a bit.  In a prior post here, I highlighted that, according to BOP's reporting, most weeks through April the federal prison population shrunk around or over 1,000 persons per week.  And through May 2020, as detailed here, the pace of decline increased to around 1,200 fewer reported prisoners in federal facilities.  But as we headed into and now though June, the new numbers at this webpage continue to show significant, but slightly reduced, weekly declines: the BOP reported population dropped from 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) to 163,441 (as for June 11) to now a BOP reported total of 162,578.

I continue to suspect that these persistent declines in total inmates is mostly a function of delays in federal case-processing pipelines from COVID shutdowns; I keep expecting that we will, eventually, see some (considerable?) move upward in these numbers.  But maybe, as I have wistfully speculated before, we are still some ways from the bottom here and are still moving toward a much lower "new normal" for the federal prison population.  Time will tell.

Critically, though, dare anyone start wanting to think federal prisons are full of good stories, this new Marshall Project piece provides a reminder of grim realities in its full headline: "'I Begged Them To Let Me Die': How Federal Prisons Became Coronavirus Death Traps. The Bureau of Prisons was unprepared and slow to respond. Then officials took steps that helped spread the virus." 

A few of many prior related posts:

June 18, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 17, 2020

"A Comparison of the Female and Male Racial Disparities in Imprisonment"

The title of this post is the title of this notable new paper now appearing on SSRN and authored by Junsoo Lee, Paul Pecorino and Anne-Charlotte Souto.  Here is its abstract:

We examine the behavior of the incarceration rate and the racial disparity in imprisonment for black women and compare this to the results for black men over the period 1978-2016.  At the beginning of our sample, the racial disparity is high and of similar magnitude for both groups.  Black women and black men both experience a large run-up in incarceration between 1978-1999, where this run-up can be entirely explained by the increase in overall incarceration in the United States during this period.  Black women and black men both experience a decrease in incarceration between 1999 and 2016, but the decline for women is much steeper.

The decline in incarceration for black women is entirely explained by a decline in the racial disparity, where for men, a decline in the disparity and a decline in the overall male incarceration rate are both important.  At the state level, there are frequent upturns in the racial disparity in the 1980s for both black women and black men, followed by frequent downturns in the 1990s.  The data provide no prima facie evidence that the 1994 Crime Bill exacerbated the racial disparity in imprisonment.  By the end of the sample, the racial disparity for females is 1.8, and the disparity for males is 5.2, where this disparity measures the per capita black imprisonment rate divided by the per capita white imprisonment rate for each group.

June 17, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 11, 2020

"Total Federal Inmates," as reported by BOP, drops another 1000 down to 163,441

This morning's check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers continue the extended pattern of big weekly drops in the overall numbers. In prior posts here and here, I have highlighted that, according to BOP's reporting, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we have been move from May into June, the new numbers at this webpage continue to show comparable weekly declines: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21) to 165,575 (as of May 28) to 164,438 (as of June 4) and now a BOP reported total of 163,441.

I continue to fear that this persistent decline in total inmates is mostly a function of delays in the case-processing pipelines from COVIS shutdowns and that we will eventually see a (considerable?) a move upward in these numbers.  But maybe maybe we are still some ways from the bottom here and perhaps a much lower "new normal" for the federal prison population.  In the decade from 2006 to 2016, the BOP reported federal prison population averaged over 200,000 prisoners.  Would I be foolish to want to believe the decade of the 2020s might possibly see an average of under 150,000?  Could we dream of returning to the days of 1995 when the federal prison population was just 100,000?

A few of many prior related posts:

June 11, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, June 10, 2020

Two notable recent studies detailing connections between incarceration and community spread of COVID-19

One important theme of much COVID-era advocacy for decarceration efforts (early examples here and here and here) was that reducing the density of jails and prisons, and thereby slowing the spread of coronavirus, is critical not just for the well-being of incarcerated persons, staff and their families, but also for the communities and the general public around prison facilities.  In recent days, I have seen these two interesting new studies that explore various connections between incarceration and local community spread of this harmful virus:

Incarceration And Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail by Eric Reinhart and Daniel Chen:

Abstract: "Jails and prisons are major sites of novel coronavirus (SARS-CoV-2) infection.  Many jurisdictions in the United States have therefore accelerated release of low-risk offenders.  Early release, however, does not address how arrest and pre-trial detention practices may be contributing to disease spread.  Using data from Cook County Jail, in Chicago, Illinois, one of the largest known nodes of SARS-CoV-2 spread, we analyze the relationship between jailing practices and community infections at the zip-code level.  We find that jail cycling is a significant predictor of SARS-CoV-2 infection, accounting for 55 percent of the variance in case rates across zip codes in Chicago and 37 percent in Illinois. By comparison, jail cycling far exceeds race, poverty, public transit utilization, and population density as a predictor of variance.  The data suggest that cycling through Cook County Jail alone is associated with 15.7 percent of all documented novel coronavirus disease (COVID-19) cases in Illinois and 15.9 percent in Chicago as of April 19, 2020.  Our findings support arguments for reduced reliance on incarceration and for related justice reforms both as emergency measures during the present pandemic and as sustained structural changes vital for future pandemic preparedness and public health."

Incarceration Weakens a Community’s Immune System: Mass Incarceration and COVID-19 Cases in Milwaukee Preliminary Results by Gipsy Escobar and Sema Taheri

"Following on the findings from previous research, we hypothesize that communities with higher levels of incarceration are more vulnerable to the spread of COVID-19 due to the impacts of mass incarceration on collective efficacy and concentrated disadvantage.  We look at the effect of the number of people sentenced to incarceration in 2015 on the concentration of COVID-19 cases between March 15 and May 11, 2020 at the census tract in Milwaukee county....

"In the context of ecological criminology, we explored the effect of incarceration rates on the number of COVID-19 cases in Milwaukee County neighborhoods and found preliminary support for our hypothesis.  The number of incarcerations is a strong predictor of the number of COVID-19 cases above and beyond the effect of other predictors in the model, including poverty, unemployment, and population not in the labor force.  Indeed, incarceration is an aggravating factor in poor health outcomes for disadvantaged communities."

June 10, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Thursday, June 04, 2020

"Total Federal Inmates," as reported by BOP, drops below 165,000

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now move from May into June, the new numbers at this webpage are continuing to show weekly declines checking in around 1,100 on average: the BOP reported population dropped from 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to 165,575 (as of May 28, 2020) to now a BOP reported total of 164,438.

I have repeatedly suggested that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP numbers might be mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  But this week shows reported  declines continuing at a steady pace, and so I am left to continue muttering about not "really" knowing just what is represented by the reported federal prison population or about how best to accurately gauge COVID's impact. 

A few of many prior related posts:

June 4, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Friday, May 29, 2020

Terrific Prison Policy Initiative coverage of the limits of compassionate release and related pandemic problems

Pyle_compassionate_releasePrison Policy Initiative is a regular must-read for so many reasons in normal circumstance, and PPI has been especially effective with various "briefings" related to prison populations and other matters amidst this pandemic.  I have been remiss by failing to flag all of these on-point postings from the last few weeks

The last of these briefings, which is on the topic of compassionate release and was posted just today, includes a terrific visual from artist Kevin Pyle to help highlight why so very of those who apply for compassionate release get any relief.  Here is part of the text of the posting:

Applying for compassionate release is a lengthy and cumbersome process. Given that those who apply are almost always terminally ill or profoundly incapacitated, the arbitrary nature of this process means many die before their cases are resolved.

The compassionate release process varies tremendously between states (some states even give it a different name, like “medical parole,” “geriatric parole”, etc.), but the basic framework is the same: An incarcerated person is recommended for release on compassionate grounds to prison administrators, who then solicit a medical recommendation, and then administrators or members of the parole board approve or deny compassionate release. Some states allow only family and attorneys to recommend that someone be released on these grounds; others allow incarcerated individuals to apply on their own behalf, or allow prison personnel to do so.

Compassionate release programs are plagued by many shortcomings, including:

  • Requirements that a person be extremely close to death, or so incapacitated that they do not understand why they are being punished.
  • Requiring medical professionals to attest that someone is within six months, or nine months, of death. Health professionals are reluctant to give such exact prognoses, which means prison officials will default to saying “it’s safer just to not let this person go.”
  • Allowing the ultimate decision-makers to overrule recommendations from medical professionals and prison staff (e.g. by refuting or ignoring a medical prognosis).

The compassionate release process is frustratingly obscure not only for applicants, but for reporters, advocates, and others trying to understand the system. In their national survey, FAMM found that only three states are required to publish data on compassionate release grants, and eight other states publish some publicly available data, leaving most Americans in the dark about how often compassionate release is actually used. And despite that fact that FAMM has helpful memos for all fifty states and the District of Columbia detailing eligibility requirements for compassionate release, the application and referral process, the necessary documentation and assessments, and the decision-making criteria, the application process remains an arduous one....

But even when a compassionate release system operates efficiently and fairly, the majority of people in prison are still not eligible for it. As currently constituted, these programs exclude too many people and these systems were never designed for quick responses during a global pandemic. States need to look beyond compassionate release — including expedited parole, and mass commutations — to slow the spread of the pandemic and prevent a needless tragedy behind bars.

May 29, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Thursday, May 28, 2020

Federal inmate population, as reported by BOP, continues steady decline (which continues my wondering about data)

Another Thursday brings another new check on the federal Bureau of Prisons' updated "Total Federal Inmates" numbers.  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  As we now approach the end of May, the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to 166,647 (as of May 21, 2020) to now a BOP reported total of 165,575.

I have repeatedly suggestions that a reduced inflow of federal inmates — due to many sentencings and reportings to prisons being delayed — has likely been playing a big role in the significant reported population declines in recent months.  But, in this recent post noting a BOP press release about coming inmate transfers, I wondered if the historic COVID-era decline in the BOP  numbers has been mostly an artifice of 6,800 federal prisoners not being officially "counted" while being held in local detention facilities during the COVID shutdown.  Because this week we have not yet seen a spike in BOP reported inmates, and in fact declines are continuing at a steady pace, I am left to continue wondering just what the heck is going on and what these number now "really" represent about the federal prison population and COVID's impact. 

A few of many prior related posts:

May 28, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Monday, May 25, 2020

Is the number of federal prisoners about to spike up as BOP moves nearly 7000 new inmates into federal facilities?

The question in the title of this post is my reaction to this new BOP press release titled "Bureau of Prisons Announces Update on Inmate Movement." The press release is dated May 22, and it starts this way:

The Bureau of Prisons (Bureau) and the United States Marshals Service (USMS) announced today that they will begin movement of approximately 6,800 new inmates who have been committed to the Bureau in recent months.

The Bureau, in coordination with the USMS, has decreased internal movement of inmates by 90% as compared to this time last year.  While inmate movement was significantly curtailed for several months, newly sentenced and newly admitted inmates have been held in local detention facilities across the country.  As the federal judiciary has continued to process new criminal cases and begins to phase-in expanded operations, the Bureau must, on a limited basis, move these inmates to alleviate population pressures in these local detention centers and allow inmates to begin serving their sentences.

This AP article provides addition background, including these details and context:

The inmates will be sent to one of three designated quarantine sites — FCC Yazoo City in Mississippi, FCC Victorville in California and FTC Oklahoma City — or to a Bureau of Prisons detention center.  All the inmates who are being moved will be tested for COVID-19 when they arrive at the Bureau of Prisons facility and would be tested again before they are moved to the prison where they would serve their sentence.

The prisoners have already been sentenced to federal crimes but were unable to be moved from local facilities as the coronavirus pandemic struck over concerns the virus would spread rampantly.... The federal prison system is continuing coronavirus-related restrictions, including a ban on visitors and minimal inmate transfers, at least through the end of June.

Regular readers know I have been tracking and wondering about the historic declines in the federal prison population in the last few months that the BOP has been reporting through its usual BOP weekly "Total Federal Inmates" population counts.  Specifically, as noted here, on April 9, the BOP reported population has already gone down to 173,686 inmates; six weeks later, as noted here, the BOP reported population was down to 166,647.  Notably, that reported difference in the BOP population represent almost exactly a 7000 inmate decline, which seemingly matches up pretty closely with the 6,800 new inmates being held in local detention facilities that are now to be moved into federal facilities.  In other words, it seems possible that what I thought might be an historic COVID decline is really largely just an artifice of 6,800 federal prisoners not being officially counted while being held in local detention facilities. 

Because I find BOP accounting opaque in many ways, I am not sure whether we should now expect to see a huge spike in the official BOP inmate count this week, nor am I sure there is any single predictable accounting metric for just how and why BOP inmate counts will fluctuate either in normal times or in these crazy COVID times.  But these stories provide further confirmation that the massive federal prison system has an extraordinary inflow and outflow of humans in all times.  It is dangerously easy to look at the federal prison population as relatively stable in some periods without realize that many, many thousands of persons move in and out of this system of human caging every year.

May 25, 2020 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 21, 2020

Federal prison population continues historic drop with BOP now reporting 166,647 total federal inmates

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers (though BOP took longer than usual to get the updated numbers posted today).  In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now three weeks into May, and the new numbers at this webpage continue to show weekly declines this month checking in around 1,200 on average: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to 167,803 (as of May 14, 2020) to now a BOP reported total of 166,647.

As I have detailed before, a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is likely playing the largest role in the significant population declines in recent months.  But compassionate release and other outflows are also likely a part of the story as well, and I continue to wonder what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus. 

A few of many prior related posts:

May 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Wednesday, May 20, 2020

Federal judge finds BOP has "made poor progress in transferring" vulnerable inmates out of federal prison COVID hotspot

Last month, as detailed here, US District Judge Judge James Gwin granted a preliminary injunction ordering federal officials to identify, and then start moving out, medically vulnerable prisoners from the Elkton federal prison.  Federal officials appealed this order, but a Sixth Circuit panel two weeks ago refused to disturb it.  But, as detailed by this new press report concerning this new order from Judge Gwin handed down late yesterday, it appears that BOP is just largely refusing to do what the Judge ordered.  Here are the details from the press report:

A judge said Tuesday that officials have not complied with his directive from last month to clear out the sole federal prison in Ohio to address the spread of coronavirus, which has left nine inmates dead and more than 100 others infected.  U.S. District Judge James Gwin of Cleveland wrote in a new order that the Federal Bureau of Prisons has made “limited efforts” to protect vulnerable inmates at Federal Correctional Center Elkton. He wrote that the bureau must do more to identify, release and transfer the vulnerable inmates.

“Concerningly, Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order,” Gwin wrote in the 11-page order.

His new order tells the bureau to take more drastic steps, including loosening requirements on who qualifies for placement on home confinement.  If an inmate isn’t eligible for release, officials must explain why in detail, he wrote. Gwin told officials to provide such explanations for at least one-third of the inmates identified at risk every two days until they have accounted for everybody, with the first explanations due to him by the end of business Thursday.

David Carey, an attorney for the American Civil Liberties Union of Ohio, said that “this order represents recognition by the court that the BOP has failed to meet its obligations. We are certainly hopeful they will do so this time around,” he said....

Elkton, located about 100 miles south of Cleveland in Columbiana County, experienced an outbreak of the virus in recent months. The low-security complex is currently home to more than 2,300 male inmates and includes a central institution and a satellite facility. As of Tuesday, 137 inmates and eight staff members tested positive for the virus. Nine inmates have died....

[T]he ACLU said the bureau had slow-walked its response [to Judge Gwin's April 22 order]. It said the bureau has not, to date, identified any inmates who released on furlough or home confinement. It also said the bureau, which identified 837 inmates as susceptible, left some inmates off its list by not including certain medical conditions and those who are age 65.

The judge agreed. “By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates,” Gwin wrote.

He directed the prisons bureau to eliminate certain criteria that inmates must meet to qualify confinement.  Those include eliminating requirements about length of time an inmate has served and disregarding whether they committed certain low or moderate offenses while in prison.  Per his order, an inmate is serving time for a violent crime might may also be eligible for home confinement if it happened more than five years ago. If an inmate cannot be given compassionate release, furloughed or moved to another facility, the prisons bureau must also explain why.

Prior related posts:

May 20, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (2)

Tuesday, May 19, 2020

"U.S. Prison Decline: Insufficient to Undo Mass Incarceration"

The title of this post is the title of this notable new short report from The Sentencing Project authored by Nazgol Ghandnoosh. The charts and graphs alone make this piece a must-read, and here is some of its text:

By yearend 2018, the U.S. prison population reached 1.4 million people, declining by 9% since reaching its peak level in 2009.  This follows a nearly 700% growth in the prison population between 1972 and 2009.  This research brief reveals significant variation across states in decarceration and highlights the overall modest pace of reforms relative to the massive imprisonment buildup.

This analysis is based on the most recent data from the Bureau of Justice Statistics on people serving sentences greater than one year.  Since the coronavirus pandemic in 2020, a number of states and the federal system have made additional, albeit modest, reductions in their prison populations. This analysis underscores the need to address excessively high levels of imprisonment amidst a public health crisis.

All but six states have reduced their prison populations since reaching their peak levels.  For twenty-five states, the reduction in imprisonment levels was less than 10%.  The federal prison population was downsized by 17% relative to its peak level in 2011.  Seven states lead the nation, having decarcerated by over 30% since reaching their peak imprisonment levels: New Jersey, Alaska, Connecticut, New York, Alabama, Rhode Island, and Vermont.  These prison population reductions are the result of a mix of changes in policy and practice designed to reduce prison admissions and lengths of stay.  But six states had their highest ever prison populations in 2018: Wyoming, Nebraska, Iowa, Wisconsin, Kansas, and Oregon.

Although 44 states and the federal system have reduced their prison populations since reaching peak levels, the pace of reform has been slow to reverse nearly four decades of aggressive annual imprisonment growth.  At the pace of decarceration since 2009, averaging 1% annually, it will take 65 years — until 2085 — to cut the U.S. prison population in half.  Clearly, waiting over six decades to substantively alter a system that is out of step with the world and is racially biased is unacceptable.

A few recent related posts:

May 19, 2020 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, May 14, 2020

"People in Prison in 2019" ... as well as a partial 2020 update

The title of this post is the title of this great new Vera institute of Justice publication that provides the latest nationwide prison population headcounts.  Here his how the first part of the report gets started:

Effective advocacy and policy making require up-to-date information.  Vera Institute of Justice (Vera) researchers collected data on the number of people who were incarcerated in state and federal prisons as of December 31, 2019, to provide timely information on how prison incarceration is changing in the United States.  This report fills a gap until the Bureau of Justice Statistics (BJS) releases its next annual report — likely in early 2021 — which will include additional data, such as population breakdowns by race and sex.  In response to the novel coronavirus pandemic, Vera collected updated data on people in prison at the end of the first quarter of 2020 to reflect any changes that had occurred as a result of the outbreak.

At the end of 2019, there were an estimated 1,435,500 people in state and federal prisons, down 33,000 from year-end 2018 (2.2 percent decline).  There were 1,260,400 people under state prison jurisdiction, 28,200 fewer than in 2018 (2.2 percent decline); and 175,100 in the federal prison system, 4,800 fewer than in 2018 (2.7 percent decline).

The prison incarceration rate in the United States was 437 people in prison per 100,000 residents, a 2.6 percent drop from 449 per 100,000 in the previous year.  This represents a 17.5 percent decline in the rate of prison incarceration since its peak in 2007.

A decrease in the number of people in federal prisons, along with at least 5 percent declines in incarceration rates in eight states, account for the overall decline in the national prison incarceration rate.  Of those eight states, only three — Missouri, New York, and Oklahoma—have relatively large prison populations.  Prison incarceration continued to rise in some states, such as Nebraska, Idaho, and West Virginia....

Population data collected for March/April 2020 from 44 states and the federal Bureau of Prisons in response to the COVID-19 pandemic showed negligible declines in numbers (a 1.6 percent decrease) during the first three months of 2020.  During the first months of 2020, U.S. prisons emerged as epicenters of the COVID-19 pandemic.  In light of this crisis, advocates and public health officials made repeated calls for elected officials to use clemency and other immediate measures to reduce state and federal prison populations. Vera requested additional data for the end of March or beginning of April 2020 to account for any prison population changes during the first quarter of the year.  Data from 44 states and the BOP show that none had moved with the urgency required to meet the recommendations of public health officials to reduce incarceration.  Across all jurisdictions that reported data to Vera, prison populations had decreased by only 1.6 percent.

Five states — Idaho, Iowa, South Carolina, West Virginia, and Wyoming — had more people in prison on March 31, 2020, than they did on December 31, 2019.  The remaining states showed only small declines.  While Missouri’s prison population declined 14.2 percent in 2019, it had declined only 1.2 percent during the first quarter of 2020. 

The largest percentage reductions were in Vermont (down 11.6 percent), North Dakota (down 9.8 percent), and Oregon (down 8.3 percent).  The largest reductions in the number of people in prison were from large states: Florida (down 2,100 people), California (down 1,700 people), and New York (down 1,500 people).

May 14, 2020 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

As federal prison population continues remarkable decline, can anyone predict what might be a new normal?

Another Thursday brings another new check on the federal Bureau of Prisons' updated general population numbers. In prior posts here and here, I highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now two weeks into May, and the new numbers at this webpage continue to show an even bigger weekly decline in total number of federal inmates as calculated by BOP: the population dropped from 170,435 (as of April 30) to 169,080 (as of May 7, 2020) to now now a total of 167,803 (as of May 14, 2020).

As I have detailed before, upticks in the number of persons placed on home confinement reported on the BOP's COVID-19 Update page seemingly account for less than a third of recent reported BOP population decreases.  Thus the data continue to suggest that a reduced inflow of prisoners — due, I presume, to many sentencings and reportings to prisons being delayed — is playing a huge role in the significant population declines in recent months.

As the question in the title of this post is meant to flag, I really have no idea what the new normal for the federal prison population might look like in the wake of the remarkable disruptions caused by the coronoavirus.  Just like the whole nation is likely to be unsure about what kinds of activities are "safe" for quite some time, it may be quite some time before anyone can state with confidence that federal prisons are "safe."  And, of course, with profound disruptions to federal grand juries and so many other aspects of federal criminal justice administration, it seems likewise impossible to predict just when the huge federal criminal justice machinery that typically sends over 5000 people to federal prisons each month will be operating at full capacity again.  And, as discussed in this prior post, perhaps at least some judges may be more reticent to send some people to prison even after federal officials say their facitlies are "safe" again.

So, dear readers, anyone bold enough to predict what the federal prison population might look like in, say, mid May 2021 or 2025 or 2030?

A few of many prior related posts:

May 14, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Thursday, May 07, 2020

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Federal prison population drops below 170,000 for first time in nearly two decades

I have been making a habit on Thursdays, which is when the federal Bureau of Prisons updates its general population numbers, of highlighting notable aspects of the newest federal prison population data (as evidenced in prior posts here and here).   I have highlighted that, according to BOP's reporting of the numbers, throughout the month of April the federal prison population was shrinking about 1,000 persons per week.  We are now into May, and the new numbers at this webpage shows an even bigger weekly decline in total number of federal inmates as calculated by BOP: since last week, the population has gone down from 170,435 as of April 30 to now a total of 169,080 as of May 7, 2020.

Notably, the BOP's COVID-19 Update page now reports that "the BOP has placed an additional 2144 on home confinement."   That amounts to an increase of roughly 339 more inmates placed on home confinement since last week, which would seemingly account for only about a quarter of this week's overall population decrease.  These data still further reinforce my sense that a reduced inflow of prisoners — due, I would guess, to many sentencings and reportings to prisons being delayed — accounts for the lion's share of the prison population decline in recent months.

It will be interesting to continue to watch in the weeks and months ahead whether the federal prison population will continue to decline in this way.  But the decline below 170,000 as the total federal prison population already feels historic, as Fiscal Year 2002 was the last time the federal prison population checked in at the end of the year below that threshold.  (And, if were to focus on the federal imprisonment rate, we are now on par with our federal incarceration levels from the mid 1990s.)

These federal prison data are heartening for those of us who have long believed, in the words of then-Attorney General Eric Holder, "that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason."  But, in these somber and disconcerting days, I feel compelled to flag just some of many recent headlines that document, yet again, that there is still as lot of somber and disconcerting news coming from the federal prison system:

From The Appeal, "Death Of New Mother At Federal Prison Hospital Prompts Calls For Accountability In Texas"

From Cleveland.com, "Ohio man becomes eighth Elkton federal prison inmate to die of coronavirus"

From Forbes, "Minimum Security Inmates Locked In Cells For Quarantine Are At Breaking Point"

From NJ.com, "N.J. federal prison is becoming a 'deathtrap,’ ACLU says, seeking release of vulnerable inmates"

From the Santa Barbara Independent, "Lompoc Prison Reports Second COVID-19 Death"

May 7, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, May 06, 2020

ABC News reporting "Over 5,000 corrections officers have contracted COVID-19" ... which is surely an undercount

The quoted portion of the title of this post is the headline of this new ABC News piece marking a notable grim milestone that highlights yet another consequence from a global pandemic coming to incarceration nation.  Here are excerpts:

As the novel coronavirus ravages prisons around the country, over 5,000 state and federal correctional officers have tested positive for the virus, data compiled by ABC News shows.  There have been 5,002 cases, including over 4,600 state correctional officers that have contracted the virus, with New York being the state with the most correctional officer cases.

"If you look at how it's tracked across the globe, you'll see that this thing runs through a correctional facility like a brushfire, and it doesn't stop until it runs out of people, basically," Andy Potter, the executive director of the Michigan Corrections Organization and the founder of the One Voice Initiative, told ABC News.  "We've always said we believe that we were behind the eight ball to begin with."  Potter, whose union represents over 6,000 officers in Michigan, stressed that governors weren't doing a bad job, but they could "lead a better plan of conversation and communication with those corrections front-line staff."...

Federally, over 350 officers have tested positive for the virus. Shane Fausey, the national president of the Council of Prison Locals, told ABC News that there are likely more federal cases of officers, but they aren't reported because of the lack of testing. "They're not testing everybody," Fausey said.  "As a matter of fact testing is extremely limited."

The Bureau of Prisons told ABC News that they "have developed a letter for staff who are in close contact of a COVID-19 positive individual to provide to the local health department to ensure such persons receive priority COVID-19 testing.  Because staff are typically tested in the community, we are unable to provide the total number of correctional officers that have been tested."

On the state level, testing in Michigan is also a problem, officials say. "We're struggling with getting officers tested," said Byron Osborn, president of the Michigan Corrections Organization. "We believe that the state ... [should] be proactive and kind of try to get in front of this too, so the rest of our facilities aren't impacted. We're advocating for staff to be tested."...

Another problem that has been plaguing both federal and state institutions is severe understaffing, a problem that is only amplified by the pandemic.  "The pandemic has completely overrun the system; the system wasn't operating normally," said Fausey, who represents over 30,000 officers at prisons around the country.  "Now you've completely overrun its limited staffing resources.  And that's not even including the staffing shortage we had in medical positions. We've had that for quite a few years."...

Across the country, 38 corrections officers have died due to COVID-19, according to the One Voice Initiative. In one instance of a possibly missed case, Fausey said there should be no debate as to whether or not a 39-year-old case manager at United States Penitentiary, Atlanta died due to COVID-19.  Robin Grubbs died late last month after being promoted at the facility.  The bureau stopped short of calling her death related to COVID-19, because the virus was found during the autopsy but the autopsy was incomplete, BOP said.

The union, however, said that this was a definite case of COVID-19 and it should be recognized. "Instead of saying we've lost somebody -- it's terrible, it's heartbreaking -- the bureau puts out this press release, 'Well the autopsy was inconclusive and we're not really sure how she died,'" Fausey explained.  "Why would you put out a defensive statement to all the employees that are grieving the loss of a young lady that they love dearly?  Ms. Grubbs' friends and family deserved compassion and understanding.  Robin deserved better."...

The front-line workers are the backbone of these institutions, Potter said, and they are the people who are holding facilities together and stressed that the only way that it can be solved is for corrections staff across the country to come together. "I'm telling you, if you're tracking what's going on around the United States, it's just going to get worse before it gets better," Potter said. "Just because it clears up in one facility doesn't mean it's not going to spread. We know we know how aggressive it is."

I am pleased to see this article highlight the limits of testing and the fact that stated numbers of officers infected with, and numbers dying from, COVID-19 are surely undercounts. I fear that widespread testing of prison guard would often produce a depressingly large percentage of infections as we have often seen when inmates are widely tested.

Meanwhile, I am disappointed that this article does not discuss more how modern mass incarceration, persistently overcrowded prisons, and the failure of authorities to thin prison populations have all contributed to this ever-growing public health disaster.  With far too many prisoners to manage, far too little space for social distancing, and far too little help coming from Governors and other executive officials, correctional officers and their families are yet again victimized by our country's persistent carceral cancer.

The Washington Post is also covering this beat via this recent article headlined "As virus spreads in jails and prisons, correctional officers fear for themselves and their loved ones."

May 6, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, May 05, 2020

Effective overview of highlights (or lowlights) of latest BJS data on prisons and jail at end of 2018

I noted in this post the release of new reports and data from Bureau of Justice Statistics detailing US incarceration levels as of the end of 2018.  The folks at the Prison Policy Initiative now have this new posting on the BJS data titled "Stagnant populations and changing demographics: what the new BJS reports tell us about correctional populations."  I recommend the full piece, and the subtitle highlights its themes: "New BJS reports show that jail and prison populations remain stubbornly high despite decreasing crime rates, and point to the shifting demographics of correctional populations."  Here are excerpts:

The COVID-19 crisis is illustrating yet another danger of our overreliance on incarceration, as jails and prisons are rapidly becoming coronavirus hotspots.  As correctional facilities around the country grapple with the crisis, two new Bureau of Justice Statistics (BJS) reports, Jail Inmates in 2018 and Prisoners in 2018provide crucial details about our nation’s correctional populations. The reports highlight the slow pace of decarceration over the past decade, the persistence of pretrial detention despite calls for reform, and the changing demographics of prisons and especially of jails....

Both of the new BJS reports boast of declining correctional populations, but a closer look at the data reveals the pace of decarceration is still far too slow.  Prisoners in 2018 reports that prison populations decreased 9% between 2008 and 2018, meaning prison populations, on average, declined by less than 1% each year.  As the nation with the highest incarceration rate in the world, such small declines represent a national failure.

The rate of decarceration in jails is similarly slow, and jail populations have even ticked up in recent years.  Although Jail Inmates in 2018 and its press release boast that the “jail incarceration rate decreased 12% from 2008 to 2018,” most of that drop happened over five years ago; the jail population barely budged between 2015 and 2018.  There were actually over 18,000 more people in jail on an average day in 2018 than in 2015 -- despite the fact that the overall crime rate declined 11% over the same period.

Even worse, the growth of jail populations over those years can largely be attributed to an increase in the number of people held pretrial.  The vast majority of people in jails have not been convicted and are simply stuck in jail waiting for their day in court, and their number has increased by 6% since 2015, while the number of people in jail who were convicted declined by 9%.  That means pretrial detention has continued to drive all of the net jail growth in recent years, despite the fact that counties around the country are reforming their bail systems to reduce pretrial incarceration. Clearly, these measures have not gone far enough.

Another key takeaway from the recent reports: There have been striking demographic shifts in jail populations and, to a lesser extent, in prison populations.  The number of women incarcerated in jails has increased, and while the women’s prison population is slowly falling, the decarceration of men in prisons continues to outpace that of women. Racial disparities remain persistent, but have actually narrowed in both prisons and jails.  Finally, we see that rural jails have grown while urban jail populations have taken more significant steps toward decarceration.

May 5, 2020 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Monday, May 04, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Sunday, May 03, 2020

"Decarceration in the Face of a Pandemic"

There is a whole lot of terrific commentary these days about the intersection of criminal justice, incarceration and the COVID crisis. If you only have time to read one piece, I could recommend this terrific Cato piece by Clark Neily which has the title that I used for this post. Read the whole thing, and here is how it gets started:

America's jails and prisons are now among the deadliest environments on the planet.  Most of them are desperately overcrowded, understaffed, unhygienic, and utterly unable to provide even minimally adequate medical care to those who contract COVID-19, which is now spreading like wildfire through those facilities, endangering not only the lives of prisoners, but also of guards, staff, and the communities to which they all return at the end of their shifts.

Thus, one of the most urgent — and contentious — debates in criminal justice today is over which prisoners to release in the face of a pandemic that is literally unprecedented during America's era of mass incarceration, which dates back to the early 1990s.  Defense attorneys across the nation have filed a blizzard of early-release motions on behalf of their incarcerated clients, and the ACLU and other civil rights groups have sued a number of prisons and jails seeking the immediate release of particularly vulnerable inmates. Tragically, all of this is unfolding against the backdrop of a system that falls disgracefully short of meeting prisoners' medical needs during the best of times.  In the midst of a genuine emergency, it is no secret what will happen to most people who contract COVID-19 behind bars: They will be left to live or die with only token medical attention.

As a result, all but the most obtuse proponents of mass incarceration now recognize that it has become morally indefensible to continue holding at least some fraction of the roughy 2.3 million people currently behind bars in an environment where we can neither adequately protect them from nor treat them for COVID-19.

But the system is having an extraordinarily difficult time deciding whom to release, and I think there are three key reasons for that: (1) we have become so cavalier in our use of the criminal sanction that the mere fact of a person's incarceration tells us nothing about his moral culpability or what risk his immediate release might pose to society; (2) we've become so inured to how horrible the conditions in jails and prisons are that exposing inmates to a new and exceedingly virulent pathogen may strike some as simply a marginal change in the already dismal circumstances of their confinement; and (3) thinking seriously about whom to set free and whom to keep behind bars in the midst of a pandemic raises questions that the carceral-industrial complex can scarcely afford to have people asking after the crisis subsides.  I will address those points in turn.

May 3, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Friday, May 01, 2020

"While jails drastically cut populations, state prisons have released almost no one"

The title of this post is the title of this timely and important new analysis by Emily Widra and Peter Wagner at the Prison Policy Initiative.  I recommend the whole piece (especially to see all the charts and tables), and here are excerpts:

In recent weeks, local governments across the U.S. have drastically reduced their jail populations to slow the spread of the coronavirus.  Many have reduced the number of people in jail by 25% or more, recognizing that the constant churn of people and the impossibility of social distancing in jails make them inevitable hotbeds of viral transmission. But state prisons — where social distancing is just as impossible, and correctional staff still move in and out every day — have been much slower to release incarcerated people....

The strategies jails are using to reduce their populations vary by location, but they add up to big changes.  In some counties, police are issuing citations in lieu of arrests, prosecutors are declining to charge people for “low-level offenses,” courts are reducing the amounts of cash bail, and jail administrators are releasing people detained pretrial or those serving short sentences for “nonviolent offenses.”

Meanwhile, state Departments of Correction have been announcing plans to reduce their prison populations — by halting new admissions from county jails, increasing commutations, and releasing people who are medically fragile, elderly, or nearing the end of their sentences — but our analysis finds that the resulting population changes have been small....

Of the states we analyzed, those with smaller pre-pandemic prison populations appeared to have reduced their populations the most drastically.  The prison population has dropped by 16% in Vermont and almost 8% in Maine and Utah. But the median percentage of people released from jails hovers around 20%, still surpassing Vermont’s state prison reduction of 16%.

States clearly need to do more to reduce the density of state prisons.  For the most part, states are not even taking the simplest and least controversial steps, like refusing admissions for technical violations of probation and parole rules, and to release those that are already in confinement for those same technical violations.  (In 2016, 60,000 people were returned to state prison for behaviors that, for someone not on probation or parole, would not be a crime.)  Similarly, other obvious places to start are releasing people nearing the end of their sentence, those who are in minimum security facilities and on work-release, and those who are medically fragile or older.

May 1, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

Thursday, April 30, 2020

Noteworthy federal prison numbers, news and notes as an April like no other comes to a close

In this post last Thursday, I reviewed some past and present data on the federal prison populations.  In that post, I highlighted that, according to BOP's reporting of the numbers, it appears that through the month of April the federal prison population was shrinking about 1,000 persons per week.  Another Thursday means new numbers at this webpage, and toady's official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons shows a drop of 999 with the population going down from 171,434 on April 23 to 170,435 as we close out April.

Notably, the BOP's COVID-19 Update page last week reported then that "the BOP has placed an additional 1,440 inmates on home confinement."   This week, as of mid-day April 30, BOP is reporting that it has placed "1,805 inmates on home confinement."  This reported official increase of 365 more inmates placed on home confinement would seemingly account for only a little more than a third of this week's overall population decrease.  This reinforces my sense that a reduced inflow of prisoners (due I would guess to many sentencings and reportings to prisonsbeing delayed) accounts for the lion's share of the prison population decline over the last month.

Meanwhile, as the BOP is starting to roll out more COVID testing and yet still struggling with policy and operational changes, there seems lately to be even more press covering the messiness in various ways:

From the Associated Press, "Over 70% of tested inmates in federal prisons have COVID-19"

From the Chicago Tribune, "Wild swing in coronavirus numbers reported at Chicago’s federal jail goes unexplained, leaves lawyers skeptical"

From the Santa Barbara Independent, "Lompoc Prison’s COVID-19 Crisis Threatens to Pop: Rep. Salud Carbajal Warns of Potential 'Disaster That’s Unfathomable'"

From USA Today, "More than 1,500 federal prisoners now have COVID-19 as officials expand testing"

From the Wall Street Journal, "More Than 70% of Inmates Tested in Federal Prisons Have Coronavirus: Prisons officials expect the number of positive results to climb as testing is expanded"

April 30, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Bureau of Justice Statistics, reporting its "new" data from end of 2018, highlights "US Imprisonment Rate At Its Lowest Since 1996"

I received this morning an email blaring in all caps in the subject line "U.S. IMPRISONMENT RATE AT ITS LOWEST SINCE 1996." I thought this might be a COVID-based new analysis, but in fact the email was based on this new press release from the federal Bureau of Justice Statistics summarizing its latest report on US incarceration levels as of the end of 2018. Here is some text from the release:

In 2018, the combined state and federal imprisonment rate was 431 sentenced prisoners per 100,000 U.S. residents, which was the lowest rate since 1996, when there were 427 sentenced prisoners per 100,000 residents, the Bureau of Justice Statistics announced today.

Across a decade, the imprisonment rate fell 15%, from 506 sentenced prisoners per 100,000 U.S. residents in 2008 to 431 sentenced prisoners per 100,000 U.S. residents in 2018. During this period, the imprisonment rate dropped 28% among black residents, 21% among Hispanic residents, and 13% among white residents. In 2018, the imprisonment rate of black residents was the lowest since 1989.

At the end of 2018, a total of 22 states had imprisonment rates that were higher than the nationwide average. Louisiana had the highest rate (695 sentenced prisoners per 100,000 state residents), followed by Oklahoma (693 per 100,000), Mississippi (626 per 100,000), Arkansas (589 per 100,000) and Arizona (559 per 100,000). Minnesota, Maine, Massachusetts, Rhode Island and Vermont had the lowest imprisonment rates in the U.S., with each having fewer than 200 sentenced prisoners per 100,000 residents.

From the end of 2017 to the end of 2018, the total prison population in the U.S. declined from 1,489,200 to 1,465,200, a decrease of 24,000 prisoners. This was a 1.6% decline in the prison population and marked the fourth consecutive annual decrease of at least 1%.

Less than 15% of sentenced state prisoners were serving time for a drug offense at year-end 2017 (4% for possession), the most recent year for which offense-related data are available. Among sentenced state prisoners at year-end 2017, an estimated three-fifths of blacks and Hispanics (61% each) and nearly half of whites (48%) were serving time for a violent offense. At the same time, 23% of sentenced white prisoners in state prison were serving time for a property offense, compared to 13% each of sentenced black and Hispanic prisoners.

Among prisoners sentenced to serve more than one year in state or federal prison, an estimated 3% were age 65 or older at year-end 2018. An estimated 5% of sentenced white prisoners and 2% each of sentenced black and Hispanic prisoners were age 65 or older....

Two-thirds (67%) of admissions in 2018 of sentenced state prisoners were on new court commitments, while nearly a third (30%) of admissions were due to violations of post-custody supervision. (The remaining 3% were admitted for other reasons, such as other conditional release violations, returns from appeal or bond, and other types of admissions.) Five states admitted more than half of their prisoners for violating conditions of post-custody supervision: Washington (75%), Idaho (65%), Vermont (65%), Utah (52%) and New Hampshire (52%).

Because a lot happened in the year 2019 (e.g., the federal FIRST STEP Act and some parallel state reforms), these data would have seemed dated even without our new COVID world order.  But this full 38-page report (which only covers prisons and not jails) still provide a terrifically interesting an important accounting of many key realities and (pre-COVID) trends in incarceration nation.  BJS has released here along with the full report, which is titled simply "Prisoners in 2018," a helpful Summary and Data tables and Jurisdiction notes

April 30, 2020 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 28, 2020

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Thursday, April 23, 2020

According to BOP reporting, federal prison population now shrinking about 1,000 persons per week

Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated weekly by the Federal Bureau of Prisons.  As noted before, that page also has data on the total number of federal inmates for each fiscal year going back to 1980.   For some numerical context, these data show that in FY1995 the federal prison population first hit six digits and stood at 100,958; in FY2007, federal prison population had nearly doubled to 200,020; and in FY2013, the federal prison population hit a modern high of 219,298.

After 2013, a range of political, legal and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Retroactively applied reductions in crack sentences and then in all drug sentences contributed, but the most important factor may have been fewer federal prosecutions: data here from the US Sentencing Commission shows roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  Yet, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, there were 76,538 sentenced federal offenders.  New good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I noted in this post back in July 2019 that the federal prison population had dropped under 180,000 prisoners for the first time since back in FY 2003.

Though we are now really only a little more than a month into our COVID world, it is not too early to notice how the virus and reactions thereto is now driving federal prison populations down even more.  Specifically, here are a few recent dates and BOP population counts:

March 19: 175,500 persons reported by BOP as "Total Federal Inmates"

April 2:    174,837 persons reported by BOP as "Total Federal Inmates"

April 9:    173,686 persons reported by BOP as "Total Federal Inmates"

April 16:  172,349 persons reported by BOP as "Total Federal Inmates"

April 23:  171,434 persons reported by BOP as "Total Federal Inmates"

After a slow start, we have now seen over the last three weeks an average drop in federal inmates as reported by BOP of around 1,100 persons.  And we are now at the lowest federal prison population since 2002.

Though pleased to see this trend, I am inclined to take a "glass half empty" perspective on these numbers.  For starters, these numbers include the 24 federal inmate deaths that BOP has officially reported, and I cannot help but wonder if they also reflect some (large?) number of sick federal inmates who have been moved to medical facilities outside of the BOP network. Moreover, even a 4000-person reduction in the federal prison population from March 19 to April 23 represents less than a 2.5% overall reduction at a time when there likely are tens of thousands of vulnerable persons confined in high-risk federal prison environs.  (I suggested in this post right after Attorney General Barr issued his first restrictive home-confinement memo that more than 10,000 might be eligible for home confinement under even those guidelines.)

Reflecting on these numbers raises some other interesting issues and questions.  The BOP's COVID-19 Update page, as of midday April 23, is reporting that "the BOP has placed an additional 1,440 inmates on home confinement."  That number represents only about one third of the 4000-person reduction in the federal prison population from March 19 to April 23, and so I am left to speculate about other factors in play here.  I have been noting many sentence-reduction motions being granted by federal judges, but that likely accounts for only a few hundred additional releases.  More grants of pretrial release may also be part of the story, but I also wonder about the impact of (a) deferred prison report dates and (b) reductions in the number of new sentencings and/or new persons getting sentenced to prison.  

Remarkable times.

A few of many prior related posts:

April 23, 2020 in Data on sentencing, Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, April 22, 2020

"COVID-19 Model Finds Nearly 100,000 More Deaths Than Current Estimates, Due to Failures to Reduce Jails"

The title of this post is the title of this new ACLU report, and here are some excerpts from the first few pages of the intricate 12-page document:

Models projecting total U.S. fatalities to be under 100,000 may be underestimating deaths by almost another 100,000 if we continue to operate jails as usual, based on a new epidemiological study completed in partnership between academic researchers and ACLU Analytics.  That is, deaths could be double the current projections due to the omission of jails from most public models.  Numbers used by the Trump administration largely fail to consider several factors that will explosively increase the loss of life unless drastic reforms are adopted to reduce the nation’s jail populations....

As a result of the constant movement between jails and the broader community, our jails will act as vectors for the COVID-19 pandemic in our communities.  They will become veritable volcanoes for the spread of the virus.  The spread of COVID-19 from jails into the broader community will occur along two vectors that are ignored in typical models:

1. Churn of the jail population — individuals are arrested, sent to jail, potentially exposed to COVID-19, released on their own recognizance, post bail, or are adjudicated not guilty and are subsequently released. Upon release, the virus will spread through their families and communities unless the individual is quarantined.

2. Jail staff — staff come to work each day and are exposed to COVID-19, then return home and infect their families and communities.  This vector applies to jails, prisons, and detention centers.  There are ~420,000 people who work in jails and prisons in the U.S.

Unfortunately, the radical approaches adopted in broader society to reduce other high-density transmission hubs — the closure of schools, the closure of non-essential businesses, and the enactment of stay-at-home orders — have not been emulated with regard to our jails.  Some states have begun to see a reduction in their jail populations, such as Colorado, where there has been a 31 percent reduction, potentially saving ~1,100 lives (25% of projected deaths in the state).  However, all states need to do more, and most states have failed to take any steps to stem the impact of the COVID-19 pandemic in jails and the broader community.

April 22, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, April 21, 2020

Which states are doing best (or doing worst) responding to COVID incarceration challenges?

The question in the title of this post is prompted by this new Baltimore Sun article headlined "Maryland said it has released 2,000 inmates from prisons and jails to slow spread of the coronavirus."  Here are excerpts:

The Maryland Department of Public Safety and Correctional Services announced Monday that it has released 2,000 inmates from its jails, prisons and other detention facilities over the past five weeks in an effort to reduce the spread of the coronavirus behind bars.

The announcement comes one day after Maryland Gov. Larry Hogan signed an executive order designed to speed up the release of at least 700 men and women from correctional facilities across the state.  The order speeds up processing of inmates already eligible to be released within the next four months and accelerates the processing of inmates eligible for home detention.

The corrections department offered no details about when the releases began, how many had been freed in the past week or why the department remained quiet amid an aggressive push from local leaders in Baltimore, public health officials and prisoner advocates calling on Hogan to reduce crowding in the state’s prisons.  Department spokesperson Mark Vernarelli said in a statement that the releases were made possible by “leveraging the acceleration and placements" into pretrial supervision and releasing others during the booking process. The department also accelerated processing releases through the Parole Commission and Home Detention Placement program.

As of Friday — the last day a figure was reported — Maryland said it had 136 cases of COVID-19 in the correctional system, with the Jessup Correctional Institution having 40, the highest number in the system. The figure includes inmates, correctional officers and contractual employees. One inmate in his 60s has died, according to the department.

Maryland Court of Appeals Chief Judge Mary Ellen Barbera last week encouraged the release of inmates who were most susceptible to the virus and who pose no threat to public safety.  Baltimore City State’s Attorney Marilyn Mosby had been leading the charge for early release of large numbers of prisoners....  Nearly 200 doctors, professors and staff at Johns Hopkins University sent a similar request to Hogan on March 23, saying the governor’s “inaction on this issue is putting the lives of Marylanders at risk."

This Prison Policy Initiative page indicates that Maryland has roughly 30,000 persons locked up in its state and local facilities, so a release of 2,000 persons would still only involve shrinking its incarcerated population by less than 7%.  And, notably, this article suggests many getting released were already on their way out the (barred) door anyway.  Nevertheless, I am still inclined to give the Free State some credit for living up to its nickname in this remarkable new era.

I know a number of other states have been trying in various way to "get ahead" of COVID prison problems.  For example, as noted here, a few weeks ago Pennsylvania and New Jersey governors issued executive orders to enable temporary prison releases.  This new local article reports on Iowa's plans to release some prisoners to minimize spread of COVID-19; this article from last week reports on Washington state's plan to release nearly 1,000 nonviolent prison inmates early to limit COVID-19 spread.  The UCLA Covid-19 Behind Bars Data Project also has prison release data indicating sizable releases in California, Illinois and Kentucky, and I am sure there are more proactive states out there.

At the same time, it is clear that a number of states have been quite slow to respond to COVID incarceration challenges.  I am not going to name names in this post, but I welcome and encourage others doing so in the comments.  I also wonder if anyone thinks it might be useful to try to do some kind of "ranking" of states in this arena.

April 21, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, April 17, 2020

Lots of new resources from Fair and Just Prosecution on "COVID-19 and Mass Incarceration"

I just saw that the folks at Fair and Just Prosecution have this webpage with helpful updated resources for COVID criminal justice responses. Here is the overview text and links to four documents of note:

The COVID-19 pandemic presents an unprecedented global challenge that is impacting the daily lives of all Americans.  The pandemic’s dire consequences — including infection, illness and the tragic deaths of thousands — will disproportionately affect vulnerable individuals behind bars.  Rapid action is critical to save the lives of people in correctional facilities and immigration detention.

FJP’s COVID-19 and Mass Incarceration resources aim to identify innovative thinking and best practices for elected prosecutors and other criminal justice leaders responding to COVID-19, as well as the challenges they face.  A prosecutor’s obligation to keep the community safe extends behind prison gates and with this fast-moving virus, prosecutors and other leaders must act now to protect the health and safety of those who are incarcerated and the entire community.

COVID-19 and Mass Incarceration: Crisis at a Glance

COVID-19 and Mass Incarceration: Innovations and Solutions at a Glance

COVID-19 and Mass Incarceration: Voices from Inside

COVID-19 and Mass Incarceration: Key Resources

April 17, 2020 in Impact of the coronavirus on criminal justice, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

Wednesday, April 15, 2020

"Ensuring Justice and Public Safety: Federal Criminal Justice Priorities for 2020 and Beyond"

2020_04_LEL_Policy_Report_Final_Page_01-717x1024The title of this post is the title of this notable new report released today by the group Law Enforcement Leaders to Reduce Crime & Incarceration.  The report appears to have been written mostly pre-COVID, but its Forward contextualizes the report for our current times:

While we were finalizing the policy recommendations in this report, our country began battling an unprecedented health crisis.  The coronavirus pandemic has shined a spotlight on the size of America’s incarcerated and justice-involved population, illuminating both the extreme vulnerability of those held behind bars and how our prison population impacts our broader communities.  This public health emergency has required politicians and those who manage our criminal justice systems to rapidly reevaluate how many of those who are incarcerated can be safely released, how police and prosecutors can best serve their communities, and how to safely reduce the size of the justice system overall.

Even before the outbreak, the United States stood at a crossroads on criminal justice reform.  While some of our leaders have continued to use fear of crime to advocate for policy, many advocates, policymakers, and law enforcement officials from all parts of the country — and across the political spectrum — have realized that certain tough-on-crime policies of the 1990s and 2000s led to unintended consequences, such as the unnecessary incarceration of thousands, high rates of recidivism, and decreased confidence in law enforcement.  Ultimately, these challenges risk making our communities, including our law enforcement and correctional officers, less safe.

It was against this backdrop that the First Step Act became law in December 2018.  The law provided needed sentencing reform on the federal level and recognized that federal prisons should better promote rehabilitation and successful reentry for the tens of thousands of people who are released from federal custody each year. These ideas are not new, but the bipartisan effort that led to this significant legislation signaled that the country is ready to reexamine its approach to crime and punishment.

As law enforcement veterans who have dedicated our lives and careers to protecting public safety at every level of local, state, and federal government, we are now working to envision a criminal justice system that is fairer and more just while keeping crime low.  Our generation of law enforcement leaders helped to cut the violent crime rate to less than half of its peak in 1991, and we are committed to keeping it down. But we must be smart about it.  Decades of law enforcement experience, and the study and implementation of innovative programs around the country, have convinced us that crime policies that rely primarily on arrest, jail, and prison are ineffective to ensure public safety.

Members of our group have been at the forefront of various reform efforts for decades.  We have tried and tested numerous strategies and programs — such as community and problem-oriented policing, focused violence deterrence, pre-arrest diversion programs, increased access to mental health and drug treatment, and alternatives to incarceration — that reduce unnecessary incarceration while keeping our communities safe.  Many of our members are also leading the way on how to best reduce the size of the incarcerated population as we struggle to fight the coronavirus outbreak.  Yet implementing and maintaining high-quality strategies that will reverse the tide of unnecessary incarceration for the long term requires unwavering focus — and funding.

If we are serious as a society about rooting out the causes of our overreliance on the criminal justice system, the federal government has a significant role to play.  It is uniquely poised to provide key leadership by making reforms at the federal level and to incentivize local lawmakers to implement innovative and groundbreaking work across the country. Congress and the president can be powerful allies in this effort.  We seek to continue working together with leaders of the legislative and executive branches to shape the national consensus, pass legislation, and steer federal dollars toward programs that encourage safer, healthier communities.  To be sure, with thousands of police departments and prosecutors working to keep their communities safe, law enforcement is necessarily a very local concern. Each community must address its own crime problems and challenges. But it is critical that the federal government support these local efforts while providing leadership on how the criminal justice system can drive down crime without causing undue harm to communities.  Our experience has taught us that jail or prison need not be the automatic response for every broken law.  The research backs it up: for many nonviolent and first-time offenders, jail or prison is unnecessary for public safety and can endanger our communities in the long term, while causing harm to individuals and families.  To counter this, it is essential that we identify policies that direct away from the criminal justice system those who are mentally ill or have an addiction and that we reduce recidivism. This will position us to focus our resources on individuals who commit violent crimes while helping to restore community trust in law enforcement.

We urge Congress and the administration to carefully consider a range of strategies to promote public safety in the face of this unprecedented epidemic and, in the long term, to help ensure justice for local communities.  With those goals in mind, this report offers specific policy recommendations in each of five areas:

  • Reducing unnecessary incarceration
  • Increasing mental health and drug treatment
  • Bolstering community policing
  • Improving juvenile justice
  • Preserving and expanding recidivism reduction

Implementation of and funding for our recommendations will help to forge a path toward our common goal of a safer nation.  Congress and the administration should seize the moment for criminal justice reform and lead the way forward to create policies that reduce unnecessary incarceration now and will keep jail and prison population levels low in the long term.  The policies and the programs we propose should be the next steps for improving our systems of justice.

April 15, 2020 in Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Friday, March 06, 2020

"Women in Prison: Seeking Justice Behind Bars"

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

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

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

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

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

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

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

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

Sunday, February 23, 2020

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

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

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

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

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

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

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

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

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

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

Friday, February 21, 2020

"People Serving Life Exceeds Entire Prison Population of 1970"

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

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

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

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

Thursday, February 20, 2020

"From Decarceration to E-Carceration"

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

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

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

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

Wednesday, February 19, 2020

"The Expansive Reach of Pretrial Detention"

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

Today we know much more about the effects of pretrial detention than we did even five years ago.  Multiple empirical studies have emerged that shed new light on the far-reaching impacts of bail decisions made at the earliest stages of the criminal adjudication process.  The takeaway from this new generation of studies is that pretrial detention has substantial downstream effects on both the operation of the criminal justice system and on defendants themselves, causally increasing the likelihood of a conviction, the severity of the sentence, and, in some jurisdictions, defendants’ likelihood of future contact with the criminal justice system.  Detention also reduces future employment and access to social safety nets.  This growing evidence of pretrial detention’s high costs should give impetus to reform efforts that increase due process protections to ensure detention is limited to only those situations where it is truly necessary and identify alternatives to detention that can better promote court appearance and public safety.

February 19, 2020 in Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Thursday, February 13, 2020

Oklahoma ballot initiative (State Question 805) seeks to block non-violent prior convictions from enhancing statutory range of punishment

Thanks to an ACLU event, I just learned that Oklahoma criminal justice reform advocates are working toward bringing a fascinating (and potentially far-reaching) new reform proposal directly to the voters.  This local press piece from a few weeks ago explains the basics:

Criminal justice reform advocates want to amend the Oklahoma Constitution to prohibit sentence enhancements based on previous felonies for nonviolent offenders. The measure would also allow nonviolent offenders serving enhanced sentences to seek a modification in court.

“A former conviction for one or more felonies shall not be used to enhance the statutorily allowable range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony,” reads the proposed measure [which is available here].  I This measure would not apply to those who have been convicted of a violent felony as defined by Oklahoma Statutes. This includes assault, battery, murder, manslaughter, kidnapping, child abuse, rape and human trafficking.

Oklahomans for Sentencing Reform, a bipartisan coalition championing the measure, filed the petition in November and began collecting signatures [in December]. State Question 805 requires nearly 178,000 signatures by 5 p.m. March 26 to be put to a statewide vote in 2020.

“The reality is that Oklahoma has an incarceration crisis,” said Kris Steele, executive director of Oklahomans for Criminal Justice Reform (OCJR). “We have the second-highest incarceration rate per capita of any state in the United States, and we have the highest female incarceration rate in the nation. Unfortunately, we’ve held that distinction since 1991, and the disparity in the number of women we incarcerate continues to grow.”

According to a 2019 report by FWD.us, Oklahoma sends more people to prison than other states, especially for nonviolent crimes, and keeps them incarcerated for much longer. Eight in 10 women go to prison for nonviolent offenses. “Research has shown these long stays in prison have little or no effect on recidivism when people come home,” reads the report. “At the same time, these extra weeks, months and years place emotional and financial burdens on the families of those incarcerated.”

Proponents of the initiative say the state’s incarceration crisis is driven in large part by enhanced sentences, and they hope momentum from recent criminal justice reforms help the initiative succeed. “We’ve been working on responsible criminal justice reform for over a decade, and the good news is that support among voters continues to grow,” Steele said. “We have seen some tremendous momentum in recent years, and we are hoping to build on that momentum and deepen the conversation level of understanding and support statewide for a more effective approach to public safety.”

Gov. Kevin Stitt has publicly opposed the initiative, saying a constitutional amendment is the wrong way to go about criminal justice reform. Steele argues that a constitutional amendment would prevent lawmakers from trying to repeal the measure if approved by voters. He cited an attempt to repeal State Questions 780 and 781 only months after they were approved in November 2016....

District attorneys across the state have also publicly opposed the measure, saying it would negatively impact public safety. But proponents of the measure disagree because they don’t see many positives outcomes from the state’s high incarceration rates.

Some of the concerns of DAs are expressed in this local opinion piece authored by Jason Hicks, President of the Oklahoma District Attorneys Association, under the headline "Proposed state question could affect domestic violence sentencing."  Meanwhile, the  "Yes on 805" campaign has this website, but not a lot of details about 

I have no sense of whether proponents of this interesting initiative will be able to get it to voters, nor do I have any sense of whether Oklahoma voters might be supportive of this proposal.  But I think those troubled by mass incarceration, extreme sentencing terms and racially disparate sentencing practices are wise to focus criticism on the often out-sized impact of (even minor) criminal history at sentencing.  I do not know if this Oklahoma ballot initiative might be just the start of a whole new front for sentencing reform efforts, but I hope it can help generate a robust discussion of the many important issues that relate to the use of criminal history at sentencing.

February 13, 2020 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Monday, February 03, 2020

"What Would a World Without Prisons Be Like?"

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

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

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

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